STATE OF NEW JERSEY v. DENNIS FAULKNER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DENNIS FAULKNER, a/k/a

DENNIS L. FAULKNER,

Defendant-Appellant.

__________________________

October 24, 2013

Before Judges Simonelli, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 11 08-2071.

Brian Plunkett, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Plunkett, of counsel and on the brief).

Brian Uzdavinis, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Mr. Uzdavinis, of counsel and on the brief).

PER CURIAM

After a jury trial, defendant appeals from his conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b. We affirm.

On June 18, 2011, at approximately 2:30 a.m., a Security Operations Specialist from Bally's Casino observed on a live security camera four men entering a valet parking area and getting into a vehicle. The camera showed that the driver removed a gun from the glove box and the front seat passenger held the gun on his lap. The vehicle then pulled away and the security officer reported the incident to the police. Police arrived at the scene, but were unable to locate the car.

At approximately 3:30 a.m., the same vehicle returned to the valet area. Officer Justin Draper went to that location and found the car unoccupied. The vehicle eventually exited from the valet area and the officer pulled it over. The only person in the car was the driver (co-defendant).1 Officer Draper instructed co-defendant to exit the car, conducted a pat-down search, and told him that he believed there was a gun in the car. Co-defendant denied the existence of a gun and consented to a search of the vehicle. Co-defendant told the officer that the glove box was broken, and the officer then learned from co-defendant's mother that she believed the glove compartment was inoperable. Meanwhile, Officer Dayton Brown stopped defendant at a nearby location and conducted a pat-down search that revealed no contraband.

Officer Scott Sendrick, who had also been at the scene, left the area to watch the Bally's security footage and, after watching the video, notified Officer Draper that "it was an obvious handgun in the glove box." The police released co-defendant, towed the vehicle to the police forensics bay, and applied for a search warrant.

Detective Thomas Holton prepared a search warrant affidavit, which stated the Bally's security video showed that "there were [two] black males sitting within the [vehicle] in the Bally's Valet area" and "[t]he front seat passenger then grab[bed] the handgun, holding it in his hand on his lap area between his legs." Detective Holton explained in his affidavit that he recognized the driver in the video as co-defendant and Officers Draper and Sendrick recognized the passenger as defendant. The detective indicated that co-defendant and his mother informed him that the glove box was locked and inoperable, which contradicted what the Bally's Casino surveillance tape showed. Finally, the detective outlined the criminal histories of defendant and co-defendant. A municipal court judge issued a warrant to search the vehicle, the police "jack open[ed]" the glove box, and located the gun.

Defendants moved to suppress the admission of the gun into evidence contending that there was no probable cause to issue the search warrant. The motion judge determined that Bally's security staff was a reliable informant and the vehicle matched their description. The judge found that Officer Draper "possessed a reasonable suspicion of criminal activity, specifically, the presence of a weapon inside the motor vehicle which was supported by facts known to him at the time." The judge further noted that the fact that an occupant of the car may have removed the gun from the glove box and taken it with him did not defeat the existence of probable cause. The judge then denied the motion to suppress.

The matter proceeded to trial and the jury found defendant guilty of the second-degree charge.2 The judge sentenced defendant to a seven-year prison term with forty-two months of parole ineligibility, consecutive to a separate sentence. This appeal followed.

On appeal, defendant raises the following points:

POINT I

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS AS THE SEARCH WARRANT WAS ISSUED WITHOUT PROBABLE CAUSE AND IS THEREFORE INVALID.

POINT II

DEFENDANT'S CONVICTION MUST BE REVERSED BECAUSE THE STATE FAILED TO PRODUCE SUFFICIENT EVIDENCE OF POSSESSION (Not Raised Below).

POINT III

THE COURT PROVIDED INADEQUATE AS WELL AS ERRONEOUS INSTRUCTION ON POSSESSION THUS DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL (Not Raised Below).

I.

We begin by addressing defendant's argument that the judge erred by denying his motion to suppress. Defendant contends that the police lacked probable cause to search the vehicle because approximately one and one-half hours elapsed between the observations of the gun and the traffic stop. As a result, defendant maintains that if any probable cause existed, it "had long since gone stale" because it was unlikely that the search would have revealed evidence of a crime.

"[S]earch warrants must be based on sufficient specific information to enable a prudent, neutral judicial officer to make an independent determination that there is probable cause to believe that a search would yield evidence of past or present criminal activity." State v. Keyes, 184 N.J. 541, 553 (2005). When issuing a search warrant, a court must consider the totality of the circumstances to determine whether probable cause exists. State v. Novembrino, 105 N.J. 95, 122 (1987) (adopting the totality of the circumstances test set forth in Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317, 2332, 76 L. Ed. 2d 527, 548 (1983)). When information is based on an informant's tip, a court must consider the "veracity and basis of knowledge of the informant," as well as the police's ability to corroborate the tip. Keyes, supra, 184 N.J. at 555-56 (quoting State v. Jones, 179 N.J. 377, 389 (2004)) (internal quotation marks omitted). When determining whether probable cause exists for a warrant, a reviewing court must consider only the "four corners" of the affidavit and any sworn testimony given before the issuing judge. State v. Wilson, 178 N.J. 7, 14 (2003). A defendant has the burden to show the absence of probable cause. Keyes, supra, 184 N.J. at 554.

Against this standard, we conclude that there was no error in denying defendant's motion to suppress. The judge considered the information presented in the search warrant affidavit, noted that the warrant was "obtained in the course of police investigation," and found Bally's security to be a reliable informant. He determined that the police conducted their own investigation corroborating the "presence of some of the actors involved . . . ." The judge properly concluded that the information in the search warrant affidavit was not stale and "it was a quickly unfolding investigation over the period of about an hour and a half or so . . . ."

II.

Defendant contends that his conviction is against the weight of the evidence. We note that defendant did not file a motion in the trial court seeking a new trial on the ground that the jury's verdict was against the weight of the evidence. Rule 2:10-1 provides that "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." We have nevertheless chosen to address defendant's contention in the interest of justice. State v. Soto, 340 N.J. Super. 47, 73 (App. Div.), certif. denied, 170 N.J. 209 (2001).

When determining whether the prosecution in a criminal case produced sufficient evidence to support a conviction, an appellate court must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. Kittrell, 145 N.J. 112, 130 (1996) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979)). This standard requires deference to the fact finder's role in determining the credibility of witness testimony, weighing evidence, and making reasonable inferences based on that evidence. Ibid.

To be found guilty of unlawful possession of a weapon, a defendant must have had "intentional control and dominion" over the contraband and an intent to exercise that control. State v. DiRienzo, 53 N.J. 360, 369-70 (1969). Constructive possession exists when an individual "intentionally obtains a measure of control or dominion over the stolen goods although they are under the physical control of another." State v. McCoy, 116 N.J. 293, 299 (1989). Also "[p]hysical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists." State v. Brown, 80 N.J. 587, 597 (1979). Two or more parties may jointly possess an item. McCoy, supra, 116 N.J. at 299-300. "Use of [an] inference is a factually sound and necessary evidentiary rule." DiRienzo, supra, 53 N.J. at 374. The inference must involve a rational connection, that is, "it must be more likely than not that the facts proven point to the fact inferred." Id. at 376.

Defendant argues that the State failed to show that the object in the security video was a gun and was the same gun eventually retrieved from the glove box. Also, defendant argues that the State failed to show that defendant "possessed" the gun as defined under N.J.S.A. 2C:2-1c (stating that "[p]ossession is an act, . . . if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession"). The jury's resolution of factual issues is entitled a high level of deference. The jury watched the surveillance video, which showed defendant holding the gun on his lap. There is a rational connection between this evidence and "intentional dominion and control." Therefore, considering the evidence in the light most favorable to the prosecution, a rational trier of fact could have found beyond a reasonable doubt that defendant possessed the gun.

III.

Finally, we reject defendant's contention that the judge gave a flawed jury charge on possession. Defendant argues that the judge failed to state that defendant could have held the gun without "possessing" it, did not provide an illustrative example of this concept, and should not have instructed the jury that they could infer joint possession based on defendant's being in the car earlier in the night.

Jury instructions "must provide a 'comprehensible explanation of the questions that the jury must determine . . . .'" State v. Singleton, 211 N.J. 157, 181-82 (2012) (quoting State v. Green, 86 N.J. 281, 287-88 (1981)). The judge must charge the jury as to each essential element of the crime. State v. Vick, 117 N.J. 288, 292-93 (1989). "[P]ortions of a charge alleged to be erroneous cannot be dealt with in isolation but [instead] the charge should be examined as a whole to determine its overall effect." State v. Wilbely, 63 N.J. 420, 422 (1973). If the defendant did not object to the jury instructions at trial, however, the plain error standard applies. Singleton, supra, 211 N.J. at 182-83. Reversal is warranted only if the error was "clearly capable of producing an unjust result." Ibid. (quoting R. 2:10-2). Against this standard, we conclude that there was no error, let alone plain error.

At trial, the judge instructed the jury that

[t]his possession cannot be merely a passing control that is fleeting, uncertain in its nature. . . . Defendant must knowingly procure or receive the handgun possessed or be aware of his control thereof for a sufficient period of time to be able to relinquish control . . . .

The judge instructed the jury that "[i]f you find that the vehicle had more than one occupant; that is, the two [d]efendants, [then] you may infer that the handgun was possessed by all of the [d]efendants. You are never required or compelled to draw any inference."

Defendant argues that the judge's instruction as to inferring joint possession by the occupants of the car was erroneous because "[t]he state can point to no facts which established that [defendant] had any connection with the weapon at the time the [vehicle] was stopped." The jury may have inferred that defendant still had constructive possession over the gun after he left the car, even though the gun was "under the physical control of another." McCoy, supra, 116 N.J. at 299. Although the judge charged the jury that it could draw such an inference, the judge also stated that "[y]ou are never required or compelled to draw any inference." Therefore, when viewed as a whole, the instruction on possession provided a comprehensible explanation of the issues before the jury. Singleton, supra, 211 N.J. at 181-82; Wilbely, supra, 63 N.J. at 422.

After carefully considering the record and the briefs, we conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

1 The jury tried co-defendant and defendant together.

2 The jury found co-defendant guilty of the same charge.