STATE OF NEW JERSEY v. ROBERT INGRAM

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2438-04T42438-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ROBERT INGRAM,

Defendant-Appellant.

_______________________________________

 

Submitted March 20, 2006 - Decided April 28, 2006

Before Judges Yannotti and Humphreys.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 04-01-0084.

Yvonne Smith Segars, Public Defender, attorney for appellant (Donald F. Cox, Jr., Designated Counsel, of counsel and on the brief).

Zulima V. Farber, Attorney General of New Jersey, attorney for respondent (Karen Forelli, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Robert Ingram was charged in an Atlantic County indictment with armed robbery, N.J.S.A. 2C:15-1 (count one); possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); and unlawful possession of a handgun without having obtained a permit to carry the same, N.J.S.A. 2C:39-5(b) (count three). Defendant was tried before a jury and found guilty of unlawful possession of a weapon without a permit and found not guilty of the other charges. Defendant was sentenced to a five-year custodial term with a two and one-half year period of parole ineligibility. Appropriate penalties and assessments were imposed. Defendant appeals his conviction and sentence. We affirm.

We briefly summarize the facts based on the testimony presented at trial. On December 5, 2003, Rhonda Price (Price) was attending a training program at the Star Technical School for medical assistants. After the students were released, another student drove Price to the Pleasantville bus stop so that Price could catch a bus to Little Egg Harbor.

Price testified that she met defendant, who Price knew by his "street name" as "Shorty." Price was upset because she missed her bus and she would be "stuck" at the Pleasantville bus stop for an hour. Defendant told Price that he was going to take a taxi to Atlantic City and he offered to give Price a ride and drop her off near Route 9, where she would be able to get a ride home. Price accepted the offer and got into the taxi. Price testified that the taxi proceeded towards the Marina Del Ray Apartments, which was across from a tavern called Delilah's Den. Defendant told Price that he was not sure he had enough money for the taxi fare and he had to stop at his aunt's residence for more money. Price and defendant got out of the cab and went into the apartment.

Price started to question defendant and he told her to be quiet and not disturb his aunt. According to Price, defendant then took out a small object and pointed it at her head. She said that the object looked like a cigarette lighter. Price asked defendant what it was and he replied "it's a gun, bitch." Price testified that defendant said, "Give me your money or I'm going to cap you." Price was scared. Price started to argue with defendant because she did not think defendant had a gun. She pleaded with him, stating that she was a single mother with a nine-year old son. But Price began to believe that the gun was real. Defendant laughed at her and told her to empty her pockets. She gave defendant $45.

Price followed defendant out of the apartment. She said that defendant turned around and told her that if she followed him outside, he was going "to cap" her. She waited a minute or two and defendant flashed the gun at her. She pleaded with him and said that she did not have enough money for bus fare. Defendant threw a five dollar bill to the ground, jumped in the cab and "took off." Price said that, before defendant got into the cab, he turned and smiled at her. He had a bullet between his teeth. Price was crying and she flagged down a police patrol car that happened to be passing by.

Officer Emory Silipigni (Silipigni) of the Pleasantville Police Department testified that on the morning of December 5, 2003, he was in the vicinity of the Marina Del Ray Apartments. Silipigni was investigating a motor vehicle accident when he was approached by a woman who was very distraught. Silipigni stated that Price was the woman who approached him. Price told Silipigni that she had just been robbed in a taxi at gunpoint and the cab was driving away with the perpetrator. Silipigni said that, while Price was describing the man who committed the robbery, she indicated that the cab was driving past.

Silipigni got into his patrol vehicle and caught up with the taxi. As he drove closer to the taxi, he saw the rear back door on the passenger side open and something was thrown out. The taxi stopped about one-tenth of a mile from that point and the passenger got out of the vehicle. The officer identified defendant as the passenger. Other police units arrived and, because he was uncooperative, defendant had to be "forcibly taken down to the ground and handcuffed."

Silipigni went back to the area where he saw an object thrown from the cab. The officer said that he found a "small, dark-colored handgun with electrical tape wrapped around the grip." The gun was not loaded. There was no magazine in the gun and the slide was offset. Silipigni asserted that he believed the slide was broken when he examined it. He testified that the gun could not be fired but it could be made operable "with some minor repairs."

On cross-examination, the officer said that when he searched defendant he did not find any ammunition or gun parts. He conceded that some parts of the gun were missing and the slide was not "seated properly." The officer conceded that there might have been other problems with the gun. He also could not be "totally" sure that the gun could be made operable at some point in the future.

Defendant took the stand in his own defense. Defendant said that on December 5, 2003 he got into the taxi to travel from Pleasantville to Atlantic City when he saw Price at the bus stop. Defendant knew Price and she joined him in the taxi. Defendant said that Price asked him if he had any "smack" but defendant told her that he did not sell "dope." Defendant testified that, from her appearance, he believed Price was a drug user. Defendant stated that Price appeared to be "sick off of drugs or something, like dope sick or something. Like she haven't had it for a while and she needed it real bad." Price said she was trying to get to Little Egg Harbor Township. Defendant told Price that he was going to Atlantic City and he agreed to drop her off at an apartment complex across from Delilah's Den bar.

Defendant asserted that Price pulled a "little gun" out of her purse. Defendant grabbed the gun. According to defendant, Price said that she wanted $40 for the gun. He asked her where she got the gun and she told him that she "just ripped a buddy off for it." Defendant looked at the gun. He testified, "I seen it had no bullets in it and it was making all this noise, like it was making a rattling noise and stuff." Defendant told Price he did not have $40 to pay for the gun. He only had $20. Price insisted that she needed $40. Defendant was asked why he wanted the gun and he testified, "Really I don't know . . . to be honest. I just wanted it."

Although Price insisted upon receiving $40 for the gun, defendant said that he handed Price a "balled up" $20 bill and she put it in her pocketbook. Price got out of the cab and walked off. When Price realized defendant had only given her $20, defendant shut the door of the taxi and drove off. Defendant denied that he robbed Price. He said that he merely "shorted her out of her money" by giving her $20 for the gun rather than $40. On re-cross examination, defendant admitted that he never applied for or obtained a permit to purchase or carry a handgun.

In this appeal, defendant raises the following points:

POINT I: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AS A RESULT OF THE CLEARLY ERRONEOUS JURY INSTRUCTION THAT FAILED TO REQUIRE THE STATE TO PROVE AN ESSENTIAL ELEMENT OF THE CHARGED OFFENSE BEYOND A REASONABLE DOUBT (Not raised below).

POINT II: THE COURT ABUSED ITS DISCRETION BY ALLOWING THE PROSECUTOR TO CROSS-EXAMINE THE DEFENDANT OUTSIDE THE SCOPE OF DIRECT AND RE-DIRECT EXAMINATION.

POINT III: THE LEGISLATIVE SCHEME PROHIBITING POSSESSION OF A "HANDGUN" ON ITS FACE AND AS PRESENTLY CONSTRUED IS UNCONSTITUTIONAL WITHIN THE MEANING OF THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMNET OF THE UNITED STATES CONSTITUTION AND THE PARALLEL PROVISIONS OF THE NEW JERSEY CONSTITUTION (Not raised below).

1. N.J.S.A. 2C:39-5(b) is void for vagueness.

2. The definition of "handgun" should include a requirement that the object still have the characteristics of a "handgun."

POINT IV: THE DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR TRIAL AS A RESULT OF THE TRIAL COURT'S REFUSAL TO SUBMIT THE ISSUE OF OPERABIILITY OF THE HANDGUN TO THE FACTFINDER (Not raised below).

POINT V: THE FACTORS UTILIZED AT SENTENCING WERE INCORRECTLY DETERMINED AND/OR THE SENTENCE IMPOSED WAS CLEARLY ERRONEOUS.

1. Correctness of guidelines or presumptions.

2. Correctness of factual findings.

A. Aggravating circumstances.

B. Mitigating circumstances.

3. Erroneous weighing of relevant factors.

A. Ordinary term.

B. Parole disqualifier.

We reject these contentions and affirm.

Defendant first argues that judge erred in failing to "fully" instruct the jury that the State had an obligation to prove beyond a reasonable doubt that defendant did not have a permit to carry the handgun. Defendant further argues that the judge erred by failing to instruct the jury that there is a presumption that defendant does not have a permit to carry a handgun "until he establishes the contrary." N.J.S.A. 2C:39-2(b). Defendant did not raise these issues in the trial court. We therefore consider whether the judge erred and, if so, whether the error "is of such a nature as to have been clearly capable of producing an unjust result." R. 2:10-2.

The record reflects that the judge instructed the jury that the State was required to prove all of the elements of the crime of possession of a weapon without a permit. The judge instructed the jury that the State had to prove beyond a reasonable doubt that: 1) the weapon at issue was a handgun; 2) defendant knowingly possessed a handgun and 3) defendant did not have a permit to possess or carry a handgun.

The judge previously had defined the term "firearm" when he charged the jury on count two. The judge additionally explained what the State must prove in order to establish that defendant "knowingly" possessed the handgun. The judge did not provide a explanation of the State's obligation to prove that defendant did not have a permit to possess or carry the gun. It is clear, however, that no further explanation was necessary, particularly in view of defendant's testimony in which he conceded that he did not apply for or have a permit to carry the gun. Furthermore, there was no need for the judge to explain the presumption established by N.J.S.A. 2C:39-2(b) because the State had not relied upon the presumption to prove that defendant did not have a permit to carry the firearm. Accordingly, we are satisfied that the judge's instructions were not erroneous.

Defendant next argues that the judge erred because he permitted the assistant prosecutor to ask him whether he had applied for or obtained a permit to carry a gun. Defendant contends that the question was beyond the scope of his direct and re-direct testimony. He asserts that the question was improper because it infringed upon his right against self-incrimination. Defendant also argues that the judge erred in allowing the assistant prosecutor to use a leading question to ask whether defendant had obtained the permit to carry the weapon. These contentions are entirely without merit.

As we stated previously, defendant took the stand and gave his version of the events of December 5, 2003. Defendant asserted that he purchased the handgun from Price. The assistant prosecutor cross-examined defendant but did not ask defendant whether he had applied for or obtained a permit to carry the firearm. Defendant was questioned on re-direct and his testimony did not touch upon whether he had a permit to carry the gun. On re-cross, the assistant prosecutor asked defendant whether he ever applied for or obtained a permit to carry a handgun in New Jersey. Defense counsel objected on the ground that the question was beyond the scope of re-direct, but the judge overruled the objection.

We are convinced that the judge did not abuse his discretion in allowing the question. Under N.J.R.E. 611(a), the trial judge has broad discretion to control "the mode and order" of the interrogation of witnesses. Moreover, the scope of cross- examination is within the sound discretion of the trial judge. Cestaro v. Ferrara, 110 N.J. Super. 264, 273 (App. Div. 1970), aff'd, 57 N.J. 497 (1971). Cross-examination is generally limited to the subject matter of direct examination and matters affecting the witness' credibility. N.J.R.E. 611(b). However, in its discretion, the court may "permit inquiry into additional matters as if on direct examination." Ibid.

We are convinced that the assistant prosecutor's question concerning the permit was within the scope of defendant's direct testimony because defendant testified about how he acquired the gun. We are also satisfied that the judge did not abuse his discretion in allowing the assistant prosecutor to exceed the scope of the re-direct examination when he questioned defendant about the gun permit.

We reject defendant's assertion that his right against self-incrimination was violated when he was required to answer the question. A defendant who testifies at trial waives his right against self-incrimination "at least to the extent necessary to permit effective cross-examination." State v. Buonadonna, 122 N.J. 22, 36-37 (1991)(quoting from State v. Bogus, 223 N.J. Super. 409, 422 (App. Div.), certif. denied, 111 N.J. 567 (1988)). Here, defendant took the stand and in doing so waived his right to remain silent. He was subject to cross-examination on any matter relevant to his direct testimony. Since he testified concerning his acquisition and possession of the handgun, he could be questioned as to whether he ever sought or obtained a permit to carry the firearm. The question was proper because it was "necessary to permit effective cross-examination." Ibid.

We likewise find no merit in defendant's assertion that the judge erred in allowing the assistant prosecutor to use a leading question when asking defendant about the gun permit. The question was part of cross-examination and leading questions are permitted. N.J.R.E. 611(c).

We turn to defendant's contention that N.J.S.A. 2C:39-5(b) is unconstitutionally vague and overbroad. The statute makes it a crime for a person to knowingly possess a handgun without having first obtained a permit to carry the weapon. The word "handgun" is defined in N.J.S.A. 2C:39-1(k) as "any pistol, revolver or other firearm originally designed or manufactured to be fired by the use of a single hand." Ibid. A "firearm" is in turn defined to include "any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet...." N.J.S.A. 2C:39-1(f).

There is no requirement in the statute that the weapon be operable. State v. Orlando, 269 N.J. Super. 116, 128-29 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994)(citing State v. Gantt, 101 N.J. 573, 582-84 (1986)). Rather, in situations where a gun is not operable, the issue is whether "an object designed to deliver deadly force has been substantially altered as no longer to qualify" as a "firearm." Id. at 129 (quoting from Gantt, supra, 101 N.J. at 589).

Defendant asserts that the definition of "handgun" in the statute and as interpreted in Orlando and Gantt is vague and overbroad. The contention is without merit. We are satisfied that the statute is "sufficiently clear and precise so that people are given notice and adequate warning of the law's reach." Town Tobacconist v. Kimmelman, 94 N.J. 85, 125 n.21 (1983).

Defendant additionally argues that he was denied his right to trial by jury under the Sixth Amendment because the judge did not submit the issue of the operability of the handgun to the jury. This issue also was not raised in the trial court. We are convinced that the judge's failure to submit this issue to the jury was not the sort of error clearly capable of producing an unjust result. R. 2:10-2.

Here, there was insufficient evidence to establish that the gun found in defendant's possession had "undergone such substantial alteration or mutilation" that it "completely and permanently lost the characteristics of a real gun." Gantt, supra, 101 N.J. at 590. Indeed, the evidence established that, while the gun was inoperable at the time it was possessed by defendant, it could be made operable with some repair. Moreover, defense counsel conceded in his closing argument that his client possessed a handgun. He never asserted that the object did not have the characteristics of a real gun. Because it was not a disputed issue of fact, the jury did not have to determine whether the handgun retained the characteristics of a firearm, despite changes that made the gun inoperable. Defendant also challenges his sentence. Here, the judge found aggravating factors under N.J.S.A. 2C:44-1(a)(3)(risk that defendant will commit another offense); N.J.S.A. 2C:44-1(a)(6)(the extent of defendant's prior record and the serious nature of the crimes for which defendant has been convicted); and N.J.S.A. 2C:44-1(a)(9)(need to deter defendant and others from violating the law). The judge found no mitigating factors and determined that the aggravating factors outweighed the mitigating factors.

Defendant argues that the record does not support the judge's findings of aggravating factors (3) and (9). He also asserts that the judge should have found mitigating factors under N.J.S.A. 2C:44-1(b)(1)(defendant did not cause or threaten serious harm) and N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that his conduct would cause harm). We disagree.

We are satisfied that the record amply supports the judge's findings. Defendant has an extensive juvenile record, six adult arrests, a conviction for possession of cocaine and a conviction for eluding the police. Defendant also has two prior disorderly persons convictions. Defendant's criminal record fully supports the judge's findings on all three aggravating factors. Moreover, the record supports the judge's refusal to find mitigating factors.

We are likewise convinced that the judge's findings provide a sufficient basis for the imposition of a five-year prison term with a two and one-half year period of parole ineligibility. In our view, the sentence is not an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

 
We also reject defendant's assertion that he is entitled to re-sentencing under State v. Natale, 184 N.J. 458 (2005). The judge's findings are based on defendant's prior criminal record. Re-sentencing under Natale is not required in these circumstances. See State v. Abdullah, 184 N.J. 497, 506 n.2 (2005).

Affirmed.

(continued)

(continued)

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A-2438-04T4

April 28, 2006