STATE OF NEW JERSEY v. JOHN PRESIADO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6322-04T46322-04T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOHN PRESIADO,

Defendant-Appellant.

_________________________________________________

 

Submitted September 4, 2007 - Decided September 7, 2007

Before Judges Payne and Messano.

On appeal from Superior Court of New Jersey,

Law Division, Union County, I-04-01-0014.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Susan Brody Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent

(Steven J.Kaflowitz, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, John Presiado, appeals from his conviction by a jury of fourth-degree possession of less than one ounce of marijuana with the intent to distribute, N.J.S.A. 2C:35-5a(1) and b(12) (Count One); fourth-degree possession of a switchblade knife without any explainable lawful purpose, N.J.S.A. 2C:39-3e (Count Three); fourth-degree possession of a knife under circumstances not manifestly appropriate for its lawful use, N.J.S.A. 2C:39-5d (Count Four); and second-degree possession of a knife while in possession of a controlled dangerous substance with the intent to distribute, N.J.S.A. 2C:39-4.1c (Count Five). Defendant was not charged in Count Two of the indictment, which pertained solely to his co-defendant, Jesse Landerway, who was not tried with defendant.

Defendant absented himself during the second day of his trial on August 18, 2004. A bench warrant was issued, and following defendant's apprehension on February 10, 2005, he was sentenced, on May 13, 2005, to one year in prison on the charge of possession of marijuana with the intent to distribute and, following merger of the fourth-degree weapons convictions into the second-degree conviction pursuant to N.J.S.A. 2C:39-4.1c, defendant was sentenced on the latter to an additional consecutive twelve-year extended term of incarceration, with a four-year parole bar. Defendant appeals, as well, from that sentence.

On appeal, defendant raises the following arguments:

POINT I

THE FAIRNESS OF THE TRIAL WAS IRREPARABLY TAINTED BY THE OFFICERS' GRATUITOUS AND HIGHLY PREJUDICIAL TESTIMONY THAT THEY KNEW THE CO-DEFENDANT FROM PRIOR DRUG-RELATED CONTACTS. (Not Raised Below.)

POINT II

THE COURT ERRED IN DENYING COUNSEL'S MOTION TO DISMISS THE FIFTH COUNT OF THE INDICTMENT, BECAUSE DEFENDANT HAD NOT BEEN IN POSSESSION OF A WEAPON WITHIN THE MEANING CONTEMPLATED BY THE STATUTE.

POINT III

THE 12-YEAR EXTENDED TERM IMPOSED UPON DEFENDANT WAS MANIFESTLY EXCESSIVE AND MUST BE MODIFIED ON REMAND.

POINT IV

THE MATTER MUST BE REMANDED FOR RESENTENCING PURSUANT TO STATE v. MAURICE PIERCE.

We affirm defendant's conviction and remand the matter for resentencing.

I.

The trial record offers evidence that, on the afternoon of August 18, 2003, defendant and Landerway were observed in the West End Arcade by two plainclothes Elizabeth police officers, Robert Keily and James DiOrio, who had been called to the scene, a known location for drug trafficking. During their surveillance, the officers observed defendant and Landerway to be "hanging out," neither playing pool nor available video games, but occasionally speaking to each other. Upon the entry of Marvin Zuniga into the arcade, both defendant and Landerway approached him and engaged him in a brief conversation. Defendant then walked toward an ice cream freezer case, reached behind it, and retrieved a ziplock bag. Defendant's arm was seized by one of the officers and, upon investigation, it was determined that the bag contained sixteen smaller ziplock bags of suspected marijuana. Defendant was thereupon arrested.

In the meantime, Landerway and Zuniga had walked to a set of stairs, where they sat down. Their hand-to-hand transfer of a bag of marijuana, obtained by Landerway from a stash contained in a sock, in exchange for ten dollars, observed by the police, led to the arrest of both men.

An inventory search of defendant disclosed that he possessed forty dollars in cash and a switchblade knife that doubled as a cigarette lighter. Landerway was found to possess forty-two dollars in cash, as well as the ten dollars obtained from Zuniga. Expert testimony by an Elizabeth police sergeant in response to a hypothetical question incorporating the foregoing facts provided evidence that defendant possessed the drugs that he retrieved from behind the freezer for purposes of distribution.

Defendant did not testify at trial and called no witnesses on his own behalf.

II.

On appeal, defendant first contends that plain error occurred as the result of testimony by Officer Keily that he knew Landerway as the result of "prior dealings" with him and by Officer DiOrio that he recognized co-defendant "from a previous narcotics arrest as Jesse Landerway." Defendant argues further that error in permitting the officers' testimony to stand, albeit without objection, was compounded by the prosecutor's two references in his closing argument to Landerway's prior arrest. On one occasion, the prosecutor stated that defendant "was hanging out with another person, Jesse Landerway, someone who was known to the police as being involved in narcotics. He was hanging out with him walking back and forth inside the arcade." Later in his summation, the prosecutor stated:

The defendant is in there [the arcade]. He's not playing video games, he's not shooting pool. He's in there hanging out, so to speak, and he's there with Jesse Landerway, someone as I said known, someone the officer testified was known as . . . involved in narcotics from previous matters.

In order for an error that has not been brought to the court's attention to warrant reversal, defendant must demonstrate that the error was "clearly capable of producing an unjust result." R. 2:10-2. Moreover, as stated in State v. Macon, 57 N.J. 325, 336 (1971), it is defendant's burden to show that the possibility of an unjust result is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached."

In the present case, defense counsel opened to the jury by conceding that defendant "had marijuana in his possession" at the time of his arrest, stating that he was an addict, and he then immediately turned the jury's attention to the switchblade knife, arguing that it did not constitute a weapon, but merely a cigarette lighter. In his closing argument, defense counsel reiterated that defendant was "basically . . . admitting to you that he was in possession of C.D.S. drugs, marijuana." However, counsel again claimed that the drugs were for personal use, and that "[t]he drug dealer was this person by the name of Jesse. He was selling the drugs." Counsel then pointed to the fact that Landerway's stash contained five-dollar yellow bags and that the drugs possessed by defendant included one yellow bag among otherwise white bags as circumstantial evidence suggesting a sale by Landerway to defendant.

Introduction of evidence that a co-defendant has committed criminal acts was erroneous. State v. Zapata, 297 N.J. Super. 160, 176 (App. Div. 1997); see also N.J.R.E. 404(b); United States v. Williams, 458 F.3d 312, 317 (3d Cir. 2006). Nonetheless, we are unable to conclude, in light of defendant's concession that he possessed drugs, his acknowledgement that Landerway was a drug dealer, and defendant's argument that at least a portion of his drugs were purchased from Landerway, that the error was sufficient to raise a reasonable doubt as to whether it led the jury to reach a result it otherwise might not have reached. The jury was confronted with uncontested evidence that Landerway was a known drug dealer, a matter independently conceded by defendant; that defendant was seen conversing with him; that both approached Zuniga; and that both thereafter accessed stashes of drugs. In the circumstances, we cannot conclude that the introduction of additional evidence that Landerway was known to the police as the result of a prior drug-related arrest to have materially affected the jury's verdict and thus to have constituted reversible error.

III.

Defendant next argues that he should not have been convicted of second-degree possession of a switchblade knife, under circumstances not manifestly appropriate for such lawful uses as the weapon may have, while in the course of possessing marijuana with the intent to distribute it, contrary to N.J.S.A. 2C:39-4.1c. Defendant argues that evidence of his use of the knife in connection with the drug offense was required, and that the trial judge erred in denying his motion for judgment of acquittal on that count of the indictment when such evidence was not adduced.

We disagree, finding the evidence of defendant's possession of the switchblade knife in the circumstances presented to be sufficient to sustain a conviction on the charge, beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967). N.J.S.A. 2C:39-4.1b requires a "purpose to use [the] weapon unlawfully against the person or property of another," while in the course of committing, attempting to commit or conspiring to commit an enumerated crime. See State v. Harris, 384 N.J. Super. 29 (App. Div.), certif. denied, 188 N.J. 357 (2006), upon which defendant relies. Paragraph c of the statute does not contain this evidential requirement, but instead provides only that the circumstances of the weapon's possession be "not manifestly appropriate" for the weapon's lawful uses. Harris is thus inapposite.

Possession of a switchblade knife without any explainable lawful purpose is a fourth-degree crime pursuant to N.J.S.A. 2C:39-3e for which defendant was convicted - a conviction that defendant does not challenge on appeal. He was likewise convicted, without appellate challenge, of the fourth-degree crime of possession of a switchblade knife under circumstances not manifestly appropriate for such lawful uses as it may have, in violation of N.J.S.A. 2C:39-5d, by its terms a lesser-included offence within N.J.S.A. 2C:39-4.1c. Intent to use the weapon unlawfully is not a requirement of N.J.S.A. 2C:39-5d. State v. Lee, 96 N.J. 156, 163-64 (1984).

The fourth-degree weapons convictions that we have enumerated, along with defendant's conviction for possession of marijuana with the intent to distribute, establish his guilt pursuant to the terms of N.J.S.A. 2C:39-4.1c without the need for additional evidence. Our review of the legislative history of this statute discloses nothing that would suggest that an interpretation broader than the statute's explicit language was intended by the Legislature when the statute was enacted in 1998, or that the Legislature intended that the weapons-related elements of N.J.S.A. 2C:39-4.1c would differ from those of N.J.S.A. 2C:39-5d, from which the provision at issue was derived. As a consequence, we decline to import a requirement of use or intended use of the weapon into paragraph c. Marshall v. Klebanov, 188 N.J. 23, 37 (2006)(when statutory language is clear, the sole function of the courts is to enforce it according to its terms, unless incompatible with the legislative design).

We find insufficient merit to warrant discussion in a written opinion of in any further argument by defendant that his switchblade knife should have been deemed a cigarette lighter because is was concealed in that device. R. 2:11-3(e)(2).

IV.

In challenges to his sentence, defendant does not contest his eligibility for an extended term sentence in accordance with N.J.S.A. 2C:44-3a. However, he argues that the trial judge misused his discretion in imposing an extended term in connection with defendant's conviction pursuant to N.J.S.A. 2C:39-4.1c. He also claims that his sentence was rendered in a manner that violated of State v. Pierce, 188 N.J. 155 (2006), decided after sentencing had occurred. The State concedes the applicability of Pierce to this matter, thereby requiring a remand to permit the judge's consideration of an appropriate term of custody as the result of defendant's second-degree conviction within the applicable ordinary and extended term ranges for that crime. Id. at 169. The State's concession renders unnecessary our further consideration of defendant's excessive sentencing arguments at this time.

 
Defendant's conviction is affirmed; the matter is remanded for resentencing in accordance with Pierce, supra. Jurisdiction is not retained.

(continued)

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A-6322-04T4

September 7, 2007