On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-04-0796.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2012 -
Before Judges Axelrad and Ostrer.
A jury found defendant Darryl Franklin guilty of third-degree possession of a weapon, a knife, for an unlawful, purpose, N.J.S.A. 2C:39-4d, and fourth-degree unlawful possession of a weapon, a knife, N.J.S.A. 2C:39-5d, and acquitted him of first degree robbery, N.J.S.A. 2C:15-1.
On this appeal, defendant asserts that four trial errors cumulatively, if not individually, denied him a fair trial: the court abused its discretion in allowing the State to introduce evidence that defendant possessed a hypodermic needle; the court erred when it did not issue a corrective instruction after the alleged victim testified that defendant faced a possible extended term; the court misstated an essential element of the charge on unlawful possession of a weapon; and the court erred in failing to comprehensively instruct the jury on the elements of theft, which was the alleged unlawful purpose for which defendant possessed the knife.
As we agree with defendant's first and third arguments, and conclude the cumulative effect of the errors denied him a fair trial, we reverse his conviction and remand for a new trial.
Jersey City Police Officer Patrick Butler testified that on January 14, 2009, at 11:37 a.m., he responded to a report of a robbery. He interviewed the alleged victim, Gerald DeFrees, at the corner of Union and Ocean Streets. DeFrees said that he was at Salem Lafayette Court when he was robbed at knife-point of $20. Officer Butler drove around the neighborhood with DeFrees in his police vehicle, to search for the robber. After several minutes, DeFrees identified defendant, walking along Bergen Avenue, three-and-a-half blocks from where he met the officer. He was wearing a wool hat and his face was visible.
As Officer Butler and other assisting officers pursued defendant, he tossed a knife into the bed of a passing truck. The knife - a black-handled kitchen knife - was retrieved. Defendant's time of arrest was 11:50 a.m., thirteen minutes after the original police dispatch. Upon his arrest, defendant possessed a hypodermic needle, a wool cap, and a ski mask, but he did not possess $20. As we discuss in greater detail below, the court had denied defendant's pre-trial motion to bar the admission of the hypodermic needle and testimony about it.
The victim testified that it was a cold January morning. He was dressed in a goose-down coat and a snow suit. While he was adjusting his snow pants, a man approached him from behind, put a knife to his throat, and removed $20 from his left pocket. He testified the robber pulled the face mask off after he took the money, so DeFrees was able to see his face. He also testified that he asked the robber to return his money and the robber responded that he would not. DeFrees, who retained his cell-phone, called 911 and an officer responded in five minutes. DeFrees identified the mask and the knife, which police recovered, as the items used in the robbery. DeFrees also asserted he had never met defendant before the incident.
On cross-examination, defense elicited that in DeFrees's initial statement to police, he did not mention the details that the robber removed his mask, he conversed with the robber about getting his money back, or that he, who was six-foot-four-inches tall, was bent over adjusting his pants when defendant, a shorter man, allegedly put a knife to his throat.
Before trial, defense counsel had moved to bar any testimony, particularly from the alleged victim, that defendant was eligible for extended term. The court asked the assistant prosecutor to advise DeFrees not to bring up the matter, and the assistant prosecutor agreed. During trial, the assistant prosecutor elicited testimony of a conversation DeFrees had with defendant when they were both in the county jail. DeFrees asserted defendant asked him to drop the charges against him. Over a defense objection, the court permitted the assistant prosecutor to elicit that defendant sought to avoid jail, without addressing the length of imprisonment defendant faced. The assistant prosecutor then inquired, "When he asked you to drop the charges, he asked you to drop the charges not because he said he was innocent but because of punishment that he could face, correct?" DeFrees agreed.
On cross-examination, the defense established that DeFrees wrote to the defense attorney, seeking a meeting to discuss his desire not to pursue the charge against defendant. However, on redirect, the State elicited that DeFrees wrote the letter at defendant's request, and the witness mentioned defendant's exposure to an extended term.
Q. It [the letter] was regarding a desire not to pursue charges against Mr. Franklin?
Q. Who told you to write that letter?
Q. Okay. It was right around the same time that he might face punishment -
Q. - if the charges proceeded.
The State had elicited on direct examination that DeFrees had three prior criminal convictions.
Although DeFrees denied knowing Franklin, the defense elicited testimony from its investigator, who interviewed DeFrees in response to his letter, that DeFrees admitting having known defendant for ten years. Defendant's girlfriend also testified that she was present on six occasions when defendant and DeFrees used drugs together. The State suggested the girlfriend was biased, and raised questions about the ...