STATE OF NEW JERSEY v. AKINO W. YOUNG

NOT FOR PUBLICATION WITHOUT THE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.

AKINO W. YOUNG, a/k/a BEANO BEANS,

KEVIN SIMMONS, AFINO YOUNG and

KINO YOUNG,

Defendant-Appellant.

November 18, 2014

Submitted November 6, 2014 Decided

Before Judges Maven and Carroll.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-01-00024.

Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Kazer, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Debra G. Simms, Special Deputy Attorney General/Executive Assistant Prosecutor, on the brief).

PER CURIAM

Tried to a jury, defendant Akino W. Young appeals from his conviction for second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b, and fourth-degree unlawful possession of hollow point bullets, N.J.S.A. 2C:39-3f. He also appeals from the aggregate sentence of ten years in prison subject to a five-year parole ineligibility period under the Graves Act.1

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

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR BY ISSUING AN ERRONEOUS, ONE-SIDED, PREJUDICIAL INSTRUCTION ON THE DOCTRINE OF "CONSTRUCTIVE POSSESSION" (NOT RAISED BELOW)

POINT II

IN THE ABSENCE OF A LIMITING INSTRUCTION BY THE TRIAL COURT, TESTIMONY THAT DEFENDANT BEGAN TO ACT "NERVOUS" WHEN THE TRASH CAN WAS SEARCHED, AND TESTIMONY THAT DEFENDANT WAS IN "A HIGH CRIME VIOLENT AREA" WHERE THERE HAD "JUST BEEN A HOMICIDE," RESULTED IN PLAIN ERROR (NOT RAISED BELOW)

POINT III

THE CUMULATIVE EFFECT OF THE ERRORS THAT OCCURRED DURING DEFENDANT'S TRIAL WARRANT REVERSAL OF HIS CONVICTION (NOT RAISED BELOW)

POINT IV

THE 10 YEAR CUSTODIAL TERM WITH 5 YEARS OF PAROLE INELIGIBILITY IMPOSED ON DEFENDANT'S CONVICTION FOR UNLAWFUL POSSESSION OF A HANDGUN ON COUNT ONE WAS MANIFESTLY EXCESSIVE

We have considered these arguments in light of the record and applicable legal standards, and we affirm.

I.

These are the most pertinent facts drawn from the trial testimony. On September 22, 2009, at approximately 9:00 p.m., then-Newark Police Officer Rafael Raez was a passenger in a marked patrol unit being driven by Sergeant Burgos. Their duties included addressing "quality of life" issues and enforcing related infractions. As the officers were passing the Boylan Street Recreational Center, which was closed due to the lateness of the hour, they heard a "ruckus" and observed a group of six or seven individuals congregating near the rear of the basketball court. Upon observing the officers, the group began to exit the area at a quick pace. Raez saw defendant walk toward a garbage can, pull a shiny object from his waistband, and discreetly drop it in the garbage can.

The officers activated their lights and siren and Raez detained the group, including defendant, while Burgos checked the trash can. On direct examination Raez testified that defendant appeared nervous and jittery. On cross-examination Raez indicated that his suspicions were aroused when he observed defendant remove the silver object from his waistband because it was "a high violent area" and "we just had a homicide there."

Upon illuminating the garbage can with his flashlight, Burgos observed a weapon inside. The Crime Scene Unit was summoned, and recovered a silver handgun from the trash can. The weapon was later tested and found to be operable and to contain hollow point bullets. No fingerprints were recovered from the handgun. At trial, the defense presented no witnesses or evidence.

II.

A.

For the first time on appeal, defendant argues that the trial court committed plain error in instructing the jury on constructive possession. The judge charged the jury as follows

Constructive possession means possession in which the person does not physically have the handgun, but though not physically on one's person he is aware of the presence of the handgun and is able to exercise intentional control or dominion over it.

A person, who although not in actual possession, has knowledge of its character knowingly has both the power and the intention at a given time to exercise control over a handgun, either directly or through another person or persons is then in constructive possession [] of it.

Here [is] my book. It's in my hand. I have actual possession of it. I don t have actual possession of that book anymore.2 But it's in my constructive possession [be]cause I can reach over and get it. Or the books in my chambers, I could send my Law Clerk to go and get them. They are in my constructive possession.

[Emphasis added].

Specifically, defendant objects to the example regarding possession of the book that the trial judge gave to illustrate the concept of constructive possession. He contends that this instruction was prejudicial, one-sided, and invited the jury to convict him under the State's theory that he constructively possessed the weapon. We disagree.

"Except as otherwise provided by R.1:7-5 and R.2:10-2 (plain error), no party may urge as error any portion of the charge to the jury or omissions therefrom unless objections are made thereto before the jury retires to consider its verdict . . . ." R.1:7-2. Thus, where a defendant does not object at trial, we "review the charge for plain error and reverse only if such an error was 'clearly capable of producing an unjust result.'" State v. Miller, 205 N.J.109, 126 (2011) (quoting Rule2:10-2). "If the defendant does not object to the charge at the time it is given, there is a presumption that the charge was not error and was unlikely to prejudice the defendant's case." State v. Singleton, 211 N.J.157, 182 (2012).

"When the error alleged concerns only a portion of a charge, the challenged portion is not to be 'dealt with in isolation but the charge should be examined as a whole to determine its overall effect.'" State v. Docaj, 407 N.J. Super. 352, 363 (App. Div.) (citation omitted), certif. denied, 200 N.J.370 (2009). In the present case, although defendant challenges only a portion of the charge, we consider the charge in its entirety.

Here, the charge fully comported with the model jury charge for possession, including constructive possession. SeeModelJury Charge (Criminal), "Possession" (2005).3 There was no objection to the instruction, which included a minor change to provide the jury with an illustration designed to make it more understandable. Indeed, trial courts are charged with molding jury instructions to meet the facts of the case. Toto v. Ensuar, 196 N.J. 134, 144 (2008) (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)) (The charge must constitute "a road map that explains the applicable legal principles, outlines the jury's function, and spells out 'how the jury should apply the legal principles charged to the facts of the case at hand.'"); see also Reynolds v. Gonzalez, 172 N.J. 266, 288-89 (2002) (holding that, where necessary for the jury's understanding, the trial court must tailor the charge to the theories of the parties to enable review of the evidence in that context). Nor do we find the example provided by the trial judge to be in any way inaccurate or clearly capable of producing an unjust result.

B.

Defendant next argues that the trial judge failed to give a limiting instruction to the jury concerning Raez's testimony that defendant appeared "nervous," and that his suspicions were aroused because this was "a high violent area" where there had recently been a homicide. Again, we find no merit to this contention.

Because defendant did not object to the testimony, nor request a limiting instruction, we again review this claim under the plain error standard. R. 2:10-2. We view Raez's testimony that defendant appeared nervous as somewhat innocuous and a natural reaction for someone detained by police. While Raez's comments about the area have a greater capacity for prejudice, we note that this testimony was elicited not by the State but rather by defendant's counsel during cross-examination. We are particularly cognizant that it might have been a tactical decision by the defense not to request the limiting jury instruction. See State v. Krivacska, 341 N.J. Super. 1, 42-44 (App. Div.) (finding that when no limiting instruction was requested by the defense "to rerun a trial when the mistake could easily have been cured on request, would reward the litigant who suffers an error for tactical advantage either in the trial or on appeal"), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).

Additionally, under the facts presented, we cannot conclude that admission of this testimony was irrelevant or unduly prejudicial, since it provided context as to why the officers were patrolling the area and being vigilant for persons possessing weapons. For all of these reasons, we do not consider the trial judge's failure to sua sponte give a limiting instruction as plain error.

C.

In his next point, defendant argues that the cumulative prejudice of the errors warrant a reversal of his conviction. Having rejected defendant's argument that more than one error occurred during his trial, we also reject his cumulative error argument. Moreover, we are satisfied that none of the errors alleged by defendant, individually or cumulatively, warrant granting a new trial. State v. Orecchio, 16 N.J. 125, 129 (1954).

D.

Finally, defendant argues that his sentence was excessive. We disagree. Trial judges have broad sentencing discretion as long as the sentence is based on competent credible evidence and fits within the statutory framework. State v. Dalziel, 182 N.J.494, 500 (2005). When the trial court has applied correct legal principles and sentenced in accordance with the guidelines, we should not overturn the sentence unless it is so clearly unreasonable as to shock the judicial conscience. Id. at 501 (citing State v. Roth, 95 N.J. 334, 363-65 (1984)). If a sentencing judge has identified and balanced the aggravating and mitigating factors, and their existence is supported by sufficient credible evidence in the record, we are obligated to affirm. State v. Cassady, 198 N.J. 165, 180-81 (2009).

Here, the trial judge noted that defendant was adjudicated a juvenile delinquent on two occasions. Defendant also had eight adult arrests, which resulted in one prior indictable conviction and four disorderly persons convictions. We find the trial judge appropriately applied aggravating factors three, N.J.S.A. 2C:44-1a(3) (likelihood that defendant will commit another offense); six, N.J.S.A. 2C:44-1a(6) (extent of prior record); and nine, N.J.S.A. 2C:44-1a(9) (need to deter defendant and others from violating the law). The judge concluded that the aggravating factors outweighed the non-existent mitigating factors and imposed a ten-year sentence with a five-year period of parole ineligibility. We are satisfied that the sentencing court acted well within its discretion in identifying and weighing the aggravating and mitigating factors supported by the evidence, and imposed a sentence within the permissible range for the offense. State v. Bieniek, 200 N.J.601, 608 (2010). As the court applied correct legal principles, and the sentence is amply supported by the record and does not shock our judicial conscience, we discern no basis to disturb it. Roth, supra, 95 N.J.at 363-64.

Affirmed.

1 The Graves Act provides, in relevant part, that the sentence for a person convicted under N.J.S.A. 2C:39-5b shall include a minimum term fixed at, or between, one-third and one-half of the sentence imposed or three years, whichever is greater, during which the defendant shall be ineligible for parole. N.J.S.A. 2C:43-6c.

2 We infer from the record that at this point the judge had put down the book.

3 This model charge was subsequently revised on June 20, 2014. In its current form, the model charge is substantially similar to the prior version in effect at the time of trial, and the revision does not affect our analysis.