STATE OF NEW JERSEY v. ANTHONY M. HARLEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6181-08T41

A-2938-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY M. HARLEY,

Defendant-Appellant.

_______________________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHELBERT BARLOW, a/k/a

SHELBERT MCCLEESE,

Defendant-Appellant.

________________________________________

Argued (A-6181-08T4) May 31, 2012 -

S

November 5, 2012

ubmitted (A-2938-10T3) May 31, 2012 -

Decided

 

Before Judges Cuff, Waugh and St. John.

 

On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 07-12-1282.

 

Stefan Van Jura, Assistant Deputy Public Defender, argued the cause for appellant in No. A-6181-08 (Joseph E. Krakora, Public Defender, attorney; Mr. Van Jura, of counsel and on the brief).

 

Amy Devenny, Assistant Prosecutor, argued the cause for respondent in No. A-6181-08 (Joseph L. Bocchini, Jr., Mercer County Prosecutor; Ms. Devenny, of counsel and on the brief).

 

Joseph E. Krakora, Public Defender, attorney for appellant in No. A-2938-10T3 (Suzannah Brown, Designated Counsel, on the brief).

 

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent in No. A-2938-10 (Stacey M. Geurds, Assistant Prosecutor, of counsel and on the brief).

 

PER CURIAM

After a jury trial, defendants Anthony M. Harley and Shelbert Barlow were each found guilty of second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. Harley was sentenced to a term of seven years imprisonment with five years of parole ineligibility, and, as a result of a violation of probation, a concurrent term of four years imprisonment for a 2006 conviction for third-degree possession of a controlled dangerous substance with intent to distribute within a school zone, N.J.S.A. 2C:35-7. Barlow was sentenced to a term of seven years imprisonment with five years of parole ineligibility.

We affirm each defendant's conviction for the certain persons not to have a weapon offense, and Harley's conviction for his violation of probation.

I.

The trial record reveals that at approximately 10:24 p.m. on July 26, 2007, two detectives from the Trenton Anti-Crime Unit were in an unmarked police vehicle patrolling the area near Eisenhower Avenue and Melon Street, Trenton. When they approached the intersection, the detectives observed two African-American males standing close to each other on the sidewalk in front of 3 Melon Street. As their vehicle rounded the corner, the detectives observed the men huddled together looking down at an object between the two of them. The detectives explained that the sidewalk had been illuminated by street lamps, overhead lamps on the building at 3 Melon Street, and the headlights of their vehicle.

As the detectives drove closer, they recognized that the object in the left hand of Harley was a long barreled handgun. Upon seeing the weapon, one of the detectives yelled, "gun," and drove the police vehicle into a tactical position at an angle in the direction of the men. The detectives exited their vehicle and approached the defendants, at which point Harley noticed them. Harley grabbed defendant Barlow by the waist and shoved the handgun into Barlow's waistband. Harley then turned away from Barlow and began walking towards Oliver Avenue. Barlow turned and proceeded toward 3 Melon Street. The detectives separated and approached each defendant, ordering each to put his hands up. The detectives then placed both defendants under arrest. The weapon recovered from Barlow's waistband was a Virginian Dragoon .44 caliber handgun loaded with six hollow-nosed rounds.

Defendants were indicted and tried jointly, each on one count of second-degree certain persons not to have weapons. Both defendants had a requisite prior felony conviction.

II.

On appeal, Harley raises the following issues for our consideration:

POINT I

 

THE JUDGE VIOLATED DEFENDANT'S RIGHTS TO BE PRESENT, TO A PUBLIC TRIAL BY AN UNTAINTED JURY, TO DUE PROCESS, AND TO COUNSEL WHEN HE RECEIVED AND ANSWERED JURY QUESTIONS ORALLY THROUGH COURT STAFF AND WITHOUT THE PRESENCE OF DEFENDANT OR HIS ATTORNEY. U.S. CONST. Amends. VI, XIV; N.J. CONST. Art. 1, Pars. 1, 10. (Not Raised Below).

 

POINT II

 

THIS MATTER MUST BE REMANDED TO THE LAW DIVISION FOR A HEARING ON WHETHER THE SLEEPING JUROR'S ABILITY TO RENDER A FAIR DECISION HAD BEEN IMPAIRED. (Not Raised Below).

POINT III

 

THE PROBATIONARY TERM IMPOSED FOR THE CONVICTION ON INDICTMENT 06-08-0794 HAD CONCLUDED WITHOUT THE STATE COMMENCING VIOLATION OF PROBATION PROCEEDINGS, SO THE SENTENCING COURT DID NOT HAVE AUTHORITY TO IMPOSE A CUSTODIAL SENTENCE FOR VIOLATION OF PROBATION WHEN SENTENCING DEFENDANT FOR THE CONVICTIONS ON INDICTMENT 07-12-1282.

 

On appeal, Barlow raises the following issues for our consideration:

POINT I

 

THE TRIAL COURT ERRED BY ENGAGING IN EX PARTE COMMUNICATIONS WITH THE DELIBERATING JURY PANEL. (Not Raised Below).

 

POINT II

 

THE TRIAL COURT'S COERCIVE SUPPLEMENTAL INSTRUCTION IN RESPONSE TO A QUESTION FROM THE JURY, WHICH PUT PRESSURE ON THE JURY TO RUSH TO A VERDICT, VIOLATED MR. BARLOW'S RIGHT TO A FAIR TRIAL. (Not Raised Below).

 

POINT III

 

A MISTRIAL SHOULD HAVE BEEN GRANTED BASED ON THE STATE'S FAILURE TO FULFILL ITS CONTINUING DISCOVERY OBLIGATION BY FAILING TO CORRECT MISINFORMATION WHICH HAD BEEN PROVIDED TO THE DEFENSE REGARDING THE LOCATION OF THE INCIDENT.

 

POINT IV

 

THE TRIAL COURT ERRED IN ADMITTING TESTIMONY RELATING TO THE RECOVERY OF BULLETS THAT WERE FOUND IN THE HANDGUN AND IN ADMITTING THE BULLETS INTO EVIDENCE. (Partially Raised Below).

 

POINT V

 

THE TRIAL COURT ERRED BY PERMITTING A POLICE WITNESS TO TESTIFY THAT THE POLICE RESPONDED TO THE AREA OF MR. BARLOW'S ARREST IN RESPONSE TO CITIZEN COMPLAINTS OF CRIMINAL ACTIVITY. (Not Raised Below).

 

POINT VI

 

PROSECUTORIAL MISCONDUCT IN SUMMATION DEPRIVED MR. BARLOW OF A FAIR TRIAL. (Not Raised Below).

 

POINT VII

 

THE JURY'S GUILTY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE. (Not Raised Below).

 

POINT VIII

 

CUMULATIVE ERRORS DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL. (Not Raised Below).

 

POINT IX

 

THE TRIAL COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE ON MR. BARLOW. (Not Raised Below).

 

We turn our attention to defendants' first point, in which they argue for the first time on appeal, that the trial court's ex parte communications with the deliberating jury constitute sufficient error to warrant a new trial. Because defendants failed to raise this issue before the trial court, we review this argument under the plain error standard articulated in Rule 2:10-2. We therefore consider whether "the possibility of injustice [was] 'sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon, 57 N.J. 325, 336 (1971)). Applying this standard of review to the first issue raised by defendants, we discern no basis to set aside defendants' convictions.

Rule 1:2-1 requires, inter alia, that all trials be conducted in open court. As a corollary to this, "proceedings that occur during [jury] deliberations . . . [must] be recorded and conducted in open court, in the presence of the accused[.]" State v. Basit, 378 N.J. Super. 125, 131 (App. Div. 2005). In Guzzi v. Jersey Central Power & Light Co., 36 N.J. Super. 255, 264 (App. Div.), certif. denied, 19 N.J. 339 (1955), we determined that ex parte communications "between a trial judge in chambers and a jury engaged in deliberations in the jury room concerning any matter implicated ever so remotely in the consideration and decision of the case are forbidden by the essentials of our trial procedure as imperiling, perhaps, the principles of due process." Similarly, in State v. Brown, 275 N.J. Super. 329, 331 (App. Div.), certif. denied, 138 N.J. 269 (1994), we held that "[a] judge should avoid engaging in any ex parte communications with the jury regarding its deliberations."

Despite the consistency of the admonition, we continue to confront the problem. We again emphasize that it is essential for a judge to "scrupulously avoid engaging in his own ex parte and unrecorded communications with the jury." Basit, supra, 378 N.J. Super. at 131. On this issue, we have expressed our disapproval of such a practice "in the strongest possible terms." Id. at 134.

While it is clear that ex parte communications between a judge and a deliberating jury are improper, "the distinction between those ex parte occurrences that require reversal and those that may be excused as harmless is not so clear." Ibid. Where the record does not reflect what transpired during the ex parte communication, reversal is necessary since a reviewing court is unable to determine whether the communication was prejudicial. Id. at 135. Alternatively, "where the presence in the record of an adequate description of the ex parte proceeding may permit a reviewing court to determine that the presumption of prejudice has been dispelled," reversal is not necessarily required. Id. at 135-36.

In light of these principles, we turn to the facts developed in this record. During jury deliberations, while counsel and defendants were outside of the courtroom, the jury asked a question and the judge responded through his court clerk. The judge memorialized the interchange in the presence of defendants and their counsel as follows:

THE COURT: They had advised the sheriff's officer who was watching them at that time they wanted a copy of the charges and they want a copy of the law. The sheriff's officer communicated that to the court clerk and the court clerk communicated that to me. I told the court clerk that they were not getting a copy of the charges and indictment. It is not evidence.

 

COUNSEL (Barlow): Indictment or charges?

 

THE COURT: They said the charges and the law, and I interpreted the charges as being the indictment because that's the only charging document that we have; and I told the court clerk they were not getting a copy of that. That's simply not evidence, and they only get evidence, and that they were not getting a copy of the law. If they wanted, I could reread the law to them, to let the attorney's know, and here we are. They were advised of that by the court clerk that they were not getting a copy of the charges and if they wanted the law reread to them. No way they're getting a copy of the law. Apparently it was communicated that they changed their mind and rescinded their request.

 

Barlow's counsel asked that the jury's request for the materials be marked as a court exhibit, and Harley's counsel agreed. The judge stated, "I'm not so sure that what we've done already while different and not the way it should have been done [is] harmful to the effect that it affects the deliberations in any way." Barlow's counsel replied, "I agree."

Although the court's ex parte communication was improper, the presumption of prejudice was rebutted because the communication was preserved for appellate review. See Basit, supra, 378 N.J. Super. at 135-36. However, we infer from this record that the court did not advise counsel of the jury's request nor seek their input before denying it. This was clearly improper. Counsel must be consulted before the court responds to a question from the jury. State v. Whittaker, 326 N.J. Super. 252, 262 (App. Div. 1999).

A court's failure to include counsel, however, does not automatically warrant the reversal of a defendant's conviction. Counsel's exclusion must be considered in the context of the question posed by the jury. Considering this, we return to the court's decision denying the deliberating jurors' request for a copy of the court's legal instructions or a copy of the indictment.

We note that pursuant to Rule 1:8-8(a), a trial court has the discretion to provide the jury with "a copy of all or part of its instructions" to take with them into the jury room for its consideration. The Court in State v. O'Brien, 200 N.J. 520, 541 (2009) recognized that Rule 1:8-8(a) conferred to trial judges a measure of discretionary authority over whether to provide written instructions to the jury which includes denying a jury's specific request for a copy of instructions.2 We discern no abuse of discretion by the judge in determining not to give the jury the written instructions. Nor do we dispute the judge's decision denying the jury a copy of the indictment. Moreover, the judge informed counsel and defendants about the ex parte communication at a time when defense counsel could have asked the judge to reconsider his decision, they failed to do so.

In State v. Morgan, 423 N.J. Super 453, 468 (2011), we determined that while an ex parte colloquy was clearly improper because it was not conducted in the presence of counsel, the communication addressed only innocuous scheduling issues unrelated to the substance of the jury's function and thus "[n]othing in the[] communication could have caused the jury to reach a result it otherwise may not have reached."

Given the substance of the ex parte communication, we determine that defendants suffered no prejudice, that the communication may be excused as harmless and therefore does not warrant reversal of defendants' convictions.

We next turn to defendants' contention that their absence when the jury request was made and answered requires the reversal of their convictions. The right of a criminal defendant to confront witnesses is guaranteed by the United States and New Jersey Constitutions, and includes the "right to be present in the courtroom during every 'critical stage' of the trial." State v. Reevey, 417 N.J. Super. 134, 149 (App. Div. 2010) (quoting State v. Zenquis, 251 N.J. Super. 358, 363 (App. Div. 1991), aff'd, 131 N.J. 84 (1993)), certif. denied, 206 N.J. 64 (2011). "In some circumstances that do not involve the confronting of witnesses or evidence against a defendant, the right is protected by the due process clauses of the Fifth and Fourteenth Amendments." State v. Dellisanti, 203 N.J. 444, 453 (2010) (citations omitted). Together, those constitutional protections secure the defendant's "right to be present at every stage of trial 'whenever . . . presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge.'" Ibid. (quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06, 54 S. Ct. 330, 332, 78 L. Ed. 674, 678 (1934)). In New Jersey, a defendant's right is also protected by Rule 3:16(b), which provides in part, "[t]he defendant shall be present at every stage of the trial. . . ."

However, the right of confrontation "is not absolute." Reevey, supra, 417 N.J. Super. at 149-50. Where the defendant has been absent from a stage of trial, claims of error are examined for prejudice. Dellisanti, supra, 203 N.J. at 458. Specifically, the inquiry is "whether the absence was prejudicial to the defendant's right to participate in the evidential proceedings and confront the witnesses and evidence against him or to his ability to assist with his own defense." Id. at 458-59 (citations omitted). "When the absence deprives a defendant of confrontation rights, prejudice can be readily assessed; when confrontational interests are not in play and participation in one's defense is the issue, prejudice is more critically examined." Id. at 459. Here defendants' confrontational rights were not impacted.

Addressing a defendant's absence from a pretrial motion hearing, our Supreme Court stated:

Because the motions centered on questions of law, defendant's presence was not constitutionally required. State v. Auld, 2 N.J. 426, 433 (1949). The traditional justifications underlying defendant's right to be present, specifically the right to assist counsel in his defense, to assist in the cross-examination of witnesses, and to influence the jury psychologically by his presence, see Hudson, supra, 119 N.J. at 172, were absent. See Kentucky v. Stincer, supra, 482 U.S. at 745, 107 S. Ct. at 2667, 96 L. Ed. 2d at 647 (holding Confrontation Clause not violated when defendant's absence does not deprive him of opportunity to cross-examine witnesses effectively); Snyder, supra, 291 U.S. at 106-07, 54 S. Ct. at 332, 78 L. Ed. at 678 (holding defendant's presence not required when useless or of no tangible benefit); State v. Hammond, 231 N.J. Super. 535, 541 (App. Div. 1989) (finding no error in defendant's involuntary absence during jury charge).

 

[State v. Morton, 155 N.J. 383, 445 (1998); cert. denied, Morton v. New Jersey, 532 U.S. 931, 121 S. Ct. 1380, 149 L. Ed. 2d 306, (2001).]

 

Since the jury request centered on questions of law, we hold that the trial court did not commit reversible error in responding to the jury in defendants' absence.

We next address Harley's contention that a remand is required for a hearing to determine whether juror twelve was able to render a fair verdict because the trial judge suspected her of sleeping.

The following occurred at sidebar, which Harley argues casts doubt on the juror's ability to deliberate effectively:

THE COURT: Listen, folks. Just for the record, I've been keeping my eye on Juror 12. She closes her eyes. She nods off like, you know, jerking [head], but then she gets right back up again. I can't say she's asleep. I think she's like drifting but she gets right back up again so I'm still certain that she is hearing all the testimony; but if we get right down to it, I want we have to pick alternates later. First of all, I want you to pay attention. When you get a chance, check her out and what are your feelings with regard to that. See if that's an issue for anyone or not.

COUNSEL (Barlow): Just so the record is clear, this is the first time we've noticed that, I believe, with this particular juror.

COUNSEL (Harley): Second time.

 

COUNSEL (Barlow): No. Juror 12.

 

. . .

THE COURT: But I noticed that at least three times yesterday and today I've noticed it twice. Like I said, she hasn't been falling asleep.

 

PROSECUTOR: She's sleeping right now.

 

THE COURT: When she hears stuff she's awake. Okay.

 

After the jury charge, the judge stated:

All right, folks. I'm going to select alternates. We had this discussion about Juror 12. I noticed she's been awake from the time she's been here but and, you know, as far as I saw her nodding off was during jury selection but maybe at some point during the openings, but during the testimony it seemed that she was awake, but to be honest I wasn't watching her 24/7. So do you want me to go ahead and pick alternates, or do you want me to make her an alternate?

 

The prosecutor and defense counsel declined to select juror twelve as an alternate. Juror twelve remained on the panel while two other jurors were selected as alternates.

We have held that a trial judge should take corrective action when counsel brings to his attention that a juror appears to be sleeping. See State v. Burks, 208 N.J. Super. 595, 611-12 (App. Div. 1986). In this case, the judge noticed the juror and immediately called it to the attention of counsel. Since defense counsel did not request further action with regard to juror twelve at that time, defendant waived his right to further inquiry and corrective action. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div.), certif. denied, 151 N.J. 466 (1997). Moreover, since defense counsel did not object, our scope of review is the plain error standard, that is, error clearly capable of producing an unjust result or sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise would not have reached. State v. Morton, 155 N.J. 383, 421 (1998); R. 2:10-2.

Additionally, neither defendant accepted the judge's offer to designate the juror as an alternate. Defendant cannot urge a certain course of action at trial, and after that action is taken argue that the outcome of the trial is unfavorable, and "'then condemn the very procedure he sought and urged, claiming it to be error and prejudicial[.]'" State v. Kemp, 195 N.J. 136, 155 (2008) (quoting State v. Lykes, 192 N.J. 519, 539 n.7 (2007)); see also State v. Jenkins, 178 N.J. 347, 358 (2004). Therefore, we find no error, much less plain error, in the manner in which the judge resolved the matter.

Harley contends that the court did not have the authority to impose a custodial sentence for his violation of probation on his 2006 offense since his probationary term had expired without the State commencing proceedings. Further, he argues that the State did not commence, at any time, a probation revocation proceeding setting forth the grounds on which such action is proposed.

A defendant charged with violation of probation does not enjoy the same procedural rights attendant upon a criminal prosecution.

A charge of a violation of probation is not a criminal prosecution but rather "a part of the correction process." State v. Reyes, 207 N.J. Super. 126, 134 (App. Div.), certif. denied, 103 N.J. 499 (1986). Therefore, a defendant accused of violating the terms of probation is not entitled to indictment or trial by jury, State v. Zachowski, 53 N.J. Super. 431, 440 (App. Div. 1959), and he may be found guilty by a simple preponderance of the evidence. State v. Reyes, supra, 207 N.J. Super. at 134-37. Furthermore, a violation of probation may be based on hearsay evidence which would be inadmissible in a criminal trial. Id. at 138-39.

 

But while a charge of a violation of probation is not a criminal prosecution, it may result in a loss of liberty. Consequently the United States Constitution requires a defendant charged with a violation of probation to be accorded due process of law[.] Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 93 S. Ct. 1756, 1759-60, 36 L. Ed. 2d 656, 661-62 (1973). The Code of Criminal Justice codifies and to some extent expands upon the due process rights guaranteed by the Constitution by providing that an accused probationer is entitled to "a hearing upon written notice to the defendant of the grounds on which such action is proposed, . . . the right to hear and controvert the evidence against him, to offer evidence in his defense, and to be represented by counsel." N.J.S.A. 2C:45-4; see State v. Reyes, supra, 207 N.J. Super. at 134.

 

[State v. Thomas, 356 N.J. Super. 299, 308-09 n.2 (App. Div. 2002) (quoting State v. Lavoy, 259 N.J. Super. 594, 600 (App. Div. 1992)).]

 

The Court in State v. Nellom, 178 N.J. 192, 198-99 (2003) addressed the contentions raised here by Harley:

On its face, the statute provides unequivocally that probation revocation proceedings must be "commenced" within the probationary period. N.J.S.A. 2C:45-3c; State v. Joseph, 238 N.J. Super. 219, 222, (App. Div. 1990) (noting that remedy afforded under N.J.S.A. 2C:45-3 must be exercised prior to expiration of probationary period); State v. DeChristino, 235 N.J. Super. 291, 295-96, (App. Div. 1989) (citing statute, court rule and case law for proposition that revocation of probation proceedings must be commenced prior to expiration of period of probation). Likewise, the statute is clear that commencement of probation revocation proceedings tolls the probationary period until the proceeding is terminated. N.J.S.A. 2C:45-3c. (footnote omitted). What the statute does not say in so many words is exactly what constitutes commencement.

 

The statute does set forth three actions that may be taken against an errant probationer prior to the termination of the period of probation. More particularly, N.J.S.A. 2C:45-3a(1) empowers the court either to summon defendant to appear before it or to issue a warrant for his arrest. The statute also authorizes a probation officer or peace officer to make a warrantless arrest of defendant if such officer has probable cause to believe that defendant has violated the terms of his probation or has committed another offense or if the officer has been requested to do so by the chief probation officer. N.J.S.A. 2C:45-3a(2). Each of those initiatives is intended to notify defendant that he is being charged with violating probation and to bring him or her before the court. Although not specifically denominated as such, those authorized initiatives are obviously what were being cross-referenced in the tolling section of the statute.

 

Harley was sentenced to a two-year term of probation on December 1, 2006, which was extended for an additional six months until June 1, 2009. Less than eight months after sentencing, on July 26, 2007, he was arrested for the certain persons offense for which he was convicted. N.J.S.A. 2C:45-3(c) provides, "[t]he commencement of a probation revocation proceeding shall toll the probationary period until termination of such proceedings. In the event that the court does not find a violation of probation, this subsection shall not operate to toll the probationary period." Harley's arrest commenced the probation revocation and tolled the probationary period. Therefore, the violation of probation proceedings commenced within Harley's probationary period.

We are also unconvinced by Harley's contention that the judge erred in finding that he violated probation. Defendant contends he was denied due process because the "State took no further affirmative action to commence violation of probation proceedings following conviction." We note that Harley was found to have violated probation because he had been convicted of an offense.

A formal hearing is not required when a violation of probation is based on a subsequent conviction. Morrissey v. Brewer, 408 U.S. 471, 490, 92 S. Ct. 2593, 2605, 33 L. Ed. 2d 484, 499 (1972). Moreover, Harley's conviction of the subsequent offense is sufficient to conclusively establish that he violated probation. State v. Zachowski, 53 N.J. Super. 431, 441-42 (App. Div. 1959). Harley was afforded due process when he was found guilty of the certain persons not to have weapons offense. He was also afforded due process in the proceeding regarding his probation violation.

We turn to the remaining contentions raised on appeal by Barlow. Barlow argues that the trial court erred by telling the jury that it had to continue its deliberations until it reached a verdict, which resulted in unfair pressure for the jurors to "hastily agree upon a verdict."

During deliberations, on April 21, the judge received a note from a juror asking, "If we cannot come to a unanimous decision today, how long do we deliberate because I can't be here after Wednesday, April 22." The judge reconvened the jurors and parties and stated:

I can't give you a time limit. I can't put a time limit on how long you have to deliberate. You deliberate, continue to deliberate until you reach a verdict. If one of you has an issue with continuing to serve on this jury, just bring it to our attention. When that time comes that you can no longer serve on this jury, okay until then, just continue to deliberate today and as long as it's necessary to return a verdict.

 

. . . .

 

I'll ask you to continue with your deliberations as long as you take. Okay? If there's an issue again with regards to one of you who has what you explained in the note, just bring it to the court's attention and we'll deal with it at a later time. But for now I'm going to ask you to continue with your deliberations and anymore questions, again, write them down as you have been doing. Let the sheriff's office know when you have a verdict. Just knock on the door and simply say "we have a verdict," if you have a verdict.

 

Barlow contends that the judge's reply amounted to a "dynamite" or Allen charge, that infringed on his right to a fair trial. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896). It is important to note that the jury did not notify the judge that it was deadlocked. Allen charges arise in the context of "repeated supplemental instructions" to a jury to continue deliberating when jurors appear to be at an impasse on a charge. See State v. Czachor, 82 N.J. 392, 394, 398 (1980). The concern with an Allen charge rests on its tendency to focus on and in effect admonish those dissenting jurors to reexamine their views in light of the contrary views of the majority. See State v. Figueroa, 190 N.J. 219, 232 (2007).

Here, a member of a non-deadlocked jury simply posed a question about the duration of deliberations. The judge responded that deliberations would continue until a verdict was reached, but that the juror should alert the court if complications arose with regard to the juror's personal schedule. The judge did not pressure the jury to reach a verdict. He informed them that they had ample time to continue deliberating until a verdict was reached. We perceive no abuse of discretion or coercion of the jurors in the judge's response.

Barlow argues that the verdict was against the weight of the evidence. As an initial matter, defendant's argument in that regard is procedurally barred because he did not move for a new trial on the ground that the verdict was against the weight of the evidence. See R. 2:10-1 ("the issue of whether a jury verdict was against the weight of the evidence shall not be cognizable on appeal unless a motion for a new trial on that ground was made in the trial court"); State v. Herrera, 385 N.J. Super. 486, 492 (App. Div. 2006); State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997).

Moreover, we find no merit in the argument. In considering whether a guilty verdict was against the weight of evidence produced at trial, "our task is to decide whether 'it clearly appears that there was a miscarriage of justice under the law.'" State v. Smith, 262 N.J. Super. 487, 512 (App. Div.) (quoting Rule 2:10-1), certif. denied, 134 N.J. 476 (1993). "We must sift through the evidence 'to determine whether any trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present.'" Ibid. (quoting State v. Carter, 91 N.J. 86, 96 (1982)). Our objective "is not to second-guess the jury but to correct [an] injustice that would result from an obvious jury error." Saunders, supra, 302 N.J. Super. at 524. We do not evaluate the evidence and determine anew how we might have decided the issues.

Here, the trial judge instructed the jury on actual, constructive, and joint possession, and the jury as the "trier of fact could rationally have found beyond a reasonable doubt that the essential elements of the crime were present." Herrera, supra, 385 N.J. Super. at 492 (citations omitted).

We find Barlow's remaining contentions to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

Affirmed.

1 These appeals were originally calendared back-to-back. We consolidate them for the purposes of this opinion.

2 Rule 1:8-8(a) was amended effective September 4, 2012. "The September 2012 amendment further made clear, through deletion of the 'all or part of' language, that for both civil and criminal cases the decision whether to provide written instructions is an 'all or nothing' decision." Pressler & Verniero, Current N.J. Court Rules, comment 1.1 on R. 1:8-8 (2013).