On appeal from Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 08-08-0879.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 16, 2011
Before Judges Waugh and Koblitz.
Defendant Peter R. Robinson appeals his conviction and sentence, after a jury trial, of second-degree possession of a handgun without a permit, N.J.S.A. 2C:58-4. He was acquitted of all the remaining counts of the indictment and raises issues on appeal including the ineffective assistance of trial counsel.
After reviewing the record in light of the contentions advanced on appeal, we affirm.
A Burlington County Grand Jury returned Indictment No. 2008-08-0879 charging defendant with two counts of fourth-degree aggravated assault by pointing a handgun, N.J.S.A. 2C:12-1b(4) (counts one and two); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a (count three); and the charge for which he was convicted.
At trial, the facts were largely undisputed. Defendant is a long-distance truck driver who lived in his truck while on the road. He lived with his family in Georgia and had a "Georgia Firearms License." He kept a 9mm handgun in his truck.
On April 23, 2008, defendant attempted to make a delivery of Georgia freight at the Christmas Tree Shops Warehouse (Warehouse) in Florence, New Jersey. He was an hour and a half late, and when he arrived, he was advised that he would have to reschedule the delivery. The next morning, after spending the night sleeping in his truck, defendant was again stymied in his attempt to unload the freight. Defendant became embroiled in an altercation with the administrative clerk, Arthur Nesbitt. Nesbitt's co-worker, Eduardo Feliciano, was present when defendant and Nesbitt were arguing. Defendant pulled out his gun and put it on the dashboard of the truck before he tried to leave by the security gate. He was stopped at the gate by security guards who were instructed by Nesbitt not to allow defendant to leave. Defendant then exited his truck to address the situation. Robert Chmura, security manager for the warehouse, called the police and instructed security personnel not to allow defendant back into his truck, thinking the gun was located in the truck. When a police officer arrived, defendant reached for the gun in his waistband. Chmura and other men wrestled defendant to the ground. Feliciano pulled the gun from defendant's hands and bullets fell to the ground. Defendant testified that he was taking his gun and bullet clip from his waistband to give to the security guard when he was jumped. Defendant testified that the gun was never loaded.
Defense counsel consented to the admission of defendant's videotaped statement in which he asked for counsel. Defendant acknowledged that he had fired his gun at a range and that he thought it was legal to have the gun in his truck because he had been so informed by a Texas Department of Transportation officer. Defendant is Jamaican, living in the United States since 1998 on a permanent resident card.
After a conviction on count four only, defendant was sentenced to five years in prison with a mandatory minimum period of incarceration of three years pursuant to the Graves Act. N.J.S.A. 2C:43-6c.
On appeal defendant argues the following issues:
POINT I: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL PURSUANT TO R. 3:18-1. THE STATE FAILED ITS BURDEN OF PROVING ALL ELEMENTS OF THE CRIME BY FAILING TO INTRODUCE EVIDENCE THAT THE GUN RECOVERED WAS A FIREARM AS DEFINED BY N.J.S.A. 2C:39-1f.
POINT II: THE STATE VIOLATED THE DEFENDANT'S MIRANDA RIGHTS, CONTRARY TO THE FIFTH AND SIXTH AMENDMENT TO THE FEDERAL CONSTITUTION AS WELL AS HIS STATE STATUTORY AND COMMON LAW PRIVILEGE AGAINST SELF-INCRIMINATION WHEN THEY CONTINUED HIS INTERROGATION AFTER HE INITIALLY REQUESTED AN ATTORNEY. THE STATE'S USE OF HIS INCULPATORY STATEMENT DEPRIVED THE DEFENDANT OF A FAIR TRIAL AS THIS STATEMENT WAS CRITICAL TO THE STATE'S PROOFS ESTABLISHING THE CRIME. [Not raised below.]
POINT III: THE TRIAL COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL. THE DEFENDANT'S DUE PROCESS RIGHTS TO BEAR ARMS IN SELF-DEFENSE AS GUARANTEED BY THE SECOND AMENDMENT AND APPLIED TO THE STATES BY THE FOURTEENTH AMENDMENT HAVE BEEN VIOLATED. NEW JERSEY'S GUN POSSESSION LAW, N.J.S.A. 2C:39-5b, VIOLATES THE ...