On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment Nos. 07-02-0238 and 07-02-0241.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010
Before Judges Lisa, Reisner and Alvarez.
The opinion of the court was delivered by REISNER, J.A.D.
Defendant Bernard E. Lopez was convicted of unlawful possession of a weapon, N.J.S.A. 2C:39-5b. Immediately thereafter, a second trial was conducted and the same jury convicted defendant of possession of a firearm by a convicted felon, N.J.S.A. 2C:39-7b.*fn1 The court sentenced defendant to three years in prison for weapons possession and, stating that a consecutive sentence was required, imposed a consecutive sentence of five years without parole on the certain persons conviction. Defendant appeals from the convictions and the sentence.
Because the trial court erroneously barred defendant from testifying in the second trial, thus depriving him of a fundamental constitutional right, we reverse the certain persons conviction, vacate the five-year sentence imposed and remand for a new trial on that charge. We affirm the weapons possession conviction and the three-year sentence imposed on that conviction.*fn2
This case arose out of several confrontations between groups of young people. The series of incidents began on the night of August 25, 2006, and continued into the early morning hours of the next day. The first incident occurred at a nightclub, the second happened outside a White Castle restaurant, and the third took place outside a Quick Chek store. The State presented evidence that during the second confrontation, defendant slapped two women. During the third incident, outside the Quick Chek store, defendant got out of his car and told the brother of one of the women that he wanted to apologize for slapping his sister. However, as he was expressing his interest in apologizing, defendant held a gun and waved it around as he spoke. Three eyewitnesses testified to seeing defendant in possession of the gun during this incident.
In a pre-trial hearing, the trial judge ruled that the evidence that defendant slapped the two women would be admitted at the trial. The judge agreed with the State that the evidence was relevant to show defendant's motive for bringing a gun to the third gathering, at which he knew the victims' friends would be present. However, the judge indicated that he would give a limiting instruction that the jury could only consider that evidence as bearing on defendant's possible motive for possessing a gun during the third incident. Accordingly, immediately after the prosecutor mentioned the slapping incidents in his opening statement, the judge thoroughly instructed the jury as to the limited purpose for which they could consider the information. The judge repeated the limiting instructions in his final charge to the jury.
The only issue in the weapons possession trial was whether defendant possessed a handgun during the incident at the Quick Chek store. Defendant waived his right to testify at that trial after the judge advised him that, if he testified, he could be cross-examined about his prior criminal convictions.
Prior to the second trial, on the certain persons charge, defense counsel asked the judge whether defendant would be permitted to testify in his own defense during that trial. The judge stated that defendant would not be permitted to testify in the second trial. Before having any other discussion with counsel on this subject, the judge told the jury, which had just returned a guilty verdict on the weapons possession charge, "we have an additional charge for you to consider . . . [a]nd there will be no testimony." The attorneys then presented brief opening statements and the judge charged the jury and sent them to deliberate on the certain persons charge.
After the jury indicated that it had reached a verdict, but before the verdict was announced, the prosecutor asked the judge to reconsider his earlier ruling that defendant could not testify. The judge declined, stating definitively that defendant did not have a right to testify because "he already gave that right up" when he declined to testify about the weapons possession charge. The judge therefore refused the ...