On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-06-0547-I and 03-06-0548-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Collester.
Tried to a jury, defendant Shaheed Minus was convicted of third-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5(b), and fourth-degree hindering apprehension or prosecution, contrary to N.J.S.A. 2C:29-3(b)(4). Immediately following the guilty verdict, defendant was tried by the same jury and found guilty of second-degree certain persons not to possess a firearm, contrary to N.J.S.A. 2C:39-7.
The sole witness at trial was Elizabeth Police Officer David Turner, who testified that shortly after midnight on January 12, 2003, he and his partner, Officer Egberto Colon, were on routine patrol in a marked police car on Flora Street in Elizabeth when he saw a Dodge Intrepid make a right turn without signaling. Officer Turner activated the lights and siren and pulled the car over. Officer Turner got out of the police car and approached the vehicle on the driver's side. The windows were heavily tinted so that Turner instructed the driver to roll down both the driver-side and the passenger-side windows in order that officers could have a clear view inside the vehicle.
Defendant was the driver and sole occupant of the car. Officer Turner testified that defendant seemed nervous after being asked for his license, regulation and insurance card. After fumbling through his wallet, defendant found a driver's license and placed it between his legs as he went to reach in the glove compartment for the vehicle's credentials. As he leaned over, the fur jacket he was wearing rode up his back. Turner saw the grip of a handgun in defendant's waistband near the center of his back. He immediately reached inside, took possession of the handgun which was loaded, cocked in the fire position with the safety off. Turner then ordered defendant out of the car and placed him in custody.
Turner examined the license defendant left on the driver's seat and saw that it was in the name of Rodrigue Venescar. When defendant was asked his name, he said it was Rodrigue Venescar, and the license he left on the driver's seat was in the same name. However, at police headquarters it was discovered that defendant's name was actually Shaheed Minus and that his driver's license had been suspended. The police conducted a further search and inventory of the Dodge Intrepid before having it towed. No insurance or registration was found. Later it was determined that the vehicle had not been stolen. On cross-examination Turner denied that he found the handgun in the glove compartment rather than on defendant's person.
On appeal defendant makes the following arguments:
POINT I - THE TRIAL COURT'S FAILURE TO QUESTION OFFICE TURNER - THE STATE'S SOLE WITNESS - AND OTHER JURORS WHO MAY HAVE OVERHEARD TURNER'S CONVERSATION WITH JUROR 264 DURING TRIAL, MANDATES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL. (Partially Raised Below.)
POINT II - THE OMISSION OF JURY INSTRUCTIONS ON CONSTRUCTIVE POSSESSION AS WELL AS THE PRESUMPTION SET FORTH IN N.J.S.A. 2C:39-2(a)(2), IN TUNE WITH THE THEORY OF THE DEFENSE, MANDATES THE REVERSAL OF DEFENDANT'S CONVICTIONS AND A NEW TRIAL.
POINT III - THE IMPOSITION OF A FIVE-YEAR TERM OF IMPRISONMENT FOR THE SECOND DEGREE WEAPONS CHARGE CONSECUTIVE TO THE FIVE-YEAR SENTENCE ON THE THIRD DEGREE WEAPONS CHARGE WAS EXCESSIVE.
After opening arguments and a lunch break, defense counsel reported to the court that he saw juror number 264 speaking with Officer Turner. Counsel then stated:
I stood there for a couple of minutes and watched, and the conversation - conversation seemed to be rather friendly, rather cordial. I thought maybe she . . . finally recognized that she knew him. It seemed ...