On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-08-02454.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 19, 2012
Before Judges Parrillo and Fasciale.
A jury convicted defendant, Shamar Givens, of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b.*fn1 He was sentenced to a seven-year term, with forty-two months of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). Appropriate fees and penalties were also assessed. Defendant appeals, and we affirm.
According to the State's proofs, around 1:00 a.m. on March 1, 2002, while on routine patrol in uniform and in a marked vehicle, East Orange Police detectives Jason Richards and Elemond Tucker observed defendant sitting on a snow-covered sidewalk in front of a home on Prospect Street, a high-crime residential area. Concerned for his well-being on account of the weather conditions, the detectives pulled their vehicle alongside defendant, whereupon they observed him holding an open, partially empty bottle of E&J Brandy. When the detectives exited their vehicle to issue him a summons for drinking in public, defendant dropped the bottle and began walking away. Detective Richards ordered defendant to stop, but defendant looked over his right shoulder, clenched his waistband, and responded "I'm good." Despite several commands to stop from both detectives, defendant continued running northbound on Prospect Street while holding his waist with his right hand. He eventually fell in the snow in front of another residence on Prospect Street, with his hands underneath his body.
When the detectives caught up with defendant, they ordered him to reveal his hands from under his body. After struggling with Detective Tucker, defendant rolled over and put his hands up in the air. Detective Tucker handcuffed defendant and Detective Richards conducted a safety pat-down, which revealed a loaded revolver in defendant's waistband. The detectives secured the weapon and bullets. Defendant was then transferred to headquarters where Detective Tucker logged the gun and bullets into evidence and Detective Richards issued defendant a summons for drinking in public.
Defendant offered a different account at trial. According to defendant, he had left the home of his friend, Joseph Harris, around midnight and, unable to get a taxicab, was walking home when he was stopped by the detectives and searched for no reason. He admitted having a bottle of brandy inside his coat pocket, but denied having drank from it, dropping it to the ground, running from the police, falling in the snow, and significantly, being in possession of the gun.
Evidently crediting the State's version, the jury, as noted, convicted defendant of second-degree unlawful possession of a weapon. On appeal, defendant raises the following issues:
I. THE PROSECUTOR'S QUESTIONING OF DEFENDANT CONSTITUTED PROSECUTORIAL MISCONDUCT.
II. DEFENDANT'S SENTENCE WAS EXCESSIVE.
We find no merit to either of these contentions.
Defendant contends the prosecutor improperly questioned him about his failure to call a witness (Joseph Harris) and to produce phone records of his call to the taxicab company, thereby shifting the burden of proof and negating the presumption of innocence. In support of this argument, ...