STATE OF NEW JERSEY v. KHALIL Q. BASS

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5033-08T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KHALIL Q. BASS,

Defendant-Appellant.

_________________________________________________

December 12, 2011

 

Submitted October 12, 2011 - Decided

 

Before Judges Payne and Reisner.

 

On appeal from Superior Court of New Jersey,

Law Division, Atlantic County, Indictment No. 08-01-0255.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Diane Young Uniman, Designated Counsel, on the brief).

 

Theodore F.L. Housel, Atlantic County Prosecutor, attorney for respondent (Jack J. Lipari, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Khalil Q. Bass, appeals his conviction for third-degree burglary, N.J.S.A. 2C:18-2, fourth-degree obstruction of the administration of law, N.J.S.A. 2C:29-1, and second-degree possession of a weapon by a convicted felon, N.J.S.A. 2C:39-7. The first two convictions arose from a partial jury verdict. The jury was unable to reach a verdict on charges of third-degree unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f, fourth-degree unlawful possession of a large-capacity ammunition magazine, N.J.S.A. 3C:39-3j, and second-degree burglary, N.J.S.A. 2C:18-2b. After the jury verdict was returned and a retrial was scheduled on the remaining unresolved charges, defendant pled guilty to the charge of possession of a weapon by a convicted felon.

Defendant also appeals as excessive his seven-year sentence with a five-year parole disqualifier imposed pursuant to N.J.S.A. 2C:39-7b.

On appeal, defendant raises the following issues for our consideration.

POINT I

 

THE COURT COMMITTED REVERSIBLE ERROR AND DEFENDANT WAS DENIED A FAIR TRIAL BY THE COURT'S DENIAL OF THE MOTION TO SUPPRESS.

 

A. The Denial of the Motion to Suppress Evidence Based on the Theory of Exigent Circumstances Was in Error.

 

B. The Denial of the Motion to Suppress Evidence Based on the Theory of Inevitable Discovery Was in Error.

 

POINT II

 

MR. BASS WAS DENIED HIS CONSTITUTIONAL RIGHT TO A FAIR SUPPRESSION HEARING WHERE THE COURT'S HOSTILE COMMENTS REFLECTED EXTREME BIAS TOWARD HIM AND HIS COMMUNITY. (PARTIALLY RAISED BELOW.)

 

POINT III

 

THE DEFENDANT WAS DEPRIVED OF DUE PROCESS AND A FAIR TRIAL BECAUSE THE JUDGE ERRED IN DENYING THE MOTION FOR ACQUITTAL. THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFENDANT WAS NOT LICENSED OR PRIVILEGED TO ENTER THE PREMISES IN QUESTION.

 

POINT IV

 

THE SENTENCE WAS EXCESSIVE.

 

We affirm.

I.

At a suppression hearing conducted in the matter, the State first offered the testimony of Atlantic City Police Sergeant Andrew Leonard. Sgt. Leonard testified that, during the afternoon of April 2, 2007, he was informed that defendant, whom he confirmed had an outstanding active arrest warrant against him as the result of a parole violation, was standing outside a certain residence in Atlantic City. The Sergeant arranged to meet at Sandcastle Stadium with three other officers to formulate a plan as to how defendant could be approached and apprehended. At the time, Sgt. Leonard knew defendant had been arrested several times while in possession of firearms and that he had run from the police on several occasions. He knew, as well, that defendant had been arrested for drug offenses, and he believed defendant had been arrested in the past for aggravated assault.

The four officers formulated a plan whereby Sgt. Leonard and another police officer would approach the residence in separate cars from the front, and Officer John Devlin and a K-9 officer would approach it in their cars from its rear on a parallel street. As the Sergeant and his fellow officer pulled in front of the address in their marked police cars, the Sergeant saw defendant standing outside with four other individuals. When the two officers got out of their police cars, defendant started slowly walking toward the residence. At the time, defendant was wearing a heavy jacket, and he appeared to be clutching an object underneath it. Sgt. Leonard ordered defendant to stop and advised him that he was under arrest. However, defendant ignored the command and ran inside the residence. Sgt. Leonard knew at the time that the residence was not defendant's.

Although the Sergeant attempted to follow defendant into the residence, he could not open the door. The Sergeant then knocked on the door very hard a couple of times, to no avail. Seconds later, the officers at the rear of the building advised that defendant had attempted to exit from the back of the residence but, when he saw the officers, he retreated into the house. According to Officer Devlin, who also testified at the hearing, defendant was clutching something with both hands beneath an oversized shirt as he attempted to leave the building. When asked what he thought the object was, Devlin responded: "I couldn't see anything but it was something that he didn't want me to see and in the back of my mind I was always thinking I'm thinking about a weapon." He continued: "He was just covering it up and when he saw me he made sure to turn his back and, you know, just certain furtive movements he was making with it made me believe that it was a weapon." Although Devlin informed defendant that he was under arrest, and he ordered defendant to stop and show his hands, he did not do so. Shortly after defendant returned to the house, Devlin heard a commotion occurring in a second-floor space that he later learned was a bathroom. To him, it "basically sounded like porcelain, porcelain being moved around." According to Devlin, he thought that maybe defendant was going to throw the top of a toilet bowl out the open window at the police, and therefore they should be careful.

By looking through a window in the front door, Sgt. Leonard had seen defendant running up the stairs to the second floor. A very short time later, defendant opened the door and surrendered. A pat-down search conducted at the time revealed nothing. Defendant was then handcuffed and secured by Sgt. Leonard in the back of his police car. At the time, the Sergeant did not know whether anyone remained in the residence or the identity of the residents.

While the Sergeant was securing defendant, other officers, including Officer Devlin, entered the residence to search for a weapon or other contraband and to determine whether defendant's presence in the residence was authorized. According to Officer Devlin, once inside, they checked the downstairs, commencing in the kitchen, and then went upstairs, where they encountered in a bedroom a young woman holding a small infant. The woman said that, while preparing to take a shower, she had heard someone come into the residence through the front door, and she heard the front door slam. She then heard some commotion, and the back door slammed. After that, the person ran upstairs into the bathroom. However, by the time she got dressed, the person was in custody. When asked, the woman stated that she was not the owner of the house.

After a cursory search of the bedroom for weapons or drugs, Devlin searched the bathroom, having been informed that defendant had run in there. In doing so, he noticed that the back of the toilet was half off. When he shined his flashlight inside, he saw "silver and gold brass rounds" next to a black assault pistol submerged in the water in the toilet tank. Devlin advised communications of the find, and the weapon was retrieved by the forensic unit. The weapon weighed eight to ten pounds and utilized 45-caliber rounds.

In the meantime, the woman with the baby had telephoned her mother, the owner of the residence. The owner returned home, and after being advised by the police as to what had occurred, she signed a consent to search form for the house. A more thorough search was then conducted with negative results.

The defense called no witnesses. Following closing arguments, the court denied defendant's motion to suppress the evidence, ruling that the police's entry into the residence was justified by exigent circumstances and the need to determine whether defendant had left a dangerous object there. Alternatively, the court found, as the result of the residence owner's consent to search, that the discovery of the weapon and ammunition was inevitable.

At trial, police witnesses described what had occurred in connection with defendant's arrest.1 Additionally, testimony was provided by Taja Hamilton, the lessee of the residence that defendant had entered. Hamilton testified that she knew Khalil Bass and, on cross-examination, she stated that her daughter was a friend of the mother of defendant's child, and the child was Hamilton's godson. Nonetheless, defendant did not have a key to the Hamiltons' residence, he did not have permission "to come and go as he pleases," and he would have to knock before entering. Hamilton denied that there were guns in the home, and stated that if there were a gun in the house, she would know it. She denied that she had ever seen the weapon discovered in the toilet before she was shown it in court. Hamilton confirmed that she had consented to a search of her house, stating that she told the police:

There's not supposed to be anything in my house. Nothing. You do whatever you have to do. I have a child there and if they keep a safe environment for my child, whatever it is, you find it and get it out of my house.

 

Testimony was also given by Taja Hamilton's daughter, Lanay Hamilton, who at the time of the events at issue lived with Taja and was present when defendant entered the residence. Lanay testified that her mother ran the house, and that she had rules about who could freely enter it. She stated: "Just certain people can walk in and certain people can't, that's all." On direct examination Lanay testified that, during the evening in question, she did not personally let defendant into the house and that he did not have permission to be in the house at that time. At the time of his entrance, she was undressed and in her bedroom. Although the shower was running, she never had the opportunity to get into it. Rather, after defendant entered and then exited the residence, she dressed, and then went downstairs to meet the police. Lanay testified further that she did not own a gun and that her mother would not permit guns in the house.

Contrary to testimony by the police given at the suppression hearing, Lanay testified on cross-examination that the mother of defendant's son, Michelle Hersey, was present in the house on the evening in question, and that she was watching Lanay's son downstairs when Lanay was preparing to take a shower. However, defendant's son was not present. Lanay could not remember whether the police were already in the house when she came downstairs. She thought that she had opened the door, but not for the police.

The defense called no witnesses.

At the conclusion of the State's case, defendant moved for a directed verdict on the charge of burglary, arguing that the State had failed to prove that he was not privileged to enter the Hamilton residence. However, the court denied defendant's motion, holding that

the credible evidence in the case thus far could lead a reasonable jury to conclude that Mr. Bass . . . A. entered that home without permission from anyone authorized to give it and, B. did so for the purpose of evading the police and hiding or discarding the weapon, really two separate illegal acts or illegal purposes.

 

Thus, the court determined, pursuant to standards set in State v. Reyes,2 that the evidence was sufficient to warrant a conviction by the jury on the charge of burglary.

Following closing arguments, the jury rendered a partial verdict as previously described, convicting defendant of third-degree burglary and fourth-degree obstruction of the administration of law. Although the remaining charges were immediately scheduled for retrial, defendant pled guilty to the charge of second-degree possession of a weapon by a convicted

felon in order to resolve the entire indictment.3 Defendant was sentenced pursuant to the non-negotiated plea agreement to seven years imprisonment with five years of parole ineligibility on the weapons conviction, and received lesser concurrent sentences on the other two convictions. He has appealed.

II.

On appeal, defendant first argues that the court erred in denying his motion to suppress evidence, consisting of the gun and ammunition clip, arguing that exigent circumstances failed to justify the police's warrantless entry and search, and that discovery of the weapon was not inevitable. Addressing exigent circumstances, defendant notes that at the time of the police's search, he had been arrested, handcuffed, searched, and secured in the back of Sgt. Leonard's police vehicle. Further, he claims that there was no evidence of an accomplice who could have removed evidence or caused harm. The State argues to the contrary, claiming a protective sweep was required given the fact that defendant, a convicted felon known to carry weapons in the past, had entered the residence to escape arrest carrying what the police suspected was a concealed weapon, suspicious noises were then heard, and defendant exited the residence carrying nothing. Additionally, the State contends that, knowing that the residence appeared to have been just burglarized, the police were authorized to enter the residence to determine whether a crime had taken place.

Additionally, the State argues that defendant had no right to be present in a residence that did not belong to him, "let alone to take refuge there with a firearm while fleeing from police officers attempting to execute a parole warrant." As a result, the State argues, "he had no reasonable expectation of privacy that fairly might be vindicated through the suppression of evidence in this case." Our consideration of this argument requires us to address the issue of defendant's standing to seek suppression under Federal and State standards, which differ.

Under Federal law, a person's reasonable or legitimate expectation of privacy, by which the legality of a search or seizure is measured, is governed by a two-pronged test. First it is determined whether the defendant has an expectation of privacy in the place searched. Then it must be determined whether that expectation is one that society will recognize as reasonable, i.e., one that has "a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society." Rakas v. Illinois, 439 U.S. 128, 143-44 and 143 n.12, 99 S. Ct. 421, 430 and 431 n.12, 58 L. Ed. 2d 387, 400-01 and 402 n.12 (1978). Under that standard, the Federal courts have, on occasion, extended a person's legitimate expectation of privacy beyond that person's own home to that in which he is an invited overnight guest. Minnesota v. Carter, 525 U.S. 83, 89, 119 S. Ct. 469, 473, 142 L. Ed. 2d 373, 379-80 (1998) (citing Minnesota v. Olson, 495 U.S. 91, 98-99, 110 S. Ct. 1684, 1688, 109 L. Ed. 2d 85, 94 (1990) (overnight guest)). However, a person who is momentarily present on the premises with the consent of the householder may not challenge the validity of a search. Id. at 89-90, 119 S. Ct. at 473, 142 L. Ed. 2d at 380; see also Rakas, supra, 439 U.S. at 142, 99 S. Ct. at 429-30, 58 L. Ed. 2d at 400. Because the evidence at the suppression hearing did not focus on the nature of defendant's status, other than to establish that he was not a resident, and did not focus on his concomitant expectation of privacy in the premises, we cannot determine on the basis of the existing record whether defendant's Fourth Amendment rights were implicated an issue the resolution of which, under Federal law, "must be predicated solely upon defendant's reasonable privacy expectation in the premises, regardless of his alleged possessory interest in the items seized." State v. De La Paz, 337 N.J. Super. 181, 191-93 (App. Div.), certif. denied, 168 N.J. 295 (2001).

However, we analyze defendant's rights under Article I, paragraph 7 of the New Jersey Constitution differently. As we noted in De La Paz, we

"part[ed] company with the [United States] Supreme Court's view of standing" nearly two decades ago precisely because "[a]dherence to the vague 'legitimate expectation of privacy' standard, subject as it is to the potential for inconsistent and capricious application, will in many instances produce results contrary to commonly held and accepted expectations of privacy" and the fundamental principle rooted in article I, paragraph 7 that people's "effects," as well as their "persons" and "houses," are constitutionally protected against unreasonable searches and seizures.

 

[Id. at 192 (quoting State v. Alston, 88 N.J. 211, 226-27 (1981)).]
 

In describing Alston, we have said that the Supreme Court "construed article I, paragraph 7 to extend protection against unreasonable searches and seizures beyond the Fourth Amendment's 'legitimate expectation of privacy' limits, thus conferring 'standing' (that is, a substantive privacy right) to defendants with proprietary, possessory, or participatory interests in the place searched or the item seized, as well as 'automatic standing' to those charged with offenses in which possession of the evidence seized is an essential element of guilt." Id. at 193 (quoting Alston, supra, 88 N.J. at 225-30). Thus, a person charged with possession who is challenging a search "'need not make 'a preliminary showing of an interest in the premises searched or the property seized,"'" and the motion judge may proceed "'directly to a consideration of the merits of the suppression motion and determine the legality vel non of the challenged search.'" Ibid. (quoting Alston, supra, 88 N.J. at 222 n.6, 228) (other citations omitted)).

Significantly, however, we recognized under New Jersey law that "under extreme circumstances" a defendant's objectively reasonable expectations of privacy in the dwelling of another under "'"general social norms"' might still be relevant in determining his substantive privacy rights under article I, paragraph 7 were there evidence that defendant was present without the [homeowner's] consent." Id at 194. However, in De La Paz, a case involving three persons packaging marijuana, two of whom were non-residents, there was no evidence that they were other than guests. Ibid.

In reaching that conclusion, we contrasted De La Paz with others of our decisions in which we had found no objectively reasonable expectations of privacy sufficient to invoke constitutional protections in situations in which the defendant had gained unlawful entry into the premises in which the unlawful or incriminating item was found, despite the fact that the defendant had a possessory or participatory interest in the item. See State v. Harris, 298 N.J. Super. 478, 483-85 (App. Div.) (murder defendant who had a participatory interest in a seized telephone answering machine tape lacked protected privacy interest in co-conspirator's apartment to which defendant had gained unlawful entry), certif. denied, 151 N.J. 74 (1997); State v. Smith, 291 N.J. Super. 245, 261-62 (App. Div. 1996) (defendant charged with drug possession lacked protected privacy interest in apartment into which he unlawfully and forcibly gained entry), rev'd on other grounds, 155 N.J. 83 (1998) (determining circumstances of case did not require consideration of defendant's privacy interest), cert. denied, 525 U.S. 1033, 119 S. Ct. 576, 142 L. Ed. 2d 480 (1998); State v. Lugo, 249 N.J. Super. 565, 568 (App. Div. 1991) (a defendant operating a stolen vehicle had no reasonable expectation of privacy regarding contraband hidden in it); State v. Arias, 283 N.J. Super. 269, 277-81 (Law Div. 1992) (murder defendant had no reasonable expectation of privacy in live and discharged ammunition left in home that he commandeered at gunpoint).

Viewing the present matter in light of the precedent we have just discussed, we are again unable to determine whether defendant had a constitutionally protected right to privacy in the Hamilton home. Indeed, his status in that home as a guest or interloper was an issue that was reserved for the trial itself. As a consequence, we decline to decide this matter on this ground advanced by the State on appeal.

We turn next to whether the warrantless search was justified by exigent circumstances as found by the trial court. The Supreme Court has held:

Because our constitutional jurisprudence generally favors warrants based on probable cause, all warrantless searches or seizures are "presumptively unreasonable." [State v.] Elders, 192 N.J. [224], 246 [(2007)]. Therefore, when the police act without a warrant, the State bears the burden of proving by a preponderance of the evidence not only that the search or seizure was premised on probable cause, but also that it "f[ell] within one of the few well-delineated exceptions to the warrant requirement." [State v.] Pineiro, 181 N.J. [13,] 19-20 [(2004)] (quotations omitted). For example, our case law permits a warrantless search when incident to a lawful arrest, when consent is given, when government officials act in a community-caretaking function, and when exigent circumstances compel action. State v. Moore, 181 N.J. 40, 45 (2004) (citing State v. Hill, 115 N.J. 169, 173-74 (1989)).

 

[State v. Johnson, 193 N.J. 528, 552 (2008).]

 

Although exigent circumstances "cannot be precisely defined or reduced to a neat formula," ibid. (citing State v. Nishina, 175 N.J. 502, 516 (2003)), factors that the Court has considered include "the urgency of the situation, the time it will take to secure a warrant, the seriousness of the crime under investigation, and the threat that evidence will be destroyed or lost or that the physical well-being of people will be endangered unless immediate action is taken." Id. at 552-53.

In the present case, the police observed defendant, a known felon who had on other occasions been armed, enter a residence that was not his own, carrying an object that they suspected was a weapon, and then shortly thereafter, exit the residence carrying nothing. The circumstances as described at the suppression hearing gave rise to the reasonable probability that defendant had committed a burglary through his unauthorized entry in an attempt to elude the police and avoid lawful arrest.

We have held in similar circumstances that the police may enter private premises when the police reasonably believe that the premises have recently been or are being burglarized. State v. Faretra, 330 N.J. Super. 527, 531-33 (App. Div. 2000), certif. denied, 165 N.J. 530 (2000); see also State v. Boud, 240 N.J. Super. 171, 179 (App. Div. 1990). Because of the likelihood that defendant had left a weapon on the premises, the police were justified in ensuring that any remaining occupants of the premises did not retrieve the gun and subsequently cause harm to themselves or others or actively conceal it. State v. Wright, 213 N.J. Super. 291 (App. Div. 1986) (recognizing a public safety exigency to exist when it became known to the police that a gun was located on motel grounds, but the police did not know where), certif. denied, 118 N.J. 235 (1989).

Additionally, we find, even if the existence of exigent circumstances fails to justify the warrantless search of the Hamilton residence and the seizure of the gun and ammunition clip, because evidence at the suppression hearing established that Taja Hamilton had given her consent to a police search of the premises, the discovery of those items would have been inevitable.

The Court has observed:

The inevitable discovery exception to the exclusionary rule was first elaborated in Nix v. Williams, 467 U.S. 431, 104 S. Ct. 2501, 81 L. Ed. 2d 377 (1984). Evidence is admissible even though it was the product of an illegal search, "when . . . the evidence in question would inevitably have been discovered without reference to the police error or misconduct, [for] there is no nexus sufficient to provide a taint." Id. at 448, 104 S. Ct. at 2511, 81 L. Ed. 2d at 390.

 

[State v. Sugar III, 108 N.J. 151, 156 (1987).]

 

In State v. Sugar II, 100 N.J. 214 (1985), the Court adopted a more restrictive formulation of the inevitable discovery doctrine than that adopted by the Federal courts. It held:

We require the State to show that (1) proper, normal and specific investigatory procedures would have been pursued in order to complete the investigation of the case; (2) under all of the surrounding relevant circumstances the pursuit of those procedures would have inevitably resulted in discovery of the evidence; and (3) the discovery of the evidence through the use of such procedures would have occurred wholly independently of the discovery of such evidence by unlawful means.

 

[Id. at 235.]

 

Additionally, the Court adopted a "clear and convincing" standard of proof, rather than the Federal standard of a preponderance of the evidence. Id. at 240.

We find the standard to have been met in this case. The evidence at the suppression hearing demonstrated that upon entering the Hamilton residence, Officer Devlin and others made a protective sweep of the first floor, and then went upstairs, where they encountered Lanay Hamilton, who informed them of defendant's activities, including the fact that he had entered the bathroom. Officer Devlin then went to that room, observed the porcelain top of the toilet tank to be ajar, looked inside, and with the aid of a flashlight, observed ammunition and then the submerged gun.

Upon the return of Taja Hamilton to the house, the police sought and obtained her consent to conduct a more thorough search. Despite defendant's argument to the contrary, we find no evidence that Hamilton's consent in this case was coerced. Although the police had found a gun on the premises, there was no suggestion of culpability on the part of Hamilton or her daughter, but only of illegal activity on defendant's part.4 We are satisfied that the later consent search would inevitably have led to the discovery of the weapon and ammunition. As a consequence, we find that their introduction into evidence was proper.

III.

Defendant next argues that, as the result of the court's "hostile and sarcastic" comments, he was deprived of a fair suppression hearing. The hearing in this matter occurred over two days. Defendant does not make any complaints regarding the court's conduct during the first day, during which testimony was provided by Sergeant Leonard and Officer Devlin. His complaints concern the second day, during which defense counsel made his closing argument.

Defendant is correct that the court frequently interrupted defense counsel during that argument. In part, the court posed questions to clarify the record, which was appropriate and necessary because defense counsel (not the attorney handling this appeal) had not filed a brief in support of the motion to suppress evidence. See R. 3:5-7(b). However, at one point counsel was reduced to begging the court to let him complete his argument.

Contrary to defendant's appellate contention, the court appropriately focused on the admittedly large weapon found in the toilet tank in the Hamiltons' house. The size and weight of the gun,5 which the police never directly viewed while in defendant's possession, were characteristics that were undoubtedly relevant to the issues of what he was carrying under his jacket and whether exigent circumstances permitted the police's warrantless entry into the Hamilton home to retrieve it and to assure the safety and well being of any persons who were present there. However, the judge's colorful characterizations of the gun's capacity for destruction6 bore no relevance to the proceeding and served only to divert attention from the issues to be decided.

The court also referred to defendant in pejorative terms in a colloquy with defendant's mother. Following an untranscribed statement by an unidentified person, the court asked who was speaking and, after being advised that the person was defendant's mother, the court stated: "Oh, you should be very proud. . . . Mama's very proud of her young son, that's very good, glad to hear that."

We do not condone the court's conduct in this part of the suppression hearing, determining that it possessed the potential to undermine public confidence in the impartiality of the judiciary, and that it demonstrated the absence of courtesy to litigants, family members and counsel that all participants in the proceedings had a right to expect. See Cannons 2A and 3A(3) of the Code of Judicial Conduct. With respect to the latter, even if defendant's mother had interrupted the hearing, the court should have responded in a more measured fashion.

Nonetheless, we find the court's conduct, which did not take place before the jury, to have constituted an aberrant interlude in an otherwise properly conducted proceeding.7 We further note that, following this period of comments and questions, the court permitted defense counsel to present a complete and uninterrupted closing argument that effectively marshaled the arguments in favor of suppression. We thus conclude that a full right to be heard according to law was afforded. See Cannon 3A(6) of the Code of Judicial Conduct. As a final matter, we perceive nothing in the court's decision on the suppression motion to suggest anything but a measured evaluation of the evidence in light of existing precedent. Accordingly, we decline to reverse on the basis claimed by defendant, while trusting that the court, in the future, will more carefully consider its judicial role.

IV.

We reject defendant's additional argument that the court erred in denying his motion for acquittal at the end of the State's case on the charge of burglary. We conclude that the State's evidence, viewed in its entirety and in a light most favorable to it, Reyes, supra, 50 N.J. 458-59, provided a sufficient basis for the jury to find guilt beyond a reasonable doubt.

N.J.S.A. 2C:18-2 provides:

A person is guilty of burglary if, with purpose to commit an offense therein or thereon he:

 

(1) Enters a . . . structure . . . unless the structure was at the time open to the public or the actor is licensed or privileged to enter[.]

 

Burglary is a crime of the third degree unless the defendant "[p]urposely, knowingly or recklessly inflicts, attempts to inflict or threatens to inflict bodily injury on anyone" or "[i]s armed with or displays what appear to be explosives or a deadly weapon." In this case, the crime is of the second degree. N.J.S.A. 2C:18-2b.

At trial, evidence was presented through Taja and Lanay Hamilton that defendant was not generally authorized to enter the premises without permission, and that he lacked such permission on this particular occasion. Other evidence suggested that, by virtue of defendant's connection to the Hamilton household, he had a right to enter without first obtaining permission to do so. Defendant also argued on appeal that Lanay Hamilton's testimony supported the conclusion that defendant had knocked at the door and she had let him in. Which version of the facts to believe was for the jury to decide. State v. Grenci, 197 N.J. 604, 621 (2009). It found against defendant.

Defendant does not argue that the State failed to offer sufficient evidence for the jury to conclude beyond a reasonable doubt that defendant entered the residence "with purpose to commit an offense therein." We thus need not discuss that element of the crime in affirming defendant's burglary conviction.

V.

As a final matter, defendant claims that his sentence was excessive. We do not agree.

At the sentencing hearing, the court found aggravating factor three (the risk of reoffense) based on a history of drug use, ten arrests with two felony convictions and two municipal court convictions, and eight juvenile adjudications, including four violations of probation. The court also found on that factual basis aggravating factor six (the extent of defendant's prior criminal record) and factor nine (the need for deterrence). N.J.S.A. 2C:44-1a(3), (6) and (9). It found no mitigating factors. The court then imposed a sentence of seven years with five years of parole ineligibility on the conviction for possession of a weapon by a convicted felon and lesser concurrent sentences on the other two convictions. The sentence was run concurrently with whatever sentence was imposed on defendant's parole violation.

Our review of the sentencing transcript satisfies us that the court did not abuse its discretion in imposing this sentence under standards articulated in State v. O'Donnell, 117 N.J. 210, 219-20 (1989), State v. Ghertler, 114 N.J. 383, 389-93 (1989) and State v. Roth, 95 N.J. 334, 356-66 (1984). In light of the fact that the gun possessed by defendant was being carried with the safety off, we reject his position that his conduct did not threaten serious harm and that the court should have so held. N.J.S.A. 2C:44-1b(1). The five-year period of parole ineligibility was mandatory. N.J.S.A. 2C:39-7b.

We thus affirm defendant's sentence as well as his convictions. State v. Bienick, 200 N.J. 601, 607-09 (2010).

Affirmed.

1 The parties stipulated that the jury would be informed that the police were attempting to serve defendant with legal papers, which compelled them to take defendant into custody, to arrest him.

2 50 N.J. 454, 458-59 (1967).

3

As noted by the court at sentencing, upon retrial, he would have permitted the State to introduce testimony by Lanay Hamilton that she actually witnessed defendant place the gun in the toilet tank. This testimony was barred at the initial trial because of untimely disclosure by the State to defendant. Thus, testimony at the retrial would vastly increase the strength of the State's proofs on charges involving weapons.

4 We note that no suggestion of coercion arose from Hamilton's trial testimony. To the contrary, she testified that she wanted the police to search the premises and remove anything that might endanger the child living there.

5

Evidence at trial established that it was a Masterpiece Arms .45-caliber pistol that was loaded with thirty rounds of forty-five caliber auto ball ammunition and that it was in the fire mode. Police testimony established that the gun weighed ten pounds, whereas police service weapons weigh two to three pounds.

6

The judge stated, for instance: "This to me looked like the thing they used in the Predator to try to wipe out the entire force or the Germans had on Omaha Beach in the turrets. This could've wiped out a small village, this thing." And then: "It's like who on earth carries this thing around with them unless you're over in Iraq in a battle zone with al-Qaida. He's violated parole and he's carrying around a stinking machine gun basically."

7 Prior to the commencement of trial testimony, the prosecutor informed the court that Lanay Hamilton had spoken to his investigator on the preceding day and had informed him that her prior statement to the police was incorrect. She had, in fact, witnessed defendant placing the gun in the toilet tank, but that she had not come forward with that evidence previously because of threats by defendant if she were to testify to what she actually saw a circumstance that the prosecutor stated was common in the community where the residence was located. During the extended colloquy regarding the admissibility of the newly discovered evidence, the court expressed understandable frustration over this incident and prior incidents of witness intimidation. Nonetheless, because Lanay Hamilton's revised version of the facts had not been timely presented, the judge barred its introduction at trial. As a consequence, the State was limited to testimony that Lanay had heard defendant's activities upstairs but had not seen them.

Although defendant claims prejudice to his rights arising from this colloquy at trial, we find none.