STATE OF NEW JERSEY v. DANIEL SMITH

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5123-10T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DANIEL SMITH,

Defendant-Appellant.

_________________________________

November 18, 2013

 

Submitted September 23, 2013 Decided

 

Before Judges Ashrafi and Leone.

 

On appeal from Superior Court of New Jersey,

Law Division, Mercer County, Indictment No.

07-10-1055.

 

Joseph E. Krakora, Public Defender, attorney

for appellant (Kevin G. Byrnes, Designated

Counsel, on the brief).

 

John J. Hoffman, Acting Attorney General,

attorney for respondent (Frank Muroski,

Deputy Attorney General, of counsel and on

the brief).

PER CURIAM

Defendant Daniel Smith appeals from his conviction by a jury and his extended term sentence for being a convicted person in possession of a handgun. We affirm.

The relevant facts were developed through the testimony of the two arresting police officers at a pretrial suppression hearing and at defendant's trial. At about 10:00 p.m. on May 4, 2007, Trenton Police Detective Przemieniecki and Mercer County Sheriff's Officer Toth were patrolling in a high-crime area of Trenton in an unmarked Ford Crown Victoria. They received notification of a nearby shooting over their police radio. As they passed by defendant on the street, defendant crouched behind a van as if he was trying to conceal himself. Detective Przemieniecki continued to observe defendant as he turned his car around. He saw defendant take something from his waistband and place it near the gutter in the street.

Przemieniecki stopped the car and instructed Toth to detain defendant while Przemieniecki retrieved the item. It was a loaded .357 revolver with an obliterated serial number. As Przemieniecki was seizing the handgun, Toth handcuffed defendant and placed him in the police car.

In October 2007, a Mercer County grand jury charged defendant in a three-count indictment: (count one) third-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b); (count two) fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and (count three) second-degree possession of a firearm by a previously-convicted person, N.J.S.A. 2C:39-7(b). Defendant filed a motion to suppress the handgun as evidence at his trial. After a hearing at which both officers testified, the judge denied the motion.

Before defendant's trial, the State voluntarily dismissed the first two counts of the indictment and proceeded on only the third count. The two officers testified, as well as a third police witness who testified that the handgun was operable. Defendant did not testify and did not present any defense witnesses. The jury found defendant guilty.

The judge granted the State's motion to impose an extended term sentence because defendant was a persistent offender under the terms of N.J.S.A. 2C:44-3(a). Defendant was sentenced to eleven years in prison with five-and-a-half years before parole eligibility.

On appeal, defendant argues:

POINT I

 

THE DEFENDANT'S CONSTITUTIONAL RIGHTS WERE VIOLATED WHEN THE PROSECUTOR SUGGESTED THAT HER WITNESSES WERE CREDIBLE BECAUSE THE DEFENDANT DID NOT TESTIFY OR OTHERWISE PRODUCE EVIDENCE TO REFUTE THEIR TESTIMONY, AND THE TRIAL COURT EXACERBATED THE PREJUDICE BY IMPROPERLY SHIFTING THE BURDEN OF PROOF TO THE DEFENDANT (Not Raised Below).

 

A. The Prosecutor Improperly Used the

Defendant's Silence at Trial to Enhance the Credibility of Her Witnesses and Bolster the Strength of Her Case.

 

B. The Prosecutor Improperly Shifted the Burden of Producing Evidence and Persuading the Jury to the Defendant.

 

C. The Defendant's Right to Due Process of Law as Guaranteed by the Fourteenth Amendment to the United States Constitution was Violated When the Trial Court Improperly Shifted the Burden of Proof to the Defendant.

 

POINT II

 

THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW

AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO

THE UNITED STATES CONSTITUTION AND ART. I,

PAR. 1 OF THE NEW JERSEY CONSTITUTION WAS

VIOLATED BY THE TRIAL COURT'S ERRONEOUS INSTRUCTION ON THE LAW OF CONSTRUCTIVE POSSESSION. (Not Raised Below).

 

POINT III

 

THE DEFENDANT'S RIGHT TO BE FREE FROM UNREASONABLE SEARCHES AND SEIZURES AS GUARANTEED BY ART. I, PAR. 7 OF THE NEW JERSEY CONSTITUTION WAS VIOLATED. (Partially Raised Below).

 

A. The Defendant was Denied a Proper Review by a Neutral and Detached Magistrate.

 

B. The Defendant's Motion to Suppress Evidence Should Have Been Granted.

 

1. The Defendant Has Standing to Contest the Legality of the Search and Seizure.

 

2. The Investigative Detention of the Defendant was Unlawful.

 

C. The Seized Property Had Not Been Abandoned.

 

POINT IV

 

THE SENTENCE IS EXCESSIVE. (Partially

Raised Below).

 

A. The Imposition of a Discretionary Persistent Offender Extended Term Should Be Vacated (Partially Raised Below).

 

1. The Multiple Doubling of the Sentence Based on the Defendant's Prior Record Constitutes Double Punishment For the Commission of a Single Offense. (Not Raised Below).

 

2. The Trial Court's Decision to Impose a Discretionary Extended Term was Unsupported by the Record.

 

B. The Aggravating and Mitigating Factors Were Improperly Balanced.

We find no merit in these arguments.

I.

Defendant contends that his Fifth Amendment right against self-incrimination was violated by a single comment imbedded in the prosecutor's closing argument. The prosecutor was discussing testimony that Detective Przemieniecki saw defendant place an object in the street and then recovered the revolver from that same spot. The prosecutor stated to the jury: "[H]e recovers it from the exact location where he saw the defendant place it. No one else was around that area. You haven't heard any testimony from anyone that there was anyone else in the area and that happened along when the gun was recovered."

Defendant argues that the reference to absence of testimony "from anyone" that any other person was in the area violated his constitutional right not to testify at the trial. He cites cases that prohibit a prosecutor from commenting to the jury about a defendant's election not to testify. See, e.g., Griffin v. California, 380 U.S. 609, 613-15, 85 S. Ct. 1229, 1232-33, 14 L. Ed. 2d 106, 109-10 (1965); State v. Deatore, 70 N.J. 100, 115 (1976); State v. Pickles, 46 N.J. 542, 579 (1966). He also argues that the same comment suggested to the jury that defendant had a burden of producing evidence in his defense. He contends that such a prosecution argument violates the Fourteenth Amendment due process right of a defendant not to produce any evidence and to rely instead on the presumption of innocence and the State's burden of proving his guilt beyond a reasonable doubt. See In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368, 375 (1970); State v. Hill, 199 N.J. 545, 558-59 (2009); State v. Anderson, 127 N.J. 191, 200-01 (1992). Because he did not object at the time of trial, defendant's contentions are subject to the plain error standard of review. State v. Feal, 194 N.J. 293, 312 (2008).

We disagree with defendant that the single comment we have quoted implied to the jury that defendant should have testified or had the burden of producing evidence. Rather, in the overall context of the prosecutor's closing argument, it was a comment about the evidence that the jury heard from the State's two police witnesses who made the arrest.

Furthermore, the prosecutor's comment was in response to remarks of defense counsel in both his opening statement and summation that the police dispatch that night referred to 150 people being involved in a street fight near the site of the reported shooting. Defense counsel suggested to the jury that the gun could have belonged to any of those other persons. The prosecutor's comment merely focused the jury on the testimony of the police witnesses that no one else was near the location where defendant was observed placing the gun, and so, the gun could not have belonged to anyone else on the street.

A prosecutor may make a measured response to defense arguments. United States v. Young, 470 U.S. 1, 12, 105 S. Ct. 1038, 1045, 84 L. Ed. 2d 1, 11 (1985); State v. Murray, 338 N.J. Super. 80, 88 (App. Div.), certif. denied, 169 N.J. 608 (2001); State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991). There was no violation of defendant's constitutional rights in the prosecutor's comment about the evidence.

Additionally, defense counsel at the trial did not react to the prosecutor's comment by raising an objection, thus further bolstering our conclusion that the comment did not implicate defendant's constitutional rights as appellate counsel now contends. If no objection was made to summation comments, they will usually be deemed not to have been prejudicial. See State v. Ramseur, 106 N.J. 123, 322-23 (1987). Defendant has not shown plain error in the prosecutor's summation comment. See Feal, supra, 194 N.J. at 312.

II.

Defendant argues that the trial court committed plain error in instructing the jury incorrectly on the concept of constructive possession.

In conformity with Model Jury Charge (Criminal), "Certain Persons Not to Have Any Firearms, N.J.S.A. 2C:39-7(b)(1)" (2005), the trial judge instructed the jury that possession of the gun required proof of defendant's "knowing, intentional control of that item accompanied by a knowledge of its character." The court then added instructions on the concept of constructive possession. Again following the model jury charge, ibid., the court stated:

Constructive possession is a different form of possession. Now, as I just stated, a person who with knowledge of its character knowingly has direct physical control over a thing at a given time actually possesses it. Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware the item is present and is able to exercise intentional control or dominion over it. So someone who has knowledge of the character of an item and knowingly has both the power and the intention at a given time to exercise control over it either directly or through another person or persons is then in constructive possession of that item.

 

[Emphasis added.]

 

Defendant focuses on only the first underscored clause and argues that it is not sufficient to prove that the person had the ability to exercise dominion and control over an item. The second underscored part of the charge, however, clearly informed the jury that defendant must not only have had the ability to exercise control over the handgun but must also have intended to do so. A phrase or clause in the charge should not be viewed in isolation. State v. Cagno, 211 N.J. 488, 514-15 (2012) , cert. denied, ___ U.S. ___, 133 S. Ct. 877, 184 L. Ed. 2d 687 (2013); State v. Wilbely, 63 N.J. 420, 422 (1973). There was no error in the jury charge on constructive possession.

III.

Defendant contends that the gun should have been suppressed because it was seized in violation of his State constitutional rights. N.J. Const. art. 1, para. 7. He contends the police did not have reasonable suspicion or probable cause to detain him, and their seizure of the gun resulted from exploitation of that initial violation of his constitutional rights. We disagree.

Preliminarily, we will assume that defendant had automatic standing under State constitutional law to challenge the seizure of the handgun from the street. See State v. Alston, 88 N.J. 211, 228-29 (1981). We also will not rely on the State's argument that defendant abandoned the gun by placing it near a gutter in the street. See State v. Carvajal, 202 N.J. 214, 222-29 (2010).

The trial court correctly denied defendant's motion to suppress. The police were investigating the report of a nearby shooting. Their observation of furtive conduct by defendant, namely, attempting to conceal himself from view and then taking something from his waistband and placing it near the gutter, gave them reasonable suspicion to conduct further investigation by means of a temporary detention of defendant to determine whether he was involved in the shooting incident. See Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880, 20 L. Ed. 2d 889, 906 (1968).

Once the police observed the gun in plain view in the street, they had probable cause to seize it as evidence of a crime. See Coolidge v. New Hampshire, 403 U.S. 443, 465-68, 91 S. Ct. 2022, 2037-39, 29 L. Ed. 2d 564, 582-84 (1971); State v. Johnson, 171 N.J. 192, 206-07 (2002); State v. Bruzzese, 94 N.J. 210, 236 (1983), cert. denied, 465 U.S. 1030, 104 S. Ct. 1295, 79 L. Ed. 2d 695 (1984). The gun was in a public location visible to anyone that might be walking in that area of the street, including the police. The police did not conduct a search before seizing the gun.

Both officers testified, and the trial judge found, that Detective Przemieniecki saw the gun before Toth detained and handcuffed defendant. Even if Toth's handcuffing of defendant and placing him in the police car extended beyond the scope of a proper Terry stop and detention, the police had independent reasonable suspicion to investigate what defendant had placed near the gutter. That reasonable suspicion developed before the police in any way intruded upon defendant's freedom of movement. The seizure of defendant's person by Officer Toth did not prompt him to discard the gun, as were the relevant facts in State v. Tucker, 136 N.J. 158, 162 (1994). The discovery and seizure of the gun was not a fruit of the allegedly unconstitutional police conduct.

Nor do we find any relevance in defendant's argument that the trial judge improperly questioned Officer Toth to fill a gap in the State's proofs during the suppression hearing. The court questioned Toth about his experience with persons in the street recognizing that a Crown Victoria is an unmarked police car. But that questioning did not affect testimony about what Detective Przemieniecki observed, which provided reasonable suspicion to investigate further whether the item defendant placed in the street was a weapon or other contraband. Moreover, since the gun was in plain view in the street, the detective did not violate defendant's constitutional rights by getting a closer look at it and then seizing it when it was determined to be a gun. See State v. Sharpless, 314 N.J. Super. 440, 454 (App. Div.), certif. denied, 157 N.J. 542 (1998); State v. Burgos, 185 N.J. Super. 424, 426 (App. Div. 1982). Once he saw that the item was a revolver, he needed neither a warrant nor defendant's consent to seize the gun.

In sum, there was no error in admission of the gun at defendant's trial.

IV.

We find no error in the imposition of an extended term sentence of eleven years imprisonment with five-and-a-half years of parole ineligibility. Defendant's criminal record included five prior indictable convictions, a number of municipal court convictions, and multiple juvenile adjudications. The criminal record showed that defendant has been committing drug and assault-type crimes since the age of eleven. There is no dispute that he was eligible for a discretionary extended term under N.J.S.A. 2C:44-3(a).

Defendant argues that the court double- and triple-counted his prior convictions because they were necessary for the extended term sentence but also were used to find aggravating factors three and six, N.J.S.A. 2C:44-1(a)(3), (6). However, the number of prior convictions exceeded the minimum required to sentence him as a persistent offender.

Finally, the sentencing court did not err in rejecting defendant's proposed mitigating factors, namely, that his conduct did not cause serious harm and that he did not contemplate his conduct would cause serious harm, N.J.S.A. 2C:44-1(b)(1), (2). See State v. Bieniek, 200 N.J. 601, 608-09 (2010). Possession of a handgun by a person who has been convicted several times of indictable and other offenses does threaten serious harm to the public safety. We find no abuse of discretion in the sentence imposed. State v. Carey, 168 N.J. 413, 430 (2001); State v. Roth, 95 N.J. 334, 364-65 (1984).

Affirmed.