August 23, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
PETER R. ROBINSON, DEFENDANT-APPELLANT.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 FEDERAL CONSTITUTION AS APPLIED TO AN INDIVIDUAL WHO UTILIZES A FIREARM IN SELF-DEFENSE.
POINT IV: THE TRIAL COURT ERRED WHEN IT DID NOT SUA SPONTE CHARGE THE JURY ON THE DEFENSE OF MISTAKE OF FACT/MISTAKE OF LAW WHICH THE DEFENDANT ESTABLISHED BY CLEAR AND CONVINCING EVIDENCE. THE TRIAL COURT ERRED WHEN IT PRECLUDED ADMISSION OF THE DEFENDANT'S GEORGIA PERMIT TO CARRY A CONCEALED WEAPON. [Partially raised below]
A - Mistake of Fact/Mistake of Law
B - Exclusion of the Georgia
Permit POINT V: THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL. THIS CLAIM IS SELF EVIDENT IN THE RECORD AND THEREFORE COGNIZABLE ON DIRECT APPEAL. [Not raised below]
POINT VI: THE SENTENCE IMPOSED AS REQUIRED BY THE STATUTE UNDER THE CIRCUMSTANCES OF THIS CASE SHOCKS THE JUDICIAL CONSCIENCE AND VIOLATES THE DEFENDANT'S EIGHT AMENDMENT RIGHT AGAINST CRUEL AND UNUSUAL PUNISHMENT. AT THE LEAST, THE COURT SHOULD REMAND THE MATTER TO PERMIT THE FILING OF A PRE-TRIAL INTERVENTION APPLICATION OR IF THAT IS DENIED FOR CONSIDERATION OF EXEMPTION FROM APPLICATION OF THE GRAVES ACT PURSUANT TO N.J.S.A. 2C:43-6.2.
In Point I of his brief, defendant argues that the trial court erred in not granting his motion for a judgment of acquittal at the end of the State's case, pursuant to Rule 3:18-1, because the State failed to prove that the object recovered was a firearm as defined by N.J.S.A. 2C:39-1f.
In reviewing a trial court's decision to deny a motion for judgment of acquittal, "the relevant question is 'whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'"
State v. Josephs, 174 N.J. 44, 81 (2002) (quoting Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). The State's evidence should be viewed "in its entirety and give[n] . . . the benefit of all its favorable testimony and all of the favorable inferences to be drawn from that testimony . . . ." State v. Spivey, 179 N.J. 229, 236 (2004) (citation and internal quotation marks omitted).
N.J.S.A. 2C:39-1f defines a "firearm" as a "handgun . . . from which may be fired or ejected any solid projectable . . . bullet . . ." The trial court correctly relied on State v. Gantt, 101 N.J. 573, 577 (1986), in holding that "proof of a gun's operability is not inherent in the definition of a 'firearm . . . '" In Gantt, the Court held that in determining whether or not a weapon fits into this definition "the fact that a real gun is unloaded, in disrepair, or temporarily nonfunctional is irrelevant . . . because those characteristics do not reflect on the weapon's original lethal design." Id. at 585. Sufficient evidence was presented by the State proving that the handgun possessed by defendant was originally designed to be operable. Defendant admitted in his videotaped statement that he fired his handgun at a firing range. He admittedly carried a bullet clip with the gun in his waistband prior to his arrest.
In Point II of his brief, defendant argues as plain error that defendant's Miranda*fn1 rights were violated when the police continued to question him after he asked for a lawyer. Defense counsel did not object to any of this testimony at trial. Consequently, defendant must demonstrate plain error, i.e., that the error was "clearly capable of producing an unjust result."
R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "[r]eversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotation marks omitted); see also State v. Daniels, 182 N.J. 80, 95, (2004); Macon, supra, 57 N.J. at 333; R. 2:10-2.
The State argues convincingly that defense counsel waived any Miranda violation for strategic reasons, which were relatively successful. Counsel remarked on the record, "We waived Miranda and we allowed the statement to go in." Defense counsel argued in summation,
Peter Robinson told you from the stand and Peter Robinson told you from his statement what happened to him and how he had to defend himself . . . when you compare what Peter Robinson's testimony was to his videotaped statement, the videotaped statement that he gave to police after first wondering whether or not he should give it, the videotaped statement that just has him pouring out his emotion and how he felt, that it is -- it is clear that there was no pointing of a gun, that what Peter Robinson said is true, that there was a waving of a gun as two big men were beside his truck . . . I want to talk about his statement . . . the real telling part of the -- of the statement is Peter Robinson saying should I talk, should I not talk? I'm just going to tell you what -- what this is all about. I was just trying to do my job. I was just trying to get out of here. I was just trying to do what I got to do for my family.
But the other telling aspect about that . . . statement . . . is Peter Robinson wiping his face during the statement because he had been crying, because he had been full of fear.
Unquestionably, defendant used his videotaped statement to argue to the jury that he was innocent of pointing a gun and the most serious charge of possession of a gun for an unlawful purpose. In fact, he was only convicted of possession of the gun without a permit, a charge for which the evidence was overwhelming. Defense counsel strategically chose to allow the videotaped statement into evidence unchallenged. "'Trial errors which were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal.'" State v. Corsaro, 107 N.J. 339, 345 (1987) (quoting State v. Harper, 128 N.J. Super. 270, 277 (App. Div.), certif. denied, 65 N.J. 574 (1974)). The court cannot now be faulted for not holding a pre-trial Miranda hearing or suppressing the statement when defendant clearly wanted his statement to be viewed by the jury.
In Point III of his brief, defendant argues that his conviction violated his Second Amendment "right to bear arms in self-defense." He argues that his truck is his home, and he therefore had the right to carry the handgun in his truck and take it out of the truck when needed for self-defense, as he argues occurred here. In support of his argument, defendant relies on District of Columbia v. Heller, 554 U.S. 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008), in which the United States Supreme Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense in the home, and McDonald v. Chicago, __ U.S. __, 130 S. Ct. 3020, 177 L. Ed. 2d 894 (2010), where the Court held that the Second Amendment right is fully applicable to the states. These cases, however, dealt exclusively with guns in the home. Even if we were to accept defendant's view of his truck as his second home, which requires acceptance of an expansive definition of the word home, defendant acknowledges that he had the handgun and clip in his waistband on his person outside of the truck on warehouse property.
He claims this possession on his person was "fleeting" in nature. Defendant's possession does not fit within the definition of "fleeting" possession because defendant had access to and control over the handgun. See State v. Stewart, 96 N.J. 596, 604 (1984) (holding that "possession of a firearm for purposes of the Graves Act includes not only actual possession but constructive possession that the defendant is able to convert practically immediately to actual possession"). Compare State v. Bolton, 230 N.J. Super. 476, 481 (App. Div. 1989) (suggesting that the defendant may not have been aware of his control of a knife, thrown into an ashtray of a car by a passenger as the car was being stopped by the police, for a sufficient period of time to terminate his possession).
Defendant argues alternatively that his actions were protected by 18 U.S.C.S. § 926A of the Firearms Owners Protection Act, which allows an individual to transport a gun if it is unloaded and neither the gun nor ammunition is readily accessible from the passenger compartment or is kept in a locked container. Carrying the gun and ammunition in a waistband clearly does not comply with this statute.
Defendant did not have a New Jersey permit for the gun, and federal law did not allow him to carry a handgun in New Jersey without such a permit.
In Point IV of his brief, defendant argues as plain error that the court should have sua sponte charged the jury on the defense of mistake of fact and mistake of law. N.J.S.A. 2C:39-5b requires only knowledge of the possession of the gun and a lack of New Jersey license. Knowledge that a license is necessary to possess a gun is not an element of the crime. Thus, mistake of law does not apply as it does not negate "the culpable mental state required to establish the offense." N.J.S.A. 2C:2-4a(1).
Defendant also admitted on the stand that he knew that different states had different gun laws. The Georgia law indicates that a carry permit is valid in that state only. O.C.G.A. § 16-11-129(a) (2011). The Texas Department of Transportation officer's opinion that it was legal to keep a gun in the truck does not fit within the New Jersey statute's definition of "an official statement of the law . . . [by] the public officer . . . with responsibility for . . . enforcement of the law defining the offense[.]" N.J.S.A. 2C:2-4c(2). Moreover, defendant carried the gun outside of his truck.
Defendant also raises in Point IV of his brief that the court erred by not admitting into evidence defendant's Georgia permit to carry a concealed weapon. Defendant testified that he had the permit and identified the permit in front of the jury. The State did not dispute defendant's possession of the Georgia permit and told the jury of its existence in its opening statement. Any error in failing to admit the actual permit was harmless. See State v. Castagna, 187 N.J. 293, 312 (2006).
In Point V of his brief, defendant argues that trial counsel was ineffective because he did not request a charge relating to mistake of law and waived defendant's Miranda rights. As discussed above, counsel's decision to allow the State to admit defendant's videotaped statement without objection appears from the record to be a part of his trial strategy. We discussed above the reasons why we conclude that mistake of law was not an available defense here.
We refrain from resolving defendant's ineffective-assistance claim on direct appeal. Instead, we reserve such a claim for a future application for post-conviction relief (PCR), where the record may be expanded with appropriate proofs outside of the trial transcripts. See State v. Preciose, 129 N.J. 451, 460 (1992); State v. Sparano, 249 N.J. Super. 411, 419 (App. Div. 1991).
Defendant argues that his status as a resident alien on a permanent residence card and the deportation detainer that has been filed may deprive him of his ability to file a PCR petition. This speculation does not affect our decision to consider defendant's ineffective assistance of counsel claims in the ordinary manner.
Finally, in Point VI defendant argues that, as a first offender with a family to support, the court's imposition of the minimum sentence permitted under the law, five years in prison with a mandatory minimum of three years, "shock[s] the judicial conscience." See State v. Roth, 95 N.J. 334, 365 (1984).
Defendant claims that the sentence constitutes cruel and unusual punishment under the Eighth Amendment and Article I, paragraph 12 of the New Jersey constitution. "Legislature, not courts, prescribe the scope of punishment." State v. Des Marets, 92 N.J. 62, 66 n.2 (1983) (finding the Graves Act constitutional, although prior to its January 2008 amendment applied here, which imposed a mandatory minimum for possession of a handgun alone) (citation and internal quotation marks omitted). We do not have the authority to disregard the sentencing provisions imposed by the Legislature, which are presumed valid, absent a clear finding of unconstitutionality. The possession of a gun and bullets during an argument certainly brings with it the risk of violence. We do not conclude that the sentence imposed was "grossly out of proportion to the severity of the crime" nor a "purposeless and needless imposition of pain and suffering." State v. Trippiedi, 204 N.J. Super. 422, 427 (App. Div. 1985) (citation and internal quotation marks omitted).
Defendant argues further that he should have been afforded the "escape valve" provision of the Graves Act that allows the prosecutor to consent to an application to the Assignment Judge to exempt defendant from the Graves Act if the imposition of a mandatory term "does not serve the interests of justice . . ." N.J.S.A. 2C:43-6.2. We cannot conclude that the State's failure to agree to such an application constitutes a "patent and gross abuse of discretion." State v. Watson, 346 N.J. Super. 521, 534 (App. Div. 2002) (explaining that under this standard "the defendant must show that in refusing to move or consent to make such an application to the trial court, the decision was arbitrary and amounted to unconstitutional discrimination or denial of equal protection"), certif. denied, 176 N.J. 278 (2003). Defendant did not seek a hearing to contest the State's failure to agree to such an application. State v. Alvarez, 246 N.J. Super. 137, 148 (App. Div. 1991). Without such a hearing, we are unable to conclude from the facts before us that the State's refusal "was an arbitrary and capricious exercise of discretion." State v. Lagares, 127 N.J. 20, 33 (1992).