STATE OF NEW JERSEY v. SHAQUAN L. BEST

NOT FOR PUBLICATION WITHOUT THE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.

SHAQUAN L. BEST,

Defendant-Appellant.

___________________________

December 16, 2013

Submitted December 10, 2013 Decided

Before Judges Reisner and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-03-00257.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael B. Jones, Assistant Deputy Public Defender, of counsel and on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent (Jenny M. Hsu, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Shaquan L. Best appeals from his conviction for first-degree robbery, N.J.S.A. 2C:15-1, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a, second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b, and fourth-degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(4). He also appeals from the aggregate sentence of thirteen years in prison subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On this appeal, defendant presents the following points of argument for our consideration:

POINT I

THE PROSECUTOR'S REPEATED MISCONDUCT BY VOUCHING FOR HER WITNESSES, TESTIFYING IN SUMMATION, AND DEMEANING THE DEFENSE DEPRIVED DEFENDANT OF A FAIR TRIAL. (Not Raised Below)

POINT II

JUST AS A CHARGE IS NECESSARY WHEN THE JURY IS TOLD THAT DEFENDANT'S PHOTOGRAPH IS IN POLICE POSSESSION, SO TOO THERE MUST BE A CHARGE WHEN THE JURY LEARNS THAT DEFENDANT'S DNA IS IN A NATIONAL DATABASE. THE FAILURE TO GIVE SUCH A CHARGE WAS PLAIN ERROR. (Not Raised Below)

POINT III

THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

Having thoroughly reviewed the trial record, we find no merit in any of those contentions, and we affirm.

I

These are the most pertinent facts drawn from the trial testimony. Defendant was accused of attempting to rob a convenience store at gunpoint. According to the store owner, Jake Bassit, he and his employee, Yeshi Lhundup, were preparing to close the store at about 9:30 p.m. Both men were behind the counter; Bassit was preparing to empty the cash register and Lhundup was working on the computer. Bassit heard the bell over the front door jingle. On looking up, he saw a masked man pointing a gun very close to his face. Bassit thought he heard the man mumble something about giving him the money. Believing the gunman might be about to shoot him, Bassit grabbed the gun in an attempt to get it away from his face. Lhundup came to his aid and together, they were able to pull the robber over the counter and get the gun away from him. During the struggle, Bassit kneed the robber in the face and tore his sweater off. Bleeding, the robber fled from the store. In his testimony, Lhundup gave a similar description of these events.

Bassit immediately called the police, who retrieved the gun, the torn sweater, and samples from drops of blood on the floor of the store. Monica Ghannam, a forensic scientist, testified that she was able to extract DNA from the blood samples, the sweater, and the gun. She sent the results to the national DNA database, which revealed that they were a match for defendant's DNA. That testimony explained why the police focused their investigation on defendant. After defendant was arrested, the police took a current DNA sample from him, which was tested and also matched the DNA retrieved from the crime scene. According to Ghannam, there was a one in 460 quadrillion chance that the DNA belonged to someone other than defendant.

The defense presented no witnesses or evidence. In his summation, defense counsel argued that Bassit was not a credible witness because his trial testimony was not entirely consistent with his statement to the police on the night of the robbery. For example, Bassit's statement to the police did not mention that the robber told him to hand over the money. Defense counsel did not contest that defendant was present in the store or that his DNA was found at the scene. Instead, he argued that the gun might have belonged to Bassit, and that Bassit and Lhundup might have beaten defendant for reasons of their own and then falsely accused him of trying to rob them. In her summation, the prosecutor argued that the State's evidence was very strong and that the defense theory was far-fetched.

II

For the first time on appeal, defendant argues that the prosecutor committed various improprieties in summation. We find no error, plain or otherwise, in any of the prosecutor's comments concerning the credibility of Bassit and Lhundup. Her remarks were a fair response to defense counsel's attempt to explain why they might have lied about the robbery. Defendant's reliance on State v. West, 145 N.J. Super. 226 (App. Div. 1976), certif. denied, 73 N.J. 67 (1977), and State v. Staples, 263 N.J. Super. 602 (App. Div. 1993), both of which concerned improper comments about the credibility of a police witness, is misplaced. Neither of those cases is remotely on point here.

Defendant's additional criticisms of the prosecutor's summation, to which trial counsel raised no objection, are equally without merit. The prosecutor's summation constituted fair comment on the evidence and had no capacity to deny defendant a fair trial. See State v. Frost, 158 N.J. 76, 83 (1999). Defendant's arguments on this point are without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).

Defendant also argues that the court should have sua sponte given the jury an instruction concerning the presence of defendant's DNA in the national DNA database. Arguing by analogy with the existing jury instructions on fingerprint and photograph evidence, defendant argues that a limiting instruction was needed to ensure that the jury did not infer that defendant had a prior criminal record from the fact that his DNA was in the national database. See Model Jury Charge (criminal), "Fingerprints" (1992); Model Jury Charge (criminal) "Identity Police Photos" (1992).

The State responds that the testimony about the database was extremely brief and not presented in a way that implied that defendant had a prior criminal record. The State also contends that defense counsel probably intentionally refrained from asking for such an instruction as a litigation tactic, to avoid drawing further attention to the State's overwhelming DNA evidence. See State v. Nelson, 173 N.J. 417, 471 (2002).

Because defendant failed to request an instruction, we review his argument using the plain error standard. See R. 1:7-2; R. 2:10-2. We acknowledge that, on a different record, such an instruction might be warranted to prevent the jury from inferring that defendant had a prior criminal record. However, we need not explore the issue further here, because, on this record, we find no possibility that the brief mention of a DNA database had the clear capacity to produce a miscarriage of justice. R. 2:10-2; State v. Macon, 57 N.J. 325, 335-36 (1971). In fact, during the expert's testimony, the prosecutor elicited information that DNA testing was not only used in criminal cases but for other purposes such as establishing paternity. Hence, the expert's brief mention of a national DNA database did not infer that defendant's name was in the database because he had a prior criminal record. Further, given the overwhelming evidence of defendant's guilt, we find no reasonable possibility that a passing reference to the DNA database could have caused the jury to convict defendant when it otherwise might have acquitted him. See State v. Bankston, 63 N.J. 263, 273 (1973).

Finally, we find no abuse of discretion or other error in the thirteen-year NERA sentence. See State v. Bieniek, 200 N.J. 601, 607-08 (2010); State v. Ghertler, 114 N.J. 383, 384 (1989). That sentence was below the mid-point of the range for a first-degree crime, and two years lower than the fifteen-year term the State requested. See N.J.S.A. 2C:43-6a(1); N.J.S.A. 2C:44-1f(b). We affirm for the reasons stated by the trial judge at the sentencing hearing on December 2, 2011. Defendant's arguments on this point warrant no further discussion. See R. 2:11-3(e)(2).

Affirmed.