STATE OF NEW JERSEY v. TAMICA R. RUFFIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0672-09T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TAMICA R. RUFFIN,

Defendant-Appellant.

_____________________________

November 20, 2012

Submitted October 29, 2012 - Decided

Before Judges Parrillo and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-01-00033.

Eldridge Hawkins, attorney for appellant.

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Brian D. Gillet, Assistant Prosecutor, of counsel; Matthew Tallia, of counsel and on the brief).

PER CURIAM

Defendant appeals from her convictions for harassment, N.J.S.A. 2C:33-4; fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5d; and third-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4d. We affirm.

Defendant, then an employee of the New Jersey Division of Youth and Family Services (DYFS),1 spotted the victim's vehicle and tailgated her. When the victim stopped at a red light, defendant stopped her vehicle, exited, approached the victim's vehicle while displaying a knife and/or plastic letter opener, leaned into the front passenger window, and then stabbed the victim's backpack. The victim testified that the object was a "switchblade knife" with a black handle and a silver blade that was "about four or five inches long." The light turned green and the victim drove away.

Defendant then followed the victim into a nearby store's parking lot, where the victim phoned the police. Defendant yelled, "I have your license plate down. I'm going to find out where you live. I'm going to come and f____ you and your family up. I'm going to blood gut you guys. Don't worry, I got you." The victim informed defendant that she was on the phone with a 9-1-1 dispatcher, and then defendant left.

Police officers met with the victim and investigated the incident. Detectives Sean Forker and Alan Sciarrillo found defendant at her apartment complex where she initially denied involvement in the incident, but then agreed to speak with Detective Forker. Thereafter, she waived her Miranda2 rights and gave her statement to the detective, who then arrested defendant and charged her with terroristic threats, unlawful possession of a weapon, and possession of a weapon for an unlawful purpose.

The judge conducted a six-day jury trial in June 2010. The judge sentenced defendant to the county jail for 364 days and suspended the sentence. He then imposed a five-year probation term and barred defendant from holding public office or employment.

Defendant raises the following points on appeal:

POINT I:

THERE WAS NO CRIME COMMITTED UNDER N.J.S.A. 2C:39-4(1)(d) (THIRD DEGREE) AND N.J.S.A. 2C:39-5d (FOURTH DEGREE) AS THE DEFINITION OF WEAPON REQUIRES SOMETHING CAPABLE OF LETHAL USE OR INFLICTING SERIOUS BODILY INJURY.

POINT II:

THE PROSECUTOR, IN HER RESPONSE TO A GRAND JUROR'S QUESTION AS TO WHAT IS THE DIFFERENCE BETWEEN A "LETTER OPENER" AND A "KNIFE," GAVE AN INCORRECT AND IMPROPER RESPONSE, WHICH CAUSED DEFENDANT TO WRONGFULLY BE INDICTED.

POINT III:

THE JUDGE'S INSTRUCTIONS TO THE JURY HAD TO BE DEFICIENT AS THERE ARE NO DEFINITIONS OF "LETHAL" OR "SERIOUS BODILY INJURY" THAT PERTAIN TO TITLE 39 OF 2C.

POINT IV:

DEFENDANT'S MOTIONS, INTER ALIA, SHOULD HAVE BEEN MADE UNDER N.J.S.A. 2C:2-11 (DE MINIMUS) TO THE ASSIGNMENT JUDGE TO DISMISS THE PROSECUTION AND WAS NOT, WHICH THUSLY CONTRIBUTED TO DEFENDANT BEING DEPRIVED OF "EFFECTIVE COUNSEL" IN HER DEFENSE.

POINT V:

THE FORFEITURE STATUTE DOES NOT ALLOW FORFEITURE IN A CASE LIKE THIS WHEN NO CRIME WAS COMMITTED DURING THE EMPLOYMENT OR RELATED TO SUCH PUBLIC OFFICE.

We reject defendant's argument that because the plastic letter opener was not capable of lethal use or of inflicting serious bodily injury, her weapons-related convictions are not legally sound.

N.J.S.A. 2C:39-1r defines "weapon," in relevant part, as "anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all . . . (3) . . . switchblade knives . . . or other dangerous knives." "[A]lmost every object, animate or inanimate, can be used as a deadly weapon under certain circumstances." State v. Burford, 321 N.J. Super. 360, 364 (App. Div. 1999) (citing State v. Villar, 150 N.J. 503, 513 (1997) (noting that a beer stein can be considered a deadly weapon), certif. denied, 155 N.J. 587 (1998)), aff'd, 163 N.J. 16 (2000); see State v. Harmon, 104 N.J. 189, 210 (1986) (recognizing that a golf club or baseball bat can be a deadly weapon); State v. Dishon, 222 N.J. Super. 58, 62 (App. Div. 1987) (finding that a pipe was a deadly weapon by the manner in which it was used or intended to be used), certif. denied, 117 N.J. 147 (1989). We agree with the judge that the plastic letter opener had a "sharp point" that could "kill" someone by "go[ing] right through the heart" or "hit[ting] . . . an artery."

Defendant argues that the assistant prosecutor provided improper information to the grand jury during the following exchange:

[GRAND JUROR]: What's the difference between a knife and a letter opener?

[PROSECUTOR]: For all intents and purposes[,] not much. The statute is other weapons, sharp objects, knives[,] which al[l] sort of fall under the same consideration. But because of the unclear nature of whether it was in fact a knife or letter opener, that's why I'm recommending that we call it knife and/or letter opener. . . .

Even if the prosecutor improperly answered the juror's question, such "error was rendered harmless by the subsequent guilty verdict." State v. Ball, 268 N.J. Super. 72, 120 (App. Div. 1993) (finding harmless error by subsequent guilty verdict where grand jury instructions may have been erroneous), aff'd, 141 N.J. 142 (1995), cert. denied sub nom. Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed. 2d 731 (1996).

Defendant argues that the judge erred by failing to charge the jury on the definitions of "lethal," "dangerous," and "serious bodily injury." We disagree.

It is well settled that appropriate and proper jury charges

are essential in a criminal case to assure a fair trial. State

v. Reddish, 181 N.J. 553, 613 (2004); State v. Green, 86 N.J.

281, 287 (1981). When a defendant identifies an error in the

charge, we must evaluate the charge in its entirety. State v. Hunt, 115 N.J. 330, 373, recons. denied, 117 N.J. 152 (1989); State v. Wilbely, 63 N.J. 420, 422 (1973). When a defendant fails to object to the alleged error at trial, we must apply the plain error standard of review. State v. Wakefield, 190 N.J. 397, 473 (2007), cert. denied sub nom. Wakefield v. New Jersey, 552 U.S. 1146, 128 S. Ct. 1074, 169 L. Ed. 2d 817 (2008). Because defendant did not object to the charge, we must determine whether any error contributed to an unjust and unwarranted result. Id. at 471; R. 2:10-2. Here, there was no error. The judge provided the jury with the definition for "serious bodily injury," but did not define "lethal" or "dangerous"; instead, their plain meanings sufficed. State v. Fleischman, 189 N.J. 539, 545 (2007).

Defendant argues that she was deprived of effective assistance of counsel because her prior attorney did not raise certain issues, did not call witnesses,3 and did not file necessary motions. Defendant asserts that prior counsel should have moved for a "de minimus" application "based upon her 'plastic letter opener' not being a 'weapon,'" and a motion to strike the indictment based on the prosecutor's answer to the grand juror's question. Last, defendant argues that defendant's trial counsel "allowed multiple alleged 'statements of truth' to be submitted to the jury," which should not have been allowed. We deem these claims premature and not appropriate in this direct appeal.

To establish ineffective assistance of counsel, a defendant bears the onerous burden of proving two essential elements: (1) that trial counsel "performed below a level of reasonable competence"; and (2) "'a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Fritz, 105 N.J. 42, 60-61 (1987) (quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2068, 80 L. Ed. 2d 674, 694 (1984)). Our Supreme Court has expressed a preference for resolving ineffective assistance of counsel claims on collateral review. State v. Preciose, 129 N.J. 451, 459-60 (1992). However, where the allegedly deficient conduct is a matter wholly within the trial record, an appellate court may review the claim on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006). Because defendant's claims rest upon evidence outside the record, they are not ripe for direct review.

Finally, defendant argues that N.J.S.A. 2C:51-2 does not allow for forfeiture of public office because no crime was committed during defendant's employment or related to her employment. DYFS employed defendant at the time of the incident, suspended her by the time the trial commenced, and terminated her before sentencing. The judge barred defendant from public office pursuant to N.J.S.A. 2C:51-2a(1), which provides that

a. A person holding any public office, position, or employment, elective or appointive, under the government of this State or any agency or political subdivision thereof, who is convicted of an offense shall forfeit such office, position[,] or employment if:

(1) He is convicted under the laws of this State of an offense involving dishonesty or of a crime of the third degree . . . .;

[(Emphasis added).]

Defendant contends that the judge erred by barring her from public employment permanently, however, the judge indicated that she could move for an expungement at the appropriate time. See In re Forfeiture of Pub. Office of Nunez, 384 N.J. Super. 345, 349 (App. Div.) (stating "that forfeiture of public employment is a 'collateral consequence' of a criminal conviction[,] which is eliminated by an order of expungement," with respect to offenses that do not involve or touch upon the petitioner's public employment (citation omitted)), certif. denied, 187 N.J. 491 (2006), overruled in part on other grounds by In re Expungement Petition of D.H., 204 N.J. 7 (2010). Here, defendant committed the offense while employed by DYFS. As a result, the judge properly barred defendant from holding public office.

We have carefully considered defendant's remaining arguments in light of the record and applicable legal principles and conclude that her arguments are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(2).

1 DYFS is now known as the Division of Child Protection and Permanency. L. 2012, c. 16, eff. June 29, 2012.

2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

3 Defendant does not discuss the alleged issues in any detail and does not discuss which witnesses should have been called. "It is not the appellate court's duty to search the record to substantiate [the defendant's] argument." Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 482 n.12 (App. Div.), certif. denied, C-4 (N.J. Sept. 21, 2012).