NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2013
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1473.
Joseph E. Krakora, Public Defender, attorney for appellant (Alan I. Smith, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).
Before Judges Sabatino and Hayden.
Tried by a jury, defendant William Hairston appeals his January 12, 2010 conviction of second-degree possession of a handgun by a convicted felon, N.J.S.A. 2C:39-7b. The trial court imposed an eight-year custodial sentence, with a five-year period of parole ineligibility. On appeal, defendant contests the denial of his pretrial suppression motion, the trial court's flight charge, and impermissible statements by the prosecutor during closing arguments. Defendant also argues that his sentence is excessive. We affirm.
We derive the following pertinent facts from the record.
On the night of June 27, 2006, Lieutenant Paul Commodore of the New Brunswick Housing Authority was patrolling the Robeson Village housing complex. At about 11:56 p.m. that evening, Lieutenant Commodore drove past 12 Jennings Court, a unit within the housing complex, where he observed two men sitting on the front stoop of that building. The lieutenant considered the vicinity to be a high-crime area.
Lieutenant Commodore recognized defendant as one of the two men on the stoop, based upon his prior history with defendant. He was generally familiar with the residents of the complex, whose leases were on file in his department. In particular, the lieutenant knew that defendant's mother had previously lived at 12 Jennings Court and was now living in another unit on that same street. The lieutenant also knew that defendant was not a co-tenant on his mother's lease.
According to Lieutenant Commodore, he had twice in the past told defendant not to loiter on the property. The lieutenant had advised defendant that if he was visiting his mother, he should confine himself to that purpose.
Prior to spotting defendant and the other man on the night in question, Lieutenant Commodore had received a tip from a reliable confidential informant, who reported that defendant was carrying a handgun in the neighborhood. The informant indicated that defendant had recently been involved in an altercation with a group of other persons, and that he was carrying the gun for his protection.
Given the prior tip and the knowledge that defendant was not permitted to loiter within the housing complex, Lieutenant Commodore decided to approach defendant. As he stepped out of his squad car, the lieutenant placed himself between 12 Jennings Court and the separate unit where defendant's mother lived. Upon seeing the lieutenant, defendant and the other man left the stoop. The other man walked away, while defendant began walking towards the lieutenant, in the same direction of his mother's unit.
The lieutenant observed that defendant was wearing a short-sleeved, button-down shirt and seemed to be "fumbling" with an object inside his waistband as he was walking towards the officer. When defendant neared the lieutenant at about an arm's-length distance, the lieutenant noticed the butt of a small-caliber handgun protruding from defendant's pants waist. An opening in the bottom tail of defendant's shirt allowed the lieutenant to see the handle of the weapon clearly. Immediately recognizing the protruding item as a weapon, the lieutenant asked defendant to turn around. According to the lieutenant, he considered defendant at this point to not be free to leave.
As defendant was turned around and facing away from him, the lieutenant lifted up defendant's shirt, removed a .38 caliber Smith & Wesson revolver, and secured it in the front seat of his squad car. Lieutenant Commodore then placed defendant under arrest.
After making the arrest, Lieutenant Commodore called the New Brunswick City Police Department for back-up assistance. Police Officer Dean Dakin responded to the call and arrived on the scene within five to ten minutes. Officer Dakin took custody of defendant, and also took possession of the gun, along with five rounds of bullets.
Detective Gary Mayer of the Somerset County Prosecutor's Office, an expert in forensic ballistics, performed a field test of the seized weapon and confirmed that it was in working order. A grand jury thereafter issued the present indictment.
In his trial testimony, defendant explained that around midnight of June 27, 2006, he was smoking a cigarette outside of 12 Jennings Court. According to defendant, he then saw a reflection beneath a nearby car. Upon closer inspection, he recognized the object to be a gun. Defendant testified that he was concerned about the weapon because it was located in an area where children were often around. Consequently, he picked up the gun, allegedly intending to hand it over to authorities. Shortly thereafter, Lieutenant Commodore, who was on patrol, came upon defendant. Defendant testified that when the lieutenant stopped and got out of his patrol car, defendant began walking toward the officer, allegedly so that he could "hand [the gun] over to [Lieutenant Commodore]." According to defendant, at that point, the lieutenant "tackled" and arrested him, before he had an opportunity to explain that he was intending to return the gun.
The jury found defendant guilty of the second-degree offense charged in the indictment. The trial court thereafter imposed the sentence on March 19, 2010. This appeal followed, in which defendant raises the following arguments:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S ...