A-0STATE OF NEW JERSEY IN THE INTEREST OF A.P., a minor June 12, 2014

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY IN THE

INTEREST OF A.P., a minor.

_________________________________

June 12, 2014

Submitted May 19, 2014 Decided

Before Judges Kennedy and Guadagno.

On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-0016-12.

Joseph E. Krakora, Public Defender, attorney for appellant A.P. (Emily A. Kline, Designated Counsel, on the brief).

Grace H. Park, Acting Union County Prosecutor, attorney for respondent State of New Jersey (Sara B. Liebman, Special Deputy AttorneyGeneral/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

A.P., a juvenile, appeals from an adjudication of delinquency entered by the Family Part following trial on a complaint alleging two counts of unlawful possession of a weapon. A.P. argues that the evidence was insufficient to support the Family Part judge's finding that he constructively possessed the two handguns and that the judge erred in not merging the two offenses. The latter argument was first raised on appeal. We affirm A.P.'s adjudication of delinquency based upon the findings and conclusions of Judge Robert Kirsch set forth in his thorough and thoughtful written decision of May 15, 2012, but remand to correct the order of disposition to reflect the merger of the two counts.

We discern the facts from the record. On July 3, 2011, at approximately 11:00 p.m., Linden Police Officer Matthew Jones was on patrol when he saw a Honda Civic parked unlawfully on a one-way street, where it remained for fifteen minutes partially obstructing the passage of other vehicles on the street. He intended to approach the car to issue a summons, when he saw it pull away from the curb and enter a local highway. The officer followed the Honda and was joined by two other police officers, Rick Bachman and Javier Perez, who were also on patrol that evening and had heard his dispatch to police headquarters.

The Honda turned off the highway onto a local road and passed through a stop sign without stopping. At that point, Jones activated the overhead lights on his police vehicle and the Honda pulled over. The officers stopped about ten feet behind the Honda and observed the rear-seat passengers remove their seatbelts. The rear-seat passengers turned to look at the officers and then bent to the floor of the vehicle several times, like they were "digging into the floor." Jones and Bachman approached the driver's side of the car and Perez approached the passenger side.

Two females occupied the front of the car, while two males were seated in the rear. Jones told the occupants of the car to show their hands, but the males in the rear seats did not immediately comply with that order. Jones had to repeat the order twice before the males in the rear of the car showed their hands.

Jones removed A.P., the male who occupied the rear seat on the driver side, from the vehicle, and brought him to the trunk of the car to undertake a "pat down" search. Perez removed the other male from the rear passenger side seat and Bachman ordered the females in the front seat to keep their hands visible. After Perez finished his "pat down" search, he looked into the vehicle and saw the handle of a handgun protruding from a bag on the rear passenger side floor of the Honda. After signaling to the other officers to arrest and handcuff the occupants of the vehicle, Perez retrieved a loaded .44 caliber revolver from the bag and cleared the weapon.

As he watched Perez clear the handgun, A.P. stated he knew nothing about "those." Bachman, meanwhile, had recovered a .38 caliber bullet from the other male passenger who had been sitting next to A.P. in the rear of the car. Believing there may be another weapon in the car, Bachman looked into the back seat area and saw a rolled up sweatshirt tucked beneath the back of the driver's seat directly in front of where A.P. had been sitting. The officers found a .38 caliber revolver rolled up inside that sweatshirt. Several .44 and .38 caliber bullets were found in the bag that had been on the floor of the rear passenger side of the car, and a pair of latex gloves were recovered from A.P.'s pocket.

At trial, A.P. testified that he had not known of the presence of the handguns in the car, and that the bag belonged to the other male passenger, whom he described as a "casual friend." He added that when he stated he knew nothing about "those," he was referring to the .44 caliber handgun and a bullet held by one of the officers.

Following trial, Judge Kirsch issued his written findings of fact and conclusions of law. He found the officers were credible and testified consistently, "candidly and completely." He found A.P., however, "was simply not credible" in his testimony about the weapons, given his relationship with the other male, and the amount of time he admitted spending in the "small, cramped car" prior to being stopped. Judge Kirsch concluded, in pertinent part, as follows:

Constructive possession arises out of an individual's conduct with the regard to the subject item. State v. Schmidt, 110 N.J. at 258, 268 (1988). Current immediate control and dominion are not required; rather, the State must prove beyond a reasonable doubt that the juvenile had the capacity, by direct or indirect means, to gain almost immediate physical control, and the ability to affect the item during the time in question. Id. at 270. The Schmidt Court listed clear applications of constructive possession in its opinion, including an apropos example wherein the passenger was in the front seat of an automobile which had a flare gun on the dashboard. Id. at 271 (citing State v. Stewart, 96 N.J. 596, 604-5 (1984)).

The credible evidence adduced at trial showed that, when approached by the three (3) police officers, the juvenile unbuckled his seat belt, reached down to the floor area inside the vehicle, turned back repeatedly to look at the officers, and then reached down again, "digging around on the floor." This furtive behavior continued, even after three (3) separate instructions for the occupants of the vehicle to show their hands. When Officer Perez removed [the other male] from the rear passenger side seat of the vehicle, the officer viewed "almost the whole handle [of the .44 caliber revolver] protruding out" of a messenger bag on the floorboard directly in front of [his] seat. All three officers testified that each then heard [A.P.] state "I don't know nothing about those," whereupon a subsequent search of the vehicle revealed a .38 caliber silver revolver with a brown handle, wrapped inside a hooded jacket, wedged partially under the seat directly in front of where [A.P.] was sitting.

[A.P.'s] knowledge of the presence of both firearms is incontrovertible given the following findings made by the Court. Despite [A.P.'s] testimony regarding his relationship with [the other male], which the Court found to be not credible, [A.P.] and [the other male] appeared to share more than just a "here and there" friendship. [The other male] had been over to [A.P.'s] house earlier that day to hatch a plan to hang out with females; they had known each other for several years; they had played sports together; and they socialized with females together.

[A.P.'s] testimony that he was not paying attention to the rather large revolver which was ultimately observed, in plain view, protruding out of [the other male's] bag on the rear passenger floor, mere feet away from [A.P.], was simply not credible. [A.P.'s] further testimony that he had no knowledge of the loaded firearm wrapped at his feet was also not credible, particularly in light of the admitted duration he remained in the small and cramped car. While claiming no knowledge of the contraband, he admitted that his arm span was sufficient to reach an item placed on the floor board of the rear passenger seat.

[A.P.'s] knowledge at the time that the police stopped the subject vehicle and shone their lights is also apparent from his admitted actions from inside the car. [A.P.] stated that "I looked back," although he seemed unclear regarding how many times he did so, stating he turned around "about one time" (emphasis added).
The furtive glances and movements observed by each of the officers demonstrated that [A.P.] was fully aware of the weapons at his feet and within his reach, and was, in tandem with his friend . . . apparently trying to hide or move the contraband.

Finally [A.P.'s] testimony that the officer showed both a gun and a bullet, which prompted [A.P.'s] use of the plural "those," was contrary to the consistent and credible testimony of the officers, each of whom clearly indicated that Officer Perez initially brandished only the retrieved .44 caliber revolver (by maneuvering his waistband). It was only after [A.P.] made the "those" comment that Officer Bachman performed a pat down on [the other male] revealing the bullet.

A review of the foregoing facts demonstrated beyond a reasonable doubt that [A.P.] had the capacity, by direct means, to gain almost immediate physical control of both items, and the ability to affect same during the time in question. In fact, it is likely that [A.P.] did move around or attempt to obscure view of at least one (1) of the weapons, given his repeated "digging" at the back seat floorboards, where the guns were later located. This case is analogous to the constructive possession example provided in Schmidt, wherein the Court found that a flare gun on the dashboard was constructively possessed by the front seat passenger of that vehicle.

Further bolstering the Court's finding, under N.J.S.A. 2C:39-2, there is a statutory presumption that a firearm found in a vehicle is presumed to be in the possession of all of the occupants in that vehicle, except under a delineated number of circumstances. None of the exceptions apply in this case, as neither of the firearms was found on the person of one of the occupants, see N.J.S.A. 2C:39-2a(1); as "almost the whole handle" of one of the weapons was found protruding from a messenger bag in the back seat, and the other was found wrapped in a garment on the floor board of the rear, passenger side within reach of [A.P.], such that neither weapon was "out of view in a glove compartment, trunk or other enclosed depository," see N.J.S.A. 2C:39-2a(2); and the vehicle was not a taxi cab, see N.J.S.A. 2C:39-2a(3). Therefore, the statutory presumption additionally supports the Court's finding that [A.P.] constructively possessed both firearms.

The judge thereafter determined that the State had proved beyond a reasonable doubt that A.P. "committed the two charged offenses of knowing possession of a handgun, namely a .44 caliber handgun and a .38 caliber handgun, without first having obtained a permit to carry same, in violation of N.J.S.A. 2C:39-5b[.]"

As noted, we affirm A.P.'s adjudication of delinquency substantially for the reasons set forth by Judge Kirsch in his comprehensive written decision. We add only that a determination of constructive possession is fact sensitive and requires careful scrutiny by a court. See State v. Palacio, 111 N.J. 543, (1988); State v. Brown, 80 N.J. 587 (1979); State v. Sapp, 71 N.J. 476 (1976); State v. Miller, 273 N.J. Super 192 (App. Div. 1994); State v. Whyte, 265 N.J. Super. 518 (App. Div. 1992), aff'd o.b., 133 N.J. 481 (1993); State v. Binns, 222 N.J. Super. 583 (App. Div.), certif. denied, 111 N.J. 624 (1988); State v. Shipp, 216 N.J. Super. 662 (App. Div. 1987). That sensitivity and careful scrutiny dictate courts must look to the totality of the circumstances, including A.P.'s presence in the vehicle where the weapons were located, as well as other factors before permitting an inference of constructive possession to be drawn. Cf. Whyte, supra, 265 N.J. Super. at 523. While mere presence alone cannot serve as grounds for inferring constructive possession, Brown, supra, 80 N.J. at 593; Miller, supra, 273 N.J. Super. at 195, there is more than mere presence here. The .44 caliber revolver was in plain view; the .38 caliber revolver was rolled up in a sweatshirt under the seat in front of A.P.; the repetitive actions of A.P. and the other male in bending to the floor where the weapons were found; A.P.'s statement after the first weapon was located; - all these factors supported Judge Kirsch's conclusions.

The State concedes that under the circumstances of this case, the two weapons offenses should have merged. We agree. State v. Latimore, 197 N.J. Super. 197 (App. Div. 1984). Therefore, we remand to enable the Family Part to correct the record of A.P.'s adjudication and to reflect the merger of the offenses.

Affirmed, in part; remanded, in part.