On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 08-10-00940.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne, Reisner and Simonelli.
Defendant, David L. Johnson, appeals from his conviction for second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b, and from his discretionary extended-term sentence, imposed pursuant to N.J.S.A. 2C:44-3a, of fifteen years of imprisonment with six years of parole ineligibility pursuant to N.J.S.A. 2C:39-7b and 2C:43-7b. On appeal, defendant raises the following arguments for our consideration:
THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS THE GUN BECAUSE THE OFFICER'S TESTIMONY, OFFERED TO ESTABLISH PROBABLE CAUSE, LACKED CREDIBILITY.
THE TRIAL JUDGE ERRED IN GIVING A FLIGHT INSTRUCTION TO THE JURY BECAUSE NO EVIDENCE OF FLIGHT WAS ADDUCED AT TRIAL. (NOT RAISED BELOW.)
THE PROSECUTOR'S MISCONDUCT DURING HIS SUMMATION, INCLUDING MISSTATING THE LAW AND FACTS OF THE CASE AND DISPARAGING THE DEFENSE, DEPRIVED DEFENDANT OF A FAIR TRIAL. (PARTIALLY RAISED BELOW.)
A. Defendant Was Prejudiced by the Prosecutor's Misstatement of the Law Regarding His Presumption of Innocence.
B. Defendant Was Prejudiced by the Prosecutor's Disparaging Comments About the Defense and the Prosecutor's Statement that Defendant Created a Story to Explain His Actions.
DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE WARRANTING A REMAND FOR RESENTENCING.
Defendant, who was found by the police in possession of a loaded handgun, was indicted for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and for possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7b. Prior to his trial, defendant moved to suppress the gun found in his possession at the time of his arrest. A testimonial hearing was held on his motion, at which time testimony was offered for the State by Mercer County Sheriff's Office Detective James Udijohn, a member of the office's shooting response team charged with investigating non-deadly shootings in the City of Trenton.
Detective Udijohn testified that, on the evening of March 19, 2008, at approximately 11:00 p.m., he and his partner, Jonathan Cincilla, a member of the Trenton Police Department, were conducting a plain-clothes investigation of shootings in the area of Hoffman Avenue and the Roger Garden housing projects in West Trenton. As Detective Udijohn drove along Coolidge Avenue, he saw two females and a male standing beside a white four-door Jeep Cherokee. The male was drinking from a beer bottle held in his left hand.
Upon seeing the open beer bottle, the Detective pulled up, so that he could issue a summons for violation of a local ordinance. As he and his partner exited their vehicle, the male, later identified as defendant David Johnson, appeared visibly startled. His eyes widened and he grabbed his waistband with his right hand. As the result of his police experience, Detective Udijohn suspected from defendant's hand movement that he was carrying a concealed gun. At that point, defendant "ran and got into the rear passenger door of the Jeep Cherokee, which was open at the time." Detective Udijohn followed defendant, and when he illuminated the inside of the Jeep with his flashlight, the Detective saw defendant sitting in the rear passenger seat, reaching down, with his hands between his legs. In the area where defendant's hands were located, Detective Udijohn saw a black handle sticking out from under the rear passenger seat that he thought was part of a handgun.
Upon seeing what he believed to be a weapon, the Detective drew his own gun and ordered defendant to exit the vehicle. Defendant complied and was patted down by Officer Cincilla. As that occurred, Detective Udijohn retrieved a weapon from under the back seat of the Jeep, as well as the bottle of beer that defendant had been holding. No contraband was found on defendant. The gun, a twenty-five-caliber semi-automatic handgun, was found to have one bullet in its chamber and four in the magazine. Custody of the gun and the beer bottle was taken by Officer Cincilla.
While these events were taking place, the two women who had been with defendant remained on the street. Additionally, there were people in the courtyard of a nearby apartment complex and on the porches of the apartments. Detective Udijohn and Officer ...