July 5, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
CHRISTOPHER J. JONES, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-02-0205.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 26, 2010
Before Judges Carchman and Graves.
In a six-count indictment, a Burlington County grand jury charged defendant Christopher Jones with fourth-degree aggravated assault for pointing a firearm ("a Daisy Powerline BB gun") in the direction of Tamika Reed, N.J.S.A. 2C:12-1(b)(4) (count one); second-degree possession of the BB gun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree possession of the BB gun without a permit, N.J.S.A. 2C:39-5(b) (count three); third-degree aggravated assault for committing a simple assault upon a law enforcement officer, N.J.S.A. 2C:12-1(b)(5)(a) (count four); second-degree escape with the use of force, N.J.S.A. 2C:29-5(a) (count five); and third-degree resisting arrest, N.J.S.A. 2C:29-2(a)(3)(a) (count six). Following a three-day jury trial, defendant was convicted of four third-degree offenses: possession of the BB gun without a permit (count three); aggravated assault on a law enforcement officer (count four); the lesser-included offense of escape without the use of force (count five); and resisting arrest (count six). Pursuant to Rule 3:18-1, the court dismissed count two at the close of the State's case, and the jury found defendant not guilty of count one.
At sentencing on November 16, 2007, the court granted the State's motion to sentence defendant to an extended term as a persistent offender under N.J.S.A. 2C:44-3(a). Defendant was sentenced to serve a seven-year prison term, with three-and-one-half years of parole ineligibility, on counts three, four, five, and six. The court determined that the four extended term sentences were to run concurrently.
On appeal, defendant presents the following arguments:
THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AS A RESULT OF THE CLEARLY ERRONEOUS JURY INSTRUCTION THAT FAILED TO REQUIRE THE STATE TO PROVE AN ESSENTIAL ELEMENT OF THE OFFENSE OF POSSESSION OF A HANDGUN WITHOUT A PERMIT. (NOT RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ALLOWING THE PROSECUTOR TO ELICIT TESTIMONY ABOUT AND ALLOWING A WITNESS'S CONTINUED REFERENCE TO DEFENDANT'S ALLEGED USE AND ATTEMPTED PURCHASE OF COCAINE. (PARTIALLY RAISED BELOW).
THE TRIAL COURT ABUSED ITS DISCRETION AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY ALLOWING USE OF THE DEFENDANT'S PRIOR CONVICTIONS OF VIOLATIONS OF CONTROLLED DANGEROUS SUBSTANCE LAWS FOR IMPEACHMENT PURPOSES. (NOT RAISED BELOW).
AS DEFENSE COUNSEL FAILED TO PROVIDE THE DEFENDANT WITH A COPY OF HIS DISCOVERY THE DEFENDANT WAS DEPRIVED OF THE ABILITY TO INTELLIGENTLY EVALUATE POTENTIAL ACCEPTANCE OF THE PLEA OFFER AND DEFENDANT WAS THUS DENIED HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL. (RAISED BELOW).
AS THE COURT FAILED TO AWARD MITIGATING FACTORS TO WHICH THE DEFENDANT WAS CLEARLYENTITLED AND THEREAFTER FOCUSED ONLY ON DEFENDANT'S PRIOR RECORD AND NOT THE OFFENSES FOR WHICH HE WAS CONVICTED THE EXTENDED TERM SENTENCING PROCESS WAS FUNDAMENTALLY FLAWED AND SHOULD THE CONVICTIONS NOT BE REVERSED THE MATTER MUST BE REMANDED FOR RE-SENTENCING. (NOT RAISED BELOW).
A. THE EXTENDED TERM SENTENCING PROCESS.
B. FAILURE TO AWARD MITIGATING FACTORS.
C. ERRONEOUS WEIGHING OF RELEVANT FACTORS.
AS THE IMPOSITION OF MULTIPLE EXTENDED TERM SENTENCES IS ILLEGAL THE MATTER MUST BE REMANDED FOR RE-SENTENCING. (NOT RAISED BELOW).
For the reasons that follow, we affirm defendant's convictions and the imposition of one extended term sentence. However, a remand for resentencing is necessary because the court imposed more than one extended term. See N.J.S.A. 2C:44-5(a)(2) (stating that when multiple sentences are imposed for more than one offense, "[n]ot more than one sentence for an extended term shall be imposed"); see also State v. Pennington, 154 N.J. 344, 360-61 (1998).
The facts are relatively straightforward. Tamika Reed testified that she had known defendant for several years and that she was talking with him on Joseph Street in Mount Holly Township on November 15, 2006. According to Reed, defendant was wearing a red jacket and drinking a beer, and at approximately 9:00 p.m., they decided to purchase crack cocaine.
Reed testified they walked to a residence on Grant Street and defendant "received what he wanted," but "he didn't give no money to the person." Instead, "[h]e pulled out a gun" and began "acting crazy." According to Reed, defendant pointed the gun at her, Shelly Epps*fn1 "and the other person," and he said: "You're very lucky I don't pull the trigger on all you." Reed described the gun as "black and long." When asked how the incident ended, Reed said: "He pulled it out, then he walked away----after he did what he did, he walked away."
Reed testified she gave a statement to the police regarding the incident. However, on cross-examination, she admitted that she could not recall what she told the police because she was "[h]igh on crack" that night.
Shelly Epps testified she knew defendant "from the neighborhood," and that she spoke with Reed and defendant at her home on Grant Street on November 15, 2006, at approximately 9:00 p.m. According to Epps, defendant "was really agitated," and when she asked him to leave, "he started arguing." Epps testified that as defendant was leaving, he was "ranting and raving about something. And then he pulled out a gun." Epps said she did not know what defendant "did with the gun because [she] went in the house to call the police."
On November 15, 2006, Patrolman Ronald Weiman, Sergeant William Fields, and Patrolman Richard Spitler of the Mount Holly Police Department were all working the 7:00 p.m. to 7:00 a.m. shift. At approximately 9:29 p.m., Fields and Spitler responded to "a report of a subject with a gun" on Grant Street. As a result of their investigation, the officers learned that the individual with the handgun was defendant and that "he was wearing a red hooded sweatshirt."
Subsequently, while Weiman was on patrol at approximately 1:17 a.m., he observed two individuals walking on White Street, and one of them "was wearing a red hoodie." Based on a radio transmission that Weiman had received regarding the incident on Grant Street, he believed the individual wearing the red hoodie might be defendant.
As Weiman proceeded on White Street, the two individuals turned left on Washington Street, and Weiman lost sight of them. When Weiman arrived at the intersection of White Street and Washington Street, he looked down Washington Street and saw only one individual. However, as he was radioing the other units, Weiman observed defendant, wearing a red hoodie, emerging from an alley between two residences on Washington Street. Defendant was "taken into custody" and then transported to the Mount Holly Police Department.
Weiman testified he stayed behind at the scene and began checking garbage cans with a flashlight in the alley where defendant had been seen. Using his flashlight for illumination, Weiman recovered a "black handgun" from "a narrow space" by a basement entranceway door. Upon closer inspection, Weiman determined that the handgun was "an air pistol . . . that shoots a projectile using compressed air." The weapon, which was also identified as "a Daisy BB gun," was admitted into evidence during the trial.
When Patrolman Spitler finished processing defendant at the station, he handcuffed him behind his back and walked him to a patrol vehicle for transportation to the Burlington County Jail. The vehicle was locked, however, and as Spitler was reaching for his keys to unlock the door, defendant "broke free" and "began running through the police parking lot handcuffed."
Spitler "[g]ave chase," and caught up with defendant when he was approximately forty or fifty yards from the police vehicle. When asked to explain what happened next, Spitler testified as follows:
A. I grabbed hold of him. He kept pulling away. He kept thrashing back into me and kept trying to break my grasp. I was eventually able to grab hold of him, his whole body, and I was able to bring him to the ground.
Q. Okay. what was his demeanor at that point?
A. Agitated, fighting.
Q. When you say fighting, what do you mean?
A. Trying to get away from me, pushing off on me, flailing his legs when I had him on the ground, that type of action.
Q. Did Mr. Jones strike you in any way?
A. . . . [O]f course, laying on him, sure. I was all over him. I'm sure I got kicked a couple of times. I know . . . my hand was cut.
Sergeant Fields and Patrolman Weiman were at the police station when Spitler left to escort defendant to the patrol car. Shortly thereafter, both officers heard yelling from the parking lot and ran to assist Spitler. According to Weiman, defendant "was attempting to get away . . . and Officer Spitler was on top of him, trying to hold him down." Weiman testified he told defendant to stop resisting, but defendant kept kicking and "thrashing about."
Defendant was the only witness for the defense. Defendant admitted that he was with Tamika Reed on November 15, 2006, buttestified he was not in possession of a gun and never pointed a gun at her. He also denied seeing Shelly Epps that night. Defendant admitted he was arrested on Washington Street, but denied going into an alleyway prior to his arrest. Defendant also admitted that he "took off" when Spitler reached for his keys to unlock the car door. Defendant offered the following explanation:
[T]he reason why I resisted [was] because [when] I was in there, all I was trying to do was make a phone call. He kept telling me to shut up. He kept telling me these other things, stretching the truth a little bit. He was also threatening me in there. All I was trying to do is use the phone.
Defendant also acknowledged on direct examination that he had pled guilty to possession of controlled dangerous substances "on at least three occasions."
In his first point, defendant argues that the court failed to properly instruct the jury on the offense of possession of a handgun without a permit "because the jury was never informed of the legal definition of 'handgun.'"*fn2 This argument must be evaluated under the plain error rule because there was no objection to the trial court's instructions. Therefore, we must find that the alleged error was "clearly capable of producing an unjust result" before we can reverse defendant's conviction. R. 2:10-2. Moreover, "[t]he absence of an objection suggests that trial counsel perceived no error or prejudice." State v. Green, 318 N.J. Super. 361, 373 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000).
In this case, count three of the indictment alleged that defendant possessed "a Daisy Powerline BB gun," and a BB gun is properly classified as a firearm. See State v. Mieles, 199 N.J. Super. 29, 39 (App. Div.) ("[W]e reject defendant's statutory construction arguments that the BB pistol was not a handgun or firearm."), certif. denied, 101 N.J. 265 (1985). The court instructed the jury that a firearm is "a pistol, revolver or any gun, from which may be fired or ejected; any solid projectile, ball, slug, pellet, missile or bullet; and shall include any carbon dioxide or compressed air gun or pistol in which the propelling force is carbon dioxide air, or compressed air." In addition, the jurors were able to observe the BB gun because it was introduced into evidence by the State. Under these circumstances, we conclude that the jury instructions were adequate, and we find no reversible error.
In his next point, defendant alleges that he did not receive a fair trial because Tamika Reed was allowed to testify that she went with him to Grant Street to purchase crack cocaine. However, the record reflects that after defense counsel objected, the court immediately instructed the jury as follows:
All right. Ladies and gentlemen, you just heard some testimony about an alleged drug transaction, or an attempt to conduct a drug transaction.
The defendant is not charged with anything relating to narcotics. Therefore . . . you are to disregard the testimony that you just heard about narcotics. And you are not to consider it for any purpose in determining the guilt or the innocence of the defendant on the charges in the indictment.
Drugs have nothing to do with any charge in the indictment and you should not consider that testimony in weighing the defendant's guilt or innocence on those charges.
The judge also provided the jurors with the following instruction prior to their deliberations: "Any testimony that I may have had occasion to strike is not evidence and shall not enter in your final deliberations. It must be disregarded by you. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations."
In view of these instructions, we are satisfied that the stricken testimony could not have affected the outcome of the case. See State v. Burns, 192 N.J. 312, 335 (2007) ("One of the foundations of our jury system is that the jury is presumed to follow the trial court's instructions.").
In his third point, defendant argues for the first time on appeal that the State should not have been allowed to use his three prior convictions for possession of a controlled dangerous substance to impeach his credibility. We do not agree.
Ordinarily, "[a] jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law[-]abiding citizen." State v. Sands, 76 N.J. 127, 145 (1978). Therefore, "the burden of proof to justify exclusion rests on the defendant." Id. at 144. In this case, defendant's prior convictions were sanitized in accordance with State v. Brunson, 132 N.J. 377 (1993), and we find no error, much less plain error.
In his fourth point, defendant claims that he is entitled to a new trial based upon his attorney's alleged failure to provide him with pretrial discovery and to review the State's evidence with him. When defendant was sentenced on November 16, 2007, he made a similar claim, and the judge noted that he had addressed the issue on a prior date and "made a decision at the time." Nevertheless, the record on appeal does not include any hearing or argument that may have been conducted by the trialcourt, or the court's findings. Accordingly, defendant's argument that his attorney was ineffective is beyond the scope of the present record. However, the issue can be raised in a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460 (1992) ("Our courts have expressed a general policy against entertaining ineffective--assistance--of--counsel claims on direct appeal because such claims involve allegations and evidence that lie outside the trial record.").
Defendant also challenges his sentence, but he does not dispute that he was eligible to be sentenced to an extended term as a persistent offender. Defendant was twenty-six years old when he was sentenced. The court found three aggravating factors: the risk of recidivism, N.J.S.A. 2C:44-1(a)(3); the extent of defendant's prior criminal record, N.J.S.A. 2C:44-1(a)(6); and the need to deter, N.J.S.A. 2C:44-1(a)(9). The court found no mitigating factors, and we find no support in the record for applying any mitigating factors.
Based on our review of the record, we are satisfied that the extended term sentence and period of parole ineligibility imposed for each of the offenses is not excessive or unreasonable, and it certainly does not "shock the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984). Nevertheless, a resentencing remand is necessary, as no more than one extended term sentence may be imposed. N.J.S.A. 2C:44-5(a)(2).
In view of the foregoing, defendant's convictions are affirmed, but we remand for resentencing. Jurisdiction is not retained.