STATE OF NEW JERSEY v. FUQUAN WILLIAMS

NOT FOR PUBLICATION WITHOUT THE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.

FUQUAN WILLIAMS,

Defendant-Appellant.

_____________________________________

February 25, 2015

 

Submitted September 8, 2014 Decided

Before Judges Sabatino and Leone.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 10-10-2512.

Joseph E. Krakora, Public Defender, attorney for appellant (Jack L. Weinberg, Designated Counsel, on the briefs).

John J. Hoffman, Acting Attorney General, attorney for respondent (Joseph A. Glyn, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Fuquan Williams appeals his convictions for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b), and fourth-degree resisting arrest by flight, N.J.S.A. 2C:29-2(a). We affirm.

I.

At defendant's suppression hearing, Detective Thomas DelMauro testified as follows. At about 10 p.m. on July 19, 2010, as Detectives DelMauro, Simpkins, and James were driving into the precinct, they were flagged down by a passerby who said there was a large fight at an intersection in Newark. As they approached the intersection, Detective DelMauro saw defendant in a group standing in front of a clothing and haircut store. The plainclothes detectives exited their undercover vehicle to "investigate the fight," and approached the group unnoticed. Detective DelMauro did not draw his gun, and did not believe the other detectives drew theirs.

When he was within a few feet of the group, Detective DelMauro saw the butt of a handgun sticking out of defendant's waistband. The detective immediately pulled out his badge and shouted, "Police, let me see your hands." Defendant yelled "it's the police," and he and his companions ran inside the store with the detectives in "hot pursuit."

Once inside, defendant and his companions ran into the store's backroom, the door of which was being held open by a garbage can. As defendant did so, he took the handgun out of his waistband and threw it into the open garbage can. Detective DelMauro witnessed this from a few feet behind defendant, followed defendant into the backroom, and arrested him for unlawful possession of the handgun.

Detective DelMauro then looked in the garbage can and saw the handgun, which was on top of papers and other garbage. He retrieved the .45 caliber Glock. The gun was loaded with five rounds.

The other detectives arrested the other individuals in the backroom, including Shon Brown, and David Crosby who was trying to hide under a pool table. The detectives saw and seized a clear plastic bag of marijuana on top of the pool table.

At the suppression hearing, defendant called Brown and Crosby, who testified as follows. There was a fight in front of the store between two gangs. Defendant, Brown, and others had just exited the store and were standing underneath the store's awning to stay out of the rain. Men got out of a car, defendant shouted they were armed, and the group entered the store with the men in pursuit with guns drawn. The men did not identify themselves as the police until they were inside the store, where the police found the handgun in the garbage can. Brown and Crosby further testified that they had not seen defendant with the handgun.

Judge Sherry A. Hutchins-Henderson credited Detective DelMauro's testimony. The court found that he had probable cause once he observed the butt of the handgun, that he entered the store in hot pursuit, and that he properly seized the gun without a warrant.

At defendant's trial, Detective DelMauro and Brown largely repeated their suppression hearing testimony. Corroborating DelMauro's testimony, Detective Simpkins testified that he too saw the butt of the gun. Defendant testified that he had a cell phone clipped to his belt, that he saw the armed men and fled into the store, where he learned they were police, and that the gun was not his but belonged to the store's owner.

The court dismissed count two, charging third-degree hindering apprehension. The jury convicted defendant of count one (unlawful possession of a firearm), and count three (resisting arrest by flight). The court sentenced defendant on count one to three years in prison without eligibility for parole. The court imposed a concurrent sentence on count three of one year in prison. Defendant appeals from his February 29, 2012 judgment of conviction, raising these arguments

POINT I: THE MOTION COURT ERRED WHEN IT DENIED THE DEFENDANT'S MOTION TO SUPPRESS THE EVIDENCE SEIZED

POINT II: THE PROSECUTOR'S COMMENTS AND ACTIONS DURING THE COURT OF THE TRIAL CONSTITUTED MISCONDUCT AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL. [Partially raised below.]

A The Prosecutor Introduced Unnecessary and Irrelevant Information Concerning Det. Delmauro's Training and Experience Which Improperly Bolstered His Credibility

B The Prosecutor Improperly Referenced the Defendant's Employment Status

C The Prosecutor Committed Misconduct When She Referenced the Color of Mr. Brown's Clothes, Implying Membership in a Gang Without Any Evidence in the Record to Support the Inference

POINT III: THE DEFENDANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL GUARANTEES. [Not raised below.]

A The Claim of Ineffective Assistance of Counsel is Cognizable on Direct Appeal because Defense Counsel Placed his Reasons for his Trial Strategy on the Record

B Defense Counsel's Trial Strategy to Raise the Issue of the Marijuana Found in the Back Room along with the Resulting Charges and the Officers' Belief that the Money found on the Defendant Constituted the Proceeds of Drug Sales Constituted Deficient Performance which Prejudiced his Defense

C Trial Counsel Failed to Submit Compelling Reasons in Support of Application for PreTrial Intervention and Thereby Prejudiced the Defendant's Chances of having the Prosecutor Consent to Amelioration Pursuant to N.J.S.A. 2C:43-6.2

POINT IV: THE JURY VERDICT ON FOURTH-DEGREE RESISTING ARREST MUST BE VACATED OR REDUCED TO A DISORDERLY PERSONS OFFENSE BECAUSE THE JURY DISPERSED BEFORE THE COURT INQUIRED FROM THE JURY WHETHER THE RESISTING ARREST WAS THE RESULT OF FLIGHT. IN THE ALTERNATIVE, THE COURT SHOULD VACATE THE ENTIRE VERDICT BECAUSE THE JURY DISPERSED BEFORE THE COURT FINISHED TAKING THE ENTIRE VERDICT. [Not raised below.]

POINT V: THE IMPOSITION OF THIS MINIMUM SENTENCE PERMITTED BY THE STATUTE SHOCKS THE JUDICIAL CONSCIENCE AS IT CONSTITUTES CRUEL AND UNUSUAL PUNISHMENT AS APPLIED IN THIS INSTANCE. AT THE LEAST, THE COURT SHOULD REMAND THE MATTER TO PERMIT THE DEFENDANT TO PURSUE HIS PRE-TRIAL INTERVENTION APPLICATION OR TO PERMIT AN APPLICATION TO THE ASSIGNMENT JUDGE FOR EXEMPTION FROM THE GRAVES ACT PURSUANT TO N.J.S.A. 2C:43-6.2 [Partially raised below.]

II.

Defendant challenges the denial of his suppression motion. We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[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." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted). "In particular, the appellate court must defer to the credibility determinations of the trial court between competing factual testimony." State v. Jefferson, 413 N.J. Super. 344, 349 (App. Div. 2010).

At a suppression hearing, "'the State bears the burden of proving by a preponderance of the evidence that a warrantless search or seizure falls within one of the few well-delineated exceptions to the warrant requirement.'" State v. Mann, 203 N.J. 328, 337-38 (2010). "One such exception is denominated an investigatory stop or a Terry stop." Id. at 338 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)). An investigatory stop "'is valid if it is based on specific and articulable facts which, taken together with rational inferences from those facts, give rise to a reasonable suspicion of criminal activity.'" Id. at 338.

Defendant argues that the detectives already intended to detain him when they exited their car, and that they lacked reasonable suspicion at that moment. However, neither is the relevant inquiry. Reasonable suspicion is not required until there is a seizure of the person. See State v. Hughes, 296 N.J. Super. 291, 294-98 (App. Div.), certif. denied, 149 N.J. 410 (1997). "Neither the officer's subjective intent, nor the subjective belief of the citizen, determines whether a seizure has occurred." State v. Rodriguez, 172 N.J. 117, 126 (2002) (citations omitted).

Under the New Jersey Constitution, "a seizure occurs 'only when, by means of physical force or a show of authority, [the suspect's] freedom of movement is restrained' and 'only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.'" State v. Tucker, 136 N.J. 158, 164 (1994).1 According to Detective DelMauro's testimony, which the suppression judge credited, there was no force or show of authority until after he observed the butt of a handgun sticking out of defendant's waistband.

Detective DelMauro's observation in itself was more than sufficient to give him reasonable suspicion that defendant was committing the offense of possessing a handgun without a New Jersey permit. N.J.S.A. 2C:39-5(b); see N.J.S.A. 2C:39-2(b). Defendant argues the detectives could not have seen the gun in his waistband, but the motion court was entitled to credit Detective DelMauro's testimony.

The detective thus had reasonable suspicion when he shouted "Police, let me see your hands." Defendant instead fled, and the detectives properly pursued. "[A] person has no constitutional right to flee from an investigatory stop." State v. Williams, 192 N.J. 1, 11 (2007).

Defendant does not contest that the detectives had the right to enter a public establishment. See State v. Nikola, 359 N.J. Super. 573, 582 (App. Div.), certif. denied, 178 N.J. 30 (2003); e.g., Mann, supra, 203 N.J. at 339-40 (finding reasonable suspicion justified the pursuit of the defendant into a restaurant). Defendant does not claim "he had a reasonable expectation of privacy in the premises." State v. Hinton, 216 N.J. 211, 234 (2013). In any case, "[e]xigent circumstances include 'the need to apprehend and subdue an armed felon' who enters a residence when, under 'hot pursuit,' he flees from law enforcement." State v. Walker, 213 N.J. 281, 292 (2013).

The motion court could and did credit Detective DelMauro's testimony that he observed defendant throw the handgun into the garbage can. The detective's observations of the gun gave probable cause to arrest defendant and seize the gun. State v. Mai, 202 N.J. 12, 26 (2010). Indeed, that probable cause was augmented by defendant's flight. State v. Ramos, 282 N.J. Super. 19, 22-23 (App. Div. 1995); see State v. Tucker, 136 N.J. 158, 168 (1994).2

The handgun was in plain view in the garbage can. Mai, supra, 202 N.J. at 25-26. Moreover, defendant abandoned the handgun when he discarded it. "[A] defendant abandons property 'when he voluntarily discards, leaves behind, or otherwise relinquishes his interest in the property in question so that he can no longer retain a reasonable expectation of privacy with regard to it at the time of the search.'" State v. Carroll, 386 N.J. Super. 143, 160 (App. Div. 2006) (quoting State v. Farinich, 179 N.J. Super. 1, 6 (App. Div. 1981), aff'd o.b., 89 N.J. 378 (1982)). Accordingly, the detective could seize the gun without a warrant.3

Defendant contends "the abandonment was the product of an illegal seizure" and pursuit. Tucker, supra, 136 N.J. at 172. However, as set forth above, the detectives' actions were legal. Thus, "any items discarded along the way by the person pursued may be retrieved by the police and used as evidence of criminal conduct." State v. Ruiz, 286 N.J. Super. 155, 163 (App. Div. 1995) (distinguishing Tucker), certif. denied, 143 N.J. 519 (1996). For all these reasons, defendant's motion to suppress the handgun was properly denied.

III.

Defendant next claims three instances of alleged prosecutorial misconduct denied him a fair trial.

A.

First, defendant complains the prosecutor at trial asked Detective DelMauro "[w]hat kind of training have you received," and "how many arrests [] have you participated in in the course of your career?" Defendant did not object to the first question. He objected that the second question was "irrelevant" and that the detective was not being qualified as an expert, but the court allowed the testimony as background.

Defendant's complaint really challenges the admission of evidence. "Considerable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion," State v. Feaster, 156 N.J. 1, 82 (1998), namely "'a clear error of judgment,'" State v. Brown, 170 N.J. 138, 147 (2001).

Defendant cannot show that it was prejudicial or plain error that the detective briefly testified he had received training about gangs, narcotics, and hidden compartments in vehicles. See R. 2:10-2. Moreover, defendant concedes the prosecution could properly ask how long the detective had been a police officer and if he had been involved in arrests involving guns. Indeed, the prosecutor's questioning elicited that the detective had been involved in many arrests involving handguns and was familiar with handguns. This was relevant to support his testimony that he recognized the object in defendant's waistband as a handgun, and to rebut defendant's argument that the detective mistook a cellphone as a handgun. Accordingly, this questioning was neither improper bolstering nor misconduct.

B.

Second, in cross-examining defendant, the prosecution asked if he told the police that he was currently unemployed, to which defendant replied "yes." The court overruled defense counsel's objection because defendant had opened the door. On direct, defendant had repeatedly testified over objection that he worked for Bank of America "for the last eight-and-a-half years."

Again, defendant's claim of prosecutorial misconduct "is more properly viewed as a challenge to the trial court's admission of evidence." State v. Patterson, 435 N.J. Super. 498, 507 (App. Div. 2014). "'It is well-established that the scope of cross-examination is a matter for the control of the trial court and an appellate court will not interfere with such control unless clear error and prejudice are shown.'" State v. Gaikwad, 349 N.J. Super. 62, 86 (App. Div. 2002).

Defendant argues the prosecutor's question was barred by State v. Mathis, 47 N.J. 455 (1966), and State v. Terrell, 359 N.J. Super. 241 (App. Div.), certif. denied, 177 N.J. 577 (2003). In Mathis, the prosecutor on cross-examination elicited from the defendant that he worked for his father. The prosecutor then called witnesses to prove the defendant was not working. Mathis, supra, 47 N.J. at 469-70. Here, unlike Mathis, "[t]his is not a case in which a cross-examiner deliberately sought to create an issue of credibility by examining with respect to some topic unrelated to the issues in the case," but rather a case where "defendant himself injected" the issue of his employment, which the State contradicted by using defendant's own statement to police. State v. Conyers, 58 N.J. 123, 135 (1971).

Raising unemployment was regarded as "improper and injurious" in Mathis because the defendant was charged with robbery, and the evidence suggested "he must have been destitute and therefore he likely would rob." Mathis, supra, 47 N.J. at 471-72. Likewise, in Terrell, the prosecutor elicited that the defendant had no job, and then argued in closing "that the money found on defendant's person must logically have been the proceeds of drug sales since he was unemployed and could not account for the sizeable sum." Terrell, supra, 359 N.J. Super. at 248. By contrast, defendant here was not charged with committing a crime to obtain money. Moreover, "we are satisfied that the prosecutor's references to defendant's lack of employment at the time of the offense[s] were not intended to be impermissibly suggestive of indigency as a motive for crime." State v. Zola, 112 N.J. 384, 427 (1988), cert. denied, 489 U.S. 1022, 109 S. Ct. 1146, 103 L. Ed. 2d 205 (1989).

Accordingly, we cannot say the trial court's "ruling was so wide of the mark that a manifest denial of justice resulted." Brown, supra, 170 N.J. at 147 (internal quotation marks omitted).

C.

Third, defendant challenges a comment the prosecutor made in summation. "'[T]o warrant a new trial the prosecutor's conduct must have been clearly and unmistakably improper, and must have substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" State v. Wakefield, 190 N.J. 397, 438 (2007), cert. denied, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). The misconduct must be "'so egregious as to deprive defendant of a fair trial.'" Id. at 437.

Brown and defendant repeatedly explained they fled into the store from the unknown men exiting a car because the neighborhood had heavy gang activity and a gang fight had just occurred. In closing, after accurately referencing that defense testimony, the prosecutor commented: "And, by the way, did you see to assess their credibility, did you see how Mr. Brown was dressed in court when he came here to testify before you, all in blue?"

Defendant did not object. An appellate court may "'infer from the failure to object below that in the context of the trial [any] error was actually of no moment.'" State v. Nelson, 173 N.J. 417, 471 (2002) (quoting State v. Macon, 57 N.J. 325, 333 (1971)). Moreover, failure to object means "defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998).

On appeal, defendant argues the prosecutor was implying Brown was a member of the Crips gang. However, as defendant points out, there was no evidence that blue was the color of the Crips or of any other gang. Thus, the prosecutor's comment was improper, but it was also obscure and less likely to cause prejudice. Moreover, Brown testified, without contradiction, that he was not a gang member. Finally, the trial court instructed the jury that "[a]rguments, statements, remarks, openings and summations of counsel are not evidence and must not be treated as evidence." "We presume the jury followed the court's instructions" that remarks of counsel are not evidence. State v. Smith, 212 N.J. 365, 409 (2012), cert. denied, ___ U.S. ___ , 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013).4

Nonetheless, defendant claims the comment associated him with the Crips and smeared him with gang activity. To the contrary, two sentences before the comment, the prosecutor made clear that "the [S]tate is not alleging that the defendant was part of this [gang] fight or part of a gang." After the comment, the prosecutor reiterated that "[w]e're not saying he's part of that [gang] fight[.]" Indeed, defendant's claim is contrary to "'the tenor of the trial,'" in which the prosecution made far less reference to gangs than the defense. State v. Jackson, 211 N.J. 394, 409 (2012).

Again, "'prosecutorial misconduct is not grounds for reversal of a criminal conviction'" unless it "'substantially prejudiced defendant's fundamental right to have a jury fairly evaluate the merits of his defense.'" Wakefield, supra, 190 N.J. at 437-38. "'Generally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial. Failure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made.'" State v. Echols, 199 N.J. 344, 360 (2009). Defendant has failed to overcome that presumption and show substantial prejudice from the prosecutor's comment.

IV.

Defendant next asserts two claims of ineffective assistance of trial counsel. To establish that claim, defendant must satisfy a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz, 105 N.J. 42, 52-58 (1987). "'First, defendant must show that counsel's performance was deficient.'" State v. Taccetta, 200 N.J. 183, 193 (2009). "'Second, defendant must show that the deficient performance prejudiced the defense.'" Ibid. "In matters of trial strategy, we accord great deference to the decisions of counsel[.]" State v. Biegenwald, 126 N.J. 1, 56 (1991).

New Jersey courts "routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (quoting State v. Preciose, 129 N.J. 451, 460 (1992)). Such claims generally "should be determined in a post-conviction relief [PCR] proceeding." State v. McDonald, 211 N.J. 4, 30 (2012). Defendant acknowledges this "'general policy,'" State v. Jenewicz, 193 N.J. 440, 467 n.8 (2008), but argues that "the trial itself provides an adequately developed record upon which to evaluate defendant's claims, [so] appellate courts may consider the issue on direct appeal." State v. Castagna, 187 N.J. 293, 313 (2006).

First, defendant claims trial counsel was ineffective for not pursuing pretrial intervention (PTI). See R. 3:28. Defendant applied for PTI and had an interview, but his application was rejected by the criminal division manager. Thereafter, trial counsel said he "could submit compelling reasons" for PTI to the prosecutor. Defendant argues he was prejudiced by counsel's alleged failure to make such a submission because it might have persuaded the prosecutor to agree to PTI, or to seek an exception from the mandatory minimum at sentencing under N.J.S.A. 2C:43-6.2.

However, defendant concedes that there is no explanation in the record for why counsel did not make such a submission. Moreover, the record does not indicate that the prosecutor would have agreed to either relief.5 Thus, for defendant's ineffectiveness claim to succeed, he would have to "'develop a record at a [PCR] hearing at which counsel can explain the reasons for his conduct and inaction and at which the trial judge can rule upon the claims including the issue of prejudice.'" Preciose, supra, 129 N.J. at 462.

Second, defendant claims his trial counsel was ineffective for eliciting evidence about the small amount of marijuana, which the prosecution had not mentioned at trial. In cross-examining Detective DelMauro, defense counsel brought out that Detective Simpkins' arrest report said defendant was initially charged only for the marijuana; that marijuana charges were brought against all the persons in the backroom; and that at some point "somebody said we got to charge somebody with a gun." At sidebar, counsel explained his strategy was to argue the police believed "[w]hoever had the marijuana had the gun," but had no proof defendant had the marijuana. Defense counsel elicited that the police recorded the $25 found on defendant as drug proceeds, which counsel argued in summation showed how far "they're stretching this."

Nonetheless, defendant's second ineffectiveness claim still "'involve[s] allegations and evidence that lie outside the trial record.'" Hess, supra, 207 N.J. at 145. Defendant argues that, "[u]nfortunately, defense counsel did not fully follow this strategy during his closing argument," because "[c]ounsel did not raise the issue that the person to whom the marijuana belonged was also the person who had the gun." Defendant also contends that trial counsel instead should have "concentrated more on challenging the credibility of the detectives," "more credibly argued that the officers were mistaken" in claiming they saw the butt of the gun, and "more persuasively argued that the officers" made that claim to justify entry into the store.

"[T]he record is inadequate to disclose what reasons of tactics and strategy motivated counsel" allegedly not to make those arguments. See State v. Dixon, 125 N.J. 223, 261 (1991). Thus, a PCR "proceeding would be the appropriate forum to evaluate the strategy of defendant's trial counsel." McDonald, supra, 211 N.J. at 30. At a PCR proceeding, the trial judge could also address whether the marijuana evidence was prejudicial despite the court's instruction that "[w]hether the defendant possessed the marijuana is not a matter before you in this trial and has not been charged in the indictment."

Accordingly, we decline to address defendant's ineffectiveness claims on direct appeal. Our decision "is without prejudice to [any] right that he may have to raise this issue in post-conviction relief proceedings." State v. Loftin, 287 N.J. Super. 76, 110 (App. Div.), certif. denied, 144 N.J. 175 (1996).

V.

Defendant claims the jury did not properly find him guilty of fourth-degree resisting arrest by flight. N.J.S.A. 2C:29-2(a)(2) provides that "a person is guilty of a crime of the fourth degree if he, by flight, purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest." N.J.S.A. 2C:29-2(a)(1) provides a lesser offense where flight is not involved: "a person is guilty of a disorderly persons offense if he purposely prevents or attempts to prevent a law enforcement officer from effecting an arrest."

Here, in its final instructions, the trial court read the jury N.J.S.A. 2C:29-2(a)(2) and count three of the indictment, both of which described the offense of resisting arrest by flight. The court then charged the jurors on both N.J.S.A. 2C:29-2(a)(1) and (2). The court instructed the jurors that, if they found the four elements of resisting arrest, they "must continue [their] deliberations to consider whether the [S]tate has proven beyond a reasonable doubt that [defendant] committed the more serious offense by the act of flight." The court explained that if the jurors did not find that fifth element, they should find defendant guilty only of resisting arrest, but if they did find the fifth element, they should find defendant guilty of resisting arrest by flight. The court reviewed the verdict sheet with the jurors, instructing them that if they found defendant guilty of resisting arrest, they must answer the next question "whether defendant resisted arrest by flight."

The jury completed the verdict sheet regarding count three

RESISTING ARREST, purposely NOT GUILTY GUILTY

prevent or attempt to prevent

a police officer from effecting

a lawful arrest: ( ) ( X )

If you find defendant guilty of Resisting Arrest, you must consider whether defendant Resisted Arrest by flight

Yes No______

The jury foreman announced the jury found defendant guilty of count one and count three of the indictment. At defendant's request, all of the jurors were polled and agreed that was their verdict.

After going off the record, the court asked the eleven jurors who remained in the courtroom, "do you agree that [the resisting arrest on count 3] was by flight?" They agreed, but juror #7 had left the courtroom. With the agreement of counsel, the court elicited from the foreman that the entire jury had found resisting arrest by flight. Then juror #7 returned and confirmed that was his verdict.

On appeal, defendant cites cases holding that "[o]nce a jury has been discharged and dispersed, it cannot be reassembled in order to correct an omission in the verdict, including the failure to announce a portion of the verdict agreed upon but not reported." State v. Black, 380 N.J. Super. 581, 589 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006); see Mohan v. Exxon Corp., 307 N.J. Super. 516, 522-24 (App. Div. 1998); State v. Fungone, 134 N.J. Super. 531, 534-36 (App. Div. 1975), certif. denied, 70 N.J. 526 (1976). However, those cases are distinguishable. In Black, "no verdict was returned on one of the charges" because "the jury had not placed any mark on the verdict sheet regarding [that] charge." Black, supra, 380 N.J. Super. at 589, 591. In Mohan, the jury failed to answer two questions on the verdict sheet. Mohan, supra, 307 N.J. Super. at 519-20. In Fungone, the jury found the defendant guilty of larceny, but "failed to report a finding" of the value of the stolen vehicle. Fungone, supra, 134 N.J. Super. at 533.

By contrast, the jurors here found defendant guilty of count three of the indictment, which charged resisting arrest by flight, and specifically marked on the verdict sheet that he resisted arrest by flight. Thus, the jury answered all the questions on the verdict sheet and rendered a complete verdict prior to dispersing.

Defendant cites his right to have the jury individually polled. "Although a poll of the jury is the right of the accused, it is not a necessary ingredient of his conviction, but must be requested by timely request, and may be waived by a failure to make such request." State v. Vaszorich, 13 N.J. 99, 127 (citation omitted), cert. denied, 346 U.S. 900, 74 S. Ct. 219, 98 L. Ed. 400 (1953); see R. 1:8-10 ("the jury shall be polled at the request of any party"). Here, after the court polled the jury on its verdict on count three, the court asked, "Anything else, counselors?" Defense counsel responded, "No, Your Honor," and did not ask for a separate poll on the jury's answer that defendant resisted arrest by flight. Defendant's "[f]ailure to timely object to either the lack of a poll of the jurors or a defect in the polling constitutes a waiver of rights." State v. Rodriguez, 254 N.J. Super. 339, 349 (App. Div. 1992).

VI.

Defendant claims his sentence of three years in prison without parole shocks the judicial conscience because he merely possessed the handgun without engaging in any other criminal behavior. However, the sentencing court reduced the grade of his second-degree violation of N.J.S.A. 2C:39-5(b) to third-degree. See N.J.S.A. 2C:44-1(f)(2). It then imposed the minimum prison sentence for a third-degree offense, N.J.S.A. 2C:43-6(a)(3), and the minimum term of parole ineligibility under the Graves Act, N.J.S.A. 2C:43-6(c). So long as such legislative provisions are "within constitutional bounds," it is "[o]ur obligation to give full effect to the legislative intent," regardless of judicial "views of 'enlightened' sentencing." State v. Des Marets, 92 N.J. 62, 66 (1983).

Nonetheless, defendant argues his Graves Act sentence constitutes cruel and unusual punishment under the Eighth Amendment, U.S. Const., amend. VIII. However, our Supreme Court has rejected the claim that a three-year term of parole ineligibility under the Graves Act is cruel and unusual punishment under the corresponding provision of the New Jersey Constitution, N.J. Const. art. I, 12. Des Marets, supra, 92 N.J. at 81-82.

Given the magnitude and severity of the problem of violent crime, we do not find that the sentence in the Graves Act applied to this case constitutes cruel and unusual punishment under our Constitution. We cannot, of course, foreclose the possibility that in some future case, the Act as applied might amount to cruel and unusual punishment.

[Id. at 82.]

Applying Des Marets, we have repeatedly rejected claims that "the Graves Act constitutes cruel and unusual punishment under the Federal and State constitutions." State v. Harmon, 203 N.J. Super. 216, 228-29 (App. Div. 1985), rev d on other grounds, 104 N.J. 189 (1986). We have upheld the Graves Act's three-year period of parole ineligibility even when a defendant has a serious illness, State v. Trippiedi, 204 N.J. Super. 422, 426-28 (App. Div. 1985), and unusual vulnerability in prison, State v. Muessig, 198 N.J. Super. 197, 200, 205 (App. Div.), certif. denied, 101 N.J. 234 (1985).

Defendant contends that, unlike defendants convicted of possessing a firearm with a purpose to use it unlawfully under N.J.S.A. 2C:39-4(a), his offense of unlawful possession of a handgun without a permit under N.J.S.A. 2C:39-5(b) did not involve any other criminality, violence, or gang affiliation. He notes the Supreme Court's observations that the original intent of the Graves Act was "to ensure incarceration for those who arm themselves before going forth to commit crimes," and to end "the mere presence of guns at the scene of crimes." Des Marets, supra, 92 N.J. at 68, 70. However, the Legislature broadened its goal of deterring gun possession by amending the Graves Act to apply to N.J.S.A. 2C:39-5(b) offenses. L. 2007, c. 341, 5, eff. Jan. 13, 2008. Defendant has not carried his "substantial" burden to show that applying the Graves Act to such offenses "shocks the general conscience and violates principles of fundamental fairness," is "grossly disproportionate to the offense," or "goes beyond what is necessary to accomplish any legitimate penal aim." Des Marets, supra, 92 N.J. at 82.

Indeed, in Des Marets our Court ruled it was not cruel and unusual punishment to apply the Graves Act to Des Marets's burglary offense, even though he did not arm himself before the burglary; instead he merely stole a handgun which "was unloaded at all times and [he] never used it or demonstrated any intent to use it." Id. at 68-69. The Court noted that even if an individual has no intention to use a gun, "the possession of a firearm presents definable dangers. It invites gun use by police or third parties, with attendant risks to all involved." Id. at 69-70. Further, the individual's intent "could change under the pressure of ensuing events." Id. at 70. Here, defendant's visible possession of a loaded handgun, with a bullet in the chamber, invited gun use by the police and others, and created the risk that his intent could change under the pressure of ensuing events, such as his resisting arrest by flight.

Therefore, this is not the "future case [where] the Act as applied might amount to cruel and unusual punishment." Id. at 82. Moreover, considering "'the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors,'" the three-year period of parole ineligibility does not fall within the Eighth Amendment's prohibition of "'extreme sentences that are "grossly disproportionate" to the crime.'" Ewing v. California, 538 U.S. 11, 23, 123 S. Ct. 1179, 1186-87, 155 L. Ed. 2d 108, 119 (2003).

Defendant next argues we should remand to allow him to pursue PTI, but PTI is "a pretrial diversionary program," not "a sentencing alternative following a guilty verdict." State v. Bell, 217 N.J. 336, 349-50 (2014).

Defendant also argues we should remand to allow him to seek prosecutorial consent for an exception to the mandatory minimum under N.J.S.A. 2C:43-6.2.6 However, defendant was offered such an exception if he pled guilty, but he declined and went to trial. He also failed to make such a request "at the time of sentencing." State v. Alvarez, 246 N.J. Super. 137, 140 (App. Div. 1991); State v. Mastapeter, 290 N.J. Super. 56, 64-65 (App. Div.), certif. denied, 146 N.J. 569 (1996).

Eleven months after sentencing, defendant made a motion for the exception which the trial court denied "because the State has not consented to a lesser sentence." The prosecutor declined to consent because defendant had rejected the plea, and because he received a downgraded three-year, third-degree sentence despite the prosecutor's advocacy for a five-year, second-degree sentence.7 Defendant has not shown this "decision was arbitrary and amounted to unconstitutional discrimination or denial of equal protection." State v. Watson, 346 N.J. Super. 521, 535 (App. Div. 2002), certif. denied, 176 N.J. 278 (2003).

In State v. Mello, 297 N.J. Super. 452 (App. Div. 1997), the defendant had "not request[ed] that the sentence be reviewed under N.J.S.A. 2C:43-6.2," and the prosecutor at sentencing remarked that the crimes "appeared aberrational." Id. at 467-68. We found that "[u]nder these circumstances, the interests of justice militate in favor of remanding the matter to the Law Division to afford defendant the opportunity to seek the prosecutor's consent and move for leniency under N.J.S.A. 2C:43-6.2." Id. at 468. Here, by contrast, the prosecutor at sentencing argued there was a risk that defendant would commit another offense," defendant subsequently requested review under N.J.S.A. 2C:43-6.2, and the prosecutor refused to consent to leniency. Therefore, we do not believe the interests of justice militate in favor of remanding the matter.

Affirmed.

1 Under the United States Constitution, even where there is "a show of authority" or "application of physical force," a seizure does not occur if "the subject does not yield" and instead runs away, as defendant did here. California v. Hodari D., 499 U.S. 621, 626, 111 S. Ct. 1547, 1550, 113 L. Ed. 2d 690, 697 (1991).

2 Indeed, whether the attempted investigatory stop was valid or not, defendant's flight was itself a crime, and provided probable cause to arrest him and to seize any weapon within his reach. Williams, supra, 192 N.J. at 10-18 & n.5.

3 Thus, we need not address whether he could seize the handgun as part of a search incident to arrest, in order "to remove from the arrestee's reach things that might be used to assault an officer or effect an escape as well as to prevent the destruction of evidence of the crime for which the individual has been arrested." State v. Dangerfield, 171 N.J. 446, 461 (2002).

4 Because the court thus instructed the jury that the comment was not evidence, it did not need to give the limiting instruction used when evidence is admitted under N.J.R.E. 404(b). Cf. State v. Goodman, 415 N.J. Super. 210, 231 (App. Div. 2010), certif. denied, 205 N.J. 78 (2011).

5 At sentencing, the prosecutor observed that "second-degree gun cases are rarely admitted" to PTI. See Pressler & Verniero, Current N.J. Court Rules, Guideline 3(i) to R. 3:28 (2015) (defendants charged with a second-degree offense "should not ordinarily" receive PTI).

6 N.J.S.A. 2C:43-6.2 provides that "[o]n a motion by the prosecutor," or on a referral by a sentencing court "with the approval of the prosecutor," that the imposition of the mandatory minimum on a first offender "does not serve the interests of justice," the assignment judge shall reduce the mandatory minimum to one year or place the defendant on probation.

7 Under the Attorney General Directive to Ensure Uniform Enforcement of the "Graves Act" (Oct. 23, 2008, corrected Nov. 25, 2008), available at http://www.state.nj.us/lps/dcj/ agguide/pdfs/Graves-Act-Oct23-2008.pdf, if the defendant does not accept an initial plea offer containing the exception, the prosecutor "shall not" agree to the exception, even if the defendant subsequently pleads guilty, unless the prosecutor determines the mitigating factors substantially outweigh the aggravating factors. Id. at 13. The directive also provides that the prosecutor "shall not" agree to the exception "after a defendant has been convicted at trial except for the defendant's substantial cooperation in the investigation or prosecution of another." Ibid. None of these conditions for agreement were satisfied here.