On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 06-01-0025 and 06-01-0027.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 20, 2009
Before Judges Carchman and R. B. Coleman.
Defendant, George Baureko, appeals from a final judgment of conviction for certain persons not to have weapons, unlawful possession of a shotgun, and theft. He appeals and raises two points of argument as grounds for reversal. First, defendant asserts that the prosecutor's improper line of questioning deprived him of his right to a fair trial. Second, he argues that the jury verdict was against the weight of the evidence. We reject both grounds, and affirm the judgment of conviction.
On October 24, 2005, defendant, an employee of Baureko Boys Disposal, arrived at Ethel Kindzierski's home in Carteret, New Jersey, to remove furniture for a fee of $400. That same day, employees from Aldo Carpets were removing an old carpet from Mrs. Kindzierski's basement. Defendant began removing the furniture from the house.
Shortly thereafter, Jonathan Hernandez, an Aldo Carpets employee, told Mrs. Kindzierski that he saw defendant enter the basement, go into the poolroom where a shotgun lay on the pool table, and remove the shotgun in a white wrapping. Mrs. Kindzierski confronted defendant with this information. Defendant denied taking the shotgun. Mrs. Kindzierski then called Mr. Hernandez up from the basement to repeat in defendant's presence what Mr. Hernandez had told her. Defendant again denied taking the shotgun and offered to let them inspect his truck. Both declined.
The next day, while the truck was parked at his home, defendant discovered the shotgun in the back of his truck. At trial, defendant stated that this was the first time he ever saw the shotgun. Defendant said that he planned to call Mrs. Kindzierski, but the Carteret Police Department called him asking about the shotgun first. He told Detective Materazzo that he had the gun. The detective asked defendant to bring the gun to police headquarters, and he did so.
In an indictment filed on January 6, 2006, a Middlesex County grand jury charged defendant with third-degree unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5(c)(1), and third-degree theft, in violation of N.J.S.A. 2C:20-3. In a second indictment filed the same day, the grand jury charged defendant with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7(b).
In a jury trial conducted over the course of three days - June 27, June 28, and June 29, 2006, the prosecutor, during cross-examination, asked defendant to assess the truthfulness of some of Mr. Hernandez's and Detective Materazzo's testimony. Defendant responded to these questions, and the defense attorney did not object. The trial concluded on June 29, 2006, and the jury found defendant guilty of all charges.
On September 13, 2006, the court sentenced defendant to three years imprisonment for unlawful possession of a weapon, three years for theft, and five years with a five-year parole disqualifier on the conviction for certain persons not to possess weapons. The judge ordered that all sentences run concurrently. Defendant filed a notice of appeal on July 25, 2007.
As noted, defendant argues that "the prosecution's improper cross-examination of the defendant violated his right to fair trial[,]" and that "the jury verdict was against the weight of the evidence." We address these arguments in reverse order.
Rule 2:10-1 of the Rules Governing Appellate ...