NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2013
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-10-1055.
Joseph E. Krakora, Public Defender, attorney for appellant (Kevin G. Byrnes, Designated Counsel, on the brief).
John J. Hoffman, Acting Attorney General, attorney for respondent (Frank Muroski, Deputy Attorney General, of counsel and on the brief).
Before Judges Ashrafi and Leone.
Defendant Daniel Smith appeals from his conviction by a jury and his extended term sentence for being a convicted person in possession of a handgun. We affirm.
The relevant facts were developed through the testimony of the two arresting police officers at a pretrial suppression hearing and at defendant's trial. At about 10:00 p.m. on May 4, 2007, Trenton Police Detective Przemieniecki and Mercer County Sheriff's Officer Toth were patrolling in a high-crime area of Trenton in an unmarked Ford Crown Victoria. They received notification of a nearby shooting over their police radio. As they passed by defendant on the street, defendant crouched behind a van as if he was trying to conceal himself. Detective Przemieniecki continued to observe defendant as he turned his car around. He saw defendant take something from his waistband and place it near the gutter in the street.
Przemieniecki stopped the car and instructed Toth to detain defendant while Przemieniecki retrieved the item. It was a loaded .357 revolver with an obliterated serial number. As Przemieniecki was seizing the handgun, Toth handcuffed defendant and placed him in the police car.
In October 2007, a Mercer County grand jury charged defendant in a three-count indictment: (count one) third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); (count two) fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and (count three) second-degree possession of a firearm by a previously-convicted person, N.J.S.A. 2C:39- 7(b). Defendant filed a motion to suppress the handgun as evidence at his trial. After a hearing at which both officers testified, the judge denied the motion.
Before defendant's trial, the State voluntarily dismissed the first two counts of the indictment and proceeded on only the third count. The two officers testified, as well as a third police witness who testified that the handgun was operable. Defendant did not testify and did not present any defense witnesses. The jury found defendant guilty.
The judge granted the State's motion to impose an extended term sentence because defendant was a persistent offender under the terms of N.J.S.A. 2C:44-3(a). Defendant was sentenced to eleven years in prison with five-and-a-half years before parole eligibility.
On appeal, defendant argues:
THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE PROSECUTOR SUGGESTED THAT HER WITNESSES WERE CREDIBLE BECAUSE THE DEFENDANT DID NOT TESTIFY OR OTHERWISE PRODUCE EVIDENCE TO REFUTE THEIR TESTIMONY, AND THE TRIAL COURT EXACERBATED THE PREJUDICE BY IMPROPERLY SHIFTING THE BURDEN OF PROOF TO THE DEFENDANT (Not Raised Below).
A. The Prosecutor Improperly Used the Defendant's Silence at Trial to Enhance the Credibility of Her Witnesses and ...