April 6, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ERIC T. BELLINGER, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-04-0439.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 25, 2009
Before Judges Cuff and Fisher.
On December 18, 2004, Detective Darren Catli of the Passaic County Sheriff's Department was on patrol in an unmarked police vehicle when he observed a vehicle disregard a stop sign.
Detective Catli activated his emergency lights and directed the vehicle to stop. Another police vehicle soon arrived to assist.
Defendant was in the front passenger seat; co-defendant Julius Cunningham was the driver. Detective Catli approached the driver's side and Detective Johnny Ramos, who had arrived in the other police vehicle, approached the passenger side. As Detective Catli asked for Cunningham's credentials, Detective Ramos yelled "gun." With this, both officers drew their weapons and ordered defendants out of the vehicle. A shotgun, with the barrel facing the floor and the grip within reach, was observed between the front seats.
Defendant was charged and convicted of third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (count one), and second-degree unlawful possession of a weapon as a result of a prior conviction, N.J.S.A. 2C:39-7 (count three).*fn1
He was sentenced to a four-year prison term on count one and a five-year prison term, with a five-year period of parole ineligibility, on count three; these terms were ordered to run concurrently.
On appeal, defendant presents the following arguments:
I. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THE ELEMENTS OF UNLAWFUL POSSESSION OF A WEAPON; CONSEQUENTLY THE CONVICTION[S] ON COUNTS ONE AND THREE MUST BE VACATED (Not Raised Below).
II. THE SEARCH OF THE SUBJECT AUTOMOBLE [SIC] RESTED ON THE HEARSAY OF A NON-TESTIFYING OFFICER AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER STATE AND FEDERAL LAW AND DEFENSE COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE IN FAILING TO SEEK A PROBABLE CAUSE HEARING PRIOR TO TRIAL. U.S. CONST. AMENDS. VI AND XIV; N.J. CONST, (1947), ART. I, PARS. 1 AND 10 (Not Raised Below).
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments.
In Point I, defendant argues that the evidence did not support a finding that he actually or constructively possessed the shotgun. We reject this argument because the very location of the weapon, as described by Detective Catli, amply demonstrated that the weapon was in view and within reach of both defendants. Moreover, defendant did not move for a new trial on this or any other ground, thus barring our consideration of his contention that the verdict was against the weight of the evidence. R. 2:10-1; State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006).
Defendant argues in Point II that testimony offered at trial regarding the search of his vehicle and seizure of the weapon was based on hearsay because only Detective Catli testified and it was Detective Ramos who yelled "gun." We find no substance in this argument.
Defense counsel did not object to Detective Catli's testimony that Detective Ramos yelled "gun," which led to the actions they then took and the visual examination of the vehicle. Counsel also did not object to the admission of the shotgun into evidence. Had defendant asserted at trial the hearsay argument he raises now for the first time, the State could have called Detective Ramos, if deemed necessary. In addition, counsel never moved to suppress evidence prior to trial, an omission that is also fatal to his claim of an unlawful search and seizure for the first time in this appeal. State v. Macon, 57 N.J. 325, 333-34 (1971).*fn2