STATE OF NEW JERSEY v. HENRY DUNCAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2596-04T42596-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

HENRY DUNCAN,

Defendant-Appellant.

_______________________________

 

Submitted April 25, 2007 - Decided June 28, 2007

Before Judges Sabatino and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-09-0874.

Yvonne Smith Segars, Public Defender, attorney for appellant (Ruth Harrigan, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After a five-day jury trial, defendant Henry Duncan was convicted of the unlawful possession of a handgun, a third-degree crime under N.J.S.A. 2C:39-5b, and a second-degree "certain persons" weapons offense, contrary to N.J.S.A. 2C:35-7 and N.J.S.A. 2C:39-7. The trial judge imposed an extended prison term of thirteen years on the certain-persons offense, and a concurrent five-year term on the unlawful possession offense.

Defendant appeals his convictions and his sentence. We affirm the convictions, although we preserve defendant's claim of ineffective assistance of counsel for a future application for post conviction relief (PCR). However, we remand for resentencing pursuant to recent case law.

According to the State's proofs, the underlying facts involved defendant's constructive possession of a handgun located beneath the porch floorboards of a house. At about 1:15 a.m. on June 2, 2003, two Paterson patrolmen, Officers Tabor and Pacelli, who were performing a drug surveillance, climbed up on the roof of an abandoned garage. They spotted defendant and a female, co-defendant Nakima Laboo, conversing in front of a nearby house. Laboo then walked onto the porch of the house and removed several floorboards. She placed the floorboards on a railing that surrounded the porch. Laboo then laid down for several seconds on the porch where she had removed the boards. She then got up and walked back to defendant in front of the house.

Defendant and Laboo spoke to one another again briefly. They then walked back to the porch together. While Laboo remained standing, defendant bent down and began peering in the area where Laboo had removed the floorboards. Neither of them rang the doorbell or knocked on the front door.

Having noted this suspicious behavior from their perch above the garage, the officers radioed a backup police unit. Two more patrolmen, Findlay and Mayasoto, who were in a patrol car two blocks away, promptly responded. As they approached, defendant was on all fours over the hole in the porch. According to Officer Findlay, he could see the soles of defendant's feet and his legs were flat on the floor.

When he sensed the patrolmen coming towards him, defendant abruptly stood up. Officers Findlay and Mayasoto reached the porch, and proceeded to pat down and frisk defendant and Laboo. Although the police found nothing illegal on defendant's person, they did recover twenty-five baggies of marijuana from Laboo's pants pocket.

Meanwhile, Officers Tabor and Pacelli arrived on the porch. Officer Tabor shined his flashlight in the hole left by the missing floorboards. The light illuminated a black pistol, which Officer Tabor described as "sitting right on the dirt." The officers seized the gun. It was later confirmed by the State Police to be a loaded, semi-automatic Bersa Firestorm handgun.

The prosecution presented at trial the testimony of Officers Tabor and Findlay, plus the testimony of a narcotics expert and a ballistics expert. The defense called no witnesses, but did move into evidence various photographs of the surveillance area.

The State's theory was that defendant and Laboo were both in constructive possession of the handgun, even though it was not seen physically on their persons. As part of the jury instructions, the judge issued the model charge on constructive possession, with a slight modification that had been proposed by defendant's counsel. With respect to the "certain persons" count, defendant stipulated that he had previously been convicted of a crime that made him legally ineligible to possess a handgun.

After deliberating for about five hours, the jury convicted defendant of the two weapons offenses noted above. The jury likewise convicted Laboo of illegal constructive possession of the gun, as well as possessing a controlled dangerous substance, i.e., the marijuana, with the intent to distribute it.

On appeal, defendant argues that (1) he was deprived of the effective assistance of trial counsel; (2) the trial court erred in denying his motion for a new trial; and (3) his extended-term sentence was excessive and illegal in light of recent case law under the Sixth and Fourteen Amendments. We examine these points in turn.

Defendant's claim of ineffective assistance under Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), was predicated upon a belief that his counsel did not make a pretrial motion to suppress the handgun. After defendant's appellate brief was submitted, however, it was discovered that his trial attorney did in fact file such a motion. The motion was orally argued on June 2, 2004. As the transcript of that hearing reflects, the judge denied the motion because he was satisfied that the police had ample reason to come onto the porch, given the suspicious activity they had observed there. The judge also found that Officer Tabor had seen the handgun in plain view, and therefore was authorized to seize it without first procuring a search warrant.

Based on the present record, we cannot adequately evaluate the effectiveness of defendant's counsel with respect to his advocacy on the suppression motion. The judge's ruling on its face does appear to be well-founded. See State v. Johnson, 171 N.J. 192, 208-17 (2002)(sustaining a police search of a front porch with the use of a flashlight, noting the diminished expectation of privacy that people have concerning a porch); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984)(applying the "plain view" exception to the warrant requirement). Moreover, there may have been strategic considerations of defense counsel involved, particularly in not insisting that the officers who took part in the search testify at the suppression hearing.

Accordingly, we do not decide the ineffectiveness claim on this appeal. Instead, we reserve the issue for a future PCR application, at which time pertinent information from defendant's trial attorney can be marshaled. See State v. Preciose, 129 N.J. 451, 460 (1992).

Defendant's second claim is that the verdict was against the weight of the evidence. We disagree. The proofs adequately showed that defendant was, in effect, spread-eagled over the gap in the floorboards and that he was clearly attempting to reach for the handgun secreted in that repository. It is inconsequential that he was not seen actually touching the gun. As the trial judge aptly stated, in denying defendant's post-trial motion to set aside the verdict:

[T]here is no reasonable doubt but that [defendant] was intending to exercise dominion and control over the only item in that hole knowing what it was that was in the hole.

There was substantial credible evidence to support the jury's findings of guilt, and the verdict did not cause a manifest injustice. R. 3:20-1; State v. Russo, 333 N.J. Super. 119, 140 (App. Div. 2000); State v. Saunders, 302 N.J. Super. 509, 523-24 (App. Div.), certif. denied, 151 N.J. 470 (1997).

Defendant's sentence, however, requires reexamination. As the State concedes, the concurrent five-year term on the third-degree unlawful possession offense exceeded the former presumptive term of four years, see N.J.S.A. 2C:44-1f(1)(d), and must be remanded under State v. Natale, 184 N.J. 458, 484, 495-96 (2005). Moreover, the extended term of thirteen years, imposed on the second-degree offense due to defendant's three prior adult convictions, see N.J.S.A. 2C:44-3a, fails to comport with the requirements of State v. Thomas, 188 N.J. 137 (2006) and State v. Pierce, 188 N.J. 155 (2006) because the judge did not explicitly treat the bottom of the second-degree range as the sentencing "floor." Accordingly, we remand for the court to reconsider both sentences.

Convictions affirmed, remanded for resentencing.

 

(continued)

(continued)

7

A-2596-04T4

June 28, 2007