NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted April 30, 2013
On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 09-05-0517.
Joseph E. Krakora, Public Defender, attorney for appellant James Grate (Kevin G. Byrnes, Designated Counsel, on the brief).
Joseph E. Krakora, Public Defender, attorney for appellant Fuquan Cromwell (Joshua D. Sanders, Assistant Deputy Public Defender, of counsel and on the brief).
Fredric M. Knapp, Acting Morris County Prosecutor, attorney for respondent (Erin Smith Wisloff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the briefs).
James Grate, appellant, filed a pro se supplemental brief.
Fuquan Cromwell, appellant, filed a pro se supplemental brief.
Before Judges Yannotti, Harris and Hoffman.
Defendants James Grate and Fuquan Cromwell were tried before a jury and found guilty of second-degree unlawful possession of a weapon and third-degree unlawful possession of a weapon at an educational institution. After the jury's verdict, Cromwell pled guilty to second-degree certain persons not to have weapons.
Grate and Cromwell appeal from the judgments of conviction entered on March 11, 2011. We entered an order on August 27, 2012, consolidating the appeals. For the reasons that follow, we affirm defendants' convictions and the sentences imposed.
Defendants were charged with first-degree kidnapping for the purpose of committing a crime or flight thereafter, N.J.S.A. 2C:13-1(b)(1) (count one); first-degree kidnapping for the purpose of inflicting bodily injury or terrorizing the victim, N.J.S.A. 2C:13-1(b)(2) (count two); first-degree carjacking while inflicting bodily injury or using force on the occupant or person in control of the vehicle, N.J.S.A. 2C:15-2(a)(1) (count three); first-degree carjacking while threatening the occupant or person in control with, or purposely or knowingly placing the occupant or person in control in fear of immediate bodily injury, N.J.S.A. 2C:15-2(a)(2) (count four); first-degree carjacking while operating or causing the vehicle to be operated by the person in control or occupant of the vehicle taken, N.J.S.A. 2C:15-2(a)(4) (count five); first-degree robbery, N.J.S.A. 2C:15-1(a)(2) (count six); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count seven); second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b) (count eight); third-degree unlawful possession of a weapon at an educational institution, N.J.S.A. 2C:39-5(e)(1) (count nine); third-degree terroristic threats, N.J.S.A. 2C:12-3(a) (count ten); fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1(b)(4) (count eleven); and second- degree witness tampering, N.J.S.A. 2C:28-5(a)(1) (count twelve). Cromwell also was charged with second-degree certain persons not to possess weapons, N.J.S.A. 2C:39-7(b)(1) (count thirteen).
Thereafter, defendants filed a motion to suppress the gun found in the victim's car, arguing that the warrantless search of the car was not lawful. The judge considered the motion and thereafter filed a written opinion, denying the motion. The court found that exigent circumstances justified the warrantless search.
Defendants were later tried before a jury on the charges in counts one to twelve of the indictment. At the trial, the State presented evidence which indicated that on December 1, 2008, C.A. was driving his Honda Civic, when he stopped for gas. He saw Cromwell, who he knew from the neighborhood. Grate and a juvenile named J.L. were with Cromwell. Cromwell walked over and asked C.A. if he would give them a ride. C.A. agreed. Cromwell, Grate and J.L. entered C.A.'s car.
After they rode a few blocks, Cromwell asked C.A. for money. C.A. thought Cromwell was "playing" and ignored the request. According to C.A., Cromwell then pulled out a gun from the waistband of his pants. C.A. still thought Cromwell was "playing" but Cromwell "racked the gun back" and placed it at C.A.'s head. Grate and J.L. told C.A. to "[g]et the money up."
They asked C.A. to give them various amounts, and Cromwell asked "How much is your life worth to you." C.A. did not have any money, but fearing for his life, he called some friends and asked them for money. They refused his requests.
C.A. told Cromwell he was going to drive to Drew University, where his girlfriend was a student. C.A. said she had a credit card, which he could use for a cash advance. C.A. drove to the university. A security guard stopped the car but allowed the car to pass through onto the campus because, according to C.A., the guard knew him. C.A. turned the car's engine off but he was told to leave the keys in the car and he complied. Cromwell accompanied C.A. to his girlfriend's residence. Her roommate answered the door and let him enter. Cromwell followed him inside.
C.A. told Cromwell he was going to look for the credit card and, while he was doing so, managed to secretly make a phone call to New Jersey State Police Detective William Humphries, who had arrested C.A. and his cousin in October 2008 for distributing marijuana. Humphries did not answer C.A.'s call but Humphries called back a short time later.
C.A. told Cromwell that it was his uncle calling. C.A. moved out of Cromwell's earshot. He told Humphries he was being held at gunpoint and needed money. C.A. informed Humphries of his location, and Humphries told C.A. he was going to call the Madison police.
C.A.'s girlfriend entered the room and gave C.A. the credit card. C.A. secretly handed his girlfriend Humphries' business card, hoping she would call him. C.A. and Cromwell then returned to the car. Grate and J.L. said, "let's go get the money." C.A. started the car and was about to drive off, when he saw police lights shining on his car from the rear.
Sergeant Joseph Cirella of the Madison Police Department ordered them out of the car. Cromwell, Grate and J.L. accused C.A. of calling the police. According to C.A., they said, "if anything [goes] down, this is your gun. It's our word against yours."
Cirella had the occupants raise their hands, walk backwards towards him, kneel on the ground, and then lie flat on the ground. They all complied. Other police officers arrived on the scene. The police helped C.A. to his feet and took him to the back of a patrol car. The officers asked C.A. about the gun and he said it was inside his car. The officers kept C.A. in the back of the police vehicle, while they searched his car. They found a gun under the driver's seat.
The police transported C.A. and the others to the Madison police station. They handcuffed C.A. to a bench and placed Grate, Cromwell and J.L. in a holding cell. From the cell, they called to C.A. and told him to "man up" and admit the gun belonged to him. About a half hour later, Humphries arrived. The police removed C.A.'s handcuffs. The police impounded C.A.'s car, and Humphries gave C.A. a ride home.
Humphries corroborated C.A.'s story, for the most part. He said he had given C.A. his business card in the fall of 2008, hoping that C.A. would become a source of information and aid him in his investigations. Humphries called C.A. about once a week. He said that on December 1, 2008, C.A. called him and asked for money. C.A. told Humphries he was being held by "some guys" who were demanding money and threatening to hurt him. Humphries called the Madison police.
Cirella testified that he received a call around 9:00 p.m. on December 1, 2008, reporting that an armed robbery was in progress at Drew University. Cirella drove to the university's campus and located the car. He activated the video recording equipment and overhead lights on his police vehicle and told the occupants to exit the vehicle. Cirella drew his gun for protection and secured the occupants. Humphries called Cirella and told him that C.A. was the victim.
The police patted down Cromwell, Grate and J.L. They did not find any weapons. Cromwell and Grate were placed in one police vehicle, and J.L. and C.A. were placed in another vehicle. The police searched C.A.'s car and the surrounding area for a gun.
Cirella found a loaded nine millimeter handgun under the driver's seat, which was accessible to the backseat passenger. Cirella said there were thirteen bullets in the gun, one of which was ready to be fired. Detective Brian Ahern of the Morris County Prosecutor's Office testified that no latent fingerprints were found on the gun.
Cromwell did not testify at trial, but Grate testified that on December 1, 2008, he was hanging out with Cromwell, J.L., and two girls. Cromwell asked C.A. to give J.L. a ride home. C.A. agreed but said he would first have to go to the college. They drove there, and Cromwell and C.A. got out of the car.
A short time later, they returned to the car. C.A. received a call, and had a quick conversation. The police arrived. Grate said he was "shocked" and "kind of scared." He did not know what was going on, but tried to follow the officers' directions. Grate testified that the first time he saw the gun was when he appeared in court for this case. Grate said he did not threaten C.A. in any way, or tell him to get money. Grate denied that he told C.A. to claim the gun was C.A.'s gun.
The jury found defendants guilty of count eight (unlawful possession of a weapon) and count nine (unlawful possession of a weapon at an educational institution), but not guilty of the other counts upon which they had been tried. Cromwell then entered a negotiated plea to count thirteen (certain persons not to possess weapons).
The judge merged the convictions for unlawful possession of a weapon and for unlawful possession of a weapon at an educational institution. The judge sentenced Grate to eight years of incarceration, with a five-year period of parole ineligibility, and sentenced Cromwell to nine years of imprisonment, with five years of parole ineligibility. The judge also sentenced Cromwell to a consecutive eighteen months of imprisonment, without parole, on the certain-persons conviction. These appeals followed.
Grate's counsel has filed a brief in which he raises the following issues:
THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY THE FOURTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE WARRANTLESS SEARCH AND SEIZURE OF THE VEHICLE WITHOUT EXIGENT CIRCUMSTANCES.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S INSTRUCTION EXPRESSLY AUTHORIZING THE JURY TO FIND THAT THE DEFENDANT POSSESSED THE FIREARM SOLELY ON THE BASIS OF HIS PRESENCE IN THE CAR. (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S ERRONEOUS INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE TRIAL COURT'S FAILURE TO EXPLAIN THE LAW IN THE CONTEXT OF THE FACTS OF THE CASE AFTER THE JURY ASKED FOR A RE-INSTRUCTION ON THE LAW OF UNLAWFUL POSSESSION OF A FIREARM. (Not Raised Below).
THE DEFENDANT'S RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 10 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY COUNSEL'S FAILURE TO REQUEST INSTRUCTIONS AND MAKE OBJECTIONS TO ERRONEOUS AND PREJUDICIAL INSTRUCTIONS. (Not Raised Below).
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE REPEATED, PREJUDICIAL, AND IMPROPER ADMISSION OF HEARSAY EVIDENCE.
THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I, PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED BY THE STATE'S FAILURE TO SHOW THAT ITS LAY WITNESS HAD FIRST-HAND KNOWLEDGE OF THE FACTS. (Not Raised Below).
THE VERDICT IS AGAINST THE WEIGHT OF ...