On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 05-10-1039, 05-01-0009.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2009
Before Judges Fuentes and Chambers.
Defendant James Keys appeals his conviction by a jury of second degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). He was sentenced to a term of ten years with five years of parole ineligibility and assessed the requisite monetary fees and penalties. We affirm.
Defendant and his co-defendant Anthony Scott were charged jointly on Indictment No. 05-10-1039 with second degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b). These charges arose from the following events.
According to testimony presented at the suppression hearing held on November 17, 2003, the Trenton Police Department received a tip from an anonymous caller who claimed that an occupant of a 1998 white Lexus with license plate number NEY56C shot at him. Within six hours of the call, two Trenton police officers observed a vehicle matching this description, and pulled it over. Believing that a gun was inside the car, the officers drew their weapons and ordered the two occupants, defendant and co-defendant Anthony Scott, to exit the vehicle. Defendants made no furtive movements and were cooperative. No weapons were found on their persons. Looking inside the vehicle with a flashlight, one of the officers saw the butt and handle of a gun sticking out from under the driver's seat. Photographs of the protruding gun were taken by police photographers before it was removed from the vehicle. The handgun was an operable Taurus .38 caliber revolver, fully loaded with five rounds of ammunition. The State Police laboratory found no fingerprints on the gun.
At trial, Katrina Stephens, a cousin of defendant and the owner of the Lexus, testified that she allowed the vehicle to be placed in her name and co-signed the loan for its purchase, because defendant did not have credit to secure financing in his name. Defendant had control of the car. Stephens did not drive it and did not have keys to it.
Michael Edward Smith, defendant's friend, testified that he owned the gun found in the car. According to Smith, on the day before the events in this case, he had the gun with him when defendant gave him a ride in the Lexus. He sat behind the driver. When they stopped to go to a bar, he placed the gun under the driver's seat because he could not bring it into the bar. When he returned to the car and was driven home, he forgot to reclaim the gun. He testified that neither defendant nor Scott were aware that he had the gun.
The jury convicted defendant of the charge but could not reach a verdict as to Scott. The State later dismissed the charge against Scott.
On March 17, 2006, defendant was sentenced on this conviction and for charges arising out of a second indictment. The second indictment, Indictment No. 05-01-0009, arose from events that occurred on a different day. On this second indictment, defendant pled guilty to one count of second degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b).
The court sentenced defendant in accordance with the plea agreement to a ten year term of imprisonment with five years of parole ineligibility on his conviction for being a certain person not to possess a weapon on Indictment No. 05-10-1039, and to an identical concurrent sentence on the guilty plea to being a certain person not to possess a weapon on Indictment No. 05-01-009. Both sentences run concurrently with the sentence ...