July 30, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
TIFANI K. YOUNG, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 19, 2013
On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 07-05-0812.
Joseph E. Krakora, Public Defender, attorney for appellant (Philip Lago, Designated Counsel, on the brief).
Robert D. Bernardi, Burlington County Prosecutor, attorney for respondent (Bethany L. Deal, Assistant Prosecutor, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
Before Judges Alvarez, Waugh and Leone.
Tried by a jury over several days, defendant Tifani K. Young was convicted of all counts of indictment no. 07-05-0812: third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); second-degree possession of a weapon while committing a controlled dangerous substance (CDS) crime, N.J.S.A. 2C:39-4.1(a) (count two); second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count three); third-degree possession of CDS (cocaine) with intent to distribute on or within 1000 feet of school property, N.J.S.A. 2C:35-7 (count four); third-degree possession with intent to distribute CDS (cocaine), N.J.S.A. 2C:35-5(a)(1) and N.J.S.A. 2C:35-5(b)(3) (count five); and third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1) (count six).
On March 27, 2009, the trial judge sentenced defendant to an aggregate term of ten years, subject to eight years of parole ineligibility. On count one, defendant was to serve three years; on count two, five years subject to three years of parole ineligibility, to be served consecutively. On count three, five years without any parole eligibility was imposed, and on count four, five years subject to three years of parole ineligibility, concurrent to each other but consecutive to count two. Counts five and six were merged into count four. Appropriate fines and penalties were also imposed. For the reasons that follow, we affirm.
Some brief introduction is relevant to defendant's points on appeal. On February 23, 2009, after the trial concluded but before sentencing, in response to a letter from defendant, a judge who did not preside over the trial was assigned to conduct a hearing at which defendant's former wife, Davina Young, testified regarding her acquaintance with a juror. Young claimed she did not know the juror "personally, " but said she and the juror were students in the same college class. Young was not even "100 percent certain" it was the same person. She had not seen the juror "before, during, or after the trial, never talked to her, [didn't] know her name, that was it." Young mentioned this during the trial to her mother-in-law, and possibly her brother-in-law, but did not mention it to anyone outside defendant's family, including the detective who accompanied her to the courtroom when she testified for the prosecution.
Young also encountered the trial judge sometime after the trial at the bank where she worked. When she asked the judge if she had had to testify, the trial judge responded that she should have consulted with an attorney.
The attorneys and the second judge agreed that the individual involved was juror number three.  Ultimately the judge found that the information did not warrant a new trial or require juror number three "to come in to be questioned by the [c]ourt." The second judge also found no impropriety in the trial judge's brief interaction with Young while at the bank, or that it precluded her for any reason from sentencing defendant.
No transcript is available for the trial proceedings conducted on October 17, 2008. Portions of the record of that day were played to the jury during deliberations, but the recording available is largely inaudible.
Defendant raises the following points in his counseled brief for our consideration:
THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE.
THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
THE TRIAL COURT ERRED IN DENYING THE DEFENSE MOTION FOR A MISTRIAL AND THE CONVICTIONS MUST THEREFORE BE REVERSED.
THE TRIAL COURT ERRED IN DENYING THE MOTION FOR A NEW TRIAL ON THE BASIS THAT THE STATE DISCARDED, DESTROYED AND WITHHELD EVIDENCE FROM THE DEFENSE.
A. The State discarded, destroyed or withheld the contents of the vehicle and converted the car to a DARE car.
B. The State withheld photographs of the car and its contents as well as a police report and a property report.
THIS MATTER SHOULD BE REMANDED FOR
RESENTENCING BECAUSE THE SENTENCE IMPOSED IS
THIS MATTER SHOULD BE REMANDED FOR FURTHER PROCEEDINGS TO DETERMINE WHETHER DEFENDANT WAS DENIED THE RIGHT TO BE FAIRLY TRIED BY AN IMPARTIAL JURY.
In his uncounseled brief, defendant sets forth the following issue:
Defendant was denied his state and federal constitutional rights under the sixth and fourteenth amendments of the federal constitution, and under article 1, paragraph 9, of the New Jersey [Constitution] and his right to trial by jury, when the trial court issued an erroneous instruction to the jury.
The following is a summary of the facts developed during the trial. Defendant and Young were living at Young's home in Mount Holly when, during the early morning hours of December 26, 2006, their 1992 Buick Roadmaster was repossessed. Once at Elite Collateral Recovery's lot in Hammonton, an inventory of the car's contents was conducted, beginning with the trunk where there were "boxes and boxes and boxes and boxes" of Timberland boots. Inside the first box, Richard Matzen, the employee who towed the vehicle, found a man's shoe with a loaded handgun inside. He stopped taking inventory and immediately contacted the authorities.
Hammonton Police Officer Edward Slimm responded to the call at approximately 6:00 a.m. He described the interior of the car as a "mess, " "loaded with . . . personal effects." Slimm took only the weapon into evidence and notified Mount Holly police that a handgun had been found in a vehicle owned by a Mount Holly resident. Although he photographed the contents, the photographs were excluded from evidence on defendant's objection. Slimm did not retain either the shoebox or the shoe in which the gun was located.
Mount Holly police towed the car to their impound lot. Although it was registered in Young's name, Mount Holly Sergeant William Fields testified that "internal information" indicated defendant operated the Roadmaster. In fact, a motor vehicle summons was issued to defendant six months prior while he was driving the car.
On December 27, 2006, the day after the repossession, defendant called Elite's office six times between 1:58 p.m. and 3:10 p.m., asking if he could retrieve his personal property from the Roadmaster. Elite office staff told defendant they were authorized to speak only to the registered owner, Young. In addition, because they knew about the gun, they were wary of him coming to the lot. Daniel M. Shannon, Jr., the Director of Investigations for Elite, spoke to defendant during the course of those phone calls, which had an increasing urgency. Eventually the conversations went from "just a sense of urgency now to like more of a demanding and I'm not gonna even call it threatening, but I'm gonna say that he was getting a little flustered." Although Shannon did not ordinarily personally handle these types of calls, he did so in this instance because of the high volume of calls and the presence of the handgun.
Mount Holly police searched the vehicle after obtaining a warrant, finding a plastic scale, along with a large pair of men's pants in the trunk, the same size as that worn by defendant. In the pocket of the pants, officers discovered a small baggie containing 2.34 grams of cocaine mixed with Lidocaine, a cutting agent. The scale was also tested and found to contain cocaine residue, which was also cut with Lidocaine. The vehicle was filled with other items, including a soda bottle, trash bags stuffed with clothes, a tool box containing numerous tools, paperwork related to the car in Young's name, photographs of defendant with others, two cell phones, and keys for two different rooms at the Flying W Motel where defendant worked. When the gun, bullets, and scale were tested for fingerprints, only partial prints could be lifted, not suitable for identification.
A portion of the testimony given by Mount Holly Police Lieutenant Thomas Mastrangelo on October 17 was inaudible; the reconstruction regarding the day's testimony is unfortunately not helpful. We do know from the available transcripts that Mastrangelo had known defendant and Young "for years." He was the officer who discovered the drugs in the pocket of the pants he believed, based on their size, belonged to defendant. After removing the baggie, he tossed the pants back into the vehicle.
Beginning January 31, 2007, Mastrangelo and defendant attempted on many occasions to arrange for defendant to remove his personal property from the vehicle. Mastrangelo said that defendant was initially insistent that he wanted clothes and his tool box because he no longer lived with Young; he claimed he needed the tools in order to make his living. He never indicated that the tools belonged to another person. Defendant told Mastrangelo that his clothes were in the car because "he had been living out of" it; only defendant contacted Mastrangelo regarding the contents of the car.
After the initial flurry of contacts, Mastrangelo did not hear from defendant between about the third week in February until the last week in March when they resumed communication. In mid-April, the Mount Holly Police Department flooded. Mastrangelo continued trying to arrange a meeting with defendant, and scheduled appointments in May, for which defendant failed to appear. Whenever Mastrangelo would see defendant, he would remind him to come in to remove his personal property. Eventually, Mastrangelo told defendant that the storage of the items had become too cumbersome and that he needed to get rid of the boxes. Defendant gave him permission to do so.
Mastrangelo never documented any of his conversations with defendant until he prepared a report dated August 26, 2008. On that day, the prosecutor's office executed another search of the car and seized additional items. The following week, Mastrangelo emptied the car and discarded the contents. Mastrangelo also said defendant's attorney never asked to inspect the items that remained in the car while it was in the police impound lot and acknowledged that the police retained only the items that linked defendant to the investigation.
A grand jury returned an indictment on the drug and weapons charges on May 22, 2007. A year and one-half after defendant was indicted, nine days before trial commenced, Mastrangelo was notified that defense counsel wanted to "look at the evidence." To his knowledge, the only evidence was located in the evidence vault.
Mount Holly Police Officer John Barry testified he saw defendant driving the Roadmaster near Young's home in early to mid-November 2006. This occurred about a month and a half before repossession.
Young began her trial testimony on October 15, 2008, and continued on October 17, the date for which no transcript is available. The following is gleaned from a combination of her direct examination on October 15, the play-back portions of the October 17 testimony the jury heard on October 23, and the record as recreated by the attorneys and the judge in June 2010.
Young admitted to driving the car occasionally. She knew employees from defendant's detailing business, including a man named "Smokey, " and Brad Miller, a mechanic who worked at the business in the summer of 2006, as well as defendant's father, Arnold Banks,  all drove the Roadmaster. Banks borrowed the car for an extended period of time, while Smokey was a very close friend of defendant who "regularly" drove the Roadmaster. Young had also seen a man named Darryl Pearson, nicknamed "Shy, " pick up defendant from her home in the vehicle. She could not recall the dates during which the car was used by others.
Young said the car was repossessed because she used it as collateral against a $390 loan which defendant was supposed to pay. After the car was repossessed, she said she and defendant made many calls in order to discover what had happened to the vehicle.
Young could not recall if she had seen the car on her street the evening before it was repossessed. It is unclear from the transcripts and the reconstructed testimony whether Young knew the reason the Roadmaster was parked near her home, or what occurred when defendant left that morning at approximately 5:00 a.m. The judge and counsel's recreation of Young's testimony included mention of the fact that because defendant was involved with another woman, he did not always stay with her. Counsel could not agree regarding Young's testimony, other than she said several others had access to the vehicle.
Defendant presented two witnesses, Banks and Miller. Miller described the Roadmaster as "the shop car" and said defendant always left the car's interior unlocked, although gaining access to the trunk required a key. He claimed the tool box found in the car belonged to him. Miller had forgotten to take it out of the trunk after he drove the car to a job site, and when he asked defendant to return the tool box, defendant told him that "he couldn't get to it." Miller had also seen defendant driving another car that Miller worked on, possibly an Infiniti or a Lexus.
Banks said he had been driving the Roadmaster for approximately one month prior to its repossession. He owned a Lexus that had become unreliable, and had asked defendant not only to repair it, but to lend him a substitute vehicle so he could drive to work. While Banks was using the car, a man nicknamed "Shy" came to his home to retrieve a water pump hose from the trunk. Banks never went into the trunk or examined the back seat, nor did he lock the car. Both Banks and Miller denied that the gun, scale, or pants were theirs. Banks confirmed that the Roadmaster was "the shop car, " and that Miller and someone named "Smokey" drove the car to run errands and go out for lunch.
When Banks bought another car, he parked the Roadmaster on Young's street, "two doors from her house." He kept the keys and defendant continued to drive his Lexus. Eventually, Young came to his house with keys for the Roadmaster and told him to give the keys to defendant.
Defendant contends the court erred in denying his motion for acquittal at the close of the State's case. Defendant premised his Rule 3:18-1 motion on the fact the State's evidence did not place him in the Roadmaster in December, the month it was repossessed. He points out that Mastrangelo and Barry testified that they had seen defendant in the car in September and November 2006, but not in December. The car was titled, registered, and insured in Young's name, and only she had a spare set of keys.
In denying the motion, the court acknowledged the State's case was purely circumstantial, including defendant's sporadic use of the vehicle, and repeated calls to Mastrangelo regarding his belongings. Nonetheless, the trial judge concluded there was sufficient evidence from which a jury could find guilt beyond a reasonable doubt.
Constructive possession requires a person who "although he lacks 'physical or manual control' . . . has knowledge of [a thing's] presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 237 (2004) (quoting State v. Schmidt, 110 N.J. 258, 270 (1988)). Whether evidence will support a charge of constructive possession is a fact-sensitive determination, requiring careful scrutiny of the totality of the circumstances. State v. Hurdle, 311 N.J.Super. 89, 96 (App. Div. 1998). The jury has the right to draw inferences from all of the surrounding circumstances in determining whether defendant is guilty beyond a reasonable doubt. State v. Brown, 80 N.J. 587, 599 (1979).
This issue arises most frequently in the context of contraband found in a car occupied by more than one person. See, e.g., State v. Palacio, 111 N.J. 543, 549 (1988); State v. Scott, 398 N.J.Super. 142, 147 (App. Div. 2006), aff'd o.b., 193 N.J. 227 (2008); Hurdle, supra, 311 N.J.Super. at 92.
In Brown, supra, 80 N.J. at 593, the Supreme Court reversed our acquittal, which had been based on the insufficiency of evidence. The defendant was found in an apartment in which drugs were located. The Court held that it was unreasonable to conclude that the occupant of an apartment would be unaware of the presence of narcotics and drug paraphernalia in areas over which he could exercise control. Id. at 595-96.
Similarly, it is illogical and contrary to ordinary human experience to believe, despite the car's use by others, that the items found intermingled with defendant's clothing in the trunk were not his. The trunk is an area that no one controlled but him. Defendant's numerous calls, initially to Elite and later to the Mount Holly Police, about the vehicle's contents also suggest ownership.
It is undisputed that despite the car being titled in Young's name, defendant used the Roadmaster as his own. The drugs were found in the pocket of a pair of pants that a jury could reasonably infer were his. The scales had traces of cocaine and Lidocaine as did the drugs found in defendant's pants pocket. When defendant spoke with Mastrangelo, he said he wanted his clothes and tools because he had been living out of his car. A reasonable jury could find that statement established knowledge of the contents of the trunk and defendant's intent to exercise control over them.
Additionally, despite the statements of defendant's witnesses as to the car's use by others, no one else said that they kept their clothes in the trunk; no one else said they lived out of the car. Defendant's employees used the car only for running errands or going to job sites. Banks used the Roadmaster only to drive to work. In this unusual case, where the circumstantial evidence is not overwhelming, it was nonetheless sufficient for the jury to have found beyond a reasonable doubt that defendant had constructive possession of the drugs, the scale, and the handgun.
Defendant also contends that the court erred in denying his motion to set aside the verdict as against the weight of the evidence. The trial court found that defendant failed to demonstrate a miscarriage of justice which would warrant setting aside the verdict under the rule.
A trial court may not vacate a verdict as against the weight of the evidence "unless, 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. In contrast to a motion for acquittal at the end of the State's case, a trial judge's consideration of a motion for a new trial includes the evidence offered by the defendant. See State v. Reyes, 50 N.J. 454, 463-64 (1967). The court is obligated to scrutinize the evidence "to correct clear error or mistake by the jury." Dolson v. Anastasia, 55 N.J. 2, 6 (1969).
In reaching a decision, in addition to tangible proofs, the judge should consider matters of credibility, demeanor, and the feel of the case gained as a result of presiding over the trial. Ibid. The judge shall not substitute his or her judgment for that of the jury, nor set aside the verdict, unless it clearly and convincingly appears that there was a manifest denial of justice. Id. at 6-7. On appeal, we apply the same standard, while giving due deference to the views of the trial court with respect to issues of credibility, demeanor, and the feel of the case. Id. at 7.
The jury's task was to assess the credibility of the witnesses who had access to the car but insisted that the contraband did not belong to them. The jury was also obliged to assess Young's testimony that although the car was titled in her name, it actually belonged to defendant. The State's evidence, reduced to its essential elements, was that although others had access to the car shortly before it was repossessed, only defendant stored clothing in it. We agree with the trial judge that based on the evidence presented, the jury verdict was not a manifest denial of justice.
During the prosecutor's opening statement, she told the jury that they would hear from defense counsel that others had access to the car, and that there were other items in the car that were not collected as evidence. Obviously, the argument violated the bedrock principle that a defendant has no obligation to prove anything during the course of a trial. Trial counsel objected when the comment was made, and the court agreed. The trial judge issued a curative instruction, although he did not grant defendant's request for a mistrial. In addition to telling the jury that the prosecutor was merely anticipating defendant's opening statement, the court reminded the jury of the presumption of innocence, the State's obligation to prove each and every statutory element beyond a reasonable doubt, and the fact defendant has no obligation to prove his innocence, produce witnesses, or present any proof whatsoever. The following day, defendant renewed the application for a mistrial.
Clearly, a defendant has no obligation to prove his or her innocence. State v. Jones, 364 N.J.Super. 376, 382 (App. Div. 2003). A defendant has no obligation to call witnesses. See State v. Hill, 199 N.J. 545, 559 (2009). For the State to suggest otherwise infringes upon a defendant's basic right to a fair trial. See id. at 566; Jones, supra, 364 N.J.Super. at 382.
Improper comments, however, are not grounds for the reversal of a criminal conviction unless they were so egregious as to deprive a defendant of a fair trial. State v. Frost, 158 N.J. 76, 83 (1999); State v. Zola, 112 N.J. 384, 426 (1988), cert. denied, 489 U.S. 1022, 109 S.Ct. 1146, 103 L.Ed.2d 205 (1989). In determining whether a defendant is entitled to a mistrial as a result of the State's improper comments, we examine whether a timely objection was made, whether the remark was withdrawn, and whether the court issued a curative instruction. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
In this case, we conclude the prosecutor's offending comment did not deprive defendant of a fair trial and had no capacity to do so. The court's instruction promptly cured any prejudice.
Moreover, the primary focus of the defense was, in fact, the two points raised in the prosecutor's comments: the failure of the police to identify and secure all of the objects in the car, and the fact that others used the vehicle. Because the defense presented to the jury the evidence that the prosecutor described, the decision to proceed did not prejudice defendant.
On the first day of trial, prior to opening arguments, defense counsel informed the court that she had just received Slimm's property report as well as photographs he had taken. She contended that the State's failure to disclose the photographs constituted a Brady  violation. The prosecutor responded that she herself had only become aware of the existence of the report and photographs the prior day. She argued no Brady violation occurred because the nondisclosure was not willful, the photographs not prejudicial, and defendant was well aware of the information in the report and photographs from other sources.
The material previously supplied differed from the newly produced discovery by only one item — one of the photographs depicted a shoe box containing a shoe with a gun inside. Everything else in the report and photographs were similar to the photographs taken by the Mount Holly Police. Troubled by the State's failure to have previously obtained the information, however, the trial judge barred the photographs' use, but ruled that there was no Brady violation.
Brady requires that material exculpatory evidence be provided to a defendant in accordance with due process. Brady, supra, 373 U.S. at 86, 83 S.Ct. at 1196, 10 L.Ed.2d at 218. But Brady penalizes the failure to disclose evidence only when that evidence is both favorable to the defendant and material to the determination of either guilt or punishment. United States v. Bagley, 473 U.S. 667, 674, 105 S.Ct. 3375, 3379, 87 L.Ed.2d 481, 489 (1985); State v. Jones, 308 N.J. Super. 15, 41 (App. Div. 1998). Defendant has not demonstrated how Slimm's photographs or the property report were either favorable to him or material to the determination of his guilt.
Defendant argues that the photographs were material because they "were the only depiction of the most critical moment of the case, the scene immediately after the trunk had been opened and Matzen had opened the shoe box containing the handgun." But that is incorrect; the photographs were taken by Slimm many hours after the trunk was first opened. Additionally, defendant never challenged the prosecutor's assertion that, with the exception of the shoebox, the scene depicted in Slimm's photographs was almost identical to the photographs taken during Mastrangelo's search, which were provided to defendant pre-trial. Therefore defendant has failed to establish that Slimm's photographs were material to the determination of his guilt or innocence.
Nor has defendant made any showing that the photographs were favorable to the defense. Instead, he makes only the broad, entirely unsupported claim that "the evidence would have been favorable to the defense had it been provided in discovery in a timely manner, " citing nothing more than the trial court's recognition that the late disclosure prevented defense counsel from discussing the photographs with her client or witnesses well before trial. But, there is nothing inherently favorable to defendant's case in a photograph of a trunk depicting a shoebox with a gun inside.
With respect to the property report, defendant has not provided the report, described its contents or explained its significance. There is nothing inherently favorable to the defense in the property report either. Hence no Brady violation occurred which warrants reversal.
Defendant also asserts that he is entitled to a new trial because, before he examined the items, the State discarded the contents of the car after removing those items which were evidential to its prosecution, as well as the car itself. This argument is so lacking in merit as to not warrant extended discussion in a written opinion. See R. 2:11-3(e)(2).
In the eighteen months prior to the trial after indictment, defendant failed to request the opportunity to examine the items. And defendant does not identify anything that would have been exculpatory, or relevant to his defense, contained in the vehicle. Defendant must explain the prejudice resulting from the fact the vehicle and its contents were discarded. Mere speculation and conjecture that it would have been helpful is insufficient.
Defendant argues that "the shoe box which contained the handgun could have been tested for fingerprints and inspected for writing which might have revealed the identity of its owner, " and that "the defense could have sifted through the remaining contents of the car to identify and retrieve items which belonged to people other than defendant." He further asserts that this evidence might have countered the State's allegation that he had constructive possession of the car, because it would have shown that he was "neither the 'exclusive' nor the 'primary' operator of the vehicle."
Contrary to defendant's argument, the State never contended that defendant was the exclusive operator of the vehicle. The trial court correctly recognized that defendant's arguments rested on no more than speculation as to the potential evidentiary value of the discarded items. The trial judge did not err in denying defendant's application for a new trial on this basis.
Defendant additionally contends that the trial court erred in denying his request to question the juror who may have taken a class with Young, and that a remand should be ordered to address the issue. We do not agree.
Defendant premises his argument on the theory that even though the juror and Young never spoke while attending a class together, the juror may have formed impressions about her, shared them with other jurors, and thereby improperly tainted the verdict. When a prospective juror has a connection with a party or a witness that might affect the juror's impartiality, the court should excuse the juror. State v. Deatore, 70 N.J. 100, 106 (1976). A jury's verdict must be based on proofs received in open court, and not on outside sources, whether private or public.
State v. Bey , 112 N.J. 45, 75 (1988). It is reversible error for a trial court to deny a defendant's request to interview a juror who has indicated a prior relationship with a victim. Deatore, supra, 70 N.J. at 104-05.
But "[m]ore than a mere possibility of a tainted verdict must exist to satisfy the good cause requirement." State v. Young, 181 N.J.Super. 463, 469 (App. Div. 1981), certif. denied, 91 N.J. 222 (1982). In this case only a mere possibility exists that the juror would even remember Young from the class.
Furthermore, Young did not disclose the acquaintance to either the prosecutor, defense counsel, or the court, despite many opportunities to do so. Having testified that she relayed the possible relationship to defendant's mother, no corroborating testimony was elicited from her.
In State v. Bianco, 391 N.J.Super. 509, 512 (App. Div.), certif. denied, 192 N.J. 74 (2007), the defendant alleged in a motion for a new trial that, after the verdict, he realized he and a co-defendant knew one of the jurors from past employment. Defendant asserted that the juror had engaged in misconduct by failing to come forward with this information during jury selection or trial.
The trial judge conducted a hearing, and the juror testified that he did not realize until deliberations that he may have known the defendant, whose appearance had greatly changed, and that he did not realize the co-defendant was the same woman he knew by that name. Id. at 514. Defense counsel testified that defendant had said during voir dire that the juror looked familiar to him, but that they did not discuss the matter further and decided to wait and see what happened during jury selection. Id. at 515.
That testimony, along with evidence from the co-defendant and the defendant's daughter, convinced the court that the defendant was aware during trial that he knew the juror. Id. at 516. But the judge concluded that no new trial was warranted because the defendant had made a strategic decision to leave the man on the jury based on a belief that the man's presence would be favorable and that, if convicted, it would allow him "a second bite of the apple" by virtue of a new trial. Id. at 516-17.
Defendant's conduct here raises the same concerns. On the one hand, it cannot be disputed that the State's key witness concealed her prior contact with a juror from the prosecutor and the court. That action denied them opportunity to question the juror during trial as to whether she recognized Young, or formed any impressions of Young from the shared classroom experience. However, as in Bianco, defendant failed to establish that he learned of the possibility only after the verdict, as his mother and other family members were aware of it during the trial. Given the tenuous connection between Young and the juror, the juror's apparent lack of recognition of Young, and defendant's failure to demonstrate that he learned of this circumstance only after the verdict, no good cause existed requiring the court to interrogate the juror. We are not certain that the juror participated in deliberations, which only strengthens the conclusion that the juror should not have been recalled.
Defendant urges us to remand the matter so that the trial judge can reconsider merger and the imposition of a lower term on the drug offenses. He also contends that the court improperly weighed aggravating and mitigating factors.
The trial judge found aggravating factors three, six, and nine, N.J.S.A. 2C:44-1(a)(3), (6), (9), and mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11). He considered the aggravating factors to far outweigh the single mitigating factor.
We review sentencing decisions not to substitute our own judgment for that of the trial court, but to assess whether the aggravating and mitigating factors found by the trial court are supported by the record. State v. Bieniek, 200 N.J. 601, 607-09 (2010). If a trial court's findings of aggravating and mitigating factors are supported by the record, the overall sentence complies with the Code, and the individual sentence does not shock our conscience, the result will be upheld. Ibid.
Defendant was adjudicated delinquent on two occasions, had a municipal court conviction for a drug charge, and four prior indictable convictions, including two drug distribution offenses. Therefore the record supported the court's finding of aggravating and mitigating factors, and if anything, the sentence defendant received was in the low end of the range. On the more serious second-degree offenses, defendant received the shortest sentence possible. For defendant to suggest that the court should be granted an opportunity to sentence him to an even shorter term of years is nothing more than wishful thinking.
Furthermore, defendant's suggestion that the court could have merged the three weapons offenses and then imposed concurrent three-year sentences on the third-degree possessions to run consecutive to the weapons convictions, resulting in an aggregate sentence of eight years, subject to eight years of parole ineligibility, has no basis in the record. The weapons offenses all require proof of different statutory elements, thus merger would not have been appropriate on an unlawful possession of a weapon, possession of a weapon while committing a CDS crime, and certain persons not to have weapons. See N.J.S.A. 2C:1-8; State v. Crawley, 149 N.J. 310, 319-20 (1997); State v. Cole, 120 N.J. 321, 327-28 (1990).
Defendant in his pro se brief contends that the court erroneously instructed the jury on the certain persons not to possess offense, count three. The judge charged the jury in accord with the model jury instruction to the effect that although defendant was entitled to the presumption of innocence, and the State required to prove each and every element of the offense including defendant's knowing possession of a weapon, the jury could consider the evidence previously introduced, although it was obliged to set aside its prior verdict and begin deliberations anew. This suffices. The model jury charge accords with State v. Ragland, 105 N.J. 189, 195-96 (1986).