March 31, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMAAL R. ADDISON, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-05-0604.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 3, 2010
Before Judges Miniman and Waugh.
Defendant Jamaal Addison appeals his conviction for violation of N.J.S.A. 2C:39-7(b), certain persons not to possess a firearm, which is a second degree offense.*fn1 He also appeals the resulting sentence of twelve years of incarceration with a mandatory six-year period of parole ineligibility, based upon an extended term pursuant to N.J.S.A. 2C:44-3(a). We affirm the conviction, but remand for reconsideration of the sentence.
We discern the following facts from the record.
Between 8:45 and 9:00 p.m. on November 13, 2006, Trenton Police Officers Brian Jones and Lino Rosario were on patrol in a marked police car when they were dispatched to investigate a reported verbal dispute on Wall Street in the northern part of Trenton. At trial, Jones testified that, as he pulled up to the location, he observed Addison facing the house with his back to the street. Addison was holding a revolver in his hand and yelling into the house. According to Jones, the patrol car pulled up to within twenty feet of Addison. When Addison saw the officers, he ran away from them, around the house towards the backyard of the residence. Jones and Rosario proceeded to chase Addison.
Jones further testified that, at the rear left corner of the house, he observed a silver handgun lying on the ground approximately two or three feet from the corner of the house. He picked up the gun, secured it, and continued after Addison, who was running around to the front of the house.*fn2 As he arrived at the front of the house, Jones observed Addison go into the house. The two officers followed. Once in the house, Jones observed Addison, about halfway up the stairs, yelling at a female at the top of the stairs.
Jones testified that Rosario went up the stairs, grabbed Addison, and pulled him down the stairs. Jones observed Rosario place Addison against the wall to perform a pat/frisk to make sure that he had no weapons on him. None were found. After some resistance, Addison was eventually handcuffed and placed in the back of the patrol car.
According to Rosario's testimony, he had also observed Addison with a gun in his hand, standing in front of the Wall Street house, pointing at someone in the doorway. Rosario, like Jones, testified that Addison ran away from them, that he and Jones followed him to the rear of the house, and that they located a gun at the rear corner of the house on the ground. Rosario confirmed that they proceeded around to the front of the house, followed the suspect inside, and effectuated the arrest.
Addison presented the testimony of Trenton Police Officer Noriel Pena. Pena testified that on November 13, 2006, he was a dispatcher for the City of Trenton police department, and that on the date in question he issued a dispatch for a domestic dispute on Wall Street. Pena reviewed the Computer Aided Dispatch log (CAD log) for the evening of November 13, 2006, and testified to the following entries: 20:49 and 4 seconds, "some type of verbal dispute"; and 20:50 "going on, can hear argument in the background." Officer Pena further testified,
[T]here's a discrepancy here. Between 20:56 -- next line down is 20:56 and 30 seconds.
It says, "male heading toward Monmouth"... last seen wearing "blue jeans, red shirt."
I say a discrepancy because 20:56:30 and the next line down is 20:56:20. The CAD is designed to be in chronological order and this is not. Don't know why that is. I have never seen anything like that....
Okay, for that 20:56:20 line it says... juvenile went running back to location. Possibl[y]... with weapon. 20:56:36 is the next [line]... Code 4 Adam. 20:57:13... "in custody at location," and then everything after that is routing the unit to a specific area. 21:05, one under arrest, and 21:09 arrived at headquarters with one.
Addison's wife, Jacqueline Simmons, testified that on November 13, 2006, at 8:45 p.m., she had a verbal argument with Addison and called the police to assist her in moving her things out of the house. Simmons testified that Addison was in the house at the time she called the police. According to Simmons, when the police arrived, she was outside of her house with her children. She stated that Addison was not outside when the police pulled up.
Simmons further testified that, after the police arrived, she went back into the house to pack up her things. She saw Addison sitting on the stairs leading to the second floor apartment. According to Simmons, the police came into the house with guns drawn, grabbed Addison, and pulled him down the stairs. When Simmons came downstairs, the police had Addison against the outside of the house and were arresting him. She maintained that there was no struggle between Addison and the police officers. Simmons also testified that Addison did not own a weapon and that she did not see him with a weapon at any point on November 13.
The jury returned a verdict of guilty. Addison moved for a judgment of acquittal notwithstanding the verdict, and also made a motion for a new trial. The trial judge denied both motions.
On July 31, 2008, the trial judge granted the State's motion for an extended term pursuant to N.J.S.A. 2C:44-3(a). The judge found the following aggravating factors: the high risk of re-offense pursuant to N.J.S.A. 2C:44-1(a)(3); his previous record, pursuant to N.J.S.A. 2C:44-1(a)(6); and the need for deterrence, pursuant to N.J.S.A. 2C:44-1(a)(9). As for mitigating factors, the judge found that the imprisonment of Addison would entail excessive hardship. N.J.S.A. 2C:44-1(b)(11). The judge sentenced Addison to twelve years in New Jersey state prison, with six years of parole ineligibility. This appeal followed.
On appeal, Addison raises the following issues:
POINT I: DEFENDANT'S MOTION FOR ACQUITTAL SHOULD HAVE BEEN GRANTED BY THE TRIAL COURT BECAUSE THE JURY VERDICT WAS AGAINST THE WEIGHT OF EVIDENCE AND RESULTED IN A MANIFEST DENIAL OF JUSTICE TO DEFENDANT.
POINT II: THE SENTENCE IMPOSED ON THE DEFENDANT'S CONVICTION OF CERTAIN PERSON NOT TO POSSESS A FIREARM WAS MANIFESTLY EXCESSIVE AND CONSTITUTED AN ABUSE OF JUDICIAL DISCRETION.
POINT III: THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH A STRONG LIMITING INSTRUCTION ON DEFENDANT'S PRIOR WEAPON'S CONVICTION RESULTED IN UNFAIR PREJUDICE TO DEFENDANT.
Addison first argues that the verdict was against the weight of the evidence. Entry of a judgment of acquittal at the end of the State's case is appropriate only "if the evidence is insufficient to warrant a conviction." R. 3:18-1. The standard to be applied is set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967):
[T]he question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
Under Rule 3:18-1, the court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (internal quotations omitted). "If the evidence satisfies that standard, the motion must be denied." State v. Spivey, 179 N.J. 229, 236 (2004).
The standard for deciding a Rule 3:18-2 motion for judgment of acquittal n.o.v. is the same as that used to decide a motion for acquittal made at the end of the State's case. State v. Brooks, 366 N.J. Super. 447, 453 (App. Div. 2004). On appeal, we apply the same standard. State v. Kittrell, 145 N.J. 112, 130 (1996).
Having considered the trial proofs in their entirety, we are satisfied that they were more than sufficient to establish that Addison possessed a firearm on November 13, 2006. Both police officers testified that they saw Addison holding a firearm, observed him run around to the back of the house, and found a firearm lying on the ground adjacent to the rear corner of the house. In finding Addison guilty, the jury clearly credited that testimony. That there may have been contrary testimony that, if credited by the jury, would have supported a different verdict does not demonstrate that the verdict actually reached was against the weight of the evidence.
Addison also moved for a new trial, pursuant to Rule 3:20-1. A court should order a new trial only if "there was a manifest denial of justice." State v. Johnson, 203 N.J. Super. 127, 134 (App. Div.), certif. denied, 102 N.J. 312 (1985). Here, there was no manifest denial of justice.
Addison also contends that the trial judge failed to give an adequate charge with respect to the impropriety of using his prior conviction for possessing a weapon to infer that he possessed one at the time charged in the indictment. In light of the charge actually given, which was substantially the same as the model charge and to which there was no objection, we find Addison's argument to be without merit and not warranting discussion in a written opinion. R. 2:11-3(e)(2).
Finally, Addison argues that his sentence was excessive. In reviewing that issue, we have noted that the trial judge may have believed that, having granted the State's application for an extended term, the applicable sentencing range was between ten and twenty years.
Now, the State seeks an extended term, a term between ten and twenty years. It's a big step up, and a significantly shorter term than that has never been tested to determine whether that is sufficient to deter the defendant.
The Court finds pursuant to [N.J.S.A.] 2C:44-3[(a)] that there are grounds for an extended term pursuant to [N.J.S.A. 2C:]44-3(a). Therefore the Court may sentence the defendant to a term of ten to twenty years. There is a mandatory five-year minimum.
We note, however, that the judgment of conviction does refer to a term between five and twenty years.
N.J.S.A. 2C:39-7(b)(1), certain persons not to possess a firearm, ordinarily provides for sentencing as a second-degree offense with a term between five and ten years, and a minimum five-year term of parole ineligibility. However, if a defendant is given an extended term the minimum period of parole ineligibility is between one-third to one-half of the sentence or five years, whichever is greater.
Under State v. Pierce, 188 N.J. 155, 168 (2006), the applicable sentencing range for Addison would be between five years, the minimum of the second-degree range, and twenty years, the top of the extended term. Because it appears from his statements during sentencing that the trial judge may have thought that the applicable range was between ten and twenty years, and in light of his remarks that the extended-term range was "a big step up" and that "a significantly shorter term than that has never been tested to determine whether that is sufficient to deter the defendant," we remand for reconsideration of the sentence.
Having reviewed the judge's findings with respect to the aggravating and mitigating factors, we see no error. In reconsidering the sentence, the judge will also have an opportunity to articulate his reasons for the term chosen. See State v. Dunbar, 108 N.J. 80, 97 (1987).
For the reasons set forth above, we affirm the conviction and remand for reconsideration of the sentence. We do not retain jurisdiction.
Affirmed in part and remanded.