On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-10-1413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Telephonically argued June 25, 2009
Before Judges Cuff and Fuentes.
Defendant Claudio Arevalo was tried before a jury and found guilty of second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7.*fn1 The court sentenced defendant to a term of seven years, with a mandatory five-year period of parole ineligibility. The court awarded defendant 301 days of gap time credit, and assessed the appropriate fines and penalties.
The facts are straight forward. Indictment No. 04-10-1413-I originally charged defendant with third-degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count one); third-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), (count two); third-degree hindering apprehension, N.J.S.A. 2C:29-3(b)(4), (count three); and second-degree possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7, (count four); the State opted to proceed only with the charge under N.J.S.A. 2C:39-7.
At trial, Passaic Police Officer Reynaldo Arroyo testified that on April 3, 2004, at approximately 7:30 p.m., he and two other officers were in the area of Passaic Public School Number 11 when they saw two men sitting on bleacher style benches. According to Arroyo, one of the men appeared to be drinking some kind of alcoholic beverage, the other was smoking a cigar.
As Arroyo and his fellow officers approached, the men became startled; the one smoking threw the cigar on the ground; the other man (later identified as defendant) removed something from his waistband and dropped it to the ground, causing a clinking sound, like a piece of metal hitting a hard surface. When Arroyo pointed his flashlight in the direction of the sound, he saw a handgun under the bleachers, in the area were defendant had been sitting. Arroyo described the weapon as a.22 caliber revolver, with one round in the cylinder. The handgun had been defaced by having the serial number scratched out.
After being questioned directly by the court concerning his right to testify in his own defense, defendant chose not to testify. At defendant's request, the court instructed the jury not to draw any adverse inference from defendant's decision not to testify at trial. Defense counsel did not call any witnesses.
Against this record, defendant now appeals raising the following arguments:
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT.
THE COURT ERRED IN FAILING TO AWARD DEFENDANT 174 DAYS OF JAIL CREDIT FOR TIME SERVED FROM THE DATE OF HIS ARREST ON THIS OFFENSE UNTIL THE DATE HE WAS ...