STATE OF NEW JERSEY v. STEPHEN P. IANIERI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2009-11T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

STEPHEN P. IANIERI,

Defendant-Appellant.

____________________________________

October 22, 2013

 

Submitted September 23, 2013 Decided

 

Before Judges Yannotti and Ashrafi.

 

On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment Nos. 10-05-0187 and 10-05-0188.

 

Joseph E. Krakora, Public Defender, attorney for appellant (Alicia J. Hubbard, Assistant Deputy Public Defender, of counsel and on the brief).

 

Anthony P. Kearns, III, Hunterdon County Prosecutor, attorney for respondent (Jeffrey L. Weinstein, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Stephen Ianieri appeals from the judgments of conviction entered by the trial court on July 29, 2011, after a jury found him guilty of unlawful possession of rifles and hollow-point bullets and he subsequently pleaded guilty to another weapons charge. For the reasons that follow, we affirm.

I.

Defendant was charged under Hunterdon County Indictment No. 10-05-0187 with third-degree unlawful possession of rifles, contrary to N.J.S.A. 2C:39-5(c), and fourth-degree unlawful possession of hollow-point bullets, contrary to N.J.S.A. 2C:39-3(f). Defendant was also charged under Hunterdon County Indictment No. 10-05-0188 with second-degree certain persons not to have weapons, contrary to N.J.S.A. 2C:39-7.

Defendant filed a motion to suppress statements made to the officer at the scene of the traffic stop, during which the rifles and ammunition were seized. The trial court denied the motion. Thereafter, the court conducted a jury trial on the charges in Indictment No. 10-05-0187.

At the trial, Delaware Township police officer Jason Marrero testified that on October 28, 2009, at 7:09 p.m., he stopped a blue Ford F-150 pick-up truck that was traveling northbound on Route 29. Marrero stopped the vehicle because it did not have a license plate light. Marrero spoke with the driver, whom he later identified as defendant, and asked for his driving credentials. As Marrero spoke with defendant, he observed two rifles in plain view. One was a .22 caliber weapon, which was wedged in the back seat. The other was an SKS 7.62 rifle, which was in a case lying on the floor of the truck.

Marrero asked defendant about the rifles. Defendant initially said they were pellet guns, but he corrected himself and stated that there was a .22 caliber rifle in the rear seat. Marrero asked defendant if he had a firearms purchaser identification card. Defendant said he was not aware he required the card.

Marrero returned to his vehicle to check defendant's driving credentials. As he was doing so, Marrero noticed that defendant had stepped out of his vehicle. Marrero thereupon placed defendant under arrest for unlawful possession of weapons.

Marrero searched defendant's vehicle. He found a spent .22 caliber casing on the driver's side floor, and another casing on the ground beside the truck. Marrero also found other rounds of .22 bullets in the vehicle, along with hollow-point rounds for the 7.62 rifle. Marrero said both rifles were loaded with ammunition. Defendant told Marrero he was coming from work and was on his way to the residence of a friend, Christopher Beebe.

State Trooper James Joyce testified as an expert in ballistics. Joyce said that the .22 caliber rifle had a red substance and debris in the breach, but could be easily restored to operability. The SKS 7.62 rifle was operable, and four of the bullets in the rifle's "stripper clip" were hollow-point bullets. Joyce checked the records of the State Police's firearms unit and determined that defendant had never applied for a New Jersey firearms purchaser identification card and such a card had never been issued to him.

After the State rested its case, defendant made a motion for a judgment of acquittal, pursuant to Rule 3:18-1. The judge denied the motion. The judge determined that the State had presented sufficient evidence to support the charges.

Beebe then testified for the defense. Beebe said he had been living in Pennsylvania at the time defendant was arrested on these charges. He recognized the rifles found in defendant's truck. According to Beebe, both belonged to his son. His son's grandfather had purchased the .22 caliber rifle in Virginia. Beebe had purchased the SKS rifle at a gun shop in Pennsylvania. Beebe and his son used the rifles for target shooting.

Beebe further testified that defendant was a general contractor. Defendant had done some work on Beebe's residences, and Beebe established a personal relationship with him. Beebe said he took the rifles to a site in Pennsylvania where defendant was working.

Beebe could not recall with whom he left the rifles, but he did not believe he left them with defendant. Beebe thought this may have occurred toward the end of 2008. Beebe said it was his understanding that whoever obtained the rifles would use them only in target practice and return the weapons to him at some point.

Alex Lukynyuk also testified for the defense. He testified that he had worked on certain tiling projects for defendant. He was familiar with a property in Stockton, New Jersey, where defendant stored his tools and left his vehicles from time-to-time. Before defendant's arrest, Lukynyuk and a few other persons would use the Stockton property for practice shooting. Lukynyuk said he may have used the two rifles that were recovered from defendant's truck.

Lukynyuk never saw defendant shoot a gun. He said defendant has been "against guns" as long as he has known him. Lukynyuk suggested to a person named Joseph Adams that they store the rifles in the truck on the Stockton property, because the truck had been there several weeks and its registration stickers had expired.

Lukynyuk believed the truck was a good place to put the rifles because it could be locked. He said he would not have stored the rifles in the truck if he thought the truck was going to be driven. Lukynyuk was with Adams when the rifles were placed in the truck, and Lukynyuk removed the ammunition from the rifles. Lukynyuk said he would never leave a loaded gun in a vehicle.

The jury found defendant guilty of unlawful possession of the rifles and the hollow-point bullets. On March 11, 2011, defendant pleaded guilty to the certain persons not to have weapons charge. On May 20, 2011, defendant filed a motion to withdraw his plea and a motion for a new trial or acquittal on the charges in Indictment No. 10-05-0187.

On June 17, 2011, the judge denied defendant's motion for a new trial or acquittal, but granted defendant's motion to withdraw the guilty plea. On July 29, 2011, defendant again entered his guilty plea to the certain persons charge.

The judge sentenced defendant to five years of incarceration, with a three-year period of parole ineligibility, for unlawful possession of the rifles, and eighteen months for unlawful possession of the hollow-point bullets. In addition, the judge sentenced defendant to five years of incarceration, with five years of parole ineligibility, for the certain persons offense. The judge ordered that the sentences be served concurrently. Judgments of conviction were entered on July 29, 2011.

Defendant appeals and raises the following arguments for our consideration:

POINT I

THE TRIAL JUDGE'S FAILURE TO PREVENT THE JURY FROM HEARING THE UNREDACTED TESTIMONY OF OFFICER MARRERO, WHICH CONTAINED IMPROPER 404(B) EVIDENCE, DENIED DEFENDANT A FAIR TRIAL (PARTIALLY RAISED BELOW).

 

POINT II

BECAUSE THE STATE FAILED TO PROVE BEYOND A REASONABLE DOUBT THAT DEFFENDANT KNEW HE POSSESSED THE RIFLES THE GUILTY VERDICT ON COUNT ONE OF INDICTMENT 10-05-0187 WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED (U.S. CONST. AMENDS. V, VI, AND XIV; N.J. CONST. (1947), ART I. PARS. 1, 9 AND 10).

 

POINT III

THE SENTENCE WAS EXCESSIVE AS THE COURT FAILED TO PROPERLY WEIGH THE AGGRAVATING AND MITIGATING FACTORS IN SENTENCING DEFENDANT TO A FIVE YEAR TERM OF INCARCERATION WITH A THREE-YEAR PERIOD OF PAROLE INELIGIBILITY.

 

II.

Defendant first contends that he was denied a fair trial because Officer Marrero made reference to alcohol when testifying about the traffic stop. Defendant says the error was compounded when a videotape of Marrero's testimony was played back during the jury's deliberations. In our view, these arguments are entirely without merit.

The record shows that Marrero initially testified in a pre-trial hearing on defendant's motion to suppress statements he made during the traffic stop. At the hearing, Marrero stated that when he stopped defendant's truck, defendant fumbled when asked for his credentials. Defendant's speech was slurred and his eyes were glassy. Marrero detected the odor of alcohol coming from the vehicle.

Marrero asked defendant if he had been drinking and defendant replied that he had had a beer after work. Marrero said that, when he searched the truck, he found certain alcohol-related items, specifically a cup with a liquid substance that smelled of alcohol, a bottle of gin and an open beer bottle.

Marrero asked defendant to perform certain field sobriety tests upon their arrival at police headquarters. After these tests, Marrero came to the conclusion that he had probable cause to believe that defendant had been operating his vehicle under the influence of alcohol. Tests were later performed, which indicated that defendant's blood alcohol content was .07 percent.

The judge ruled that the State could not elicit any testimony from Marrero at trial concerning his detection of the odor of alcohol emanating from the vehicle "or anything like that" because such testimony had nothing to do with the charges in the indictment.

At the trial, Marrero testified as follows, in response to questions by the assistant prosecutor:

* * *

Q. Okay. Officer, I'm showing you what's been marked S-1 at a previous hearing. What is that?

 

A. That is the evidence from or that's the alcohol that

 

Q. Is that the bag with the items that you took out of the car?

 

A. Yes.

 

Q. Could you go through the bag please for me? What do you have in your hand, sir?

 

A. S-7.

 

Q. And what is that, sir?

 

A. Three spent .22 casings.

 

* * *

 

Moreover, during its deliberations, the jury requested a copy of the transcript of Marrero's testimony. The judge advised counsel that there was no transcript but a video recording of the testimony could be played if counsel agreed. Defendant's counsel had no objection to playing the recording and did not request that Marrero's reference to alcohol be deleted. The videotape of Marrero's testimony was played for the jury.

In his motion for a new trial or acquittal, defendant argued that he had been prejudiced by Marrero's references to alcohol. The judge found no merit in the argument, noting the reference to alcohol was a passing comment and it was not highlighted in any way. The judge stated that defense counsel had objected to the comment and the objection had been discussed at side bar. It should be noted, however, that the discussion is not reflected in the trial transcript.

The judge added that all counsel agreed that a curative instruction was not required because "there was nothing to cure." The judge stated that if the jury heard Marrero's comment, it did not mean anything "because it was mentioned so quickly." The judge said Marrero's reference to alcohol was inadvertent. The judge determined that the comment did not rise to the kind of prejudice that would warrant a new trial.

"In any trial, 'inadmissible evidence frequently, often unavoidably, comes to the attention of the jury.'" State v. Yough, 208 N.J. 385, 397 (2011) (quoting State v. Winter, 96 N.J. 640, 646 (1984)). "[W]hen inadmissible evidence erroneously comes before the jury, an appellate court should not order a new trial unless the error was 'clearly capable of producing an unjust result.'" Id. at 397-98 (citing R. 2:10-2; State v. Frisby, 174 N.J. 583, 591 (2002)).

Here, the record supports the judge's determination that defendant was not prejudiced by Marrero's reference to alcohol. As the judge found, the reference was brief, inadvertent and not highlighted in any way. Marrero's mention of alcohol had no bearing upon the charges at issue, and was not clearly capable of producing an unjust result.

III.

Defendant further argues that the State failed to prove beyond a reasonable doubt that he knowingly possessed the rifles found in his truck. Defendant therefore contends that the judge should have granted his motion for a judgment of acquittal. Again, we disagree.

In considering whether to grant a motion for acquittal, the trial judge must view "the State's evidence in its entirety," give "the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom," and determine whether "a reasonable jury could find guilt of the charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967). If the State's evidence meets this standard, the motion must be denied. State v. Spivey, 179 N.J. 229, 236 (2004).

As we have explained, during the traffic stop, Marrero observed the two rifles in plain view in defendant's truck. One rifle was wedged in the back seat and the other rifle was in a case lying on the floor of the truck. In addition, defendant told Marrero he did not have a firearms purchaser identification card.

We are convinced that the evidence was sufficient to support defendant's conviction for violating N.J.S.A. 2C:39-5(c), which states that a person is guilty of a crime of the third degree if he "knowingly has in his possession any rifle or shotgun without having first obtained a firearms purchaser identification card in accordance with" N.J.S.A. 2C:58-3.

"A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence." N.J.S.A. 2C:2-2. Furthermore, a person has actual possession of an object if he has physical or manual control of it. State v. Brown, 80 N.J. 587, 597 (1979). In addition, a person constructively possesses an object if it can be reasonably inferred "that he has knowledge of its presence, and intends or has the capacity to exercise physical control or dominion over it during a span of time." Spivey, supra, 179 N.J. at 236-37 (quoting State v. Schmidt, 110 N.J. 258, 270 (1988)).

The evidence that the State presented at trial, along with the reasonable inferences that could be drawn from that evidence, was sufficient to establish that defendant knowingly had either actual or constructive possession of the rifles found in his truck. As we stated previously, Marrero testified that the rifles were in plain view. The jury could reasonably infer that defendant knew the rifles were in the truck. The jury could also reasonably find that the rifles were within defendant's reach and his control. Accordingly, we conclude that the judge correctly determined that defendant was not entitled to a judgment of acquittal.

IV.

Defendant additionally argues that his sentence for possession of the rifles is excessive. Here, the judge found aggravating factors three, N.J.S.A. 2C:44-1(a)(3) (risk that defendant will commit another offense); six, N.J.S.A. 2C:44-1(a)(6) (extent of defendant's prior record and the seriousness of the offenses of which he has been convicted); and nine, N.J.S.A. 2C:44-1(a)(9) (need to deter defendant and others from violating the law).

The judge also found mitigating factor four, N.J.S.A. 2C:44-1(b)(4) (substantial grounds tending to excuse or justify defendant's conduct). The judge determined that the aggravating factors substantially outweighed the mitigating factor. As stated previously, the judge sentenced defendant to five years of imprisonment, with a three-year period of parole ineligibility, for possession of the rifles.

Defendant argues that the judge should have found mitigating factor eleven, N.J.S.A. 2C:44-1(b)(11) (defendant's incarceration will entail excessive hardship to defendant or his dependents). At sentencing, defendant's attorney stated that defendant provides financial support for his family. He also claimed that defendant provides emotional support for his father, who was suffering from a serious illness.

We are not convinced that these assertions required the judge to find mitigating factor eleven. Defendant did not show that the hardship claimed would be excessive. While defendant's incarceration might entail some hardship to his family, it is substantially the same as the hardship experienced by family members of other incarcerated persons.

We note additionally that, even if the judge had found mitigating factor eleven and imposed a shorter sentence for the unlawful possession of the rifles, it would not have resulted in a shorter sentence for his conviction on the certain persons charge. N.J.S.A. 2C:39-7(b)(1) provides in pertinent part that the term of imprisonment for the certain persons offense "shall include the imposition of a minimum term, which shall be fixed at five years, during which the defendant shall be ineligible for parole." Ibid. The judge imposed the minimum sentence for that offense.

We conclude that defendant's sentence is not manifestly excessive or unduly punitive, does not represent an abuse of the judge's sentencing discretion, and does not shock the judicial conscience. See State v. O'Donnell, 117 N.J. 210, 215-16 (1989); State v. Roth, 95 N.J. 334, 363-65 (1984).

V.

Defendant also argues that if his convictions for possession of the rifles and ammunition are reversed, then his guilty plea on the certain persons charge should be set aside. When defendant entered his plea, defendant stated he was doing so with the understanding that it would be set aside should the convictions for possessing the rifles and hollow-point bullets be reversed on appeal.

We have determined that defendant's convictions for unlawful possession of the rifles and ammunition must be affirmed. Therefore, defendant's argument is moot.

 

Affirmed.