STATE OF NEW JERSEY v. JOSE PEREZ

This case can also be found at 198 N.J. 474, 968 A.2d 1189.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE APPROVAL

OF THE COMMITTEE ON OPINIONS

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6441-05T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

JOSE PEREZ,

Defendant-Appellant.

________________________________

 

Argued September 29, 2008- Decided

Before Judges Carchman, R. B. Coleman and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 05-07-1699.

John Vincent Saykanic, Designated Counsel, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Saykanic, on the brief).

Lucille M. Rosano, Assistant Prosecutor, argued the cause for respondent (Paula T. Dow, Essex County Prosecutor, attorney; Ms. Rosano, of counsel and on the brief).

PER CURIAM

A grand jury indicted defendant Jose Perez for first-degree robbery, N.J.S.A. 2C:15-1 (count one); third-degree unlawful possession of a weapon (handgun), N.J.S.A. 2C:39-5b (count two); and second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a (count three). A jury acquitted defendant on count one of first-degree robbery and of the lesser included offense of second-degree robbery. It convicted him on counts two and three. The trial judge sentenced defendant on count three to a mandatory extended eighteen-year term of imprisonment with a five-year period of parole ineligibility under the Graves Act, and to a concurrent five-year term of imprisonment on count two. The judge also imposed the appropriate assessments and penalty.

On appeal, defendant raises the following contentions:

POINT I

THE DEFENDANT'S CONVICTION ON COUNT 3 (POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE) MUST BE REVERSED AND A JUDGMENT OF ACQUITTAL ENTERED SINCE THIS CONVICTION IS INCONSISTENT WITH THE ACQUITTALS FOR FIRST AND SECOND DEGREE ROBBERY AND INSUFFICIENT EVIDENCE [EXISTS] TO SUSTAIN THIS CONVICTION; THE CONVICTION MUST BE REVERSED UNDER STATE V. JENKINS, 234 N.J. SUPER. 311 (APP. DIV. 1989) AND STATE V. TURNER, 310 N.J. SUPER. 423 (APP. DIV. 1998) AND THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

POINT II

THE TRIAL JUDGE ERRED IN DENYING THE MOTION FOR A JUDGMENT OF ACQUITTAL IN FAVOR OF THE DEFENDANT AS TO ALL OF THE COUNTS AS THE STATE FAILED TO ESTABLISH DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT CONTRARY TO THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION

POINT III

THE TRIAL JUDGE ERRED IN REFUSING TO CHARGE THE JURY AS TO CROSS-RACIAL IDENTIFICATION IN VIOLATION OF HIS FOURTEENTH AMENDMENT DUE PROCESS RIGHT TO A FAIR TRIAL

POINT IV

THE TRIAL COURT SHOULD HAVE EXCLUDED THE IN-COURT IDENTIFICATION OF THE WITNESSES AS THAT IDENTIFICATION WAS TAINTED BY AN UNDULY SUGGESTIVE OUT-OF-COURT IDENTIFICATION PROCEDURE IN WHICH DETECTIVE GLOVER 1) UTILIZED ONLY A SINGLE PHOTOGRAPH OF THE DEFENDANT; 2) WAS THE SAME DETECTIVE WHO CONDUCTED THE INVESTIGATION; AND 3) NEVER ADVISED THE WITNESSES THAT THE PHOTOGRAPH MAY NOT BE THE ACTUAL SUSPECT ALL IN CONTRAVENTION OF THE ATTORNEY GENERAL'S GUIDELINES FOR EYEWITNESS IDENTIFICATION PROCEDURES (U.S. Const. Amends. VI & XIV; N.J. Const. (1947) ART. I, PARA. 10)

POINT V

THE TRIAL COURT ERRED IN ADMITTING ALL THREE PRIOR CONVICTIONS OF THE DEFENDANT FOR IMPEACHMENT PURPOSES.

POINT VI

THE DEFENDANT'S STATE DISCOVERY AND DUE PROCESS RIGHTS WERE VIOLATED BY THE STATE MANDATING A REVERSAL OF HIS CONVICTIONS (U.S. CONST. AMENDS. VI AND XIV; NEW JERSEY CONST. OF 1947, ART. I, PAR. 10).

POINT VII

THE DEFENDANT'S EXTENDED SENTENCE MUST BE VACATED AS HE WAS INELIGIBLE FOR AN EXTENDED TERM UNDER THE GRAVES ACT (N.J.S.A. 2C:44-3D).

POINT VIII

THE DEFENDANT'S EXTENDED TERM SENTENCE IS ILLEGAL AND VIOLATIVE OF DEFENDANT'S DUE PROCESS AND SIXTH AMENDMENT JURY TRIAL RIGHTS; NEW JERSEY STATE CONSTITUTIONAL RIGHT TO NOTICE AND INDICTMENT (N.J. CONST. ART. I, 8); APPRENDI, BLAKELY, NATALE AND PIERCE; THE DEFENDANT MUST BE RE-SENTENCED TO TIME SERVED.

We affirm defendant's conviction sentence, except for the period of parole ineligibility, which shall be amended to a six-year period of parole ineligibility on count three as required by N.J.S.A. 2C:43-7c.

The following facts are summarized from the record. On December 23, 2004, at approximately 10:45 a.m., Kyung Kim and her husband, Kynom Kim, were working in their jewelry store on Halsey Street, Newark. An Hispanic male in a black hat and black jacket, later identified as defendant, entered the store, removed a gun from his pocket, pointed it at Kynom and said, "hold up, give me the money." Defendant moved toward Kynom and told him to "move back."

Kyung, who was on the telephone at the time defendant entered the store, held the phone up over her head and waved to attract the attention of a person in a store across the street. Defendant grabbed the phone from Kyung and threw it to the floor. Kyung continued waving her empty hand at the person across the street, at which point defendant covered her mouth with his hand and hit her in the head. With the gun still in his hand, defendant grabbed Kyung around the neck and pulled her to the floor. Kyung was shaking and said she felt like she was "dying."

Min Kim was in the bathroom in the store across the street. As she came out of the bathroom, her brother, who saw Kyung waving her hands, told Min to call the police. Instead of calling the police, Min ran to Kyung's store. When Min entered the store, she saw Kyung on the floor with defendant standing over her and she saw Kynom standing by the stock room door. Defendant had a goatee, clear, light skin and was dressed in a dark jacket and skully hat.

As Min called out to Kyung, defendant walked slowly toward her with gun pointed. Min believed that she "was going to die," and "was very scared." She looked to the ground and "moved to the side thinking that [defendant] would just leave." Defendant stood in place for a few seconds and then left the store. Min saw defendant go left upon exiting the store and "[she] just ran outside and . . . screamed out that [defendant] had a gun." Min then re-entered the store to check on Kyung.

Detectives Darren Gilbert and Ronald Glover of the Newark Police Department were on routine patrol in plain clothes and an unmarked police vehicle in the vicinity of Halsey Street. As they turned on to Halsey Street they saw defendant running out of a store and another individual behind him. Gilbert heard people yelling and saw defendant with what appeared to be a handgun in his right hand.

Gilbert exited his patrol car and chased defendant while Glover drove around the block to cut off defendant's escape from the opposite direction. Gilbert chased defendant onto Bank Street, where he and Glover converged on defendant with weapons drawn. Gilbert identified himself as a police officer and ordered defendant to stop and drop to his knees. According to Gilbert, defendant did not obey and "walked a couple of feet and threw the gun under a car that was parked on the . . . right-hand side of the street." The gun was a 9-mm semi-automatic Makarov pistol. The detectives were then "able to subdue [defendant] without any further complications."

About two hours later, Glover interviewed Kyung and Min at police headquarters. After Kyung and Min said they could positively identify the perpetrator if they saw him again, Glover showed them a photograph of defendant taken at the time of his arrest. Kyung and Min positively identified the person in the photograph as the perpetrator.

Officer Gary Robinson of the Newark Police Department dusted the door of the store and fumed the handgun recovered from under the parked car for fingerprints. One print found on the front door to the store did not match any known fingerprints and the handgun had no prints on it.

Prior to the start of the trial, Judge Cronin held a Wade hearing on the admissibility of the out-of-court identification and entertained a motion to preclude admission of defendant's prior convictions. Glover testified that he interviewed Kyung and Min and showed them photographs of only one person. The Attorney General Guidelines For Preparing And Conducting Photo And Live Lineup And Identification Procedures (April 18, 2001) (the Guidelines) require the showing of six photographs. Judge Cronin concluded that, despite procedural irregularities, Kyung's and Min's out-of-court photographic identifications were admissible based upon the totality of the circumstances. The judge also concluded that because defendant's three prior convictions were not so remote as to be unduly prejudicial, they were admissible, in sanitized form, for the purposes of impeachment should defendant decide to testify.

During the trial, Judge Cronin held a Rule 104 hearing to determine whether the State had impermissibly and prejudicially violated discovery rules as to the fingerprint evidence, which was not disclosed to defense counsel until the middle of the trial. Concluding that violations occurred, the judge barred the prosecutor from asking Robinson about that evidence. The judge also concluded, however, that if defendant inquired about this evidence during cross-examination, the prosecutor could address it on redirect examination. On cross-examination, defense counsel asked Robinson if he had dusted for fingerprints in any part of the store.

At trial, Kyung, Min, Gilbert, Glover, Robinson, and Frank Faretra of the Newark Police Department's ballistics unit testified on behalf of the State. Kyung's and Min's out-of-court photographic identifications were admitted into evidence. In court, Kyung was unable to positively identify defendant as the robber. She testified, "[i]t could be that man [the defendant] or not, I'm not sure." However, Min, Glover and Gilbert positively identified defendant in court.

At the close of the State's case, defendant requested a judgment of acquittal on all counts, contending that "the State failed to prove an adequate nexus between [him] and the crime to warrant a conviction." Judge Cronin denied the motion, finding that there was sufficient eyewitness evidence from which the jury could conclude that defendant was guilty of the charges beyond a reasonable doubt. Thereafter, defendant did not testify or present any witnesses or evidence.

After his conviction, defendant filed a motion for a directed verdict of acquittal based on an alleged inconsistent verdict. Judge Cronin denied the motion. The judge also denied the State's motion to sentence defendant as a persistent offender under N.J.S.A. 2C:44-3d, finding that defendant did not meet the criteria in the statute. However, the judge found defendant eligible for a mandatory extended term sentence under the Graves Act, N.J.S.A. 2C:44-3 because defendant had a prior armed robbery conviction. The judge also found aggravating factors N.J.S.A. 2C:44-1(3) (the risk that defendant will commit another offense), N.J.S.A. 2C:44-1(6) (the extent of defendant's prior criminal record and the seriousness of the offense of which he was convicted) and N.J.S.A. 2C:44-1(9) (the need for deterring defendant and others from violating the law). The judge found no mitigating factors.

I.

Defendant first contends that his conviction for possession of a weapon for an unlawful purpose must be reversed because it is inconsistent with his acquittal on the robbery charge. He seeks reversal pursuant to State v. Jenkins, 234 N.J. Super. 311 (App. Div. 1989), State v. Turner, 310 N.J. Super. 423 (App. Div. 1998), and the due process clause of the Fourteenth Amendment.

To convict defendant of second-degree possession of a weapon for an unlawful purpose the jury had to find beyond a reasonable doubt that: (1) the object possessed was a firearm within the meaning of N.J.S.A. 2C:39-1f; (2) defendant possessed it; (3) the purpose of the possession was to use the firearm against another's property or person; and (4) defendant intended to use it in a manner that was unlawful. State v. Banko, 182 N.J. 44, 57 (2004); N.J.S.A. 2C:39-4a. Defendant focuses on the fourth element, on which the trial judge charged the jury as follows:

The element requires that you find the State has proven beyond a reasonable doubt that the defendant possessed the firearm with the conscious objective, design or specific intent to use it against the person or property of another in an unlawful manner as charged in the indictment and not for some other purpose.

In this case, the State contends that the defendant's unlawful purpose in possessing the firearm was to commit the robbery alleged in Count One.

You must not rely upon your own emotions . . . of the unlawfulness of some other undescribed purpose of the defendant, rather you must consider whether the State has proven the specific unlawful purpose charge.

Defendant posits that this language prohibited a finding of an unlawful purpose for anything other than the robbery. Because he was acquitted of robbery, there could be no conviction for possession of a weapon for an unlawful purpose. However, defendant ignored other language in the charge, which further instructed the jury as follows:

The unlawful purpose alleged by the State may be inferred from all that was said or done and from all the surrounding circumstances of this case.

However, the State need not prove that the defendant accomplished this purpose of using the firearm in this case.

If you are satisfied beyond a reasonable doubt that the State has proven each of the elements of this offense as I have 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 of the elements of this offense as I have defined them to you, then you must find the defendant not guilty.

"Consistency in the verdict is not necessary. Each count in the indictment is regarded as if it was a separate indictment." Banko, supra, 182 N.J. at 53 (2004) (quoting Dunn v. United States, 284 U.S. 390, 393, 52 S. Ct. 189, 190, 76 L. Ed. 356, 358-59 (1932)). See also State v. Muhammad, 182 N.J. 551, 558 (2005). "Inconsistent verdicts are permitted as long as there is sufficient evidence to permit a rational factfinder to find a defendant's guilt beyond a reasonable doubt on the charges on which the defendant was convicted." State v. Ellis, 299 N.J. Super. 440, 455-56 (App. Div.), certif. denied, 151 N.J. 74 (1997). "Review of the sufficiency of the evidence on the guilty verdict is independent of the jury's determination that the evidence on another count was insufficient." State v. Petties, 139 N.J. 310, 319 (1995) (citing United State v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478, 83 L. Ed. 2d 461, 470 (1984)).

It is true that, "if the possession charge stands alone, or if acquittal of the accompanying charge erases the identification of the unlawful purpose, the court may not permit the jury to convict on the basis of speculation as to what possible purposes qualify as unlawful." Jenkins, supra, 234 N.J. Super. 311, 315. We reversed the defendant's conviction in Jenkins because the trial judge improperly charged the jury as to possession of a weapon for an unlawful purpose without first specifying the unlawful purpose. Id. at 316. We are satisfied that the jury charge given here was proper.

Our Supreme Court has held that, absent an erroneous jury charge, where there was sufficient evidence to support the charge for which the defendant was convicted, an acquittal on a substantive charge is not fatal to a conviction for possession of a weapon for an unlawful purpose. Banko, supra, 182 N.J. at 56. Based upon our careful review of the record, we are satisfied that there was ample evidence supporting the charge of possession of a weapon for an unlawful purpose. The handgun defendant used was in evidence and witnesses testified that he possessed and used that handgun in attempting to rob the jewelry store. Thus, the jury appropriately found that defendant used the gun against another's property or person and he intended to use it in a manner that was unlawful. That defendant never actually stole anything and was acquitted on the robbery charge is, therefore, irrelevant.

II.

Defendant next contends that the judge should have granted a judgment of acquittal at the close of the State's case because the evidence was insufficient to convict him beyond a reasonable doubt on all counts. He argues that Kyung's inability to identify him at trial and the improper out-of-court identifications warrants overturning his convictions.

When a defendant makes a motion for a judgment of acquittal:

The test to be applied in determining the sufficiency of the proof . . . is whether the evidence viewed in its entirety and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. This test governs not only the trial judge's consideration of the motion, but also appellate review of his ruling.

[State v. Moffa, 42 N.J. 258, 263 (1964) (internal citations omitted); see also R. 3:18-1.]

Here, Min, Glover, and Gilbert positively identified defendant at trial as the perpetrator. Gilbert chased defendant from the time he saw defendant exit the jewelry store to the time he and Glover converged upon defendant on Bank Street. Both Gilbert and Glover saw defendant with the handgun in his hand, and they saw him throw the gun under a car. Thus, we are satisfied there was ample evidence upon which, giving every reasonable inference to the State, a jury could convict defendant of the possessory charges.

III.

Defendant next contends that the judge erred in refusing to charge the jury as to cross-racial identification. Defendant is Hispanic, Kyung and Min are Korean, and Glover and Gilbert are African-American.

"A cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." State v. Cromedy, 158 N.J. 112, 132 (1999). The cross-racial instruction is not required where other independent corroborating evidence exists from which the jury may evaluate the reliability of the identification, such as other eyewitness accounts. Id. at 132-33.

Here, there was substantial independent evidence corroborating the witnesses' identification of defendant. Both Kyung and Min saw defendant in close proximity in the store and the two officers saw defendant leave the store. Glover chased defendant and never lost sight of him. All of the witnesses gave similar descriptions of defendant and his clothing. This evidence permitted the jury to evaluate the reliability of the identification without a cross-racial identification instruction.

IV.

Defendant next contends that the judge should have excluded Kyung's and Min's in-court identifications as impermissibly suggestive and in violation of the Guidelines. He argues that the identification was tainted by the unduly suggestive out-of-court identification procedure where Glover only showed the witnesses a single photo and never advised them that the photo may not be the actual suspect.

The test of admissibility of out-of-court identifications is set forth in State v. Farrow, 61 N.J. 434, 451 (1972) as follows:

Impermissive suggestibility is to be determined by the totality of the circumstances of the identification. It is to be stressed that the determination can only be reached so as to require the exclusion of the evidence where all the circumstances lead forcefully to the conclusion that the identification was not actually that of the eyewitness, but was imposed upon him so that a substantial likelihood of irreparable misidentification can be said to exist. What is being tested in the preliminary inquiry as to admissibility is whether the choice made by the witness represents his own independent recollection or whether it in fact resulted from the suggestive words or conduct of a law enforcement officer.

In determining the admissibility of an out-of-court identification, the trial court should conduct a two-step analysis. State v. Madison, 109 N.J. 223, 232 (1988). First, the court must "decide whether the procedure in question was in fact impermissibly suggestive." Ibid. "If the court does find the procedure impermissibly suggestive, it must then decide whether the objectionable procedure resulted in a 'very substantial likelihood of irreparable misidentification.'" Ibid. (quoting Simmons v. United States, 390 U.S. 377, 384, 88 S. Ct. 967, 971, 19 L. Ed. 2d 1247, 1253 (1968)).

The second step requires the court to "focus on the reliability of the identification. If the court finds that the identification is reliable despite the impermissibly suggestive nature of the procedure, the identification may be admitted into evidence." Ibid. This determination is based upon the totality of the circumstances gleaned from the evidence adduced at the hearing. Id. at 233. It is the reliability of the testimony that is the determinative factor for purposes of admissibility of identification evidence. Id. at 232. Such things as whether the police indicate that a suspect may be included in the photo array, repetition of a defendant's photo in subsequent arrays, and the time between the incident and the identification are all factors to be considered as part of the totality of the circumstances. Id. at 233-36. However, no one factor is dispositive in and of itself. Id. at 232.

Based upon our review of the record, we are satisfied that the judge properly concluded that although the Guidelines had been violated, the procedure overall was not impermissibly suggestive. There was a separation between the photo identification and any suggestion that the person in the photo was involved in the incident. Kyung and Min described the perpetrator and said they could identify him if they again saw him. Glover then showed them photos, but did not indicate that the person in the photos was under arrest, was a suspect, or was involved in the robbery.

We are also satisfied that, assuming the procedure was impermissibly suggestive, the judge properly concluded that under the totality of circumstances, there was no substantial likelihood of irreparable misidentification. The identifications were accurate. They were made within three hours of the incident by two eyewitnesses who indicated that they were one 100% certain that defendant was the perpetrator.

V.

Defendant next contends that the judge erred in admitting all three of his prior convictions, in sanitized form, for the purposes of impeachment should he decide to testify. We disagree.

Defendant has juvenile adjudications for entry with intent to steal, breaking and entering, larceny, and trespassing. He was also charged in 1979 as a juvenile with assault with a dangerous weapon, threatening, robbery, committing a crime while armed, rape, attempted assault and battery on a police officer and larceny. He was waived up to Superior Court and subsequently convicted in 1980 of attempted assault on a police officer, and larceny. Defendant was also charged in 1979 as a juvenile with abduction, rape while armed, robbery, and larceny of an auto. He was waived up to Superior Court and subsequently convicted in 1980 of abduction, sexual assault, sexual assault while armed, robbery, and armed robbery.

Defendant also has other adult convictions: (1) in 1981 for sexual assault, robbery, and armed robbery; (2) in 1998 for hindering apprehension; and (3) in 1999 for theft by unlawful taking. If defendant had served his entire sentence for the 1981 conviction, he would have been incarcerated through at least 2000.

"For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence." N.J.R.E. 609. "[W]hether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge. His discretion is a broad one . . . . Ordinarily evidence of prior convictions should be admitted and the burden of proof to justify exclusion rests on the defendant." State v. Sands, 76 N.J. 127, 144 (1978). In addition, convictions of a juvenile who is tried as an adult are admissible to impeach his or her credibility. State v. Steffanelli, 133 N.J. Super. 512, 514 (App. Div. 1975). Similarly, guilty pleas operate as convictions for the purposes of this rule. State v. Parker, 33 N.J. 79, 94 (1960).

The key to exclusion of a defendant's prior criminal convictions is remoteness. Sands, supra, 76 N.J. at 144. As stated by Court:

Remoteness cannot ordinarily be determined by the passage of time alone. The nature of the convictions will probably be a significant factor. Serious crimes, including those involving lack of veracity, dishonesty or fraud, should be considered as having a weightier effect than, for example, a conviction of death by reckless driving. In other words, a lapse of the same time period might justify exclusion of evidence of one conviction, and not another. The trial court must balance the lapse of time and the nature of the crime to determine whether the relevance with respect to credibility outweighs the prejudicial effect to the defendant. . . . When a defendant has an extensive prior criminal record, indicating that he has contempt for the bounds of behavior placed on all citizens, his burden should be a heavy one in attempting to exclude all such evidence. A jury has the right to weigh whether one who repeatedly refuses to comply with society's rules is more likely to ignore the oath requiring veracity on the witness stand than a law abiding citizen. If a person has been convicted of a series of crimes through the years, then conviction of the earliest crime, although committed many years before, as well as intervening convictions, should be admissible.

[Id. at 144-45 (emphasis added).]

To prevent prejudice, courts may "sanitize" prior convictions for crimes similar to the one on which a defendant is being tried, giving the jury only the date and degree of the crime without indicating the crime for which the defendant was specifically convicted. State v. Brunson, 132 N.J. 377, 391 (1993).

Here, defendant had a long criminal history. Judge Cronin found that the convictions were not too remote, especially given that defendant would have been incarcerated until 2000 if he had fully served the sentences imposed for his prior offenses and had he not been paroled. Based upon the factors expressed in Sands and Brunson, we discern no reason to disturb the judge's conclusion that defendant's three prior convictions were admissible for the purposes of impeachment should he decide to testify.

VI.

Defendant next contends that the State violated his due process right to discovery by failing to turn over fingerprinting evidence. Fingerprinting evidence that had been in the custody of the State (though not the prosecutor's office) from December 23, 2004, through March 13, 2006, was not turned over to defense counsel until the middle of the trial. However, Robinson's testimony at the Rule 104 hearing indicated that no fingerprints were retrieved from fuming the handgun, and that one print was found on the entrance door to the jewelry store, which did not match any known prints in the database.

After the hearing Judge Cronin ruled that there was no actual prejudice and that:

any actual prejudice can be precluded by the [c]ourt's order that the only potential for prejudice would be the fuming evidence coming in on a direct case, that is a fact that the gun was fumed and there was no readable prints. It was not something that was disclosed previously. It is not something that [defense counsel] knew about so she could structure her opening. It has a potential for prejudice.

And, therefore, on balance, in fairness, I am going to rule that [the prosecutor] cannot get into that on his direct, that he can only elicit from this witness what he intended to elicit when he opened to the jury, which was the chain of custody of the gun.

However, if during the course of cross examination [ ] of this witness, if there is inquiry made to the fingerprinting of other parts of the crime scene, be it the door [knob] or the casing of the store that, in effect, I very well may rule that the defense has opened the door as to the fuming of the gun. And in all fairness to the State on redirect examination, that area can be inquired.

Rule 3:13-2 governs discovery of the State's evidentiary documents in a criminal trial. Sanctions against the State for failure to provide discovery to a defendant are similarly governed by the auspices of Rule 3:13-3(g), which states in relevant part:

If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule or with an order issued pursuant to this rule, it may order such party to permit the discovery or inspection of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate.

[Emphasis added.]

Judge Cronin properly ruled that the State could not present evidence of the fuming of the handgun on its direct case. Thus, any error relating to this evidence lies squarely with defense counsel, who, after receiving a warning about the possibility of opening the door to the fuming evidence, opened that door by asking Robinson on cross-examination about the fuming of the gun. Since defense counsel opened the door, defendant cannot now claim prejudice. See State v. Pontery, 19 N.J. 457, 471 (1955) ("defendant cannot beseech and request the trial court to take a certain course of action, and upon adoption by the court, take his chance on the outcome of the trial, and if unfavorable, then condemn the very procedure he sought and urged, claiming it to be error and prejudicial.")

VII.

We now address defendant's sentence. Defendant contends that he does not qualify for a Graves Act mandatory extended term sentence because second-degree possession of a weapon for an unlawful purpose is not an enumerated offense under N.J.S.A. 2C:43-6c. Defendant is wrong.

N.J.S.A. 2C:44-3 provides, in relevant part:

If the grounds specified in subsection d. [of this section] 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, the court shall sentence the defendant to an extended term as required by [N.J.S.A.] 2C:43-6c or [N.J.S.A.] 2C:43-6g, and application by the prosecutor [for an extended term] shall not be required.

A defendant is mandatory extended term sentence eligible if:

The defendant is at least 18 years of age and has been previously convicted of any of the following crimes: [N.J.S.A.] 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a, 2C:14-3a, 2C:15-1, 2C:18-2, 2C:29-5, 2C:39-4a, or has been previously convicted of an offense under Title 2A of the New Jersey Statutes or under any statute of the United States or any other state which is substantially equivalent to the offenses enumerated in this subsection and he used or possessed a firearm, as defined in [N.J.S.A.] 2C:39-1f, in the course of committing or attempting to commit any of these crimes, including the immediate flight therefrom.

[N.J.S.A. 2C:44-3d.]

Defendant was convicted in 1981 of robbery, N.J.S.A. 2A:141-1, and of being armed with a firearm during that robbery, N.J.S.A. 2A:151-5. Thus, we need only address whether defendant's present conviction for second-degree possession of a weapon for an unlawful purpose made him mandatory extended term eligible.

As per N.J.S.A. 2C:44-3, we must look to N.J.S.A. 2C:43-6c for the enumerated offenses. N.J.S.A. 2C:43-6c provides, in relevant part:

A person who has been convicted under [] subsection a, b or c of [N.J.S.A.] 2C:39-5, [] who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in [N.J.S.A.] 2C:39-1f, shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole.

Defendant was convicted of unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5b. Thus, his mandatory extended term sentence is appropriate.

Defendant's remaining contentions that his sentence is illegal, and that he is entitled to re-sentencing under State v. Pierce, 188 N.J. 155 (2006) are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comment.

Defendant received a mandatory, not discretionary, extended term sentence. The judge had to impose an extended term sentence because defendant qualified as a second offender with a firearm. N.J.S.A. 2C:44-3d. Because the extended term sentence was mandatory, the judge had to, and did, impose a sentence within the extended term range of ten to twenty years for a second-degree crime. The judge had no discretion to consider an ordinary range sentence.

VIII.

We address one final issue. Although not raised by cross-appeal, we are constrained to reverse the five-year period of parole ineligibility the judge imposed. N.J.S.A. 2C:43-7c provides, in relevant part:

In the case of a person sentenced to an extended term pursuant to [N.J.S.A.] 2C:43-6c [], the court shall impose a sentence within the ranges permitted by [N.J.S.A.] 2C:43-7a(2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall [] be fixed at or between one-third and one-half of the sentence imposed by the court or five years, whichever is greater, during which the defendant shall not be eligible for parole.

Thus, this statute mandates the imposition of a six-year period of parole ineligibility (one-third of eighteen years).

We affirm defendant's conviction and sentence, except we remand for correction of the judgment of conviction to reflect a six-year period of parole ineligibility.

N.J.S.A. 2C:44-3d.

Min Kim is not related to Kyung Kim.

United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1949 (1967).

U.S. Const. amend. XIV.

The instruction mirrors the model jury charge for possession of a weapon for an unlawful purpose. Model Jury Charge (Criminal), "Possession Of A Firearm With A Purpose To Use It Unlawfully Against The Person Or Property Of Another" (2004).

Defendant was also convicted in 1993 in municipal court for trespassing and larceny of an auto, and in 2004 in municipal court for a public health nuisance.

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A-6441-05T4

December 23, 2008