STATE OF NEW JERSEY v. KERRY C. O'KEEFE, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0587-04T20587-04T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KERRY C. O'KEEFE, JR.,

Defendant-Appellant.

______________________________________________

 

Argued November 28, 2005 - Decided

Before Judges Alley and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-04-00578.

Brian J. Neary argued the cause for appellant.

Julie Davidson, Assistant Middlesex County Prosecutor, argued the cause for respondent (Bruce J. Kaplan, Middlesex County Prosecu-tor, attorney).

PER CURIAM

Defendant, a Bayonne police officer, while off-duty, was traveling on the New Jersey Turnpike in the area of South Brunswick approaching its intersection with the Garden State Parkway. He was in his own vehicle, in the company of his wife, headed to their home in Brick when his vehicle encountered a vehicle driven by Simone Muhamed Mir. Mir testified that defendant had cut him off and, soon thereafter, defendant maneuvered his vehicle in such a way as to cause Mir's vehicle to come to a stop on the side of the roadway. Then, according to Mir, defendant exited his vehicle, approached Mir's, put his head through the open driver's side window of the vehicle, and began cursing, stating to Mir: "Do you want to mess with me motherfucker?" Mir testified that he smelled alcohol. Mir began to close his window, causing defendant to move back. Mir testified that defendant then rapped on his window three times and eventually pulled his service revolver, tapping it against the window in such a way as to point it directly at Mir's face. This caused Mir to cower in the front seat and plead with defendant to leave. Defendant did leave. He returned to his vehicle and sped away. Mir was able to observe defendant's plates as he drove away and called 9-1-1 when he arrived home to report what had occurred.

A few hours later, two New Jersey State Troopers arrived at defendant's Brick home, where they observed a vehicle fitting the description given by Mir. They also spoke to defendant and his wife, both of whom also fit the descriptions given by Mir. Trooper Michael Oehlmann asked defendant if he had been involved in a road rage incident; defendant acknowledged that he had been and that he "had yell[ed] at some idiot," but denied he had displayed his weapon. Trooper Oehlmann also testified that defendant was belligerent, had blood-shot and watery eyes, and spoke in a slurred fashion, all of which prompted him to ask defendant whether he had been drinking. Defendant admitted that he had been drinking earlier but did not precisely say when.

Defendant was indicted and charged with possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a); making terroristic threats, N.J.S.A. 2C:12-3(b); and aggravated assault, N.J.S.A. 2C:12-1(b)(4). At the conclusion of a trial, the jury found defendant guilty of second-degree possession of a weapon for an unlawful purpose; harassment, N.J.S.A. 2C:33-4, as a lesser-included offense of the terroristic threat charge; and fourth-degree aggravated assault. The judge sentenced defendant to a four-year term of imprisonment, with a three-year period of parole ineligibility, on the weapon conviction; a six-month term of imprisonment on the harassment conviction; and an eighteen-month term of imprisonment on the aggravated assault conviction. All these sentences were ordered to be served concurrently.

Defendant appealed, raising the following arguments for our consideration:

I. THE DEFENDANT WAS DENIED HIS RIGHT TO A FAIR TRIAL BECAUSE THE TRIAL COURT'S JURY INSTRUCTION ON THE CHARGE OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE WAS INCORRECT (NOT RAISED BELOW).

II. INFLAMMATORY CONDUCT DURING THE ASSISTANT PROSECUTOR'S OPENING AND SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY AND DEPRIVED DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).

III. THE TRIAL COURT'S FAILURE TO LIMIT TESTIMONY OF DEFENDANT'S INTOXICATION TO THE TIME OF INCIDENT, NOT THE TIME OF ARAREST, DEPRIVED DEFENDANT OF A FAIR TRIAL.

The arguments contained in Point II, that the prosecutor demonstrated defendant's alleged use of the weapon during her opening and closing statements, are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We also find the remaining arguments to be without merit for the following reasons.

As to the first point, because defendant did not object to the jury instructions in question during the course of the trial, he was required to demonstrate not only that these instructions were erroneous but that they also possessed a clear capacity for producing an unjust result. R. 2:10-2; State v. Jordan, 147 N.J. 409, 421-23 (1997). In other words, defendant is required to demonstrate "whether the error led the jury to a result it otherwise might not have reached." State v. Brims, 168 N.J. 297, 306 (2001).

Defendant is critical of the judge's instructions regarding the charge that he was in possession of a weapon for an unlawful purpose. He argues that the instructions failed to "specifically identify the unlawful purpose alleged and failed to relate this purpose to the evidence presented at trial." We disagree. The judge not only advised the jury of the elements of the offense but also put these statutory requirements in context by providing examples of both lawful and unlawful purposes, as revealed by the following portions of the judge's charge:

The fourth element that the State must prove beyond a reasonable doubt is that defendant had a purpose to use the firearm in a manner that is prohibited by law. I've already defined purpose to you. This element requires that you find that the State has proven beyond a reasonable doubt that defendant possessed a firearm with the conscious object, design or specific intent to use it against the person of another in an unlawful manner as charged in the indictment. And not for some other purpose. In this case the State has contended that the unlawful purpose that the defendant used the firearm for was to terrorize or to threaten, to intimidate, to frighten or to physically harm or to assault. Those are the purpose or purposes that the State alleges you should consider when considering whether the firearm was possessed for an unlawful purpose.

The defense in this case has raised during the course of this proceeding that the firearm may have been possessed for [a] lawful purpose. We acknowledge, [the] State acknowledges, the Court acknowledges, we all acknowledge that the original possession of the weapon was lawful because this gentleman is, was a police officer, and the question is at some point did that possession turn unlawful? At some point while in possession of it did he use it for unlawful purposes as the State alleges to frighten, intimidate, threaten, terrorize, physically harm or to assault?

I already told you, by the way, just so you remember it, the State must prove beyond a reasonable doubt that the defendant had an unlawful purpose at the time in question. If you find that defendant . . . had a lawful purpose, for example, the use of a firearm to protect himself or another against the use of unlawful force, or if you have a reasonable doubt as to the defendant's purpose, then the State has failed to carry its burden on this element beyond a reasonable doubt. I instruct you that for purposes of this offense if defendant honestly believed that he needed to use a firearm to protect himself the law does not require that this belief be reasonable. If he honestly believed we do not require that it be reasonable. In other words, if a defendant had an honest through unreasonable belief that he needed to use the weapon to protect himself this would negate the purposeful mental state required for this offense.

If you are satisfied beyond a reasonable doubt that the . . . State has proven each of the elements of this offense as I've defined [them] to you then you must find the defendant guilty. However, if you find that the State has failed to prove beyond a reasonable doubt any element of this offense as I've defined [them] to you then you must find him not guilty.

Later in his instructions, the trial judge returned to this point in order to emphasize that the jury members were not free to consider their own personal views of what constitutes an unlawful purpose:

. . . I want to again, and I think I said this, indicate that you can't rely on your own notions of unlawfulness of some other undescribed purpose defendant might have. You have to consider whether the State's proven the specific unlawful purposes charged. Okay. I've read those to you in terms of what the State's alleging. The unlawful purpose as alleged by the State can be inferred from all that was said and done and from all the surrounding circumstances of the case. If you so find. You have to look at the entire situation to determine whether or not the State has proven its case beyond a reasonable doubt. However, the State need not prove defendant accomplished his unlawful purpose of using a firearm, okay, just that he had that purpose.

In reviewing, as we must, this charge on the whole, and not its parts in isolation, State v. Gartland, 149 N.J. 456, 473 (1997), we are satisfied that the judge not only accurately described the elements of the offense, but we are also satisfied that he provided a clear and specific description of what does and does not constitute an unlawful purpose as required by State v. Williams, 168 N.J. 323, 339 (2001). See also State v. Mello, 297 N.J. Super. 452, 466 (App. Div. 1997), where we recognized that specificity is required but when the facts of the case are simple, as here, it "should yield simple results." Accordingly, we conclude that the instructions were not erroneous.

In his third point, defendant argues that the trial judge erred in admitting the testimony of Trooper Oehlmann that defendant appeared to be under the influence of alcohol when he spoke to defendant in his Brick home two and one-half hours after the incident. We conclude that the trial judge did not abuse his discretion when he admitted this testimony. The testimony was certainly relevant since it tended to corroborate Mir's version of what occurred. Mir testified that he smelled alcohol when defendant first thrust his head through Mir's open car window. Trooper Oehlmann's testimony of his own observations of defendant, as well as defendant's admission to Trooper Oehlmann that he had been drinking earlier, tended to demonstrate the accuracy of Mir's observations. We also find no error in the judge's determination that the probative value of this evidence was not outweighed by its prejudicial impact. Such a determination "falls largely within the discretion of the trial judge." State v. Catlow, 206 N.J. Super. 186, 193 (App. Div. 1985). Trial judges are entrusted "with a wide latitude of judgment" in such matters. State v. Koedatich, 112 N.J. 225, 313 (1988), cert. denied, sub nom. Koedatich v. New Jersey, 488 U.S. 1017, 109 S. Ct. 813, 102 L. Ed. 2d 803 (1989). In applying this standard, we conclude that the trial judge did not abuse his discretion in making this ruling.

 
Affirmed.

Defendant was sentenced on the second-degree weapon conviction as a third-degree offender.

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A-0587-04T2

December 12, 2005