August 7, 2009
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
SHAHEED MINUS, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 28, 2009
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 to me to be rather friendly. There was some laughter.
My concern was that if she knows the witness, then that creates a problem. Maybe she just recognized him there.
If she doesn't know the witness and she met him in the hallway and the conversation was cordial, she may have formed an opinion about his credibility or about his believability.
Counsel also indicated that he was concerned that two other jurors may have overheard the conversation between juror number 264 and the officer. The court elected to voir dire juror number 264. In response from questioning by the court, the juror stated she did not know the officer and that she only spoke briefly with him about the food and slow service in the cafeteria. She said she formed no opinion about the officer and that she still could be fair and impartial sitting as a juror in this case. Following the voir dire of the juror, defense counsel requested that she be excused. The court granted the request, and the trial proceeded.
Defendant argues for the first time on appeal that the trial judge should have conducted a further voir dire of Office Turner and the other two unnamed jurors who may have overheard the conversation between juror number 264 and the officer. He contends that the court's failure to do so deprived him of due process and an impartial jury.
Since trial counsel did not seek voir dire of the officer and the two jurors, the matter is to be considered by us under the plain error standard. R. 2:10-2. After review of the record, we have determined that there was no error, much less plain error, in the trial judge's discharge of juror number 264 and continuation of the trial without further inquiry of other jurors.
Defendant next argues that the court should have instructed the jury on constructive possession of the handgun as well as the statutory presumption of N.J.S.A. 2C:39-2(a)(2). The arguments are without merit. The trial judge correctly charged the jury on the actual possession of the handgun and denied defendant's request to charge constructive possession because there was no evidence in the record to support defendant's argument that the handgun was found in the glove compartment rather than seen protruding from the small of defendant's back. Furthermore, the trial judge properly denied defendant's request to charge the statutory presumption of possession of firearms in a car under N.J.S.A. 2C:39-2(a)(2) since the statutory presumption is only applicable if there was more than one occupant in the vehicle, which was clearly not the case here.
As to defendant's sentence, the State concedes that there must be a remand on the question of consecutive sentences in light of State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). We agree.
Affirmed. Remanded for resentencing.
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