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State v. Grate

Superior Court of New Jersey, Appellate Division

May 29, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JAMES GRATE, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
FUQUAN CROMWELL, a/k/a FUGUAN CROMWELL, a/k/a FUQUAN A. CROMWELL, a/k/a SAMAAD CROMWELL, a/k/a SAMAD CROMWELL, a/k/a SAMAAD LATHER, a/k/a SAMAAD N. J.L., a/k/a SAMAAD N. LATHER, Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

PER CURIAM

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.

I.

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.

II.

Grate's counsel has filed a brief in which he raises the following issues:

POINT I

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.
POINT II
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).
POINT III
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).
POINT IV
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).
POINT V
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).
POINT VI
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.
POINT VII
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).
POINT VIII
THE VERDICT IS AGAINST THE WEIGHT OF THE EVIDENCE.
POINT IX
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 ACCUMULATION OF TRIAL ERRORS. (Not Raised Below).
POINT X
THE SENTENCE IS EXCESSIVE.
A.THE IMPOSITION OF A MANDATORY PERIOD OF PAROLE WAS ERRONEOUS.
B.THE TRIAL COURT ERRONEOUSLY BALANCED THE AGGRAVATING AND MITIGATING FACTORS.

Grate has filed a pro se supplemental brief in which he raises the following arguments:

POINT I
Defendant James Grate's motion to suppress the evidence in this matter should have been granted.
POINT II
The verdict was against the weight of the credible evidence and defendant James
Grate's motion for a new trial and/or for a judgment of acquittal should have been granted.
POINT III
The jury's instructions that the presumption contained in [N.J.S.A. 2C:39-2(a)] that a weapon found in a vehicle with more than one occupant shall be presumed to be in possession of all, confused and forced the jury to find the defendant, James Grate guilty which deprived him of a fair trial.
POINT IV
Defendant James Grate's due process right was violated by the judge allowing the verdict to stand.
POINT V
The conviction must be overturned based on the failure to instruct the jury properly on constructive possession.

Cromwell's counsel has filed a brief in which he raises the following arguments:

POINT I
DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE FOUND INSIDE THE VEHICLE SHOULD HAVE BEEN GRANTED BECAUSE UNDER PENA-FLORES THE OFFICERS NEEDED TO OBTAIN A WARRANT ABSENT EXIGENT CIRCUMSTANCES AND THERE WERE NO EXIGENT CIRCUMSTANCES HERE.
A. The "Protective Sweep Doctrine" Is Inapplicable to Automobiles.
B.There Was No Basis To Reasonably Believe That Any Of The Occupants Could Gain Access To Weapons.
C. The Search Conducted By Law Enforcement Flies In The Face Of Both The Intent And Spirit of Pena-Flores.
D. There Were No Exigent Circumstances In this Matter.
POINT II
THE TRIAL COURT COMMITTED STRUCTURAL, REVERSIBLE ERROR WHEN IT PRESENTED CONFLICTING INSTRUCTIONS ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below).
POINT III
THE TRIAL COURT COMMITTED STRUCTURAL, REVERSIBLE ERROR WHEN IT OMITTED THE NECESSARY MENS REA FROM THE INSTRUCTION RELATIVE TO UNLAWFUL POSSESSION OF A WEAPON IN AN EDUCATIONAL INSTITUTION IN VIOLATION OF [N.J.S.A. 2C:39-5(e)(1)]. (Not Raised Below).
POINT IV
THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED MR. CROMWELL A FAIR TRIAL. (Not Raised Below).
POINT V
THE TRIAL COURT'S IMPOSITION OF THE NEAR-MAXIMUM SENTENCE FOR THIS POSSESSORY OFFENSE WAS EXCESSIVE AND UNDULY PUNITIVE, THEREFORE IT MUST BE REDUCED.

Cromwell has filed a pro se supplemental brief in which he raises the following arguments:

POINT I
TRIAL COURT ERRED WHEN DENYING MOTION FOR
ACQUITTAL.
POINT II
TRIAL COUNSEL'S FAILURES DEPRIVED DEFENDANT OF EFFECTIVE REPRESENTATION GUARANTEED BY THE STATE (NJ Const. Art. I. Par I); and FEDERAL (US Const. 6th and 14th [AMENDMENTS]).
POINT III
AGGRAVATED FACTOR FIVE WAS APPLIED TO DEFENDANT'S SENTENCE IN ERROR.
POINT IV
DEFENSE COUNSEL FAILED TO REQUEST FOR [SIC] THE TRIAL COURT TO PROVIDE THE JURY WITH A CHARGE CONSISTENT WITH THE DEFENDANT'S VERSION OF THE FACTS.

III.

We turn first to defendants' contention that the trial judge erred by denying their motion to suppress the evidence obtained in the warrantless search of C.A.'s automobile.

The Fourth Amendment to the Constitution of the United States and Article I, paragraph 7 of the New Jersey Constitution protect citizens of this State from unreasonable searches and seizures. State v. Pena-Flores, 198 N.J. 6, 18 (2009). Warrantless searches and seizures are presumptively invalid and are prohibited unless the particular search or seizure falls within a recognized exception to the warrant requirement. Ibid. (citing State v. Wilson, 178 N.J. 7, 12 (2003)).

Under federal law, a warrantless search of an automobile is permitted "so long as the vehicle is readily mobile and there is probable cause to believe it contains evidence of criminality." Id. at 20 (citing Pennsylvania v. Labron, 518 U.S. 938, 940, 116 S.Ct. 2485, 2487, 135 L.Ed.2d 1031, 1036 (1996)). However, under New Jersey law, a warrantless search of an automobile is only valid when "(1) the stop is unexpected; (2) the police have probable cause to believe that the vehicle contains contraband or evidence of a crime; and (3) exigent circumstances exist under which it is impracticable to obtain a warrant." Id. at 28.

A court must consider the totality of circumstances in determining whether exigent circumstances exist. Ibid. Relevant considerations include:

the time of day; the location of the stop; the nature of the neighborhood; the unfolding of the events establishing probable cause; the ratio of officers to suspects, the existence of confederates who know the locations of the car and could remove it or its contents; whether the arrest was observed by passersby who could tamper with the car or its contents; whether it would be safe to leave the car unguarded and, if not, whether the delay that would be caused by obtaining a warrant would place the officers or the evidence at risk.

[Id. at 29-30.]

In general, exigent circumstances exist when the law enforcement officers do not have sufficient time in which to obtain any form of warrant. Id. at 30.

Here, the trial judge found that the stop of the car was unexpected. The judge noted that when Cirella entered the college campus, he did not know whether he would find the car or the suspects. The judge also found that Cirella had reasonable cause to believe that a crime had been committed and a gun was in the car. The judge noted that Humphries had contacted the Madison police and provided reliable information that C.A. had been robbed at gunpoint.

The judge pointed out that Humphries knew the alleged victim, and relayed accurate information regarding the victim's identity, the suspects, the vehicle and their general location. When he stopped the car, Cirella confirmed the information Humphries had provided, and when Cirella patted down the suspects and did not find a weapon, he had a well-grounded suspicion that there was a weapon in the car.

The judge additionally found that "a multitude of factors and circumstances" established exigent circumstances to proceed with a warrantless search of the car. The judge noted that the events had unfolded rapidly. Cirella located a vehicle that matched the description he had been provided. Two other officers from the Madison police department arrived on the scene and helped Cirella secure the four occupants of the car.

As Cirella testified, these three officers were the only officers on duty for the entire town on the evening of December 1, 2008. The judge observed:

[I]t would have been impractical and imprudent to leave an officer on special detail at the scene to secure the vehicle until a search warrant could be obtained, leaving the officers exposed to unnecessary risk. The transporting officers would have been outnumbered, having more than one suspect in their patrol car.

The judge noted that the arrests took place at night on a college campus where students were residing. People began to congregate at the scene and the officers had safety concerns. The officers reasonably believed there was a weapon in the car, and they did not know whether anyone might try to tamper with the evidence. The judge said the exigency did not end when the occupants of the car were secured.

The judge additionally stated that, until the car was seized and removed from the scene, third-parties could have accessed the vehicle and destroyed any evidence contained in it. The judge said he could not "fathom a situation where it would be more impractical to place an officer on the vehicle in order to obtain a search warrant."

Defendants argue that exigent circumstances did not exist. Among other things, they note that the occupants of the car had been secured, and there was no evidence that other persons were involved in the robbery. They assert that there was no indication anyone would attempt to tamper with the evidence. Cromwell further contends that Cirella should have placed a call to obtain a telephonic search warrant. Grate adds that the stop was not unexpected.

We are satisfied that these arguments are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(2). We are convinced that the record supports the judge's findings and his conclusion that exigent circumstances existed that made it impractical for the officers to obtain a search warrant.

As the judge pointed out, the arrests and search unfolded quickly. Only three officers were on duty in the municipality that evening, and all three were at the scene. There were no other officers to patrol the town, and no officers available to watch the car and the suspects while another officer applied for a warrant.

Moreover, the exigency did not dissipate merely because the occupants had been secured and removed from the scene. As the judge found, the officers had reasonable grounds to believe there was a gun in the car, and until that weapon was found, students and others in the area could be at risk. See State v. Cooke, 163 N.J. 657, 672 (2000) (citing State v. Alston, 88 N.J. 211, 234 (1981)).

IV.

Next, defendants contend that various parts of the jury charge were erroneous and require a new trial.

A. Constructive possession

Defendants argue that the judge failed to instruct the jury that to find they constructively possessed the gun, the jury had to find that they had the "power and the intention at a given time to exercise control over it, " as provided in the Model Jury Charge (Criminal), "Possession" (2005). In support of their argument, defendants rely on the part of the charge in which the judge indicated that constructive possession

means possession in which the person does not physically have the property, but though not physically on one's person, he is aware of the presence of the property and is able to exercise intentional control or dominion over it.

However, defendants' argument ignores the remainder of the charge, which mirrored the model charge and contained the language that they claim was erroneously omitted.

The record indicates that in addition to the portion of the charge that defendants quote, the judge stated that a person may be in constructive possession of an object if that person, although not actually possessing the object, "has knowledge of its character, knowingly has both the power and the intention at a given time to exercise control over a thing, either directly or through another person or persons[.]"

B.Possession of a weapon in a vehicle.

Next, defendants argue that the judge erred when charging the jury on possession of a weapon for an unlawful purpose because the judge told the jury it could infer from defendants' mere presence in the car, that they had constructive possession of the weapon found in the vehicle. They rely on the following part of the charge:

Evidence has been presented that a firearm was found in -- in a vehicle. Therefore, you may [draw] either of the following inferences, if you find that the vehicle had more than one occupant, you may infer that the firearm, as identified as S-6, was possessed by all of the occupants.

Defendants contend that, by allowing the jury to draw the inference, the judge eliminated the requisite mental state and violated their right to due process of law by allowing for a guilty verdict when criminal culpability was absent. Again, we disagree.

The judge's instruction did not eliminate the mental state required for conviction of the offense. Furthermore, the instruction was consistent with N.J.S.A. 2C:39-2(a), which sets forth presumptions that apply when a weapon is found in a vehicle. N.J.S.A. 2C:39-2(a) provides in pertinent part that, when a firearm is found in a vehicle, and the vehicle has more than one occupant, "it shall be presumed to be in the possession of all, " except under certain circumstances that are not relevant here.

In addition, the judge correctly instructed the jury that it was "never required or compelled to draw any inference." The judge said it was the jury's "exclusive province to determine whether the facts and circumstances shown by the evidence support any inferences and you are always free to accept or reject them if you wish."

C. Unlawful possession of a weapon.

Grate contends that the jury's question concerning the charge for unlawful possession of a weapon shows that the jury was confused by that charge, and he contends that the judge erred in failing to clarify the instruction and dispel the confusion.

The jury question to which Grate refers reads as follows: "Can we get a written copy of the instructions for 6A [possession of a weapon for an unlawful purpose] and 7A [unlawful possession of a weapon] on the verdict sheet? If not, please re-read 6A and 7A, explaining in full all previously defined terms." In response, the judge provided the jury with a written copy of the instructions, which mirrored the model jury charges. The judge did not re-read the instructions.

Grate argues that the judge had an obligation to clarify the instructions by molding the instructions to the facts of the case and including an explanation of the facts that defendant challenged. We do not agree. The jury asked for either a written copy of the instructions or for the judge to re-read the instructions on unlawful possession of a weapon and possession of a weapon for an unlawful purpose. The jury did not ask the judge to explain the facts.

Furthermore, there was no indication the jury was confused by the instructions, or that there was a need for the judge to explain any of the facts related to those charges. Defense counsel did not object to responding to the jury's question by providing it with a written copy of the instructions. The judge's response to the jury's question was appropriate.

D. Possession of a weapon in an educational institution.

Cromwell contends that the judge's charge on unlawful possession of a weapon at an educational institution was erroneous. N.J.S.A. 2C:39-5(e)(1) provides that

[a]ny person who knowingly has in his possession any firearm in or upon any part of the buildings or grounds of any school, college, university or other educational institution, without the written authorization of the governing officer of the institution, is guilty of a crime of the third degree, irrespective of whether he possesses a valid permit to carry the firearm or a valid firearms purchase identification card.

Here, the judge instructed the jury that if the State proves beyond a reasonable doubt that either defendant knowingly possessed a firearm while in or upon the part of any buildings or grounds of an educational institution, then it could find the defendant guilty, regardless of whether he knew he was at an educational institution. Cromwell argues that the judge should have instructed the jury that it could not find him guilty of the charge unless the State proved that he was knowingly in an educational institution when he knowingly possessed the firearm. We disagree.

"[W]hen interpreting a statute's meaning, we attempt to discern and implement the Legislature's intent." State v. Drury, 190 N.J. 197, 209 (2007) (citing State v. Reiner, 180 N.J. 307, 311 (2004)). We begin our inquiry with the language of the statute, and, "'[i]f the meaning of the text is clear and unambiguous on its face, [we] enforce that meaning.'" Ibid. (quoting Reiner, supra, 180 N.J. at 311).

If the language is ambiguous or "'admits to more than one reasonable interpretation, we may look to sources outside the language to ascertain the Legislature's intent.'" Ibid. (quoting Reiner, supra, 180 N.J. at 311). In addition, when we interpret a penal statute, "'if plain meaning and extrinsic sources are inadequate, we then 'employ the canon of statutory construction that counsels courts to construe ambiguities in penal statutes in favor of defendant.'" Id. at 209-10 (quoting Reiner, supra, 180 N.J. at 311).

The plain language of N.J.S.A. 2C:39-5(e)(1) indicates that an actor must knowingly possess a firearm. The Legislature specified a mental state and applied it only to that element of the offense. Therefore, when a defendant is charged under N.J.S.A. 2C:39-5(e)(1), the State need only prove that a defendant knowingly possessed a firearm, the possession occurred in or upon the buildings or grounds of an educational institution, and the defendant did not have written authorization to possess the firearm from the institution's governing officer. The judge's instruction was consistent with the plain language of the statute.

Cromwell argues, however, that N.J.S.A. 2C:2-2(c)(1) requires the State to prove that he was "knowingly" at an education institution when he knowingly possessed the firearm. N.J.S.A. 2C:2-2(c)(1) states:

Prescribed culpability requirement applies to all material elements. When the law defining an offense prescribes the kind of culpability that is sufficient for the commission of an offense, without distinguishing among the material elements thereof, such provision shall apply to all the material elements of the offense, unless a contrary purpose plainly appears.

The statute does not apply because N.J.S.A. 2C:39-5(e)(1) distinguishes "among the material elements" of the offense and the mental state of "knowingly" applies only to the possession of the weapon.

Cromwell alternatively contends that N.J.S.A. 2C:2-2(c)(3), requires the State to show that he was "knowingly" at an educational institution when he possessed the firearm. Again, we disagree. N.J.S.A. 2C:2-2(c)(3) applies when a statute does not set forth a culpable mental state. The statute is applicable because N.J.S.A. 2C:39-5(e)(1) includes a culpable mental state and only requires that it be established regarding the possession of a firearm.

We note additionally that there was no evidence indicating that defendants did not know they were on the grounds of an educational institution when they were found in the car where the gun was located. C.A. testified that he told defendants he had to go to the college to get the credit card from his girlfriend. C.A. said he drove with defendants onto the Drew University campus.

According to C.A., a campus police officer stopped the car and allowed them to enter the campus. In addition, Grate testified that C.A. drove defendants to the college. Thus, even if the court had charged defendants in accordance with their interpretation of the statute, there was no evidential basis for the jury to conclude they did not know they were at an educational institution when they possessed the firearm.

E. Defendant's version of the facts.

Cromwell further argues that the charge was erroneous because it did not include an explanation of defendants' version of the facts. He contends that, had the jury been told that defendants denied possession of the gun, the jury would have found them not guilty on the weapons charges.

When instructing a jury, the judge "must explain the controlling legal principles and the questions the jury is to decide." State v. Martin, 119 N.J. 2, 15 (1990). The judge should discuss the facts if they are necessary for the jury to understand the legal issues, or to understand each party's theory of the case. Id. at 16-17.

We are satisfied that, in this case, the judge was not required to discuss defendants' version of the facts in his instruction. Defendants had denied all of the allegations against them. Defendants' version of the facts was relatively simple and it was not likely that the jury would have been confused in applying the law to the facts.

V.

Defendants also argue that the trial judge erred by denying their motions for acquittal and for a new trial because the verdict was against the weight of the evidence.

In considering a motion for a judgment of acquittal, the trial judge must determine whether the evidence is sufficient to warrant a conviction. R. 3:18-1. The judge must decide whether viewing all of the State's evidence, and giving the State the benefit of all favorable inferences that can be drawn from the evidence, a reasonable jury could find the defendant guilty of the charge beyond a reasonable doubt. State v. Wilder, 193 N.J. 398, 406 (2008) (citing State v. Reyes, 50 N.J. 454, 458-59 (1967)).

In addition, when addressing a motion for a new trial based on a claim that the verdict was against the weight of the evidence, the judge must give "due regard to the opportunity of the jury to pass upon the credibility of the witnesses" and may not set aside the verdict unless "it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1. The judge must "determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." State v. Carter, 91 N.J. 86, 96 (1982) (citing Jackson v. Concord Co., 54 N.J. 113 (1969)).

We are convinced that the judge did not err by denying defendants' motions for acquittal and their motions for a new trial. The judge correctly determined that the State had presented sufficient evidence to support the jury's verdict. Defendants' arguments to the contrary are without sufficient merit to warrant discussion. R. 2:11-3(e)(2).

VI.

Next, defendants argue that they were denied the effective assistance of counsel because their attorneys failed to (1) object to the charge on unlawful possession of a weapon; (2) object to the charge on constructive possession of a weapon; and (3) request that the judge's charge on unlawful possession of a weapon be molded to the facts of the case.

To establish a denial of the effective assistance of counsel, a defendant must meet the two-prong test established by Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 2063, 80 L.Ed.2d 674, 692 (1984), for consideration of ineffective-assistance-of-counsel claims raised under the United States Constitution, and adopted by our Supreme Court in State v. Fritz, 105 N.J. 42, 58 (1987), for reviewing such claims under the New Jersey Constitution. A defendant therefore must show that (1) trial counsel's representation fell below an objective standard of reasonableness, and (2) the attorney's handling of the case prejudiced the defense. Strickland, supra, 466 U.S. at 687-88, 104 S.Ct. at 2064-65, 80 L.Ed.2d at 693-94.

Because ineffective-assistance-of-counsel claims usually require evidence that lies outside the trial record, such claims are "particularly suited for post-conviction review[.]" State v. Preciose, 129 N.J. 451, 460 (1992). However, the court may consider the claim on direct appeal if the trial record provides the facts required to resolve the claim. State v. Allah, 170 N.J. 269, 285 (2002).

Here, the record is sufficient to address defendants' claim. As we stated previously, there is no merit to defendants' arguments that the jury instructions were erroneous. We therefore conclude that defendants were not denied the effective assistance of counsel because their attorneys did not raise the aforementioned objections to the instructions at trial.

VII.

Defendants also argue that their sentences are excessive. These arguments are without merit.

A. Grate

The judge found aggravating factors three (risk that defendant will re-offend), five (substantial likelihood defendant is involved in organized criminal activity), and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (5) and (9). The judge found no mitigating factors. The judge merged Grate's convictions and sentenced him to eight years of imprisonment, with a five-year period of parole ineligibility.

Grate argues that the judge erred by sentencing him to a mandatory minimum prison term pursuant to N.J.S.A. 2C:43-6(c), which states in relevant part:

c. A person who has been convicted under . . . subsection a., b. or c. of N.J.S.A. 2C:39-5, . . . who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in [N.J.S.A. 2C:39-1(f)], shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater . . . during which the defendant shall be ineligible for parole.

Grate contends that the reference in N.J.S.A. 2C:43-6(c) to "crime" is vague and only makes sense if the statute is interpreted to mean that a mandatory minimum term must be imposed when a person is convicted under N.J.S.A. 2C:39-5(a), (b) or (c) while in the course of committing, or attempting to commit, another offense.

The contention is unavailing because the judge did not impose a mandatory minimum term under N.J.S.A. 2C:43-6(c). The mandatory minimum term was imposed pursuant to N.J.S.A. 2C:39-5(i), which requires the court to impose a five-year mandatory minimum term if aggravating factor five (substantial likelihood defendant was involved in organized criminal activity) is found.

At the sentencing proceeding, Corporal Edwin Santana of the Morris County Sheriff's Office testified as an expert in the identification of gang members. Santana said that both defendants told him they were members of a particular street gang and they had tattoos which were associated with that gang. The record therefore supports the imposition of the mandatory minimum term pursuant to N.J.S.A. 2C:39-5(i).

Grate also argues that the eight-year sentence is excessive and he should have been sentenced to a five-year term. He contends that there was no factual basis for the judge's findings of aggravating factors three (risk defendant will re-offend) and nine (need to deter). He also argues that the judge should have considered mitigating factors one (defendant did not cause or threaten serious harm) and two (defendant did not contemplate that his conduct would cause or threaten serious harm). N.J.S.A. 2C:44-1(b)(1) and (2). We do not agree.

We are satisfied that the judge's findings of aggravating factors were amply supported by the record. We are additionally satisfied that the record did not warrant findings of any mitigating factors. Moreover, the judge's findings provide ample support for the sentence imposed.

B. Cromwell

The judge denied the State's motion to sentence Cromwell to an extended term as a persistent offender. The judge found aggravating factors three (risk that defendant will re-offend), five (substantial likelihood defendant was involved in organized criminal activity), six (extent of defendant's prior criminal record and the offenses of which he has been convicted), and nine (need to deter defendant and others from violating the law). N.J.S.A. 2C:44-1(a)(3), (5), (6) and (9). The judge found no mitigating factors.

The judge merged Cromwell's conviction for possession of a firearm at an educational institution with his conviction for unlawful possession of firearm. The judge then sentenced Cromwell to nine years of incarceration, with a five-year period of parole ineligibility pursuant to N.J.S.A. 2C:39-5(i), based on Santana's testimony. The judge also sentenced Cromwell to a consecutive term of eighteen months, without the possibility of parole, on the certain-persons conviction.

Cromwell argues that his sentence is excessive. He contends that he did not cause any actual harm to anyone. He asserts that a maximum sentence should be reserved for the "worst of the worst" and his conduct does not warrant such a sentence. He contends that imposition of a "near-maximum" sentence is excessive. Again, we disagree.

We are convinced that the record fully supports the judge's findings of aggravating factors. We are also convinced the record does not support findings of any mitigating factors. The judge's findings provide ample support for Cromwell's sentences.

We are therefore satisfied that defendants' sentences are not manifestly excessive or unduly punitive, do not represent an abuse of the judge's sentencing discretion, and do not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

We have considered the other arguments raised by defendants and conclude that they are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Affirmed.


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