STATE OF NEW JERSEY v. HASSAN FEGGINS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0566-04T40566-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HASSAN FEGGINS,

Defendant-Appellant.

_______________________________________

 

Submitted December 7, 2005 - Decided January 24, 2006

Before Judges Conley and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-06-2095.

Yvonne Smith Segars, Public Defender, attorney for appellant (Joan T. Buckley, Designated Counsel, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Adrienne B. Reim, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After a four day jury trial in Essex County, defendant Hassan Feggins was convicted of third degree unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5b (count two) and of fourth degree criminal trespass in violation of N.J.S.A. 2C:18-3(a) (count one). The trial court sentenced defendant to concurrent terms of eighteen months on count one, and a term of five years with two and one half years of parole ineligibility on count two. Defendant appeals on two grounds, neither of which was raised below. We find those points unpersuasive, and accordingly affirm the convictions and the resulting sentence.

The evidence adduced at trial showed that on January 25, 2003, defendant Feggins engaged in criminal conduct when he separately encountered two residents of an East Orange apartment building, Mikie Tillery and James Williams.

At about 1:30 p.m. that day, defendant and another man entered the lobby of the apartment building. Once inside, the men came upon Tillery and two of Tillery's friends. Tillery and his friends then left the building. Minutes later defendant and his companion approached Tillery on the street. Defendant asked Tillery if he was following him. He lifted up his shirt and coat, displaying to Tillery a .357 magnum revolver. Tillery assured defendant that he had not been following him, and the men again parted company.

Startled by these encounters, Tillery flagged down a police car and reported what had transpired with the two men. Tillery then received a call on his cell phone from his mother, who told him that she had just seen some strangers in their apartment building. Tillery went upstairs to their apartment and related to his mother his incidents with the gun-brandishing man and the other stranger. His mother then called the police.

That same afternoon, James Williams was sleeping in his own apartment located next to Tillery's unit, when he was awakened by a rap on the door. Williams got out of bed and opened the door. He was confronted by an acquaintance named Marcia and two strange men. One of those men was defendant Feggins. The threesome pushed their way into Williams' apartment, shifting about the room as if to hide. Williams heard a loud thump, and noticed defendant next to his old record player.

At that point, Williams' sister Mabel emerged from her bedroom. She observed defendant kneeling by the record player. She asked him what he was doing there, and defendant responded that he was "looking for a tape." This response made no sense, because according to Williams' trial testimony, Williams owned no tapes and defendant had never previously been in his apartment.

Mabel became upset, so Williams asked the three intruders to leave. They did so, having been in Williams' apartment about seven or eight minutes. On their way out, the three intruders were spotted by Mikie Tillery. The two males in the group were the same men that Tillery had already encountered in the apartment lobby and on the street. By this point, police officers were streaming into the building, in response to the earlier reports of criminal activity from Tillery and his mother. Tillery pointed out to the police where the three intruders had headed. The police soon apprehended defendant and the other two intruders within the building.

A consensual police search of Williams' apartment uncovered a rusted .357 Magnum revolver beneath the lid of Williams' record player. Williams testified that he did not own the gun, and that he had not even used the record player in months.

An Essex County grand jury indicted defendant for second degree burglary (count one), third degree unlawful possession of a weapon (count two), and second degree possession of a weapon for an unlawful purpose (count three). The matter was tried between April 13 and 16, 2004. Mikie Tillery and James Williams each testified at trial for the State about the events of January 25, 2003, and made in-court identifications of the defendant. The State also presented on the police officer who had found the gun in the record player. No defense witnesses were presented.

At the conclusion of the trial proofs, the court dismissed count three and amended count one from burglary to fourth-degree criminal trespass. The day after it was charged, the jury found defendant guilty on count one, as amended, and on count two, the weapons possession charge.

Defendant's first contention on appeal is that the trial judge should have excused Juror No. 8 from deliberations because that juror appeared to have had his eyes closed during portions of the proceedings. This concern was raised by a note from the jury foreperson to the judge, requesting that Juror No. 8 be excused because he appeared in deliberations to be confused about the identity of Mr. Williams' sister. The trial judge properly marked the foreperson's note and read it to counsel, who both agreed that the court should interview Juror No. 8. In fact, the assistant prosecutor and the trial judge personally recalled observing Juror No. 8 at times with his eyes closed during the trial.

The trial judge summoned Juror No. 8, and the following colloquy ensued:

THE COURT:

Deacon, I've gotten a note from the jury

and there seems to be some concern about

your ability to deliberate in this matter, sir?

JUROR:

Yeah.

THE COURT:

Are you having any difficulties, sir?

JUROR:

No, I'm having no difficulty, Judge.

THE COURT:

Okay.

JUROR:

I just stoking a little fire.

THE COURT:

No problem. You have every right to do

so sir.

JUROR:

Okay.

THE COURT:

Now, in all honesty, sir, I did notice that

during the course of summations of some of

the counsel and my charge, I can't say

you were asleep, but your eyes were closed.

JUROR:

No, I wasn't -- I --

THE COURT:

You weren't asleep.

JUROR:

No, that would embarrass me.

THE COURT:

I know. I'm just making sure.

JUROR:

Yeah, I wasn't.

THE COURT:

You heard my charge, you have no questions.

JUROR:

Right.

THE COURT:

And as far as you are concerned, you have

-- you're having no difficulties in

deliberating.

JUROR:

Right.

THE COURT:

Okay. Then remain there, bring out the jury.

JUROR:

Okay.

No further questions of the juror were proposed by counsel. Counsel did not request that the other jurors be interviewed about this subject. The trial court then instructed the full jury to resume their deliberations. There was no objection raised to that instruction, and no application made by either counsel to excuse Juror No. 8.

A few hours later the deliberating jury requested a playback of certain trial testimony. The tape segment was located and arranged to be played the following day. Before that playback in the courtroom began, another juror, Juror No. 7, asked the judge to make sure everyone remained awake during the playback. As the playback proceeded, the trial judge stopped the tape and questioned Juror No. 8 as to whether he was sleeping, which Juror No. 8 again denied. That colloquy went as follows:

THE COURT:

Hold on a minute. Hold on a minute.

Hold on a minute.

Deacon, are you sleeping?

JUROR NUMBER 8:

No, just adjusting my glasses.

THE COURT:

Very good. Continue with the tape.

Again, no further questioning of Juror No. 8 was sought by counsel, and no application was made to excuse that juror and substitute him with an alternate.

Defendant argues that the trial judge erred in not conducting more extensive questioning of Juror No. 8 about his perceived inattentiveness, despite the absence of such a request from trial counsel. Although we believe that the trial judge's inquiries of Juror No. 8 could have been fuller, perhaps delving more into the juror's attentiveness during the trial as a whole, we find no plain error in these circumstances. See R. 1:7-2 and R. 2:10-2; see also State v. Holden, 364 N.J. Super. 504, 512 (App. Div. 2003).

The standard of review of a trial court's decision to excuse or to retain an empanelled juror is whether that ruling constitutes an abuse of discretion. State v. R.D., 169 N.J. 551, 559 (2001). Applying that deferential standard, we sustain the trial judge's determination to retain Juror No. 8, particularly in the absence of any request by defense counsel to discharge that juror.

The trial judge appropriately conducted a hearing to investigate the perception that Juror No. 8 may have slumbered during portions of the case. State v. Reevey, 159 N.J. Super. 130, 133-34 (App. Div.), certif. denied, 79 N.J. 471 (1978). Under the judge's direct questioning, the juror twice firmly denied that he had been sleeping. He affirmed that he was ready to deliberate. The juror's remark that he was "just stoking a little fire" when he had his eyes closed is best interpreted by the trial judge, who had the unique perspective of being able to observe the conduct and sincerity of the questioned juror. State v. R.D., supra, 169 N.J. at 559.

During the testimonial playback, Juror No. 8 reiterated to the court that he was indeed awake. Again, the trial court was in the best position to assess the credibility of that response. No further concerns about Juror No. 8 were raised by the jury or by counsel after the playback. Indeed, the playback may well have served to cure any lapse of attention by Juror No. 8 that he may have experienced during the original testimony of the witness.

Moreover, the State's proofs incriminating defendant were substantial, and unrebutted by competing evidence. Two independent witnesses, Tillery and Williams, detailed to the jury the wrongful behavior of defendant in successively brandishing a weapon to Tillery and in barging into Williams' apartment to escape detection. Their narratives meshed as to time, place and their description of the defendant. Also, the testifying police officer corroborated a number of the key facts, including his discovery of the unlawful weapon. There is every indication here that the verdict was supported by the weight of the evidence beyond a reasonable doubt.

Defendant's second argument is that his sentence on the weapons offense (count two) was improper because the trial court allegedly failed to clarify the sentencing factors that it relied upon, and also failed to specify whether that sentence was ordinary or extended. We find those claims unavailing.

As an initial matter, we reject defendant's contention that the record is ambiguous as to whether the sentence on count two was extended. The sentencing transcript clearly and explicitly reflects that the trial judge imposed an extended term on defendant as a persistent offender pursuant to N.J.S.A. 2C:44-3(a), even if collateral documents in the record omitted that specific aspect of the disposition.

The presentence report indicated that defendant had fifteen adult arrests and six prior adult convictions, including convictions for robbery and possession of a weapon. This very extensive adult criminal history led the trial judge to invoke several aggravating sentencing factors in imposing an extended sentence of five years. See N.J.S.A. 2C:44-1a(3), (6) and (9). No mitigating factors were identified. The fact that the sentencing judge expressed these factors in a concise manner does not invalidate the substantive merit of his assessment. An extended term was appropriately imposed here for the protection of the public. See State v. Dunbar, 108 N.J. 80, 90-91 (1987).

 
We also find no reason under the Supreme Court's recent opinion in State v. Natale, 184 N.J. 458 (2005) to disturb the sentence. The five-year sentence imposed here is two years less than the statutory presumptive extended term of seven years for a third-degree offense. See N.J.S.A. 2C:43-7a(4) and N.J.S.A. 2C:44-1(f)(1). Hence, the sentence comports with the strictures of State v. Natale, supra, 184 N.J. at 466 (invalidating sentences above the presumptive statutory term based solely upon judicial findings of aggravating factors, other than a prior criminal conviction), and no sentencing remand is required.

Affirmed.

(continued)

(continued)

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A-0566-04T4

January 24, 2006