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State v. Robinson

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 30, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TAVON ROBINSON, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Cumberland County, 03-02-0168-I.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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:

POINT I

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)

POINT V

THE TRIAL COURT ERRED BY NOT HOLDING A CHARGE CONFERENCE WHICH PREJUDICED THE DEFENDANT

POINT VI

THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE ERRONEOUS

POINT VII

THE TRIAL COURT ERRED BY DENYING DEFENDANT'S MOTION FOR A NEW TRIAL

POINT VIII

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 after lunch. The court issued a bench warrant for defendant's arrest and rescheduled the trial for March 30, 2004.

With the exception of defendant, all parties returned to court on March 31, 2004. Defendant's counsel moved to postpone the trial. He argued that defendant was never advised that March 30, 2004, was a firm trial date, and that he informed defendant in a letter that trial would be rescheduled to a future date if he was not arrested on the bench warrant.

The co-defendants and the State objected to the postponement request. The court found that the documents defendant signed in court on December 3, 2003, constituted adequate warning that trial would proceed without him if he did not appear. The court further found that defendant willfully left the court on February 25, 2004, and was not present when he would have been advised of the rescheduled trial date. Thus, the court ruled that defendant would be tried in absentia; trial would proceed against all three defendants; and the court would instruct the jury about defendant's absence. Consequently, in his initial jury instructions, the judge told the jury "not [to] speculate about the reason for [defendant's] absence." At the close of trial, the court further instructed the jury that defendant's absence "should not enter into your deliberations or discussions in any manner, at any time."

Both co-defendants waived their right to a jury trial. Due to defendant's absence, his counsel could not waive his right to a jury trial, but he did move for relief from joinder, asking the court to try defendant separately. He argued that defendant would be prejudiced by a joint trial because the jury could infer from the co-defendants' waiver of a jury trial that defendant was the only guilty party. Counsel also argued that in the joint trial, the jury would hear the co-defendants claim that defendant was responsible for the gun. The court denied the motion, but ruled that the jury would not hear the openings and closings of co-defendants' counsel, although all testimony would be heard by the jury.

The case proceeded to trial on March 31, 2004. After the State rested, all defendants moved for judgments of acquittal pursuant to Rule 3:18-1. The court granted the co-defendants' motions, but denied defendant's motion. The court then instructed the jury that the co-defendants were no longer in court because their cases were severed, and the court, not the jury, would evaluate their culpability. The court further advised the jury not to infer "that there has been any result one way or the other with [the co-defendants]," and the jury's function was only to "consider the evidence with respect to defendant Robinson."

Defendant's counsel rested without offering any evidence. Both parties then gave closing arguments. After the State closed, the court asked the parties if they wanted to review the jury charges and verdict sheet before it charged the jury. Defendant's counsel stated that the jury verdict sheet was "fine" and, with respect to the jury charges, he was "fine with what has been proposed." Defendant's counsel did not object to any of the proposed instructions, other than those referred to in this opinion.

The jury returned a guilty verdict on both counts against defendant. On October 5, 2006, defendant appeared in court for sentencing. His counsel moved for a new trial arguing the trial court erred by trying defendant in absentia. The court rejected defendant's arguments, reiterating its prior findings that defendant had adequate warning that trial would proceed without him. The court then sentenced defendant to an aggregate four-year state prison term.

Against this background, we turn first to defendant's claim that the court erred in denying his motion to sever his trial from his co-defendants'. A trial court's determination on a motion to sever is reviewed using our abuse of discretion standard. State v. Mance, 300 N.J. Super. 37, 53 (App. Div. 1997). We find no abuse of discretion and reject defendant's arguments.

Joint trials are generally favored. State v. Robinson, 253 N.J. Super. 346, 364 (App. Div.), certif. denied, 130 N.J. 6 (1992); see also State v. Sanchez, 143 N.J. 273, 282 (1996). This preference is strengthened when the same evidence is needed to convict all of the defendants. State v. Brown, 170 N.J. 138, 160 (2001).

If, however, either a defendant or the State is prejudiced by joinder, the court may grant a severance and separate trials.

R. 3:15-2(b). In determining whether to proceed jointly or separately, the trial court must "balance the potential prejudice to a defendant against the interest of judicial economy." Brown, supra, 170 N.J. at 160.

An inherent "danger of guilt by association" element to joint trials does not, in itself, justify severance. Id. at 162. Nor can a defendant obtain a severance merely because he would have a better chance of acquittal in a separate trial. State v. Morales, 138 N.J. Super. 225, 231 (App. Div. 1975). The possibility of prejudice is not enough to support a severance of a joint trial; actual prejudice must be demonstrated. State v. Moore, 113 N.J. 239, 274 (1988). One way to meet this burden is to show that the defendants' respective defenses are "antagonistic and mutually exclusive or irreconcilable." State v. Brown, 118 N.J. 595, 605 (1990).

The mere existence of hostility, conflict, or antagonism between defendants is not enough to grant severance; rather, the defenses presented must be "'antagonistic at their core.'" Id. at 606 (quoting United States v. Berkowitz, 662 F.2d 1127, 1134 (5th Cir. 1981)). Such antagonism focuses on the mutual exclusivity of the defenses, which is satisfied only if the competing theories of the case require the jury to "believe only either one defendant or the other." Ibid. If, however, "the jury can return a verdict against one or both defendants by believing neither [defense theory], or believing portions of both, or, indeed, believing both completely, the defenses are not mutually exclusive." Ibid. Even a high degree of antagonism has been held insufficient to justify severance. Id. at 607-08.

Severance may also be justified where a defendant plans to rely upon the exculpatory testimony of a co-defendant who is fearful of testifying to preserve his own defense. Nevertheless, severance is only justified if the court is reasonably certain that (1) the defendant will call his co-defendant as a witness in a separate trial; (2) the co-defendant, although unwilling to testify at a joint trial, will testify at a separate trial either prior or subsequent to his own trial; and (3) the co-defendant's proffered testimony will be credible and substantially exculpatory. [Sanchez, supra, 143 N.J. at 293.]

That a co-defendant might testify at trial is not sufficient to justify severance. Id. at 293-94. "[T]here should be some showing that the testimony of the co-defendant will be forthcoming before the denial of the motion for severance will be found to be an abuse of discretion." Morales, supra, 138 N.J. Super. at 230.

Here, the co-defendants did not present the jury with a "mutually exclusive" theory of the case that required it to find defendant guilty. The co-defendants did not present any witnesses implicating defendant, and did not make closing arguments before the jury pointing to defendant as the culpable party.

Nor did defendant's theory of the case require the jury to find his co-defendants guilty. In closing, defendant's counsel suggested that the gun may not have belonged to any of the defendants. Counsel argued that there was no evidence that defendant, "or any of these defendants," knowingly possessed the gun. Defendant's initial statement to the police was that the gun must have belonged to his uncle. Thus, because the jury was not required to choose between two mutually exclusive theories of the case and find either defendant or his co-defendants guilty, severance was not warranted on this ground.

Defendant has also failed to show that either of his co-defendants would have been willing to offer exculpatory testimony in a hypothetical separate trial. It is not enough, as defendant argues, that he did not have the "opportunity to call his co-defendants in a separate trial." The record must contain some indication that the testimony of those co-defendants would be "credible and substantially exculpatory." Sanchez, supra, 143 N.J. at 293. That evidence is lacking here.

We turn next to defendant's argument that the court erred by not entering a judgment of acquittal at the end of the State's case. A judgment of acquittal is warranted "if the evidence is insufficient to warrant a conviction." R. 3:18-1. On a motion for judgment of acquittal, the trial judge must determine whether "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). In making this inquiry, the court must view the State's evidence in its entirety, and give the State "the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom." Id. at 459. On appeal, we apply the same standard. State v. Bunch, 180 N.J. 534, 548-49 (2004).

Here, defendant was charged with the unlawful possession of a handgun under N.J.S.A. 2C:39-5b, which prohibits the knowing possession of a handgun without a permit. N.J.S.A. 2C:39-2 establishes a presumption of possession of firearms found in vehicles, which generally applies to all occupants within the vehicle; however, "[w]hen the vehicle is not a stolen one and the weapon or other instrument is found out of view in a glove compartment, trunk or other enclosed customary depository, it shall be presumed to be in the possession of the occupant or occupants who own or have authority to operate the vehicle." N.J.S.A. 2C:39-2a(2). This presumption allows the jury to draw an inference of possession, and the jury should be instructed that it may or may not infer possession. State v. Bolton, 230 N.J. Super. 476, 480-81 (App. Div. 1989).

In denying defendant's motion for judgment of acquittal, the court found that the permissive inference of N.J.S.A. 2C:39-2a(2) applied because the area under the seat where the weapon was found was out of view, and in an "enclosed customary depository." The court also found that the following facts supported an inference of possession: defendant's statement that he was the authorized user of the vehicle; his presence in the driver's seat and that it would be difficult to access the gun from anywhere else in the car; and defendant's suspicious behavior in watching the arresting officer in the rear view mirror. Viewing the evidence in this case most favorable to the State, the court found, and we agree, that a reasonable jury could have inferred from this circumstantial evidence that defendant possessed the gun. Thus, the court correctly denied defendant's motion for judgment of acquittal.

We next address the court's jury instructions as to possession of the weapon and bullets. "Appropriate charges expounding the law for the jury's guidance and instruction are essential for a fair trial." State v. LaBrutto, 114 N.J. 187, 203 (1989). The charge need only be accurate and free from prejudicial error. Id. at 204. "[T]he test is to examine the charge in its entirety, to ascertain whether it is either ambiguous and misleading or fairly sets forth the controlling legal principles relevant to the facts of the case." Ibid.

Where trial counsel fails to object to a jury instruction, this court will not reverse on the ground of error unless a defendant can show that the error is "clearly capable of producing an unjust result." R. 2:10-2. Counsel's failure to object to a jury instruction "suggests that trial counsel perceived no error or prejudice, and, in any event, prevents the trial judge from remedying any possible confusion in a timely manner." State v. Green, 318 N.J. Super. 361, 373 (1999).

In this case, defendant focuses on three instructions. The first concerned actual and constructive possession. The court charged the jury as follows:

The law recognizes two kinds [of possession], there are actual possession and constructive. A person is in actual possession of a handgun when he knows what it is, that is, the person has knowledge of its character, and knowingly has it on his person at any given time. The facts of this case certainly do not comply to actual possession.

Defendant did not object to this instruction at trial. He now argues that it unduly prejudiced him by making the jury concentrate only on constructive possession, thus making it more likely that the jury would find constructive possession.

We conclude that the actual and constructive possession instruction did not constitute error. The State's case was based on circumstantial evidence that defendant, as the driver of the car, and as the person who was given possession of the car by Neal, must have known where the gun was located, as it was accessible only to the person in the driver's seat. The instructions on actual and constructive possession were both necessary and appropriate as they set forth the relevant, controlling legal principles.

The second charge to which defendant objects was that for joint possession, where the court instructed the jury:

The law also recognizes that possession may be sole or joint. If a person alone has actual or constructive possession of a thing, the possession is sole. If two or more persons share active or constructive possession of a thing, the possession is joint. That is, if they knowingly share control over the article.

Defendant objected to this charge, arguing that joint possession was no longer relevant because Stevenson and Stafford had been acquitted. He asserts that this instruction could have confused the jury.

We again disagree. The instruction for joint possession was proper. When the jury was so instructed, it was not aware that the co-defendants had been acquitted. The jury was entitled to consider whether either or both co-defendants possessed the gun; therefore, the court was required to advise the jury that such a conclusion would not prevent the jury from also concluding that defendant possessed the gun as well. We find nothing confusing or inappropriate about the instruction.

Defendant's third challenge to the jury instruction regarded the permissible inference of possession set forth in N.J.S.A. 2C:39-2a(2). To repeat, that section states: "[w]hen the vehicle is not a stolen one and the weapon or other instrument is found out of view in a glove compartment, trunk or other enclosed customary depository, it shall be presumed to be in the possession of the occupant or occupants who own or have authority to operate the vehicle." N.J.S.A. 2C:39-2a(2). Defendant, who did not object at trial, now argues that this instruction was error because the area under the front seat was never established to be a "customary depository."

With regard to the permissible inference, the judge instructed the jury as follows:

[I]f you find that the vehicle was not stolen, and that the weapon was out of view, in a glove compartment, trunk, or other enclosed customary depository, you may infer that the weapon was possessed by the occupant who owned or had authority to operate the vehicle. That's a permissive inference. That doesn't mean you have to. You have to find the underlying facts and be satisfied that they're proved by proof beyond a reasonable doubt, and then you may infer if you so choose to... make that inference. You're never required or compelled to draw any inference. It's your exclusive province as jurors to determine whether the facts and circumstances shown by the evidence support any inferences, and you are always free to accept or reject them if you wish.

The instruction follows the language of the model jury charge for possession of firearms in motor vehicles almost word-for-word. See Model Jury Charge (Criminal), "Possession of Firearms, Etc., in a Vehicle" (1993). The court left for the jury to decide whether the vehicle was stolen, and whether the weapon was out of view, in an enclosed customary depository. In other words, the court let the jury decide whether the facts were sufficient to allow the jury to draw the inference. We find no error.

Next, we address defendant's claim that the prosecutor made four improper remarks during summation, only one of which defendant objected to. The State submits that the remarks were either proper, or if improper were cured by the trial court's instructions.

Prosecutorial misconduct is a ground for reversal only if the misconduct is "so egregious that it deprived defendant of a fair trial." State v. Ramseur, 106 N.J. 123, 323 (1987), cert. denied, Ramseur v. Beyer, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). In determining whether prosecutorial misconduct deprives a defendant of a fair trial, courts consider whether counsel properly objected to the improper remarks at the time; whether the remarks were promptly withdrawn, and whether the remarks were stricken from the record and the jury was instructed to disregard them. Id. at 322-23. If no objection is made, the remarks usually will not be deemed prejudicial. Id. at 323.

Prosecutors are allowed "considerable leeway" in summation, provided that their comments are "reasonably related to the scope of the evidence presented." State v. Timmendequas, 161 N.J. 515, 587 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). They are permitted to make arguments based upon both the facts of the case and the reasonable inferences that may be drawn from those facts. State v. Smith, 167 N.J. 158, 178 (2001).

Applying these standards, we turn first to the prosecutor's remark that defendant's failure to possess a permit was an "easy" element of the crime charged. During summation, the prosecutor addressed the two basic elements of the crime: defendant's possession of the gun, and that defendant did not have a permit. The prosecutor stated that the latter element of the offense would be easy because part of the evidence is the State Police affidavit that you'll get, that when they checked the records, that Mr. Robinson was not or does not possess a permit to be in possession of that weapon in the State of New Jersey. So, that, I want to say is an easy one for you.

Again, your list of the elements, that one's easy.

Defendant did not object. He argues on appeal, however, that in making this statement, the prosecutor was stating his personal belief as to defendant's guilt. We disagree. The statement was fair comment on the evidence. The lack of a permit was an element of the charged crime. It is undisputed that defendant did not have a permit to possess the handgun; at the close of its case, the State moved into evidence, without objection, a letter from the State stating that defendant did not have a permit to carry a handgun. That defense counsel did not object to the prosecutor's comments further suggests that this comment was not prejudicial in the context of the trial.

The next comment defendant challenges is the prosecutor's statement that defendant drove from Boston to Millville on the night of the arrest. The prosecutor said that when defendant was stopped by the police, he admitted "that he was authorized, or at least he had permission to drive that motor vehicle that came from Boston to Millville. It wasn't around the corner, ladies and gentlemen. He was in that vehicle for quite some time from Boston to Millville." Defendant's counsel objected, arguing that no evidence showed that defendant was in the car during such a trip. The judge responded that while he did not recall any testimony stating that the car was rented in Boston, he did not feel that the prosecutor had intentionally tried to mislead the jury. The judge then instructed the jury that what the attorneys say is their recollection of the evidence. It's what your recollection of the evidence is and what the facts produced by the mouths of the witnesses, and the documents that have been entered that govern, not that which is said by the prosecutor or defense counsel in their closing arguments.

Defendant's counsel said that this instruction was satisfactory. During the final charge, the court told the jury that "[a]rguments, statement, remarks, openings, and summations of counsel are not evidence, and must not be treated as evidence," and "you must rely solely upon your understanding and recollection of the evidence that was admitted during the trial."

Although we agree with defendant that the evidence did not support the prosecutor's comment that defendant drove the car from Millville to Boston, in view of the judge's immediate instruction to the jury, and the language of the final charge, we conclude that the prosecutor's comment was harmless and did not deny defendant a fair trial.

We next address defendant's claim that the prosecutor's remark that defendant knew the gun was under the seat because he could have exercised control over it was improper. While discussing the inference of constructive possession, the prosecutor stated that "[defendant] knew it was there,... because just by the mere fact that he could have reached under that seat, he could have exercised dominion and control over that firearm." Defendant did not object, but now argues that the comment was improper because the evidence did not suggest that defendant had knowledge that the gun was under the seat. We disagree. Defendant was the driver of the car. The gun was positioned under the seat with the handle facing out in an area that was accessible only to the driver. Defendant acted suspiciously in watching the police officer in his rear view mirror. These facts support an inference that defendant knew the gun was present. The prosecutor's comments were consistent with the evidence.

Lastly, defendant challenges the prosecutor's remarks as to why no fingerprints were successfully collected from the weapon. The prosecutor stated that "everyone touched this weapon in some description, and unfortunately, if there was a fingerprint on this weapon, it was either smudged, or lost, was not able to be obtained." Although defense counsel did not object, defendant now argues that the statement was improper because it ignores the fact that the police failed to preserve fingerprints from the beginning of the investigation. We reject that argument.

The comment was a proper attempt by the State to explain the lack of fingerprints on the gun. The remark was fair comment on Officer Kahn's testimony that he saw fingerprints on the gun at the time of the arrest, as well as on the evidence that no fingerprints were obtained when the gun was sent out for analysis. The prosecutor's statement was a fair inference to be drawn from those facts.

Furthermore, during his summation, defense counsel stated that "[w]e know that there was a fingerprint on the gun, or at least Officer Kahn said that there was a fingerprint on the gun, and we know that that fingerprint was never found again after the gun was transported to the police department." In its summation, the State was entitled to respond to that argument. In context, the prosecutor's remark was neither improper nor unduly prejudicial.

We next turn to whether the trial court erred by not holding a charge conference before the attorneys' closings. This issue was not raised in the trial court, and we address it under the plain error standard. R. 2:10-2.

Prior to closing arguments in criminal cases, the court shall hold a charge conference, advising counsel of "the offenses, defenses and other legal issues to be charged and shall rule on requests made by counsel." R. 1:8-7(b). The purpose of this rule is to allow counsel to conform their summations to the charge. State v. Rovito, 99 N.J. 581, 588 (1985). The defendant in Rovito challenged the trial court's decision to charge an additional instruction after summations had been completed and to allow the parties to present supplemental summations. Ibid. The Court rejected this argument, observing that

[a]lthough the better practice is for the court to resolve all questions about the proposed charge before summations, a trial is not a mere mechanical exercise. The dynamics of trial practice occasionally may require a judge to follow the spirit, if not the letter, of the Rules of Court. Here, the trial court's conduct was consistent with the purpose of Rule 1:8-7.... [Ibid.]

Here, after the court had ruled on defendants' motions for judgments of acquittal, dismissing the co-defendants, defendant's counsel rested, at which time the court instructed defendant and the State to present their closing arguments. At that point, the only charges that had been previously discussed during the course of the trial were those concerning: defendant's absence; the co-defendants' election of a bench trial; and the court's ruling on defendant's motion for judgment for acquittal, in which the court suggested that it would instruct the jury about the permissive inference established by N.J.S.A. 2C:39-2a(2).

After both defendant and the State had closed, the court asked the parties whether they would like to review the jury charges. Defendant's counsel indicated that he was "fine with what has been proposed." He also had no objection to the verdict sheet. The court then explained what it planned to charge. Aside from those specific objections we have previously mentioned, neither party objected.

The court's review of the charges after summations, though not conforming to the literal requirements of Rule 1:8-7(b), fulfilled the purpose of allowing the parties to make objections to the proposed charges. Arguably, the procedure could have prejudiced defendant if changes had been made to the charges without giving defendant a chance to make a supplemental closing. That did not occur, however; defendant did not object to the proposed charge, and in fact said that he was "fine" with them. Defendant points to no portion of the charge that would have caused him to change his summation if the charge conference had been held earlier. The failure to timely hold a charge conference was therefore not clearly capable of producing an unjust result.

Next, we turn to whether the court erred in denying defendant's motion for a new trial. Defendant claims that the trial court should have granted that motion because he did not knowingly and voluntarily waive his right to be present at trial.

While the right to be present at a criminal trial is part of the right to confrontation under the Sixth Amendment, this right is not absolute. State v. Whaley, 168 N.J. 94, 99-100 (2001); State v. Hudson, 119 N.J. 165, 171, 173-74 (1990). Rule 3:16(b) provides that a defendant may waive the right to be present either by "express written or oral waiver placed on the record," or by "conduct evidencing a knowing, voluntary, and unjustified absence after (1) the defendant has received actual notice in court or has signed a written acknowledgement of the trial date, or (2) trial has commenced in defendant's presence." When a defendant moves for a new trial based on his failure to waive his appearance, the defendant has the burden of proving that his absence was not knowing, voluntary, and unjustified. State v. Finklea, 147 N.J. 211, 220 (1996).

A knowing and voluntary absence from trial can be shown when a defendant leaves the courthouse after appearing, with knowledge that he would have to return later that same day. Hudson, supra, 119 N.J. at 183. A defendant also waives the right to be present at trial by failing to appear on the original trial date, even if the court reschedules the trial without notifying the defendant of the new date. Finklea, supra, 147 N.J. at 219-20.

The defendant in Finklea, supra, failed to appear for his original trial date after receiving notice. 147 N.J. at 213. After being tried and found guilty in absentia at a rescheduled trial, the defendant appealed, arguing that he was never given notice of the time, place, and date of the rescheduled trial. Id. at 215. The Court rejected this argument, reasoning that such a rule would "vest in a defendant the power to prevent the trial from proceeding until the defendant is willing to appear." Id. at 219; Hudson, supra, 119 N.J. at 181 (defendant can waive right to be present by knowingly absenting himself before trial begins).

Here, the trial court found that defendant voluntarily left court during the lunch break on February 25, 2004, a day on which the trial was scheduled to begin. Defendant had previously signed documents advising him of his right to be present at trial, and that this right could be waived. Defendant did not learn of the rescheduled trial date, March 30, 2004, only because he voluntarily left court before that date was announced. Defendant has not shown that his absence was justified. Even assuming, as defendant claims, that he was having difficulty balancing trial dates, he should have given the court notice of these difficulties instead of leaving without explanation. Because the record shows that defendant's original absence was voluntary, the court correctly denied his motion for a new trial on these grounds.

In the alternative, defendant argues that he should be afforded a new trial because the verdict was against the weight of the evidence. A motion for a new trial on the ground that the verdict was against the weight of the evidence must be made to the trial court before the issue can be considered on appeal.

R. 2:10-1. Consequently, defendant's argument is procedurally barred because his original motion for a new trial was based only on his arguments concerning his right to attend trial. In any event, the argument is substantively without merit because the record contains sufficient evidence for the jury to have found defendant guilty beyond a reasonable doubt.

We next address defendant's sentence. When reviewing a sentence, we determine whether the trial court exercised its discretion "based on findings that are grounded in competent, reasonably credible evidence," and whether the court applied the correct legal principles to those findings. State v. Roth, 95 N.J. 334, 363 (1964). We will only reverse a sentence where the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Id. at 364. "The test is not whether a reviewing court would have reached a different conclusion on what an appropriate sentence should be; it is whether, on the basis of the evidence, no reasonable sentencing court could have imposed the sentence under review." State v. Tarver, 272 N.J. Super. 414, 435 (App. Div. 1994).

Here, defendant was sentenced to four years in state prison for the third-degree unlawful possession of a handgun conviction and to one year, concurrent, for the hollow-point bullet conviction, both concurrent with his sentence for his federal conviction. Four years is the mid-range sentence for a third-degree crime. N.J.S.A. 2C:46-6(3). The court found that the following aggravating factors applied: "[t]he risk that defendant will commit another offense"; "[t]he extent of the defendant's prior criminal record and the seriousness of the offenses of which he has been convicted"; and "[t]he need for deterring the defendant and others from violating the law." N.J.S.A. 2C:44-1a(3), (6), (9). The court found no mitigating factors. The judge properly weighed the aggravating and mitigating factors, and the court did not commit a "clear error of judgment" that shocks our judicial conscience. Roth, supra, 95 N.J. at 363. We find no abuse of discretion.

Finally, defendant challenges the admission of the handgun into evidence. As defendant failed to raise this issue in a pretrial motion, we decline to address it as not properly before us. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). Our decision does not, however, preclude defendant from raising this issue in a subsequent post-conviction relief application on a claim of ineffective assistance of counsel for not filing a motion to suppress the weapon. We express no opinion on how that issue should be decided.

Affirmed.

20080930

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