On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 08-03-00874 and 08-03-00875.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2011
Before Judges Parrillo, Alvarez and Skillman.
Tried by a jury on a multi-count indictment, defendant David Franklin was convicted of second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). He was acquitted of first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3; second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1); and a host of lesser offenses. Defendant was also charged in a separate indictment with second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7(b), to which he pled guilty. After merging the weapon possession convictions of the first indictment, the judge sentenced defendant to a fourteen-year term with a seven-year period of parole ineligibility as a second-time Graves Act offender, N.J.S.A. 2C:43-6c, to run concurrent with an eight-year term imposed on the other indictment. Defendant appeals and we affirm.
According to the State's proofs, on December 5, 2007, at around 1:45 p.m., Newark Police Officers Aisha Carroll and Janeth Murillo were on patrol in a marked police car. Their attention was drawn to a group of four individuals, including defendant, standing in Lincoln Park. As the officers approached the park in their vehicle, Officer Carroll saw an exchange between defendant and another member of the group. When the officers exited their car, the group began to disperse. Both officers repeatedly yelled to defendant to stop; however, defendant ignored their commands and ran towards Clinton Avenue.
The officers reentered their vehicle and pursued defendant with lights and sirens. When defendant failed to stop, Officer Carroll again exited the vehicle and chased defendant on foot into a vacant lot off of Clinton Avenue, where she again ordered defendant to stop. Instead, according to Officer Carroll, defendant turned around, with a weapon in his hands, and fired a shot at the officer, the bullet passing right by her shoulder. Officer Carroll immediately dropped to her knees and returned two or three shots from a distance of about sixteen feet. A pedestrian, Corey Ferdinand, who was just three or four feet away from Carroll at the time, witnessed the chase as well as defendant turning and firing a bullet that passed between him and Carroll.
After Officer Carroll fired back, defendant fled towards Brunswick Street. The officers pursued defendant and eventually positioned themselves at a nearby occupied six-story apartment complex, separated from an abandoned apartment building by a very narrow alley. Backup arrived quickly, consisting of members of two precincts and several special operations and emergency units. The area was cordoned off, a nearby school was evacuated, and a helicopter eventually arrived.
Over the next several hours, police attempted to apprehend defendant. During this time, Officer Carroll saw defendant jump from the rooftop of the occupied building onto the roof of the vacant structure with a weapon in his hand. Other officers, including Sergeant Anthony Venancio, who took command of the scene, and Officer Joseph Soares, who acted as a sniper, observed defendant on the roof of the vacant building, walking back and forth, and holding a black gun. Detective Anthony Lima saw defendant on the rooftop of one of the buildings with a gun in his hand while the officer himself was on top of the adjacent building a few yards away. Detective Angel Perez also saw defendant on the rooftop waving a gun, as did the bystander Ferdinand.
The police began searching the interior of the buildings, clearing the roofs and making their way downward. They searched the entirety of the occupied building and did not find defendant. On the fourth floor of the vacant building, a locked gate that led to the roof was shot open. As police began searching the vacant building, defendant appeared with a gun on a fire escape on the third-floor level, visible to Lieutenant Kirk Rubel and Officer Soares, the latter from his vantage point, as the sharpshooter, on the roof of the taller building. Even though it was dark outside, the scene was illuminated by street lights and lights from the occupied apartment building. Once the helicopter over the structure spotted defendant with a very bright light, the police ordered him to drop his weapon, which he did. Defendant was then taken into custody. Following his arrest, police examined the scene and located a .40 caliber Glock 27 handgun, identified by Officer Soares as the gun carried by defendant, along with six rounds of ammunition, with one in the chamber, and a magazine that had been inside the gun.
As noted, the jury returned a verdict of not guilty on all counts except for unlawful possession of a weapon and possession of a weapon for an unlawful purpose. On appeal, defendant raises the following issues for our consideration:
I. THE TRIAL COURT'S FAILURE TO PROPERLY INSTRUCT THE JURY ON POSSESSION OF A FIREARM FOR AN UNLAWFUL PURPOSE DEPRIVED DEFENDANT OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. IV, PARS. 1, 9, 10. (Not Raised Below).
II. THE PROSECUTOR'S FAILURE TO PROVIDE DEFENSE COUNSEL WITH THE DISCOVERY OF AN IDENTIFICATION WITNESS WAS A DISCOVERY VIOLATION AND THE COURT'S REFUSAL TO BAR SAID ...