August 1, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT.
AKIBA ADAMS A/K/A AKIBA BELTON, DUPEE ADAMS, DUPREE A. ADAMS, AKIBA D. ADAMS, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-11-02051.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 26, 2011
Before Judges Sabatino and C.L. Miniman.
Defendant Akiba Adams appeals from his convictions for second-degree unlawful possession of a handgun, contrary to N.J.S.A. 2C:39-5b; fourth-degree resisting arrest, contrary to N.J.S.A. 2C:29-2a; and fourth-degree obstructing justice, contrary to N.J.S.A. 2C:29-1. Defendant was sentenced to ten years in prison with a five-year parole disqualifier on the second-degree offense, and was sentenced to two concurrent eighteen-month terms on the fourth-degree offenses. We affirm.
Detective Scott Rogers of the Jersey City Police Department was on duty at 1:00 a.m. on August 2, 2008, when he received information that caused him to go to a particular location on Stegman Street. He was accompanied by Detective Thomas McVicar and Officer Peter Hilburn. Upon arriving at the scene, the officers observed defendant standing in the vicinity. As they began to approach him, he removed a handgun from his waistband and ran down Stegman Street pursued by all three officers. Rogers saw him throw a gun over a fence into an adjoining yard. For some reason, defendant lost his balance and fell. He was captured by Officer Lacey, another officer who arrived at the scene. Defendant resisted arrest but was ultimately subdued. The gun was recovered from the other side of the fence and proved to be an operable .357 Magnum revolver with hollow-nosed bullets in the chamber.*fn1
At trial, although Rogers testified without elaboration that he had received information about some activity on Stegman Street, when McVicar testified in response to a question on direct examination about what attracted his attention to defendant, he said, "That is the description that we had received as part of the information ----." Defense counsel immediately objected, and the judge conducted a sidebar conference, which was not able to be transcribed. After the sidebar, the judge excused the jury and then sustained the objection. He further directed McVicar not to testify to any information he may have received or any comments about any information because it was inadmissible hearsay. When the jury returned, direct examination continued without further incident.
During the charge conference, defense counsel did not request a charge with respect to McVicar's interrupted testimony. The judge gave a general instruction on the effect of rulings on the admissibility of evidence, without specifically instructing the jury to disregard any evidence as to which an objection had been sustained. The judge also instructed the jury to disregard any testimony he had stricken, although he did not strike the objectionable portion of McVicar's testimony. The jury returned its verdict, defendant was subsequently sentenced, and this appeal followed.
Defendant raises the following issue for our consideration:
POINT I - THE TRIAL JUDGE ERRED IN FAILING TO GIVE THE JURORS A CURATIVE CHARGE AFTER THEY HEARD INADMISSIBLE HEARSAY EVIDENCE. (Not Raised Below)
POINT II - THE DEFENDANT'S SENTENCE IS EXCESSIVE.
In his supplemental pro se brief, defendant raises these additional issues for our consideration, which we have renumbered to run consecutively with the initial points on appeal:
POINT [III] - THE TRIAL COURT ERRED IN FAILING TO GIVE THE JURORS A CURATIVE INSTRUCTION AFTER THEY HEARD [INADMISSIBLE]
HEARSAY EVIDENCE, COMPOUNDED BY THE COURT'S ABSENT RULING ON THE OBJECTION. [(Not Raised Below)]
POINT [IV] - INEFFECTIVE [ASSISTANCE OF]
COUNSEL WAS RENDERED WHEN TRIAL COUNSEL FAILED TO MOVE FOR A CONTINUANCE TO OBTAIN DEFENDANT[']S MEDICAL RECORDS AND FOR A DISMISSAL DUE TO THE LACK OF PROOFS FOR RESISTING ARREST, ETC., IN LIGHT OF THE INJURY TO THE ARM AS STATE[']S WITNESSES TESTIFIED.
More specifically, in Points I and III defendant contends that the judge's failure to indicate that the objection to McVicar's testimony was sustained and to instruct the jury not to consider the improper portion of McVicar's testimony allowed a violation of State v. Bankston, 63 N.J. 263 (1973), to occur without correction.
Because this issue was not raised by defense counsel after his objection was sustained and was not raised by him during the charge conference, we review the issue on appeal under the plain-error standard of review contained in Rule 2:10-2. That rule provides that "[a]ny error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result." Ibid. "It is fundamental in our practice that a claim of error which could have been but was not raised at trial will not be dealt with as would be a timely challenge." State v. Engel, 249 N.J. Super. 336, 377 (App. Div.), certif. denied, 130 N.J. 393 (1991). This is so because "[i]t may be fair to infer from the failure to object below that in the context of the trial the error was actually of no moment." State v. Macon, 57 N.J. 325, 333 (1971).
We recognize that our Supreme Court has "consistently stressed the importance of immediacy and specificity when trial judges provide curative instructions to alleviate potential prejudice to a defendant from inadmissible evidence." State v. Vallejo, 198 N.J. 122, 135 (2009). Such instructions can neutralize whatever prejudice is caused by an inappropriate comment or piece of testimony. See State v. Wakefield, 190 N.J. 397, 440 (2007) (concluding that "the trial court promptly and effectively dealt with [a prosecutor's] comments via a curative instruction"), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed 2d 817 (2008).
Applying these precepts, we conclude that the judge should have given a curative instruction immediately after McVicar's testimony and the judge's ruling on the objection. See Bankston, supra, 63 N.J. at 268 (holding that "when the officer becomes more specific by repeating what some other person told him concerning a crime by the accused[,] the testimony violates the hearsay rule"). Such an instruction may also be warranted because the erroneous admission of hearsay testimony can also violate a defendant's Sixth Amendment right to confrontation. Id. at 269; see also Michigan v. Bryant, 562 U.S. ___, ___, 131 S. Ct. 1143, 1162, 179 L. Ed. 2d 93, 114-15 (2011).
That, of course, is not the end of the inquiry as we must determine whether the error was harmless.
The test of whether an error is harmless depends upon some degree of possibility that it led to an unjust verdict. The possibility must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached. [Bankston, supra, 63 N.J. at 273.]
Where the proofs are otherwise overwhelming, errors in the admission of evidence may be harmless. State v. Gillispie, ___ N.J. ___, ___ (2011) (slip op. at 43).
That is the case here. Defendant was observed by Rogers with a gun in his hand, he turned and ran from the officers as they approached him, and he threw the gun over a fence into a yard. The interrupted testimony from McVicar could not possibly have affected the outcome of this trial and was harmless. We see no ground for disturbing the jury's verdict.
Defendant next contends that the ten-year sentence was excessive because the judge sentenced him to the maximum term for a second-degree crime and the maximum terms for fourth-degree crimes. The judge found aggravating factors 3, 6, and 9,*fn2 but found no mitigating factors. Defendant urges that the need to deter deserves minimal penal significance, citing State v. Jarbath, 114 N.J. 394, 405 (1989), and that he had only three indictable convictions. Because his offense was "a purely possessory offense," he urges that nothing justified a maximum sentence.
We disagree with defendant's characterization of his offenses. The fourth-degree offenses, of course, were not purely possessory, and the Legislature obviously treats possession of a handgun without a permit as a serious offense, classifying it as a second-degree crime. Additionally, although defendant only had three indictable convictions, as a juvenile he had been arrested fifteen times----ten times for crimes such as robbery, aggravated assault, and distribution of a controlled dangerous substance. He was eighteen years old when he was convicted of aggravated assault causing serious bodily injury and sentenced to four years in prison. Four years later, he was convicted in municipal court on three occasions of possessing drug paraphernalia, refusing to obey an official request, and breaching the peace. The following year, defendant was convicted of distributing drugs within 1000 feet of a school and was sentenced to three years in prison. Immediately after he was paroled in 2000, defendant was convicted in municipal court of loud noises and obstructing the administration of justice. In 2001, defendant was convicted in New York of fourth-degree possession of narcotics and was sentenced to a term of five to ten years in state prison. He was not paroled until 2008. Three months after being paroled, defendant committed the current offenses.
We note that the State moved for imposition of an extended term but then voluntarily withdrew the motion. It is clear that defendant's criminal history is extensive, even though he only committed three indictable offenses since he reached the age of majority.
Our review of the sentence is "restricted to whether the determination of the sentencing factors was appropriate, whether the determination was supported by competent evidence in the record, and whether the sentence is so unreasonable that it shocks the judicial conscience." State v. Paduani, 307 N.J. Super. 134, 148 (App. Div.), certif. denied, 153 N.J. 216 (1998); accord State v. Bieniek, 200 N.J. 601, 612 (2010). The test is whether, based on the evidence before the court, no reasonable sentencing judge could have imposed the sentence under review. State v. Roth, 95 N.J. 334, 365 (1984). Here the judge followed the legislative policies, reviewed the aggravating and mitigating factors, and applied the guidelines to the facts. This careful evaluation does not give rise to a conclusion that the sentence was clearly unreasonable and shocking to the judicial conscience. State v. Kirk, 145 N.J. 159, 176 (1996). We do not substitute our judgment for that of the sentencing judge. State v. Megargel, 143 N.J. 484, 493-94 (1996). Thus we find no occasion to disturb the sentence imposed.
Last, we consider defendant's claim of ineffective assistance of counsel. There is a general policy against entertaining ineffective assistance of counsel claims for the first time on appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). These claims are more appropriately raised in post-conviction relief (PCR) proceedings. Id. at 460-62. That is the case here because defendant would submit copies of his hospital records and an affidavit from a physician, to support his claim of ineffective assistance of counsel. The issue cannot be determined on the record before us and is preserved for presentation to the trial court in a petition for PCR.