July 19, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
DANIEL J. SUSSMAN, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-10-1102.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 1, 2011
Before Judges Wefing and Baxter.
Tried to a jury, defendant was convicted of unlawful possession of a handgun, N.J.S.A. 2C:39-5b. The trial court sentenced defendant to five years in prison, with a three-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.
In the early evening of June 29, 2008, Officer Michael Ekelburg of the Burlington Township Police Department saw defendant sitting side saddle on an all-terrain vehicle (ATV), using his feet to move the ATV across Route 130 South, which contains three lanes of traffic. He was crossing the roadway in the middle of the block and at an angle. Traffic on Route 130 was slowing down so as not to hit the defendant and ATV.
The officer went up to Sussman after defendant had successfully navigated his way across the road. The ATV did not display any registration, plates or decal, and the officer asked defendant to whom it belonged; he replied that it was his father's, and he was going to call his father. Defendant then said that it belonged to him. The officer asked for proof of ownership, but defendant had none with him and began to call relatives to ask them to look for it. The officer then asked if defendant knew where on the ATV the serial number was located, and defendant said he did not. The officer inspected the entire frame but could not locate a serial number. The officer then told defendant that he would have to impound the ATV until defendant produced proof of ownership. Defendant said he would walk to his nearby home, get the necessary proof and bring it to the police station. He then left.
Officer Ekelburg called for assistance to transport the ATV to the police station. While he was waiting, he continued to inspect the ATV in search of a serial number. He noticed that under the seat was a latch that was unlocked. He opened the latch, which released the seat, exposing a compartment that contained both the vehicle's battery and a loaded .38 caliber handgun. Defendant was charged with illegal possession of the handgun.
Prior to his trial getting underway, Sussman filed a motion to suppress. Officer Ekelburg was the only witness at the motion. After hearing his testimony, and the argument of counsel, the trial court denied the motion. At trial, the State presented two witnesses - Officer Ekelburg and Randall Toth.
Mr. Toth qualified as an expert in firearms and testified that he had examined the weapon found in the ATV and that it was an operable firearm. Defendant did not testify and presented no witnesses.
On appeal, defendant raises the following contentions:
BECAUSE THE COURT'S DENIAL OF THE MOTION TO SUPPRESS EVIDENCE WAS BASED IN PART ON TESTIMONY THAT SHOULD HAVE BEEN EXCLUDED UNDER PRINCIPLES OF DUE PROCESS, THE RULING MUST BE REVERSED.
THE COURT ERRED IN GIVING THE JURY AN ADVERSE-INFERENCE CHARGE REGARDING POSSESSION OF CONTRABAND IN A VEHICLE, SINCE THE "VEHICLE" IN QUESTION WAS AN ATV.
THE COURT ERRED IN INSTRUCTING THE JURY TO MAINTAIN THE PRESUMPTION OF INNOCENCE "EVEN IF" DEFENDANT CHOSE NOT TO TESTIFY. (Not Raised Below)
THE COURT ERRED IN FINDING THE GRAVES ACT TO APPLY TO THIS OFFENSE.
In defendant's first point, he argues that the motion to suppress was tainted because the trial court permitted hearsay evidence in violation of Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004). Defendant's contention is not persuasive. As we noted in State v. Williams, 404 N.J. Super. 147, 171 (App. Div. 2008), certif. denied, 201 N.J. 440 (2010), Crawford is not applicable to testimony presented at pretrial proceedings such as motions to suppress, but only to testimony offered at trial.
The trial court instructed the jury, over defendant's objection, that if the jury concluded that defendant was the sole occupant of the vehicle, it could infer that "this occupant possessed the handgun." This instruction rests upon N.J.S.A. 2C:39-2a, which provides in pertinent part, that "[w]hen a firearm, weapon, destructive device, silencer, or explosive . . . is found in a vehicle, it is presumed to be in the possession of the occupant if there is but one."
Defendant argues this instruction was erroneous because the ATV was not a "vehicle."*fn1 Defendant notes that N.J.S.A. 39:1-1 defines a "vehicle" as "every device in, upon or by which a person or property is or may be transported upon a highway. . . ." He then points to N.J.A.C. which refers to ATVs as "a small open motorized vehicle designed for off-road use. ATVs are also considered off-highway vehicles (OHV) or off road vehicles (ORV)." Defendant concludes that because ATVs are designed for off-road use, they do not fit within Title 39's definition of a vehicle.
We disagree, for several reasons. We note first that the Title 39 definition of a motor vehicle, which is incorporated into the criminal code, N.J.S.A. 2C:1-14n, refers to the ability of the vehicle to be used upon a highway while the administrative code section to which defendant points refers to the intended use for which the vehicle was designed, not its ability to be used in a different fashion. Further, the statutory restriction on the permissible uses of ATVs prohibits their use on "limited access highways" as opposed to the more encompassing term "highways." N.J.S.A. 39:3C-17. Indeed, N.J.S.A. 39:3C-17b(1) provides specific directions with respect to how an ATV may cross a "highway." Finally, the trial court, immediately after telling the jury that it could infer that defendant possessed the handgun if it found that he was the sole occupant of the vehicle, went on to tell the jury:
You are never required or compelled to draw any inference. It is your exclusive province to determine whether the facts and circumstances shown by the evidence support any inferences. And you are always to [sic] free to accept or reject them, if you wish.
We see no error in the court's instruction.
Defendant also contends that another portion of the trial court's instructions was erroneous. Defendant elected not to testify and requested that the trial court instruct the jury that it could not consider that decision on his part in its deliberations. As part of its charge, the trial court told the jury that defendant was presumed innocent "even if he chooses not to testify." Defendant did not object at trial but contends on appeal that the trial court's use of the phrase "even if" was so flawed that it constitutes plain error. The Supreme Court has specifically rejected this argument. State v. Miller, 205 N.J. 109, 126-27 (2011).
Defendant's final argument is with respect to his sentence. He contends that the trial court erred when it found that defendant was subject to a mandatory parole disqualifier. We disagree. Defendant's offense was committed on June 29, 2008.
N.J.S.A. 2C:43-6 was amended, effective in January 2008, to provide that an individual convicted of illegal possession of a handgun under N.J.S.A. 2C:39-5b, as was defendant, "shall be sentenced to a 'term of imprisonment . . . [that] shall include the imposition of a minimum term . . . [to be] fixed at, or between, one-third and one-half of the sentence . . . or three years, whichever is greater . . . .'" The trial court complied with this legislative mandate.
We reject defendant's argument with respect to the construction of this statute. The phrase to which he attaches significance, "while in the course of committing or attempting to commit the crime" does not modify the earlier reference to N.J.S.A. 2C:39-5b but, rather, refers to convictions under other portions of the criminal statutes, including, inter alia, aggravated assault, N.J.S.A. 2C:12-1b, kidnapping, N.J.S.A. 2C:13-1, and burglary, N.J.S.A. 2C:18-2.
We note that the trial court did not engage in a weighing of applicable aggravating and mitigating factors. N.J.S.A. 2C:44-1.
We decline to remand for resentencing, however. This was defendant's first adult conviction, and the trial court imposed the lowest base term permissible for a second-degree offense.