June 18, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
TYREE J. BEY, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11-02-0467.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the briefs).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Brian Uzdavinis, Deputy Attorney General, of counsel and on the brief).
Before Judges Messano and Ostrer.
Defendant Tyree J. Bey appeals from his convictions, after a jury trial, of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3d. He also challenges his sentence of six years, with three years of parole ineligibility on the former conviction. He does not challenge his concurrent term of nine months, with four-and-a-half months of parole ineligibility on the defaced firearm conviction.
Defendant presents the following points for our consideration:
BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT EVER POSSESSED THE FIREARM IN EVIDENCE, THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SET ASIDE THE VERDICT
THE SENTENCE OF SIX YEARS, THREE TO BE SERVED BEFORE PAROLE INELIGIBILITY, IS EXCESSIVE FOR AN INDIVIDUAL WITH NO PRIOR CONVICTIONS
Having reviewed the record in light of the applicable law, we affirm.
In rejecting defendant's challenge to his convictions, we rely on settled principles of law requiring deference to jury determinations, and our review of the evidence. However, we first address the precise nature of the relief defendant sought before the trial court.
Defendant argues he sought a judgment of acquittal pursuant to Rule 3:18-2, and the State submits that defendant sought a new trial, pursuant to Rule 3:20-1. The rules are governed by different standards. See State v. Rodriguez, 141 N.J.Super. 7, 11-12 (App. Div.), certif. denied, 71 N.J. 495 (1976) (noting that the movant under Rule 3:20-1 must show a "manifest denial of justice" upon a weighing of the evidence, while the movant under Rule 3:18-2 must show the evidence was insufficient to enable the jury to find defendant guilty beyond a reasonable doubt, after viewing all the evidence, and giving the State the benefit of favorable testimony and inferences); see also Dolson v. Anastasia, 55 N.J. 2, 6 (1969) (noting that a motion for a new trial may be granted where the evidence would not justify direction of a verdict).
Although defendant moved unsuccessfully for a judgment of acquittal pursuant to Rule 3:18-1 at the close of the State's case, he challenges before us the court's decision on the day of sentencing, December 19, 2011, to deny "Bey's motion to set aside the verdict." Defense counsel announced on the record, shortly after the jury verdict on November 15, 2011, that he would file a motion for a judgment notwithstanding the verdict. However, he apparently did not do so.
The appellate record does not include defendant's notice of motion, or any proof that it was filed within ten days of discharge of the jury. See R. 3:18-2 (stating that a motion for acquittal shall be filed within ten days of discharge of the jury). It was incumbent upon defendant to include such evidence in the record, if it existed. See R. 2:6-1(a)(1) (stating that appellant shall include in his appendix "such other parts of the record . . . as are essential to the proper consideration of the issues").
Rather, the oral argument on December 19, 2011, indicates that defendant's motion was one for a new trial under Rule 3:20-1. Judge Albert J. Garofolo announced before sentencing that he would need to address defendant's "motion for a new trial." In his oral decision, he explicitly stated that defendant's motion was brought under Rule 3:20-1. Defense counsel apparently agreed. In his argument, defense counsel referred to the "weight of the evidence" standard, which is set forth in Rule 3:20-1, and asked the court "to set aside the verdict, " as opposed to asking the court to enter a judgment of acquittal.
We thus view defendant's appeal as a challenge to a decision under Rule 3:20-1 to deny a new trial. Pursuant to that rule, a trial judge may set aside a jury's verdict as "against the weight of the evidence, " only if "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a manifest denial of justice under the law." R. 3:20-1.
We shall not disturb the trial court's denial of a motion for a new trial "unless it clearly appears that there was a miscarriage of justice under the law." R. 2:10-1. We apply essentially the same test under Rule 3:20-1 as the trial court, giving due regard to the trial judge's "feel of the case" and opportunity to assess witness credibility and demeanor. Carrino v. Novotny, 78 N.J. 355, 360 n.2 (1979); Dolson, supra, 55 N.J. at 7; State v. Gaikwad, 349 N.J.Super. 62, 82 (App. Div. 2002).
Applying that standard, we do not conclude the verdict was against the weight of the evidence. The prosecution relied primarily on the testimony of Atlantic City Police Officer Joseph Bereheiko, who responded to the report of a fight behind a bar in the early morning hours of January 1, 2011. Bereheiko was accompanied by Officer Andrew Pronovost, who was driving their marked patrol car.
Bereheiko testified that when he and Pronovost arrived in the bar's rear parking lot, Bereheiko saw defendant and two women. Defendant began to walk away quickly from Bereheiko, despite his command to stop. Bereheiko noticed that defendant's hands were not at his sides as he walked. Instead, it appeared he was holding something in the front of his body, in or around his waistband. Defendant then walked up the few steps to a porch of a nearby apartment building. Bereheiko saw defendant bend over the porch railing, and extend his arms. Bereheiko still could not see if defendant held anything in his hands. Defendant then stood upright, stepped off the porch, and slowly walked toward the officer. Bereheiko patted down defendant for weapons but found none.
Leaving defendant in Pronovost's custody, Bereheiko searched the area below the porch railing where defendant had stood. Bereheiko found a loaded, black semi-automatic handgun lying atop hard-packed snow. Although there were footprints in the snow, and cigarette butts scattered nearby, no snow or debris was seen lying on top of the handgun. The serial number was also filed down.
The defense attempted to discredit Bereheiko's testimony by confronting him with a statement in his written report that he saw defendant's hands in his waistband as he walked away. Bereheiko clarified that he could not see precisely where defendant's hands were, although they clearly appeared to be in front of his body. Although the defense demonstrated an inconsistency, the officer's less definitive trial testimony could have been interpreted as more favorable to defendant than the written report. The defense also highlighted that the area was well-lit, relying on photographs of the scene. Defendant apparently suggested that if defendant had a gun in his hands, Bereheiko would have seen it.
The defense also attempted to suggest the gun was left by someone else. The defense focused on Pronovost's testimony that he observed numerous people near the bar, in addition to defendant and one or two other persons he saw in the parking lot. Also, Pronovost had reported to dispatch while the incident unfolded that he believed he saw someone walk into the apartment building. However, in his testimony, Pronovost was unsure whether he saw someone enter the apartment building, as opposed to peer out the doorway.
The defense called a maintenance worker from the bar who testified that on many occasions he had seen firearms on the ground near the bar. He stated that he reported the presence of firearms around the club in the past, but the firearms were quickly retrieved before the police arrived. The bar's owner testified the bar was in a high crime area, which he characterized as a "war zone." The jury returned a verdict of guilty on both counts after deliberating for one hour.
Ample evidence supported the jury's verdict. The jury apparently found the officers credible. Although the defense highlighted that other individuals in the past have left guns in the area only to retrieve them later, the circumstantial evidence supported the jury's conclusion that defendant himself discarded a gun on this occasion. There was sufficient evidence for the jury to conclude that defendant's sole purpose in briefly visiting the porch was to discard the weapon. Defendant did not enter the building or attempt to do so. While he disobeyed the officer's command to stop while he walked quickly to the porch, he calmly complied once he visited the porch.
The jury may reasonably have concluded that the only explanation for defendant's divergent responses to the officer was that initially he possessed a gun, and after the visit to the porch, he did not. In short, the jury's verdict was not contrary to the weight of the evidence. Consequently, we perceive no miscarriage of justice.
We also reject defendant's challenge to the court's sentence. At a minimum, the court was bound to impose a five-year term, with three years of parole ineligibility, on defendant's conviction for second-degree unlawfully possessing a handgun. N.J.S.A. 2C:43-6c. The court imposed a six-year term upon defendant, then nineteen years old and a resident of Philadelphia.
Judge Garofolo reviewed defendant's two adjudications of delinquency. The judge also noted defendant had been arrested in Atlantic City three more times between April and October 2011, including for a drug-related offense, while the firearms charges were pending. In his statement before sentencing, defendant apparently admitted that he possessed drugs.
We find no error in the court's assessment that defendant posed a risk of reoffending, aggravating factor three, N.J.S.A. 2C:44-1a(3), based on defendant's prior record, his instant conviction, and his multiple arrests in Atlantic City. See State v. McBride, 211 N.J.Super. 699, 704-05 (App. Div. 1986) (finding aggravating factor three applied based on defendant's recent arrest and juvenile record). Nor did the court err in finding that aggravating factor three, and the need to deter, N.J.S.A. 2C:44-1a(9), outweighed the mitigating factor of defendant's youth. Cf. N.J.S.A. 2C:44-1b(13) (stating that a defendant's youth is a mitigating factor where the defendant is "substantially influenced by another person more mature than the defendant").
In short, we are satisfied that Judge Garofolo's findings of aggravating and mitigating factors were supported by the record, the sentence complied with the sentencing guidelines of the Code of Criminal Justice, and the sentence was not manifestly excessive, nor a mistaken exercise of discretion. See State v. Ghertler, 114 N.J. 383, 387-88 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).
We affirm the conviction and sentence, but remand for the court to correct the judgment of conviction to reflect accurately the sentence imposed for possessing a defaced firearm. See State v. Pohlabel, 40 N.J.Super. 416, 423 (App. Div. 1956).