On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-02-0168-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 11, 2008
Before Judges Winkelstein, Gilroy and Chambers.
Tried to a jury in absentia, defendant Tavon Robinson was convicted of third-degree unlawful possession of a weapon, a handgun, N.J.S.A. 2C:39-5b, and fourth-degree possession of dumdum bullets, N.J.S.A. 2C:39-3f. The court imposed a four-year prison term for the third-degree offense, and a one-year prison term for the fourth-degree offense, concurrent with each other and with a federal sentence defendant was serving.
On appeal, defendant raises the following issues:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SEVER DEFENDANTS POINT II THE TRIAL COURT ERRED IN PERMITTING THE HANDGUN INTO EVIDENCE; IT SHOULD HAVE BEEN SUPPRESSED (NOT RAISED BELOW)
POINT III THE TRIAL COURT ERRED BY NOT ENTERING A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE WHICH WAS PLAIN ERROR (NOT RAISED BELOW)
POINT IV THE TRIAL COURT ERRED IN ALLOWING THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED (PARTIALLY RAISED BELOW)
THE TRIAL COURT ERRED BY NOT HOLDING A CHARGE CONFERENCE WHICH PREJUDICED THE DEFENDANT
THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE ERRONEOUS
THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED
We find no merit to defendant's arguments and affirm.
From his marked patrol car on the 800 block of North Third Street at around 3:30 a.m. on December 27, 2002, Millville Police Officer David Kahn observed a tan Dodge Intrepid with Massachusetts license plates drive past him three times. The third time the vehicle passed, its lights were out.
Kahn pursued and stopped the Dodge, parking his patrol car behind it. Defendant was driving; Stephen Stevenson and Christopher Stafford were passengers. When Kahn asked defendant for his driver's license and vehicle credentials, he produced two documents from Thrifty Car Rental showing that the car had been rented by Edsal Neal, and was to have been returned to the rental agency by December 7, 2002. Defendant told Kahn that Neal was his uncle; defendant was authorized to drive the car; and the vehicle's return date had been extended. Defendant did not produce a document confirming that the return date had been extended.
While Kahn was contacting Thrifty to verify the status of the rental car, the three men remained in the car. Kahn saw defendant looking in his rear view mirror to see what Kahn was doing in his patrol car, despite that the police spotlight was shining in the car's rear view mirror, requiring defendant to squint and shield his eyes.
Kahn arrested defendant for active warrants against him, and put defendant, Stafford and Stevenson in a patrol car. When the men were out of the Dodge, Kahn opened the driver's side door, looked under the driver's seat, and found a handgun, fully loaded, with six hollow-point rounds. The gun was unlocked, and its barrel was facing the rear of the vehicle. Kahn described the gun as "fenced in" under the driver's seat by the driver's door to the left, defendant's feet to the front, and a center console to the right. He testified that due to the gun's width, it would have been difficult to slide it under the driver's seat to and from the back seat.
At the time of the arrest, Kahn saw fingerprints on the side of the gun, but did not attempt to lift them at the scene. When the gun was later analyzed, no prints were found. Attempts by the police to trace the gun were unsuccessful.
At the police station, Stafford and Stevenson denied having knowledge of the gun. Defendant said that if there was a gun in the car, it belonged to Neal.
Defendant, Stafford, and Stevenson were indicted and charged with possession of a handgun without a permit and possession of hollow-nosed bullets. On December 3, 2003, defendant signed two separate documents stating that should he fail to appear, trial would be conducted in his absence.
Trial was originally scheduled for January 26, 2004. After an adjournment, on February 23, 24, and 25, 2004, all three defendants reported for trial. On the morning of February 25, defendant arrived late and left before court reconvened at 1:30 p.m. Following the morning session, defendant's counsel told him that if he did not appear for trial, the judge might issue a bench warrant for him; nevertheless, defendant left, and did not return ...