On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 09-02-0406.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall, Alvarez and Skillman.
Tried by a jury, defendant Richard C. Holmes was convicted of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and on June 18, 2010, was sentenced to eight years imprisonment subject to four years of parole ineligibility.
Appropriate fees and penalties were imposed. He appeals and we affirm.
As established during the motion to suppress hearing, the handgun was discovered during a routine motor vehicle stop. On September 16, 2008, at approximately 2:00 a.m., Newark Police Detective James Cosgrove was on patrol working narcotics, accompanied by Detectives Mario DeSilva and Richard Weber. Towards the end of the patrol shift, Cosgrove observed a Pontiac disregard a traffic signal at Thirteenth Avenue and Tenth Street. He signaled the car to stop, activating his lights and siren. The Pontiac "slowly pulled up to the curb and then slowed to a stop[,]" just before Twelfth Street on Thirteenth Avenue. Before defendant, who was driving, stopped the car, he reached into the rear seat area, "fumbling in the back[.]" As a result, since the area of the stop was a "high crime narcotics and weapons area[,]" Cosgrove and the other officers approached the Pontiac cautiously. Although nighttime, the street was well-lit. Cosgrove ordered the driver to sit forward and shut off the vehicle; the passenger, Roshan Coles, kept his hands in front of his body and did not move.
Cosgrove shone his flashlight into the rear of the car to see "if there was somebody ducking down, maybe if there was a weapon being placed on the floor, drugs being stashed in the car, whatever that may be." When he did so, Cosgrove saw that the rear seat was "not all the way folded[,]" and that the butt of a gun, from the trigger to the rear of the weapon, was "wedged in between the seat." The weapon contained one live round in the chamber and five live rounds in the ammunition magazine. Only the driver was arrested and charged,*fn1 as the passenger was not observed reaching into the rear of the vehicle.
When Cosgrove wrote his incident report, he indicated the traffic signal defendant ignored was a stop sign. He acknowledged during the suppression hearing that he was mistaken, as the signal was actually a traffic light.
The judge*fn2 who heard the motion found, among other things, that the officer's mistake as to the type of traffic signal ignored by defendant was inadvertent and inconsequential. He also found, despite "vigorous cross examination[,]" the State's version of events - that defendant ignored a traffic signal and was observed reaching into the rear of the vehicle as his car was signaled to pull over - was "reasonable and believable[.]" Because of the suspicious nature of the behavior, the officer was justified in flashing his light onto the back seat of the Pontiac, and once having seen the handgun, was equally justified in seizing it. The State therefore established by a preponderance of the credible evidence that the warrantless seizure was lawful.
The trial judge conducted a Rule 104 hearing regarding a potential defense witness, Ousmame Ouedraogo,*fn3 who testified that he had tinted the windows on the Pontiac. The car actually belonged to Ramona Addison, the mother of defendant's children. Ouedraogo said that although he completed the job after the date of defendant's arrest in 2008, defendant asked him for a receipt indicating that the job was completed on December 15, 2007.
Defendant attempted to move into evidence at trial an insurance inspection report dated June 18, 2008, regarding the condition of the Pontiac, completed by Addison's insurer, GEICO. Attached to the report were some photographs purporting to depict the vehicle with tinted windows at a date prior to the arrest. Because Addison was the source of the information contained in the GEICO report, and no representative from GEICO was available to testify about it, initially the court did not find the report to be a business record within the meaning of the rule. See N.J.R.E. 803(c)(7). The State also objected to the admission of the report because Addison had been present in the courtroom during the trial. After Addison testified regarding the origin of the report and photographs, however, they were admitted into evidence. In any event, the inspection report did not have the appropriate box checked that would have indicated the vehicle had tinted windows.
Before the trial commenced, the judge issued a very detailed sequestration order. It included the admonition that "[a]ll witnesses must remain out of the courtroom while the trial is in progress . . . ."
On the stand, Addison admitted that she knew there was a sequestration order in effect. She claimed that she remained in the courtroom during trial because she did not realize she was going to be called upon to testify.
Addison was asked on cross-examination if defendant had received other motor vehicle summonses on other occasions while operating her vehicle, and she responded in the affirmative. When the testimony was proffered, defense counsel objected on the basis of relevance. In her opening statement, counsel made reference to defendant driving the Pontiac.
Coles testified at trial that when the men were stopped, he was "grabbed" and told to get out of the automobile. He said defendant was also removed from the vehicle and that police subsequently searched the front, back, and trunk of the Pontiac, and that "a few minutes after the search," a detective announced he had found a gun in the car. Coles added that he drove the car back because police gave him the keys, a statement contradicted by Cosgrove, who said Coles was allowed to walk away from the car, and defendant allowed to keep his keys, after arrest. On cross-examination Coles denied owning the gun and explained he had not previously come forward regarding the manner in which he testified police conducted the search, even though he knew the prosecutor's office wanted to speak to him, because he thought his only obligation was to appear in court.
On appeal, defendant raises the following points, which we address in the order presented:
THE WARRANTLESS SEIZURE OF THE FIREARM FOUND IN THE PONTIAC VIOLATED DEFENDANT'S RIGHT TO BE FREE FROM UNLAWFUL AND UNREASONABLE SEARCHES AND SEIZURES GUARANTEED BY THE UNITED STATES AND NEW JERSEY CONSTITUTION[S] POINT II
TESTIMONY ELICITED BY THE PROSECUTOR OF OTHER INSTANCES WHERE DEFENDANT WAS STOPPED BY POLICE IN THE MOTOR VEHICLE INVOLVED IN THIS CASE WAS IMPROPER N.J.R.E. 404(b) EVIDENCE THAT SHOULD HAVE [BEEN] EXCLUDED FROM EVIDENCE POINT III
THE DEFENSE OPENING AND THE CALLING OF MR. [OUEDRAOGO] AS A WITNESS CONSTITUTED INEFFECTIVE ...