STATE OF NEW JERSEY v. KELTON T. BRADY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0972-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KELTON T. BRADY, AKA ADRESE T.

CARTER, EKLTON BRADY,

Defendant-Appellant.

________________________________________________

February 20, 2013

Submitted January 15, 2013 - Decided

Before Judges Messano and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 10-02-00101 and 10-02-00102.

Joseph E. Krakora, Public Defender, attorney for appellant (Linda Mehling, Designated Counsel, on the brief).

Jeffrey S. Chiesa, Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

The Union County grand jury returned Indictment No. 10-02-00101, charging defendant Kelton T. Brady with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count one); fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two); and fourth-degree obstructing, N.J.S.A. 2C:29-1 (count three). The grand jury returned a second indictment, No. 10-02-00102, charging defendant with second-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7(b) (count one) and fourth-degree possession of a weapon by certain persons, N.J.S.A. 2C:39-7(a) (count two).

Following denial of defendant's motion to suppress, a jury convicted defendant of all counts contained in Indictment No. 10-02-00101. At a bench trial that followed, the judge convicted defendant of both counts of Indictment No. 10-02-00102.

Defendant was sentenced to a ten-year term of imprisonment with a forty-month period of parole ineligibility on count one of Indictment No. 10-02-00101 and two concurrent twelve-month terms on counts two and three. The judge imposed a concurrent sentence of seven years with a five-year period of parole ineligibility on count one of Indictment No. 10-02-00102 and a concurrent twelve-month sentence on count two of that indictment. The judgment of conviction erroneously reflected that defendant pled guilty to Indictment No. 10-02-00102.

Defendant raises the following points on appeal:

POINT I

THE TRIAL JUDGE ERRED IN DENYING [DEFENDANT'S] MOTION TO SUPPRESS EVIDENCE BECAUSE THE GUN WAS INVOLUNTARILY ABANDONED DURING THE COURSE OF AN ILLEGAL STOP

A. The Police Lacked Reasonable Suspicion To Stop [Defendant]

B. [Defendant's] Alleged Obstruction Did Not Purge The Taint From the Unconstitutional Stop

POINT II

THE PROSECUTOR'S REFERENCES IN SUMMATION TO THE GUN BEING "READY TO HURT, TO SHOOT, AND TO POSSIBLY KILL PEOPLE," AND HER CLAIM THAT IF ANDINO'S PARTNER HAD TESTIFIED, HE WOULD HAVE CORROBORATED ANDINO'S TESTIMONY, OVERSTEPPED THE BOUNDS OF PROPRIETY, REQUIRING REVERSAL OF DEFENDANT'S CONVICTIONS. FURTHERMORE, THE JUDGE'S REMARKS DURING HER CURATIVE INSTRUCTION EXACERBATED THE PREJUDICE

POINT III

THE JUDGMENT OF CONVICTION ON INDICTMENT NUMBER 10-02-00102 MUST BE AMENDED BECAUSE IT INCORRECTLY STATES THAT DEFENDANT PLEADED GUILTY TO THE UNDERLYING CHARGES

POINT IV

THE JUDGE IMPOSED SEPARATE SENTENCES ON COUNTS ONE AND TWO OF INDICTMENT NUMBER 10-02-00102. AS THE TWO COUNTS CONSTITUTE A SINGLE OFFENSE, THEY MUST BE MERGED.

We have considered these arguments in light of the record and applicable legal standards. We affirm defendant's convictions and the sentences imposed; we agree, however, that the judgment of conviction on Indictment No. 10-02-00102 must be amended to reflect that defendant was found guilty after trial, and the convictions on counts one and two merge as a matter of law.

I.

At the pre-trial motion to suppress, the State produced Elizabeth police officer Edward Andino as its sole witness. Andino testified that at 1:40 a.m., on September 19, 2009, he and fellow officer Lamar Boone were patrolling in a marked police vehicle with Andino driving. They were at the intersection of Broad and Dickenson Streets in the area of the Dolce Bar. The area was "busy on weekends," and Andino had responded there before on "[d]isorderly calls, fights, large crowds." Additionally, the police department had received complaints regarding "criminal activity" in the area, specifically, "armed robberies or motor vehicle break-ins."

As the police car turned onto Dickenson Street, Andino observed a "drunk . . . male leaning against the wall." He saw two individuals, one dressed all in black and the other in jeans and a black "hoodie," speaking to each other and approaching the drunken man. Andino identified defendant as the man dressed "all in black." The officers drove by defendant and the other man, Kenneth Johnson, and Andino saw Johnson make eye contact with them and whisper to defendant.

The officers "looped back around" the block and saw defendant and Johnson now walking on Broad Street. Andino saw defendant grab the left side of his "waistband" with his right hand as he and Johnson continued to whisper to each other and point to the large crowd outside the Dolce Bar. Andino believed they "were targeting somebody," and defendant's hand "over his waistband" indicated he "was trying to conceal a weapon." Andino's experience in ten or fifteen similar situations disclosed the person was actually "concealing a weapon."

Defendant and Johnson walked past the crowd of people, turned down Elizabeth Avenue and continued walking. The officers again turned their vehicle around so as to face them. Boone commanded the men to stop, but they kept walking. Both officers exited the car and again commanded defendant and Johnson to stop. Only Johnson obeyed.

Defendant glanced at Andino, "took a couple of steps back, and then took off running." Andino gave chase, again ordering defendant to stop, but defendant kept running. Andino saw defendant take a gun out of his waistband and throw it over a fence. Andino continued his chase until defendant scaled a fence and ran into an alley between two buildings. With no means of escape, Andino ordered defendant to the ground, but he did not comply.

Defendant scaled the side of a building onto its roof. Andino noted several other police units had responded and were climbing the building's fire escape. He returned to the area where he saw defendant discard the weapon and recovered a "black semiautomatic handgun, a .45 caliber." Defendant was arrested by other officers on the rooftop.

Defendant called Tomas Monarque, a defense investigator as a witness. Monarque had requested reports from the Elizabeth Police Department "of any street robberies involving firearms," thirty days prior to September 19, 2009, in the area of the Dolce Bar. The police department had no such reports.

After considering the arguments of counsel, the judge found both witnesses to be credible, although he noted that Monarque's testimony "cause[d] him to have some question[s] as to [Andino's] credibility." Nonetheless, the judge recounted Andino's testimony and concluded "based upon those facts . . . I'm satisfied that there [was] reasonable articulable suspicions for the officers to stop and investigate [defendant and Johnson]." The judge further concluded "that based upon [defendant] subsequently fleeing the scene, [the officer] had a right to follow and be in a position to see him when he discarded the weapon." The judge denied the motion to suppress.

Defendant contends that the police lacked a reasonable and articulable suspicion of criminal activity when they ordered him and Johnson to stop, and that his subsequent flight did not purge the illegality of the stop so as to make the seizure of the weapon he abandoned legal. We disagree.

We begin our analysis with some basic principles. "'[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record.'" State v. Mann, 203 N.J. 328, 336 (2010) (quoting State v. Elders, 192 N.J. 224, 243 (2007)). "A trial court's findings should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal' or because 'the trial court decided all evidence or inference conflicts in favor of one side.'" Ibid. (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). Instead, "an appellate court must defer to the trial court's findings that 'are substantially influenced by [the court's] opportunity to hear and see the witnesses and to have the "feel" of the case, which a reviewing court cannot enjoy.'" Id. at 336-37 (alteration in original) (quoting Johnson, supra, 42 N.J. at 161). Nevertheless, "[i]t is a well-established principle of appellate review that a reviewing court is neither bound by, nor required to defer to, the legal conclusions of a trial . . . court." State v. Gandhi, 201 N.J. 161, 176 (2010) (citing Toll Bros. v. Twp. of W. Windsor, 173 N.J. 502, 549 (2002)).

In this case, the officers' commands amounted to an investigatory stop. See State v. Crawley, 187 N.J. 440, 445, cert. denied, 549 U.S. 1078; 127 S. Ct. 740; 166 L. Ed. 2d 563 (2006) (accepting that the defendant was seized when a police officer "rolled down the passenger side window and called out, 'Police. Stop. I need to speak with you.'"); see also State v. Williams, 410 N.J. Super. 549, 554-55 (App. Div. 2009) ("It is undisputed that defendant was subject to [an investigatory stop] when [the officer] ordered him to stop . . . ."), certif. denied, 201 N.J. 440 (2010).

An investigatory stop is valid only if the officer has a "particularized suspicion" based upon an objective observation that the person stopped has been or is about to engage in criminal wrongdoing. The "articulable reasons" or "particularized suspicion" of criminal activity must be based upon the law enforcement officer's assessment of the totality of circumstances with which he is faced.

[State v. Rodriguez, 172 N.J. 117, 127 (2002) (quoting State v. Davis, 104 N.J. 490, 504 (1986)).]

"A police officer must be able 'to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant' the intrusion." State v. Thomas, 110 N.J. 673, 678 (1988) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1879, 20 L. Ed. 2d 889, 906 (1968)). Specific and articulable facts are not a police officer's "'inchoate and unparticularized suspicion or 'hunch.'" State v. Privott, 203 N.J. 16, 29 (2010) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 900).

"No mathematical formula exists for deciding whether the totality of circumstances provided the officer with an articulable or particularized suspicion that the individual in question was involved in criminal activity." Davis, supra, 104 N.J. at 505. In evaluating the "totality of the circumstances," we "are to give weight to 'the officer's knowledge and experience' as well as 'rational inferences that could be drawn from the facts objectively and reasonably viewed in light of the officer's expertise.'" State v. Citarella, 154 N.J. 272, 279 (1998) (quoting State v. Arthur, 149 N.J. 1, 10-11 (1997)). "The fact that purely innocent connotations can be ascribed to a person's actions does not mean that an officer cannot base a finding of reasonable suspicion on those actions as long as 'a reasonable person would find the actions are consistent with guilt.'" Id. at 279-80 (quoting Arthur, supra, 149 N.J. at 11).

Here, the judge credited Andino's testimony on key points that demonstrate the officer possessed the requisite reasonable and articulable suspicion to conduct an investigatory stop. These findings included the officer's observations regarding the "drunken" male, "a potential target of a robbery," and actions by defendant and Johnson causing the officers "to believe that they were spotted." The judge found another "articulable fact" to be defendant's gestures with his right hand toward the left side of his waistband, leading to the belief that defendant might be armed. These facts, together with the hour of night and the large crowd gathered outside a local bar, when considered together with the officer's training and experience, support the legal conclusion that an investigatory stop was justified.

We need not consider defendant's secondary argument that defendant's subsequent flight did not purge any illegality. We find no error in the judge's decision to deny defendant's motion to suppress.

II.

At the beginning of her summation, in addressing count one of the indictment, the prosecutor told the jury:

What does operable mean? That means that it's capable of firing a projectile. You saw those projectiles. Capable of firing these bullets. Bullets that can kill, bullets that can injure. This is a real gun, an operable gun. We also know that from Officer Andino's testimony. He testified that when he went back . . . to retrieve [the gun] he made it safe.

[H]e told you . . . it was a loaded weapon, seven bullets were in the magazine and one bullet in the chamber . . . . That means this gun was ready to fire . . . . These bullets were capable and ready to hurt, to shoot, to possibly kill people.

The judge sustained defendant's objection, and cautioned the prosecutor to "limit yourself to the possession elements." The prosecutor's references thereafter to a "loaded[,]" "operable" weapon provoked no further objection.

Later in her summation, the prosecutor attempted to address comments made in defense counsel's summation. Defense counsel, after noting the lack of forensic evidence with respect to the gun, suggested to the jury that Andino, who was driving the police car, may have been distracted at various points, while officer Boone, who was the passenger, made better observations. Defense counsel noted "there [was] a lack of evidence" in the State's case, and "that lack of evidence is Lamar Boone."

The prosecutor responded:

The State doesn't have to present every single witness on the witness list that you saw which was very long. The State doesn't have to present testimony that's repetitive or redundant. And that's why Lamar Boone didn't testify. He would have told you the same thing as Officer Andino told you.

[(Emphasis added).]

As defense counsel tried to object, the judge stated, "It's overruled."

At sidebar, after the prosecutor finished, defense counsel again objected to the prosecutor's references to the gun. The judge agreed to "say something during the charge that it's not relevant that it had bullets or not. It's sufficient if it's operable . . . ." As to the comments regarding Boone's absence as a witness, the judge also agreed with defense counsel, telling the prosecutor, "You said that Officer Boone would testify to exactly the same thing, but you can't say that because you don't know that . . . ." However, the judge declined to give any instruction, stating the problem was with the prosecutor's "wording."

In her final charge to the jury, the judge stated:

Now when the prosecutor gave her summation[,] she referred to the fact that the gun was loaded and ready to be fired. That's not an element at all of this offense. That's a different offense. And that's not really relevant. What's relevant is whether it was operable or not.

There was no further objection from defense counsel to this portion of the judge's charge.

Before us, defendant contends that these comments amounted to prosecutorial misconduct that requires reversal, and the judge's instructions did not cure the problem. We disagree.

"New Jersey courts have commented repeatedly on the special role filled by those entrusted with the responsibility to represent the State in criminal matters, observing that the primary duty of a prosecutor is not to obtain convictions but to see that justice is done." State v. Smith, 212 N.J. 365, 402-03 (2012) (citations omitted). A prosecutor's "duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 96 (2006).

The prosecutor is permitted to vigorously rebut specific arguments made by defense counsel. SeeState v. Mahoney, 188 N.J.359, 376-77 (2006) (holding a "prosecutor's comment[] . . . placed an unforgiving and harsh glare on . . . defense" but was permissible). However, "[a] finding of prosecutorial misconduct prejudicing a defendant's right to a fair trial may be based upon references to matters extraneous to the evidence." State v. Jackson, 211 N.J.394, 408 (2012) (citation omitted).

"A finding of prosecutorial misconduct does not end a reviewing court's inquiry because, in order to justify reversal, the misconduct must have been 'so egregious that it deprived the defendant of a fair trial.'" State v. Smith, 167 N.J. 158, 181 (2001) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). The prosecutor's conduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense" in order to warrant reversal. State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996) (quotations omitted).

"Our task is to consider the fair import of the State's summation in its entirety." Jackson, supra, 211 N.J.at 409 (quotation marks and citation omitted). "Whether particular prosecutorial efforts can be tolerated as vigorous advocacy or must be condemned as misconduct is often a difficult determination to make. In every instance, the performance must be evaluated in the context of the entire trial . . . ." State v. Negron, 355 N.J. Super. 556, 576 (App. Div. 2002).

The prosecutor's comments regarding the loaded weapon were not so egregious as to warrant a new trial. It is clear that she believed the bullets, which were in evidence, circumstantially proved a necessary element of the offense, the operability of the weapon. But, the comments were gratuitous and unnecessary, because the State produced a firearms expert who testified to this fact. In any event, when the comments were first made, the judge stopped the prosecutor dead in her tracks. And, in her final charge, the judge attempted, albeit somewhat inartfully, to deflect the jury's consideration from the objectionable comments to the only relevant issue, the gun's operability. We do not think the judge misled or confused the jurors by referring to "a different offense" in her final charge, nor do we think the brief reference, in the context of the entire charge, was prejudicial. In this regard, we note, defense counsel lodged no objection. See State v. White, 326 N.J. Super. 304, 315 (App. Div. 1999) (noting the failure to "interpose a timely objection constitutes strong evidence that the error belatedly raised . . . was actually of no moment"), certif. denied, 163 N.J. 397 (2000).

The prosecutor's comments regarding Boone's likely testimony, however, were far more inappropriate. While she was entitled to rebut defense counsel's assertion of a lack of evidence, she crossed the line by offering her own testimony. In other words, by claiming Boone's testimony would be the same as Andino's, the prosecutor commented on evidence not before the jury. This was highly improper and the judge not only should have sustained defendant's objection when made, but also should have instructed the jury appropriately.

The issue, however, is whether these comments denied defendant a fair trial. "Prosecutorial comments are deemed to have violated the defendant's right to a fair trial when they so infect[ ] the trial with unfairness as to make the resulting conviction a denial of due process." Jackson, supra, 211 N.J. at 409 (quotation marks and citation omitted).

The prosecutor's comments in this case did not deny defendant a fair trial. Andino's testimony reflected how he and Boone worked as a team on the night in question. Defendant's abandonment of the weapon occurred after the officers exited the police car. Defense counsel's assertion that Andino's attention was distracted because he was driving clearly rang hollow with the jury. Moreover, Andino testified that, because Boone remained with Johnson when he (Andino) chased defendant, there was no other witness to defendant's abandonment of the handgun. On the critical issue in the case, i.e., whether defendant possessed the gun or not, Boone could have added nothing. We affirm defendant's conviction.

III.

We turn to defendant's arguments with respect to the judgment of conviction entered on Indictment No. 10-02-00102. The State concedes both points made. Defendant did not plead guilty to the offenses; he was convicted after a bench trial. Because defendant possessed only a single weapon, the conviction on the second count merged into the conviction on the first count. We therefore remand the matter for entry of an amended judgment of conviction on Indictment No. 10-02-00102.

Affirmed. Remanded for entry of an amended judgment of conviction on Indictment No. 10-02-00102 only. We do not retain jurisdiction.