STATE OF NEW JERSEY IN THE INTEREST OF M.R.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1821-08T41821-08T4

STATE OF NEW JERSEY

IN THE INTEREST OF M.R.

 
 

Submitted January 13, 2010 - Decided

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Hudson County, Docket Nos. FJ-09-3490-08 and FJ-09-3548-08.

Yvonne Smith Segars, Public Defender, attorney for appellant M.R. (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Edward J. DeFazio, Hudson County Prosecutor, attorney for respondent State of New Jersey (Stephanie McClure, Assistant Prosecutor, on the brief).

PER CURIAM

On May 19, 2008, when M.R. was seventeen years old, he was charged with juvenile delinquency for committing acts which, if committed by an adult, would have constituted two crimes of second-degree possession of handguns without first having obtained permits to carry the same, N.J.S.A. 2C:39-5(b) (counts 1 and 5); two crimes of second-degree possession of weapons for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1) (counts 2 and 6); a third-degree crime of defacing a firearm, N.J.S.A. 2C:39-9(e) (count 3); and a fourth-degree crime of unlawful possession of a firearm by a minor, N.J.S.A. 2C:58-6.1(b) (count 4).

Following a bench trial, the Family Part judge entered an adjudication of delinquency on August 11, 2008. When M.R. was sentenced on September 5, 2008, the court found that M.R. had violated the terms of probation that had been previously imposed in January 2008 for what would have been third-degree possession of a handgun without first having obtained a permit for the same, N.J.S.A. 2C:39-5(b). After merging several of the counts, the Family Part judge ordered M.R. to serve an aggregate custodial term of three years. On appeal, M.R. contends that his adjudication must be vacated because of "the State's failure to prove that M.R. had possessed either of the two handguns." After a careful review of the record and applicable case law in light of the arguments advanced on appeal, we affirm.

I.

The factual background of the events that resulted in M.R.'s adjudication of delinquency is not complicated. On May 19, 2008, Jersey City Police Officers Javier Lema and Danny Sheridan were dispatched to the area of Johnston and Halladay Streets to investigate a claim that persons were attempting to break into a Toyota Camry. Upon the officers' arrival on the scene, Officer Lema noticed several parked Camrys, but observed nothing suspicious. He encountered, and then spoke with, the individuals who had called the police. Officer Lema was advised that four juveniles had been observed wearing dark clothing and making furtive movements around one or more of the Camrys.

Officers Lema and Sheridan began to investigate further by approaching the parked Camrys to inspect them for damage and in an effort to try to locate the juveniles. As Officer Sheridan slowly drove the police vehicle, Officer Lema walked along the street. Approaching the third Camry, Officer Lema "heard the sound of a metallic object hit the ground" and also emanating from the vicinity of the third Camry Officer Lema testified:

I also heard it was like people having a conversation. It was muffled. It wasn't distinguishable what they were saying; however, it was it was apparent it was people having conversation or talking to one another.

Upon Officer Lema's closer approach to the vehicle, he observed "three black male juveniles appear[] to stand up from a crouching position from the front passenger right tire I would say, stand up and begin to walk across the street." Lema believed that they had all been crouching down together and that "[t]hey came from the very same spot."

Officers Lema and Sheridan immediately detained the three individuals, one being M.R., for further investigation and questioning. Upon checking the Camry for possible damage, Officer Sheridan found two handguns stowed behind the front passenger tire of the vehicle, "[e]xactly where they [the juveniles] were where they stood up from." The guns were seized for evidence and later identified as a Raven's Arm 25 caliber semiautomatic and a Winchester 45 caliber handgun, the latter of which had its serial numbers defaced. M.R. and the others were immediately placed into custody, handcuffed, and

contained in the back of the patrol car.

At trial, M.R. called one of the other juveniles involved in the incident, M.D., to testify on his behalf. M.D. stated that the 45-caliber weapon was his and the 25-caliber weapon was another individual's, whose name was M.T. M.D. testified, "I had one of the guns and the other boy [M.T.] had the other one." The witness further testified that when the police arrived, he and M.T. secreted the guns under the Camry. They then ran across the street to where M.R. was just allegedly coincidentally walking, in an effort to make believe that M.D. was just casually talking to a friend and "make it seem like we weren't doing nothing." M.D. went on to explain that, in fact, M.D. was about to "[stick] up the weed man [marijuana dealer] because the weed man's like around the corner."

At the conclusion of the trial, the Family Part judge evaluated the conflicting evidence and determined that the State had shouldered its burden of proof beyond a reasonable doubt as to all of the charges. Recognizing that the key issues were the constructive and joint possession of the firearms, the judge rejected the attempt of witness M.D. to take responsibility for at least one of the guns. The court did not find M.D. to be a credible witness, identifying several inconsistencies and conflicts throughout his testimony. Moreover, the court concluded that M.D. simply "was attempting to protect and to help his friend [M.R.]."

The trial court reached the following conclusion at the close of the trial:

I find, therefore, under the circumstances, the circumstantial evidence supports a finding by this Court that the State has proven beyond a reasonable doubt that [M.R.] was in knowing possession of a handgun as a result of constructive possession; that is, he was next to this vehicle, in close proximity to the vehicle at the time in which two other co-juveniles were present who admitted that they were in possession of that gun. The lone witness that testified on on behalf of this defendant places [M.R.] at least in the area. I believe that [M.R.] was next to [M.D.], next to this vehicle with sufficient knowledge of the guns being under that vehicle, and on that basis the court finds that all the elements of this offense have been proven beyond a reasonable doubt.

II.

M.R. contends that the trial judge erred in denying his motion for a judgment of acquittal because of the State's alleged failure to prove that M.R. had possessed either of the two handguns. However, we reject this argument and concur with the trial court's assessment of the State's proofs in denying the motion:

The issue is whether or not the State has proven at this juncture, only at this juncture, whether it is a sufficient basis to to move forward on the evidence presented in its case case in chief. And really the burden there is to be able to provide either direct or circumstantial evidence that would provide a basis for conviction by the trier of fact.

The issue is whether in the absence of actual possession of this weapon, the State has provided sufficient facts to support a constructive possession of a weapon. On that basis the motion will be denied, since there has been at least some testimony which places this juvenile at the location where the guns were found, under circumstances which a trier of fact could conceivably find that that he possessed along with the other individuals these weapons and discarded them upon observation of police presence in the area.

So I'm not prepared to dismiss as a matter of law the case at this juncture.

[The] [m]otion [is] denied.

In considering a motion for judgment of acquittal pursuant to Rule 3:18, a trial judge must determine "whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its . . . favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 459 (1967). "This test governs not only the trial judge's consideration of the motion, but also appellate review of his ruling." State v. Moffa, 42 N.J. 258, 263 (1964).

N.J.S.A. 2C:39-5(b) renders it unlawful for "[a]ny person who knowingly has in his possession any handgun . . . without first having obtained a permit to carry the same." Similar language relating to possession of a firearm is found in both N.J.S.A. 2C:39-4(a) and N.J.S.A. 2C:58-6.1(b). Possession is defined as knowingly procuring or receiving the thing possessed, or being aware of one's control over the object long enough to be able to terminate control of the object. N.J.S.A. 2C:2-1(c).

A "knowing" state of mind connotes an awareness of the nature of one's wrongful behavior, or practical certainty of its ramifications. N.J.S.A. 2C:2-2(b)(2). Hence, it was the State's burden to prove at trial that M.R. knew the weapons were in his possession or control. State v. Latimore, 197 N.J. Super. 197, 210 (App. Div.) (explaining the state-of-mind requirements for weapons possession offenses), certif. denied, 101 N.J. 328 (1984), overruled on other grounds by, State v. Camacho, 153 N.J. 54, 73, cert. denied, 525 U.S. 864, 119 S. Ct. 153, 142 L. Ed. 2d 125 (1998).

Proof of possession of property can be actual, that is, the "[p]hysical or manual" control of it, State v. Brown, 80 N.J. 587, 597 (1979), or constructive, that is, a "reasonable inference" from all surrounding circumstances exists that a defendant has knowledge of the object's presence, and intends or has the capacity to exercise control or dominion over it. State v. Morrison, 188 N.J. 2, 14-15 (2006); State v. McCoy, 116 N.J. 293, 299-300 (1989); State v. Schmidt, 110 N.J. 258, 270 (1988).

Mere presence with or proximity to the object may not be sufficient to infer possession. State v. $36,560.00, 289 N.J. Super. 237, 261 (App. Div. 1996), certif. denied, 147 N.J. 579 (1997). However, "'other circumstances . . . [may] permit such an inference to be drawn.'" Ibid. (quoting State v. Brown, supra, 80 N.J. at 593).

Constructive possession may be found to exist when a defendant is present at a location where contraband is located, has knowledge of its presence, and circumstances are such that it is likely defendant is involved in a criminal enterprise. State v. El Moghrabi, 341 N.J. Super. 354, 364-68 (App. Div.), certif. denied, 169 N.J. 610 (2001). "By definition, proof of constructive possession relies almost exclusively upon circumstantial evidence." State v. $36,560.00, supra, 289 N.J. Super. at 260.

Possession may also be joint, State v. McCoy, supra, 116 N.J. at 299-300; State v. Brown, supra, 80 N.J. at 597-98, so that two or more persons jointly may possess the same object, State v. Mendez, 175 N.J. 201, 212 (2002), when they "share actual or constructive knowing possession of" that object. State v. Morrison, supra, 188 N.J. at 14-15 (quoting Model Jury Charges (Criminal) Possession (Apr. 18, 2005)).

In light of these principles, we cannot say that the Family Part departed from their dictates. Indeed, we find that the trial judge faithfully adhered to the law, reaching a conclusion that does not warrant our appellate intervention. When an error in fact-finding of a judge during a bench trial is alleged, the scope of our review is limited. We can only decide whether the findings made by the judge could reasonably have been reached on sufficient credible evidence presented in the record. We thus must give due regard to the ability of the Family Part to judge the credibility and sufficiency of the evidence presented. State v. Locurto, 157 N.J. 463, 470-71 (1999); Close v. Kordulak Bros., 44 N.J. 589, 599 (1965). This court will not reverse a trial court's determination on the ground of such error unless the appellant can show plain error, which requires a determination that is "clearly capable of producing an unjust result." R. 2:10-2. Such circumstances do not exist in this case either as to the trial court's denial of the motion for a judgment of acquittal at the close of the State's case, or as to its ultimate findings after considering the defense's proofs.

 
Affirmed.

The juvenile complaint charged M.R. with "possession of a defaced firearm," but the statute does not expressly criminalize possession alone. Instead, it declares, "[a]ny person who defaces any firearm is guilty of a crime of the third degree." It appears that the Family Part found that M.R. had committed this conduct, as opposed to fourth-degree conduct, which would consist of "knowingly buy[ing], receiv[ing], dispos[ing] of or conceal[ing] a defaced firearm."

The judge merged counts 1, 3, and 4 together, as well as count 2 with count 6.

M.R. was ordered to serve concurrent two-year terms for each of the three post-merger adjudications in this case. In addition, a consecutive one-year term was imposed for the violation of probation.

Officer Sheridan testified, "They used some kind of dremel tool or, you know, some kind of instrument to erase the serial numbers from the the gun, making it a little bit harder to trace."

Officer Lema noted:

When I was when I approached the patrol car, opened the back door, Mr. Mr. R[] stated those aren't my guns. I already got one gun charge on me.

(continued)

(continued)

10

A-1821-08T4

RECORD IMPOUNDED

February 11, 2010