STATE OF NEW JERSEY v. RODNEY CHAPPLE

NOT FOR PUBLICATION WITHOUT THE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.

RODNEY CHAPPLE,

Defendant-Appellant.

________________________________

July 17, 2015

Submitted April 28, 2015 - Decided

Before Judges Nugent and Manahan.

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 12-11-01949.

Joseph E. Krakora, Public Defender, attorney for appellant (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Gaetano T. Gregory, Acting Hudson County Prosecutor, attorney for respondent (Barbara Drasheff, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Defendant Rodney Chapple is serving a fifteen-year prison term for committing three weapons offenses. In an attempt to have his convictions reversed or, alternatively, to be re-sentenced, he presents two arguments on this appeal: he did not receive a fair trial because the State's witnesses testified that he was arrested in a high crime area where two crimes had occurred earlier that night; and, the court sentenced him to an illegal extended term. Finding no merit in the first argument, we affirm his convictions. Finding merit in the second argument, we vacate his sentence on one of the offenses, certain persons not to have weapons, and remand for re-sentencing on that offense.

These are the facts that led to defendant's arrest. Late one night in 2012, Jersey City Police officers and detectives from the Hudson County Prosecutor's Municipal Task Force were patrolling Jersey City's streets in unmarked cars. These plain clothes details included members of the Jersey City Police Department's violent crimes and carjacking units. The details had been assigned to the south and west districts because earlier in the evening there had been two incidents in those areas, a shooting and the arrest of a person in possession of a handgun.

Shortly after midnight, Officer Michael Rivera, the driver of one of the unmarked police cars, transmitted a request for back-up units because he intended to conduct a motor vehicle stop of a green Nissan Maxima. The Nissan, occupied by four men, had been speeding and had a right brake light that did not work. Officer Rivera activated his lights and sirens, and the Nissan stopped. With his badge exposed, the officer approached the Nissan's driver and asked for a license, registration, and insurance.

While Officer Rivera spoke with the driver, Jersey City Police Officer Christopher Ortega, who had arrived in another police car, approached the Nissan's rear passenger side and shone his flashlight through the rear window. Defendant was seated in the rear passenger-side seat. Between his legs, the wooden handle of a revolver protruded from between the seat cushion and the vehicle frame. Officer Ortega saw the gun handle and signaled to Officer Rivera, who ordered the four occupants out of the car. The two officers, as well as other officers who had arrived, patted down the four men.

While patting down the passenger who had been sitting in the rear driver-side seat, Hudson County Detective Billy Garcia felt a handgun in the front left pocket of the man's jeans. The suspect pushed and elbowed the detective and then reached for the gun, which had fallen to the ground, but the suspect was subdued and handcuffed before he could grab the gun. The police seized the weapons, both of which were loaded, and arrested the four men.

Five months later, in a seven-count indictment of the four men, a grand jury charged defendant in four counts with second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b; fourth-degree possession of a prohibited weapon, a defaced firearm, N.J.S.A. 2C:39-3d; and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7b. Following the indictment, defendants moved unsuccessfully to suppress the two guns. Prior to trial, the State dismissed the count charging defendant with possession of a weapon for an unlawful purpose and another count charging a co-defendant with the same offense.

The court granted the State's motion to present evidence of the two crimes that had occurred before defendant's arrest. The court permitted the State to introduce evidence of those crimes to explain why there were so many police in the area, subject to the court instructing the jury that the testimony was being admitted for that purpose only and defendants were not involved with the other crimes. The court so instructed the jury when the State's trial witnesses referred to the other incidents.

The State presented its case at trial through Officers Rivera and Ortega and Detective Garcia, whose testimony established the facts that we have recounted above. The jury acquitted two co-defendants of all charges, found the third co-defendant guilty of unlawful possession of a weapon and resisting arrest, and found defendant guilty of second-degree unlawful possession of a weapon and fourth-degree possession of a prohibited weapon, a defaced firearm. Following the verdict, defendant pled guilty to second-degree certain persons not to have weapons.

At sentencing, the court granted the State's motion to sentence defendant to an extended term. After balancing aggravating and mitigating factors, the court sentenced defendant to extended terms of fifteen years with seven and one-half years of parole ineligibility on the second-degree offenses and to an eighteen-month custodial term on the fourth-degree offense. The sentences were to be served concurrent to one another but consecutive to a sentence defendant was currently serving on an unrelated charge.

When the prosecutor informed the court that it could not impose two extended term sentences, the court amended the sentence on the unlawful possession of a weapon offense to a ten-year custodial term with five years of parole ineligibility, the sentence to be served concurrently to the two other charges on the same indictment but consecutively to defendant's sentence on the unrelated indictment. The court did not amend defendant's extended-term sentence on the second-degree certain persons not to have weapons offense, an offense that was not subject to an extended term. Defendant appealed.

Defendant raises the following points on this appeal

POINT I: the court abused its discretion in allowing the state to elicit repeated references to the neighborhood as a high-crime area, and, specifically, to prior unrelated crimes occurring in the Neighborhood earlier in the evening, because it portrayed defendant as guilty by association more likely to have possessed the handgun as the state alleged.

point ii: the fifteen-year sentence on the second-degree certain persons conviction is unlawful because N.J.S.A.2c:39-7b(1) is not an enumerated graves act offense for which an extended-term sentence can be imposed.

Defendant's argument in Point I lacks sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(2). We add only that "a trial court's evidentiary rulings are 'entitled to deference absent a showing of an abuse of discretion, i.e., there has been a clear error of judgment.'" State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)). As such, "an appellate court should not substitute its own judgment for that of the trial court, unless the trial court's ruling was so wide of the mark that a manifest denial of justice resulted." Ibid. (citation and internal quotation marks omitted).

Here, the record does not demonstrate that the evidentiary ruling was so wide of the mark that a manifest denial of justice resulted. And even assuming, as defendant contends, the testimony about the two other incidents and the area being a "high-crime" area were not relevant, the trial court's instructions minimized the likelihood of prejudice to defendant. The evidence was certainly not capable of producing an unjust result. R. 2:10-2.

Unlike defendant's first point, his second point has merit. The court imposed an extended term of fifteen years with seven and one-half years of parole ineligibility for defendant's second degree offense, certain persons not to have weapons, N.J.S.A. 2C:39-7b(1).1 The State does not dispute that the court imposed the extended term sentence on that charge under the mistaken belief that it is one of the enumerated "Graves Act" offenses in N.J.S.A. 2C:43-6c. It is not. Consequently, the sentence on that offense is illegal.

Trial courts are required by N.J.S.A. 2C:44-3 to sentence a defendant to an extended term "[i]f the grounds specified in subsection d. are found, and the person is being sentenced for commission of any of the offenses enumerated in [N.J.S.A.] 2C:43-6c. or [N.J.S.A.] 2C:43-6g[.]" Defendant does not dispute for purposes of his argument that "the grounds specified in subsection d. are found," that is, that he was a second offender with a firearm, having previously been an accomplice to an armed robbery. The question then becomes whether defendant was "being sentenced for commission of any of the offenses enumerated in [N.J.S.A.] 2C:43-6c. or [N.J.S.A.] 2C:43-6g." Although the certain persons not to have weapons offenses contained in N.J.S.A. 2C:39-7a, b(2) & b(3) are enumerated in N.J.S.A. 2C:43-6(c), the certain persons not to have weapons offense contained in N.J.S.A. 2C:37-7b(1) the offense for which the defendant pled guilty is not. Nor is any certain persons not to have weapons offense listed in N.J.S.A. 2C:43-6(g). Thus, the court had no authority to sentence defendant to an extended term on the certain persons not to have weapons offense.

A sentence is illegal if it "exceed[s] the penalties authorized by statute for a particular offense" or is "not in accordance with the law, or stated differently, . . . include[s] a disposition that is not authorized by our criminal code." State v. Schubert, 212 N.J. 295, 308-09 (2012) (citing State v. Murray, 162 N.J. 240, 246-47 (2000)). Here, defendant's sentence on the certain persons not to have weapons exceeds the penalty authorized by statute and is not authorized by the criminal code. The sentence is therefore illegal.

The State argues that because the trial court initially imposed extended terms on both the certain persons and the unlawful possession of a weapons offense, and because the latter met the criteria for an extended term, the error is harmless. We disagree. The State has cited no authority directly supporting the proposition that a harmless error analysis may apply to the imposition of an illegal sentence. We decline to apply such an analysis to the illegal extended term sentence imposed in this case. For that reason, we vacate defendant's sentence on the certain persons offense only and remand for resentencing on that charge.

Affirmed in part and reversed in part. We do not retain jurisdiction.

1 The indictment charged defendant with possessing "a .38 caliber revolver, contrary to . . . [N.J.S.A.] 2C:39-7b . . . ." Defendant's plea colloquy makes clear that he pled guilty to N.J.S.A. 2C:39-7b(1).