May 16, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-03-0413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 25, 2011
Before Judges Wefing, Payne and Koblitz.
Appellant filed a pro se supplemental brief.
Tried to a jury, defendant was convicted of unlawful possession of a weapon, a crime of the third degree, N.J.S.A. 2C:39-5b; possession of a weapon for an unlawful purpose, a crime of the second degree, N.J.S.A. 2C:39-4a; and endangering the welfare of a child, a crime of the second degree, N.J.S.A. 2C:24-4a. He was found not guilty of possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a; possession of a CDS with intent to distribute, N.J.S.A. 2C:35-5a(1), -b(5); and possession of a firearm while engaged in a CDS-related distribution activity, a crime of the second degree, N.J.S.A. 2C:39-4.1a. Defendant subsequently filed a motion seeking a new trial or acquittal. The trial court denied the motion for a new trial. Recognizing that it had given an incorrect instruction to the jury on the charge of second-degree child endangerment, it granted defendant an acquittal with respect to that charge but denied the motion with respect to the balance of defendant's convictions. Thereafter, at sentencing, the trial court denied the State's motion to impose an extended-term sentence. It merged the conviction for unlawful possession of a weapon into the conviction for possession of a weapon for an unlawful purpose and sentenced defendant to eight years in prison, with a four-year period of parole ineligibility. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
On appeal, defendant raises the following issues for our consideration:
POINT I THE SUPPRESSION COURT ERRED BY FAILING TO MAKE SPECIFIC FACTUAL FINDINGS AND CONCLUSIONS OF LAW TO SATISFY THE REQUIREMENTS OF R. 1:7-4(a)
POINT II THE SUPPRESSION COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO SUPPRESS AS THE POLICE DID NOT HAVE AN OBJECTIVELY REASONABLE BASIS FOR BELIEVING DEFENDANT WAS A RESIDENT OF 16 SOMERSET STREET OR THAT HE WAS PRESENT IN THE HOME AND DID NOT HAVE A SEARCH WARRANT FOR THE PREMISES POINT III THE TRIAL COURT ERRED BY NOT ALLOWING DEFENSE COUNSEL TO ELICIT RELEVANT EVIDENCE REGARDING THE FACT THAT THE POLICE ALSO HAD AN ARREST WARRANT FOR A HOMICIDE SUSPECT POINT IV THE TRIAL COURT ERRED BY NOT GRANTING [C.S.'S] MOTION PURSUANT TO R. 3:18-2 TO SET ASIDE THE VERDICT AS TO COUNTS ONE AND FOUR OF THE INDICTMENT POINT V THE TRIAL COURT ERRED IN ALLOWING INVESTIGATOR LEVY TO OFFER EXPERT TESTIMONY AND ANSWER CERTAIN QUESTIONS BECAUSE THE TESTIMONY DID NOT ASSIST THE JURY IN UNDERSTANDING THE FACTS AND WAS UNDULY PREJUDICIAL POINT VI THE COURT ERRED IN NOT GRANTING DEFENDANT'S MOTION FOR A NEW TRIAL POINT VII THE TRIAL COURT'S ERRONEOUS CHARGE TO THE JURY REGARDING THE CHILD ENDANGERMENT COUNT DEPRIVED [C.S.] OF HIS RIGHT TO A FAIR TRIAL (Not Raised Below)
POINT VIII THE SENTENCE IMPOSED BY THE TRIAL COURT WAS UNDULY EXCESSIVE
We shall initially deal with the issues relating to defendant's motion to suppress; our factual recitation at this point is limited to the facts adduced during the course of the motion hearing.
Two witnesses testified at the motion to suppress--Officer Jose Segarra of the Human Services Police and Officer Erik Finne, a member of a task force created by the U.S. Marshal Service to arrest fugitives. Their testimony established the following facts. Defendant was the father of a four-month-old baby girl, A.S., who, for reasons not pertinent to this matter, was in the legal custody of the New Jersey Division of Youth and Family Services (DYFS). Despite the order placing the child in the custody of DYFS, defendant took the baby; DYFS, in turn, filed a complaint charging him with interfering with its custody; and a warrant was issued for his arrest. Officer Segarra of the Human Services Police set about attempting to locate defendant to execute that arrest warrant.
As part of that investigation, Officer Segarra spoke with a woman in Newark who turned out to be defendant's grandmother. She told him that defendant was not living with her, and she did not know where he was living. Officer Segarra left his business card with her and received a telephone call from her a few days later in which she said defendant might be living in Carteret with a relative named "Scooby." Based upon that information, Officer Segarra went to the Carteret police to see if they knew of anyone in the area named Scooby. From the Carteret police, he learned that Scooby lived at 16 Somerset Street, a multi-family dwelling. During his investigation, he learned as well that there were two other outstanding warrants for defendant's arrest--one from New York City and one from Newark.
He also learned that the Fugitive Task Force of the U.S. Marshal Service intended to execute an arrest warrant for another individual, not Scooby, who was living at that same address. Officer Segarra, together with his partner, Officer Ben Estrada, arranged to be present shortly before 6:00 a.m. on the morning of October 28, 2006, when the marshals planned to execute their warrant. Segarra and Estrada had also learned that Scooby lived on the second floor of the building and that his apartment was accessible from a flight of stairs at the rear of the house. Segarra went up the stairs and knocked on the door; a woman answered, who Segarra recognized as the mother of A.S. He asked her if defendant and A.S. were there, and she said yes. He asked if he could come into the apartment, and again she said yes. He asked where they were, and she indicated they were in the back room. Segarra, with two others, entered the back room. Segarra testified that he did not know who entered the room with him; he knew that one of the men had a jacket identifying him as a marshal but did not know about the other person. He saw defendant asleep on a bed, face down, with
A.S lying next to him. Segarra told defendant not to move but to display his hands; defendant complied. Segarra handcuffed defendant, and one of the other officers took A.S. and removed her from the room. As Segarra was leading defendant out of the room, he heard another officer yell, "Gun." Segarra took defendant into the living room and stayed with him. Segarra testified that he did not personally see the gun until later.
Officer Erik Finne, assigned to the task force, who had entered the room with Segarra, testified that he saw the strap of a handgun protruding from between the box spring and mattress of the bed on which defendant had been sleeping. He described the strap of the gun as the back of the gun's grip, that is, the portion that would fit against the palm. Finne lifted up the mattress against the wall and found, in addition to the gun, a quantity of narcotics. Two Carteret police officers came in, saw the gun and the drugs and later took Finne's statement.
Defendant did not present any witnesses in connection with his motion to suppress. He thus did not put forth an alternate factual version of what occurred on the morning of October 28, 2006.
As to defendant's first point, while we would agree that the trial court's oral opinion is not a model that we would like to see emulated, from our careful study of it we have satisfied ourselves that it does contain sufficient factual findings to permit us to analyze the legal soundness of the trial court's conclusions.
Defendant provides several substantive reasons to support his contention that his motion to suppress should have been granted. He stresses that Officer Segarra did not have a search warrant authorizing him to enter 16 Somerset Street and, pointing to State v. Miller, 342 N.J. Super. 474 (App. Div. 2001), argues that absent a search warrant, Officer Segarra had no authority to enter the premises of a third party to execute the outstanding warrant. Our reading of Miller convinces us that it does not control the present matter.
In Miller, the defendant's supervising parole officer, Joseph McGovern, had a parole warrant for his arrest. Id. at 480. He undertook to locate Miller to execute the warrant and learned that he stayed periodically with his girlfriend. Id. at 481. McGovern, accompanied by other parole officers, went to that address, and the defendant's girlfriend answered the door.
At first she told the officers the defendant was not there, but when McGowan responded that he had talked with her mother and would call the Trenton police for back-up if she did not let them in, she stepped aside to permit their entry. Ibid. The defendant's girlfriend testified to a different scenario. She said the officers threatened to arrest her if she did not let them into the apartment and, when she raised her hand as if to deny entry, they walked right past her. Id. at 482. In the course of arresting the defendant, the officers found narcotics in his clothes; they then searched the room and found an additional quantity. Id. at 480.
We affirmed the trial court's decision to grant defendant's motion to suppress, finding that the defendant did not reside at that address, the officers did not have an adequate basis to believe that he did reside there, and there was no consent to their entry. Id. at 479-80. We held that "an arrest warrant is not lawfully executed in a dwelling unless the officers executing the warrant have objectively reasonable bases for believing that the person named in the warrant both resides in the dwelling and is within the dwelling at the time." Id. at 479.
We attached, however, a significant limitation to that principle, noting specifically that it was only applicable "in the absence of consent or exigency." Ibid. Here, the trial court accepted as credible Officer Segarra's testimony that he asked the child's mother if defendant was present. After she responded that he was, he asked if the officers could come into the apartment, and she agreed to their doing so, and even pointed them toward the room in which they would find defendant.
Defendant argues that her consent was ineffectual because there was no showing that she had any authority over the premises so as to grant effective consent to enter. The test is whether the officers had an objectively reasonable belief that she had the appearance of control at the time they entered. State v. Suazo, 133 N.J. 315, 320 (1993). In our judgment, her presence in the apartment at this early hour, her response to the officers' knock, and the presence of her infant daughter, all combine to support a conclusion that the officers had an objectively reasonable basis to believe she had the authority to agree to their entry.
Finally, in contrast to Miller, supra, this record is barren of any indication that her consent to the officers entering the apartment was involuntary or coerced.
In light of those critical facts, confirmation of defendant's presence and consent to the officers' entry, we do not consider defendant's argument persuasive. The trial court correctly denied defendant's motion to suppress.
Defendant sought to introduce at trial evidence that the reason the marshals were at the house on the morning of his arrest was that they were attempting to execute an arrest warrant for a homicide suspect. Defendant wanted to use this information to argue to the jury that the gun that was recovered did not belong to him but rather to the subject of the marshal's arrest warrant. The trial court, however, refused to admit such evidence, and defendant now argues that was reversible error. We disagree.
A defendant has a constitutional right to defend on grounds that a third party committed the crime for which he or she is charged. State v. Fortin, 178 N.J. 540, 590 (2004). This right is not without limitation. "There must . . . be some evidence of third-party guilt to permit the defense to argue the point." State v. Jimenez, 175 N.J. 475, 486 (2003). "The defendant does not have to show that the evidence supports a probability that another person committed the crime." Fortin, supra, 178 N.J. at 591. It "'need only be capable of raising a reasonable doubt of defendant's guilt' . . . ." Ibid. (quoting State v. Koedatich, 112 N.J. 225, 299 (1988) (Koedatich II), cert. denied, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989)). However, the third party cannot be linked to the crime by speculation. Ibid. A defendant who has satisfied this initial burden must also show that the proffered evidence conforms to the rules of evidence. Ibid.
Here, defendant did not offer any evidence of the identity of the homicide suspect, his relationship to the suspect, or any facts about the homicide to show that the suspect used a gun. Defendant also did not provide evidence that the suspect lived at or had been to the apartment where defendant was arrested. Other than the fact that U.S. Marshals looked for the suspect at the building where defendant was arrested, defendant's link to the suspect, as well as the suspect's link to the gun, was unknown. The inference that the gun belonged to the suspect or was used in the homicide was therefore speculative. Thus, defendant did not satisfy his burden of showing that the evidence sought to be admitted had sufficient indicia of third-party guilt, such that it was capable of raising a reasonable doubt of his own guilt. See ibid. (third-party evidence can be withheld from the jury if it does not have a "'rational tendency to engender a reasonable doubt'" about an essential feature of the State's case (quoting State v. Sturdivant, 31 N.J. 165, 179 (1959), cert. denied, 362 U.S. 956, 80 S. Ct. 873, 4 L. Ed. 2d 873 (1960))).
Defendant did, during the course of the trial, elicit testimony about the fact that Scooby was present in the house, as were two women. This evidence did permit defendant to argue to the jury that the weapon belonged to someone else in the house. We perceive no abuse of the broad discretion vested in the trial court with respect to the admissibility of evidence in its denial with respect to the object of the arrest warrant held by the task force. State v. L.P., 352 N.J. Super. 369, 378 (App. Div.), certif. denied, 174 N.J. 546 (2002); State v.
Swint, 328 N.J. Super. 236, 253 (App. Div.), certif. denied, 165 N.J. 492 (2000).
As we noted at the outset of this opinion, the jury convicted defendant of unlawful possession of a weapon and possession of a weapon for an unlawful purpose. Defendant argues that the trial court should have granted his post-trial motion for acquittal on those counts. He contends his motion for acquittal on the charge of unlawful possession of a weapon should have been granted because there was insufficient evidence at trial to support a determination that he constructively possessed the gun. He contends that his motion for acquittal on the charge of possession of a weapon for an unlawful purpose should have been granted for two reasons: first, that his acquittal for the drug-related charges requires his acquittal for the possession for an unlawful purpose charge because the State's theory at trial was that he possessed the gun for the purpose of using it in connection with the distribution of narcotics; and second, there was insufficient evidence to link him to the drugs that were recovered from under the mattress and thus, there was insufficient evidence to support the alleged unlawful purpose.
We turn first to the charge of unlawful possession of the weapon. When we consider on appeal whether the trial court correctly denied a motion for acquittal, we apply the same standard as does a trial court when presented with such a motion, i.e., the motion should be denied if there is sufficient evidence to convict. R. 3:18-1. There is sufficient evidence if, after giving the State the benefit of all reasonable inferences that could be drawn from the totality of the evidence, a "jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967).
The elements of the crime of unlawful possession of a weapon are possession by the defendant, whether actual or constructive, of a weapon for which a permit is required under N.J.S.A. 2C:58-4; that the defendant did not have a permit; and that the defendant's possession of the weapon was knowing.
N.J.S.A. 2C:39-5b. An individual constructively possesses an item "if the circumstances permit a reasonable inference that [the individual] has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Reeds, 197 N.J. 280, 296 (2009) (citation omitted); N.J.S.A. 2C:2-1c.
Here, the testimony of Officer Finne at trial, if accepted by the jury, established that the gun was partially in sight and within defendant's easy reach, and defendant was the closest person to the gun. There was also evidence that the gun was loaded and was operable. Based upon that evidence, the jury could reasonably conclude that defendant knew about the gun and that he had the intent and the capacity to exercise control over it. It was entirely within its province to reach that conclusion, rather than that defendant unwittingly fell asleep on top of it, entirely unaware of its presence.
We turn now to the charge of possession of a weapon for an unlawful purpose and, initially, the effect, if any, of the seeming inconsistency of the verdict returned by the jury. As part of its charge on the crime of possession of a weapon for an unlawful purpose, the trial court must tell the jury what is the unlawful purpose for which the State alleges a defendant possessed the weapon. State v. Jenkins, 234 N.J. Super. 311, 316 (App. Div. 1989) (noting that the instruction "must include an identification of such unlawful purposes as may be suggested by the evidence and an instruction that the jury may not convict based on [its] own notion of the unlawfulness of some other undescribed purpose"). The trial court, in accordance with this mandate, told the jury that the State alleged that defendant's purpose in possessing this weapon "was to use it with reference to the drug trade in some way. You must not rely upon your own notions of the unlawfulness of some other undescribed purpose of the defendant. Rather, you must consider whether the State has proven the specific unlawful purpose charged." This instruction is unremarkable.
The jury having acquitted defendant of possession of the narcotics also found under the mattress, defendant urges that his conviction for possession of the gun for an unlawful purpose is fatally inconsistent and must be set aside. We do not agree.
The law is clear in New Jersey that inconsistent verdicts are permissible. State v. Banko, 182 N.J. 44, 53 (2004) (citing State v. Grey, 147 N.J. 4, 11 (1996)). Courts decline to "speculate as to whether the verdicts resulted from jury lenity, compromise, or mistake not adversely affecting the defendant." Ibid. The underlying reason for the acceptance of inconsistent verdicts is the recognition that courts are powerless to prevent them. Id. at 54.
The Court in Banko considered the same issue presented here. Defendant was charged with attempted aggravated sexual assault, kidnapping, fourth-degree aggravated assault by pointing a firearm, and possession of a weapon for an unlawful purpose. Id. at 46. In its instructions, the trial court told the jury that the State contended that "the defendant's unlawful purpose in possessing the firearm was to unlawfully confine [the victim] with the purpose to commit the crime of aggravated sexual assault upon [her]." Id. at 51. Defendant was convicted of possession of a weapon for an unlawful purpose and acquitted of all of the remaining offenses. Id. at 52. The trial court, finding the result "legally incongruous," granted defendant a new trial, while this court found he was entitled to acquittal. Ibid. The Supreme Court, however, rejected both results, stating
We must accept the arguably inconsistent verdicts, and decline to speculate on the reasons for the jury's determination. The only factual assessment required is to ensure that there was sufficient support the charge for which defendant was convicted. [Id. at 56.]
The Supreme Court followed that approach in State v. Kelly, 201 N.J. 471 (2010), in which it upheld the defendant's conviction for murder in the face of his acquittal for possession of the murder weapon and possession of the weapon for an unlawful purpose. Id. at 475. In the course of his opinion, Justice Albin, writing for the Court, noted that "[o]ur system of justice has long accepted inconsistent verdicts as beyond the purview of correction by our courts, and therefore a defendant is forbidden from collaterally attacking a guilty verdict on one count with an apparently irreconcilable acquittal on another count." Id. at 487. The facial inconsistency in the result reached by this jury provides no reason to set aside defendant's conviction for possession of a weapon for an unlawful purpose.
Similarly, we see no basis to set aside the conviction as against the weight of the evidence. We note initially that defendant's motion for acquittal at trial based upon the sufficiency of the evidence was limited to the charge of child endangerment, and did not address the weapons offenses.
Proceeding to the merits of defendant's argument, we are persuaded that his conviction must remain. A substantial quantity of narcotics was recovered from under the mattress-- approximately eighty decks of heroin and six bags of marijuana. Investigator Mark Levy of the Middlesex County Prosecutor's Office qualified as an expert witness in the field of drug distribution and the investigation of drug offenses. He testified that eighty bags of heroin was consistent with distribution, rather than personal use, and he estimated it would have a value of approximately $800. He also explained to the jury that drug dealers were subject to being robbed and thus would have a weapon in their possession for self-defense. Based upon that testimony, the jury could have concluded that it was highly improbable that defendant would have been permitted to be in such close proximity to such a valuable commodity unless he had a possessory interest in it.
Investigator Levy admitted on cross-examination, on the other hand, that it was possible for an individual to have this quantity of drugs for personal use. He also admitted that his opinion would have been strengthened if, at the time of defendant's arrest, paraphernalia such as scales or cutting agents had been found.
The jury was free to pick and choose among the inferences that could be drawn from this testimony. If it had elected to find defendant guilty of the drug-related charges, the convictions would be sustainable on this record. The fact that it did not does not provide us with a basis to overturn the weapons charges.
Defendant argues that the trial court committed reversible error when it permitted Investigator Levy to testify along the lines we have set forth. He complains that the testimony was improper because it was not given in response to hypothetical questions and because he expressed an opinion on the ultimate issues in the case. These objections were not pressed at trial; the only objection at trial was to Investigator Levy testifying with respect to the value of the drugs, since that information had not been included in his report.*fn1 We can see no unfair prejudice to defendant from this testimony in light of the fact that the jury acquitted him of all drug-related charges.
Defendant also contends that he was unfairly prejudiced by the trial court's admittedly erroneous charge on the count of child endangerment. The trial court, however, granted defendant's post-trial motion for acquittal on that count, recognizing that its charge had been erroneous. The trial court thus cured any prejudice to which defendant had been exposed. There was not such a close relationship between the issues that prejudice on one could be inferred to have spilled onto another. We note in this regard that the jury acquitted defendant of the CDS-related charges, a clear indication that it considered each count separately.
The final argument presented in the brief submitted by defendant's counsel is that the sentence imposed by the trial court was manifestly excessive. We do not agree.
Defendant's prior record was extensive. This was his fifth indictable conviction and, as the trial court noted, he was subject to an extended-term sentence. The trial court, however, sentenced defendant to a term only slightly above the mid-range for a second-degree conviction--eight years in prison, with a four-year period of parole ineligibility. The latter was required, since this was a Graves Act offense.
His trial counsel argued one mitigating factor, that defendant did not contemplate the seriousness of the offense, N.J.S.A. 2C:44-1b(2). In our judgment, that mitigating factor is inapplicable in the context of this case, which involved the possession of a loaded gun. That possession, moreover, was in close proximity to a sleeping infant. The trial court stated that the aggravating factors outweighed the mitigating factors but did not identify any of the statutory factors other than to refer to the existence of defendant's prior record. N.J.S.A. 2C:44-1a(6). In light of defendant's extensive record, however, combined with the slight upward adjustment in defendant's sentence, we decline to remand for resentencing.
We note for the sake of completeness, however, that the trial court incorrectly merged defendant's conviction for possession of a weapon into his conviction for possession of a weapon for an unlawful purpose. Originally, it stated its intent to impose a concurrent sentence but later accepted defendant's argument that the convictions should merge because they involved the same weapon. While this analysis is faulty, the State made no objection, either at the time of sentencing or now and does not request that defendant be resentenced. If we were to order the matter remanded for resentencing to correct this incorrect merger, the only result, as the trial court noted at sentencing, would be to subject defendant to additional fines and penalties. In that posture, we decline to order, sua sponte, that defendant be resentenced.
Defendant has submitted a pro se brief in which he raises the following arguments for our consideration.
POINT ONE THE TRIAL COURT ERRED IN FINDING THAT THE ARREST WARRANT WAS PROPERLY ISSUED
WHEN IN FACT THERE WAS NO FINDING WHO ADMINISTERED THE OATH; WHO ISSUED THE WARRANT; AND NO FINDING OF PROBABLE CAUSE WAS MADE IN VIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT RIGHT AGAINST ILLEGAL ARREST OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, ¶ 7 OF THE NEW JERSEY CONSTITUTION.
POINT TWO THE TESTIMONY OF THE STATE'S WITNESSES IS INCREDIBLE THAT THE GUN WAS IN PLAIN VIEW; THEREFORE, THE DENIAL OF THE MOTION TO SUPPRESS MUST BE REVERSED AS THE SEARCH WAS ILLEGAL IN VIOLATION OF THE DEFENDANT'S FOURTH AMENDMENT RIGHT OF THE UNITED STATES CONSTITUTION AND ARTICLE 1, ¶ 7 OF THE NEW JERSEY CONSTITUTION.
We have been supplied with a partially legible copy of the warrant for defendant's arrest for interfering with custody. Under the statement of the charge is the sentence, "Probable cause is/is not found in the issuance of this complaint." Neither option is circled. It is uncertain who administered the oath and who issued the warrant.
Those ambiguities, however, are immaterial to the legal validity of his arrest in light of the undisputed fact that there were two additional outstanding warrants for his arrest and that Officer Segarra had both of those additional warrants in his possession at the time of defendant's arrest.
Defendant's second pro se argument rests upon his assessment of the credibility of the testimony presented at the motion to suppress. The trial court, however, made a different credibility assessment, finding both witnesses entirely credible. We may not second-guess its assessment. Its findings are supported by the record and are thus binding on us. State v. Locurto, 157 N.J. 463, 471 (1999). Affirmed.