March 25, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ANDRE LAMARR WILLIAMS, A/K/A YUMAL WILLIAMS, ANDRE L. WILLIAMS, AND ANDREW YUMAL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 04-02-0161 and 04-02-0162.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2009
Before Judges Sapp-Peterson and Alvarez.
Tried to a jury, defendant Andre Lamarr Williams was convicted on Union County Indictment No. 04-02-0161 of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(d) (count three). He was acquitted of the charge of fourth-degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count five), and the State dismissed a count of fourth-degree obstruction of administration of law, N.J.S.A. 2C:29-1 (count four). A charge of third-degree possession of a controlled dangerous substance, N.J.S.A. 2C:35-10(a)(1) (count six), was dismissed on defendant's motion. On that same day, defendant entered a guilty plea to a related charge on the single count of Indictment No. 04-02-0162, second-degree possession by certain persons not to have weapons, N.J.S.A. 2C:39-7.
Defendant's motion to suppress evidence was denied on March 18, 2005. On June 30, 2006, defendant's sentence date, the trial judge heard defendant's motion for acquittal notwithstanding the verdict and his motion for a new trial, as well as the State's motion to sentence defendant to a discretionary extended term pursuant to N.J.S.A. 2C:44-3. All of these applications were denied.
Defendant was sentenced to a five-year prison term subject to thirty months of parole ineligibility on the charge of unlawful possession of a weapon, a ten-year prison term subject to sixty months of parole ineligibility on the charge of possession of a weapon for an unlawful purpose, an eighteen-month prison term on the charge of possession of a prohibited weapon, and a five-year prison term subject to five years of parole ineligibility on the charge of certain persons not to possess. All of the sentences were made concurrent to each other and consecutive to the sentence that defendant was then serving. Defendant appeals, and we affirm.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT'S INSTRUCTIONS TO THE JURY WERE FATALLY FLAWED AND DEPRIVED DEFENDANT OF A FAIR AND IMPARTIAL TRIAL BECAUSE THE TRIAL JUDGE GAVE A FLIGHT INSTRUCTION.
THE TRIAL COURT ERRED BY DENYING THE MOTION TO SUPPRESS SINCE THE INITIAL STOP OF DEFENDANT BY POLICE WAS UNCONSTITUTIONAL AND NOT SUPPORTED BY REASONABLE SUSPICION.
THE TRIAL COURT ERRED BY DENYING THE MOTIONS FOR A NEW TRIAL AND FOR JUDGMENT NOTWITHSTANDING THE JURY VERDICT.
DEFENDANT'S SENTENCE IS EXCESSIVE.
On August 7, 2003, Officer Michael Kurinzi of the Elizabeth Police Department and his partner, Officer Robert Cifrodelli were on plain clothes assignment in an unmarked car. Kurinzi testified during the suppression hearing that the car was "obviously a police car" because it had "grill lights," several antennas, and a strobe light on the front. Although not dressed in uniform both officers wore police identification cards around their necks and badges. At approximately 3:25 p.m., they were dispatched to First Street in Elizabeth to conduct a narcotics investigation. The dispatch relayed from the Police Director of Public Safety that several people at that location were involved in drug activity, and that one of them had an orange object on his wrist. For approximately thirty minutes, the officers surveilled a group of eight men, all of whom were wearing jeans, Timberland boots and white t-shirts. One of the men, who was on a bicycle, had a large red or orange object on his right wrist. The officers identified that person as defendant.
As the officers watched, a four-door car with New York plates circled the area three times and came to a stop near the corner where the men were standing. The individual on the bicycle, defendant, approached the car. Moments later, he pointed toward the westerly direction of the street, and the car proceeded in that direction out of the officers' sight. One of the other men in the group then walked in the same direction in which the car traveled. That person returned to the group after a short time.
Moments later, a man wearing a cowboy hat approached and briefly spoke to defendant. Kurinzi saw defendant point at the man and then to the westerly direction in which he had previously directed the car. The man with the cowboy hat walked towards the west, followed by two members of defendant's group. Approximately five minutes later, the man with the cowboy hat returned and walked by the group without stopping. The two men who had followed him returned to the group. As a result of these observations, the officers called for backup. They then watched as a red vehicle stopped next to the group. When the group of men began to disperse, the officers returned to their car and drove towards the remainder of the group.
Kurinzi further testified that he believed that he had seen narcotics transactions, given the manner in which the group was acting. They were all "looking around wildly," had cellular phones, and were dressed the same way. He said:
If people are dealing drugs on the street, they will dress in a similar manner to each other so that if one member of the group runs, another member of the group is seen a block away wearing the same clothing and it throws the police officer because a lot of times police stop people when they are given a description based on clothing description.
The officer testified that it was his intent to issue defendant a "city summons" in order to elicit his name for future reference.
Kurinzi testified both at the motion to suppress and at trial that as he was sitting in the passenger seat of the unmarked vehicle, he called out to defendant, "Hey, bro, come here for a moment," motioning with his hand for defendant to approach. Defendant stopped, looked at Kurinzi, put his feet on the ground, picked up his bicycle, turned it in the opposite direction from the car, and immediately began to pedal away at full speed. Kurinzi got out of the vehicle, yelled at defendant to stop, and pursued him on foot.
Shortly thereafter, defendant dismounted the bicycle and jumped over a wall. He headed towards the Migliore Manor apartment buildings. As defendant approached a doorway, a group of people congregating there yelled at him not to go in because Kurinzi was right behind him. Defendant then motioned towards his right side, and Kurinzi saw that he was holding a black handgun. At that juncture, defendant kicked off his shoes, which had become loose. He made a left turn, at which point Kurinzi was just a few feet behind him. Defendant approached a second group that parted to allow him through, but closed in on Kurinzi. Kurinzi had his weapon drawn and was attempting to advise Cifrodelli via walkie-talkie that defendant had a gun. Defendant went over a fence into a back yard, dropping to his hands and knees. Kurinzi yelled for him to stop and that he was under arrest. While Kurinzi tried to climb over the fence, Cifrodelli ran into the yard, where defendant was getting to his feet while holding his gun. Cifrodelli struck defendant on the head with his walkie-talkie and tackled him. The gun went flying, and the officers were able to handcuff defendant.
Due to the gathering of a hostile crowd, the officers put defendant in their car and drove him to the Trinitas Hospital Emergency Room because he was bleeding from the head. The orange object on defendant's wrist, a Nextel phone, was found in the yard after defendant's arrest. The handgun had a loaded magazine, a round in the chamber, and a defaced serial number. A records search revealed that defendant did not have a permit to carry or purchase a handgun.
At the State's request, the trial court gave the jury the model charge on flight despite defense counsel's objection that there was no predicate offense from which defendant was fleeing. The State pointed out, and the court agreed, that an individual in possession of a loaded firearm is likely to flee when approached by police, and that flight under those circumstances may indeed reflect consciousness of guilt.
Because defense counsel objected to the flight charge at trial, our standard of review is that of harmless error. State v. Macon, 57 N.J. 325, 337-38 (1971). A claim of harmful error resulting from a jury charge is assessed after consideration of the charge as a whole. State v. R.B., 183 N.J. 308, 324-25 (2005). We determine whether the alleged error denied defendant a fair trial and a fair decision on the merits. Macon, supra, 57 N.J. at 338. An error will not justify reversal unless it is "clearly capable of producing an unjust result." R. 2:10-2.
It is well-settled that the "'[f]light of an accused is admissible as evidence of consciousness of guilt, and therefore of guilt.'" State v. Ingram, 196 N.J. 23, 46 (2008) (quoting State v. Long, 119 N.J. 439, 499 (1990)). That is not to suggest, however, that mere departure implies guilt. Ingram, supra, 196 N.J. at 46. Departure takes on the legal significance of flight only when unexplained circumstances reasonably justify the inference that it was motivated by consciousness of guilt and to avoid accusation. Ibid. "A jury may infer that a defendant fled from the scene of a crime by finding that he departed with an intent to avoid apprehension for that crime." Ibid.
Before giving a flight charge, a trial court must determine whether the evidence in the record supports a reasonable inference that defendant's departure was "prompted by a desire to avoid the ordeal of prosecution and punishment or was otherwise evidence of consciousness of guilt." State v. Mann, 132 N.J. 410, 423 (1993). In this case, it is apparent that defendant turned his bicycle and sped in the opposite direction because he knew that he was being spoken to by a police officer. While running, defendant drew a weapon. Under these circumstances, the "chain of inferences" leading from his flight to the inference of consciousness of guilt is "soundly supported." Ibid. There was clearly sufficient evidence for the jury to infer that defendant fled to avoid apprehension while in the unlawful possession of a handgun. See State v. Wilson, 57 N.J. 39, 49 (1970). Thus, the court's recitation of the flight charge was not error.
We do not agree with defendant's contention that the motion to suppress evidence was improvidently denied. Kurinzi was an experienced investigator who had previously investigated narcotics-related activity in the area. He and Cifrodelli surveilled defendant's group based on a report by another law enforcement officer who had witnessed them conducting drug transactions. Kurinzi himself witnessed what he believed to be drug transactions. Defendant, by virtue of the red or orange object on his wrist, was clearly identified as a person involved in drug transactions at that spot. Relying on State v. Doss, 254 N.J. Super. 122 (App. Div.), certif. denied, 130 N.J. 17 (1992), and State v. Tucker, 136 N.J. 158 (1994), the court concluded that the officers had the right to talk to defendant and pursue him when he ran.
It is well established that individuals on the street or in other public places may be approached and asked questions by police officers. State v. Pineiro, 181 N.J. 13, 20 (2004). This encounter, known as a "field inquiry," is the least intrusive encounter between the public and police. Ibid. The person approached need not answer any questions and may choose to continue on his or her way without responding. Ibid. "A field inquiry is permissible so long as the questions '[are] not harassing, overbearing, or accusatory in nature.'" Ibid. (quoting State v. Nishina, 175 N.J. 502, 510 (2003)).
When the individual does not feel free to leave, the field inquiry becomes an "investigatory stop" or a "Terry stop." Pineiro, supra, 181 N.J. at 20. If the officer gives the impression that the citizen is not free to refuse the request for information or is the target of an investigation, then articulable suspicion is required. State v. Rodriguez, 172 N.J. 117, 126 (2002). An investigatory stop is valid when based on "'specific and articulable facts which, taken together with rational inferences from those facts,' give rise to a reasonable suspicion of criminal activity." Id. at 126-27 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed. 2d 889, 906 (1968)). The Supreme Court has explained:
An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced. Such observations are those that, in view of [the] officer's experience and knowledge, taken together with rational inferences drawn from those facts, reasonabl[y] warrant the limited intrusion upon the individual's freedom. [Rodriguez, supra, 172 N.J. at 127 (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]
In Tucker, supra, 136 N.J. at 161, officers gave chase when defendant, who had been sitting on a curb, stood up and ran upon seeing the police vehicle approach. The Court found that although there was no evidence that the police commanded defendant to stop or displayed weapons, defendant "could not have felt free to leave." Id. at 166. The Court further found that the actions of the police, including summoning a nearby patrol car to set up a blockade in the street and chasing defendant into a backyard, would "cause a reasonable person to believe that the police wanted to capture him and not just to speak with him." Ibid.
The Court recognized that "'[t]he police officer's duties include vital preventive roles' and that reason and common sense dictate that the officer should clearly 'have the right to stop persons on the street for summary inquiry where . . . the circumstances are so highly suspicious as to call for such inquiry.'" Id. at 168 (quoting State v. Dilley, 49 N.J. 460, 464 (1967)). The Court concluded, however, that because the officers' sole basis for pursuing defendant was that he fled, they had not demonstrated articulable suspicion. Tucker, supra, 136 N.J. at 170.
The Tucker Court distinguished the case before it from Doss, supra, 254 N.J. Super. at 125-27, in which this court held that police had justifiably stopped and interrogated defendant, who fled after standing in a group of twenty people at 11:30 p.m. in an area known for drug trafficking and was recognized by one of the officers as someone who frequently talked to convicted drug dealers. Tucker, supra, 136 N.J. at 170. The Court reasoned that those circumstances supported the officer's articulable suspicion to stop defendant. Ibid. Although the officers did not have sufficient probable cause to search and arrest defendant, "they would have been remiss if they had not attempted to stop and interrogate him. They were legally entitled to order defendant to halt, and they were entitled to use non-lethal force to compel compliance with their command." Doss, supra, 254 N.J. Super. at 127-28.
The State contends that the officers had articulable and reasonable suspicion in light of the totality of the circumstances in this case. Reasonable suspicion may be derived from a combination of factors that taken in isolation may be innocent behavior. See U.S. v. Sokolow, 490 U.S. 1, 9, 109 S.Ct. 1581, 1586, 104 L.Ed. 2d 1, 11 (1989). Defendant is correct that mere presence in an area where drug activity is prevalent does not by itself constitute articulable suspicion. State v. Williams, 381 N.J. Super. 572, 583-84 (App. Div. 2005), rev'd on other grounds, 192 N.J. 1 (2007). It is a factor to consider, however, in determining whether circumstances were indeed suspicious. See Pineiro, supra, 181 N.J. at 26-27.
Defendant was stopped in a high drug trafficking area. He was surveilled by the officers for some thirty minutes engaged in what appeared to be drug transactions. The surveillance was conducted based on a tip from another officer who had also observed defendant involved in drug transactions. Although the officers did not see an actual exchange, they saw enough to justify their suspicions. Defendant's subsequent flight, upon realizing that plain clothes officers wanted to speak to him, is certainly an additional circumstance that the officers could take into account. State v. Citarella, 154 N.J. 272, 281 (1998).
Once the officers had a reasonable and articulable suspicion sufficient to stop defendant, he was obliged to submit and, "subject to his privilege against self-incrimination, he had a duty to answer their inquires." Doss, supra, 254 N.J. Super. at 129. Defendant's flight despite his legal obligation to submit gave the officers separate probable cause to arrest him for obstruction. Williams, supra, 192 N.J. at 11. As the officers had a reasonable and articulable suspicion such as warranted detention of defendant for investigatory purposes, the trial court properly denied the motion to suppress evidence.
Defendant also contends that because he was acquitted of the aggravated assault charge, the jury could not have found him guilty of possession of a weapon for unlawful purpose. The court properly instructed the jury that they should consider the aggravated assault as the sole unlawful purpose for the possession of the weapon. We concur with the trial judge, however, that the jury finding defendant not guilty of pointing the gun at the officers did not conflict with a finding that he possessed his weapon with the intent to commit aggravated assault because he drew the loaded weapon while being chased by police.
A trial court's ruling on a motion for a new trial after a jury verdict will not be reversed unless "it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. In reviewing the decision, this court must give substantial weight to the trial court's "'views of credibility of witnesses, their demeanor, and [its] general "feel of the case."' . . . The evidence should be sifted to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982) (quoting State v. Sims, 65 N.J. 359, 373 (1974)).
In deciding a motion for acquittal under Rule 3:18-2, the trial court must determine: whether the evidence, viewed in its entirety, be it direct or circumstantial, and giving the State the benefit of all of its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, is sufficient to enable a jury to find that the State's charge has been established beyond a reasonable doubt.
[State v. Rodriguez, 141 N.J. Super. 7, 11 (App. Div.), certif. denied, 71 N.J. 495 (1976).]
On appeal, the reviewing court applies the same standard as the trial court to decide if the trial judge should have granted the judgment of acquittal. State v. Sugar, 240 N.J. Super. 148, 153 (App. Div.), certif. denied, 122 N.J. 187 (1990).
Generally, a charge of possession with unlawful purpose is paired with a charge of an act that was accomplished with the gun, such as robbery, homicide, or assault, which the court instructs the jury is an unlawful act. State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989). Conviction on the possession with an unlawful purpose charge does not require that the State obtain a conviction for the underlying unlawful conduct, but rather, only that the unlawful purpose or state of mind existed when the defendant allegedly possessed the firearm. State v. Petties, 139 N.J. 310, 315 (1995). If defendant is acquitted of the unlawful conduct, however, "the court may not permit the jury to convict on the basis of speculation as to what possible purposes qualify as unlawful." Jenkins, supra, 234 N.J. Super. at 315.
It is also well-settled that "inconsistent verdicts do not vitiate an otherwise reasonable verdict." State v. Peterson, 181 N.J. Super. 261, 267 (App. Div. 1981), certif. denied, 89 N.J. 413 (1982). "'Consistency in the verdict is not necessary. Each count in an indictment is regarded as if it was a separate indictment.'" State v. Muhammad, 182 N.J. 551, 578 (2005) (quoting State v. Banko, 182 N.J. 44, 53 (2004)). In reviewing a jury's findings, this court will "not attempt to reconcile the counts on which the jury returned a verdict of guilty and not guilty." Muhammad, supra, 182 N.J. at 578. We instead determine if "the evidence in the record was sufficient to support a conviction on any count on which the jury found the defendant guilty." Ibid.
Here, the evidence was sufficient for the jury to conclude that the possession for unlawful purpose was established beyond a reasonable doubt. As Cifrodelli testified, defendant pulled the handgun from his waistband as Kurinzi climbed over the fence. Cifrodelli's fast response in striking defendant over the head with his walkie-talkie prevented Kurinzi from being shot and certainly prevented defendant from pointing the handgun at any officer. In fact, when the officers arrived at the hospital with defendant, he stated that he should have shot Cifrodelli. The jury could have readily found that given the intensity of the chase, although defendant did not actually point his weapon at Kurinzi, his purpose in possessing the weapon was to use it against the officers.
Finally, defendant argues that his sentence is excessive. In sentencing defendant, the court declined to find that his imprisonment would entail excessive hardship on his four children as a mitigating factor, N.J.S.A. 2C:44-1(b)(11). Because defendant had been incarcerated so frequently, another state prison sentence would, no doubt, be painful for the family, but it would not impose excessive hardship.
Defendant's juvenile history commenced in 1980 and was extensive, including multiple burglaries. He was found guilty as an adult of two federal crimes, including RICO conspiracy charges. He was also found guilty of municipal disorderly persons charges and two indictable offenses. Although the trial court declined to sentence defendant to an extended term, it did so solely because it could impose a consecutive sentence upon defendant. The court found that defendant's offenses created a substantial risk of injury to others, including the officers, as he was fleeing police while brandishing a loaded handgun. N.J.S.A. 2C:44-1(a)(1). Clearly, defendant was likely to reoffend, had an extensive criminal history, and had not been deterred by prior sentences. N.J.S.A. 2C:44-1(a)(3), (a)(6), and (a)(9).
In light of the weight accorded to the aggravating factors in the absence of mitigating factors, it is clear that the court's exercise of discretion was based on findings of fact "grounded in competent, reasonably credible evidence." State v. Roth, 95 N.J. 334, 363 (1984). Correct legal principles were applied. Ibid. The sentence, therefore, does not shock our conscience. Id. at 364. Accordingly, we are also convinced that there is no basis to disturb this sentence.
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