NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 11-02-0149.
John P. Boyle, Assistant Prosecutor, argued the cause for appellant (Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney; Mr. Boyle, on the brief).
Michael C. Dawson argued the cause for respondent.
Before Judges Alvarez and Maven.
The State appeals a February 28, 2013 Law Division order granting defendant Tyrus Jones a new trial on a charge of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b). For the reasons that follow, we affirm.
The facts developed by the State during the trial can be briefly summarized. At approximately 9:00 p.m. on September 2, 2010, Detectives Patrick Ryan Guido and Matthew Przemieniecki of the Trenton Police Department were on patrol in an unmarked vehicle, in the area of Oakland and Hoffman Avenues, where shootings and a homicide had recently occurred. They observed a crowd gathered in front of 523 Hoffman, an apartment building that had two steps leading into the vestibule.
Przemieniecki testified that it was common practice for residents to gather in the area to drink and gamble, which are violations of local ordinances. As a result, according to Przemieniecki, they decided to circle behind the building to approach the front with their lights off.
When the officers came within ten to fifteen feet of the front door at 523 Hoffman, they said that they saw that the light was on in the building vestibule, and the door was propped open. Guido saw defendant standing right outside the doorsill. Guido testified he heard defendant say, in a "very excited" tone, "oh s---, the narcs." He observed defendant pulling a dark-colored object, similar in shape to a handgun, from his right pocket. Defendant leaned into the vestibule, tossed the object into a nearby baby carriage, and "quickly proceeded out of the building and onto the bicycle that was leaning up against the railing." Guido told Przemieniecki that he had just witnessed an unidentified object being tossed, and Przemieniecki immediately pulled over. Guido stopped defendant, directing him to dismount his bicycle and stand against a nearby wall. Meanwhile, Przemieniecki entered the building, and saw a handgun lying inside the baby carriage along with several plastic baggies containing substances later determined to contain crack cocaine. He seized the weapon, along with the baggies. Defendant was then placed under arrest.
During the trial, after the State rested, the court conducted a Rule 104 hearing regarding defendant's only proposed witness, Donte Brooks. Prior to trial, Brooks had told defendant's investigator that the weapon did not belong to defendant and that defendant had not dismounted his bicycle until stopped by police. While on the stand, however, on the advice of his attorney, Brooks exercised his Fifth Amendment right to remain silent. He only acknowledged being in the vicinity of the arrest.
Defendant was convicted on September 17, 2012. On December 14, 2012, the court entertained his motion for a new trial, premised, among other things, on Brooks's October 3, 2012 post-trial statement to defendant's investigator. In that statement, Brooks claimed that he was the owner of the gun, and reiterated that defendant never entered the vestibule or stepped off his bike when the police appeared in front of 523 Hoffman. Brooks said that defendant had ridden up on his bicycle to ask him, and an acquaintance named Victor, if they had seen a mutual friend named Alex. In this statement, Brooks also alleged that defendant was charged by police solely because he spoke up first and immediately denied ownership of the gun. The trial judge scheduled a hearing on the new trial motion.
Brooks was sentenced on February 1, 2013, on an unrelated charge of second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), to six years of imprisonment subject to three years of parole ineligibility. On February 22, 2013, the court conducted the hearing on ...