STATE OF NEW JERSEY v. SAMUEL MEDWAY

NOT FOR PUBLICATION WITHOUT THE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,

Plaintiff-Respondent,

v.

SAMUEL MEDWAY,

Defendant-Appellant.

_____________________________

October 23, 2014

Submitted February 12, 2014 Decided

Before Judges Grall, Waugh and Nugent.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 11-08-0491.

Marc J. Friedman, attorney for appellant.

Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (Annemarie L. Mueller, Assistant Prosecutor, of counsel and on the brief).

The opinion of the court was delivered by

GRALL, P.J.A.D.

A jury found defendant Samuel Medway guilty of two second-degree crimes unlawful possession of an assault firearm, N.J.S.A. 2C:39-5f, and unlawful sale of a prohibited weapon, N.J.S.A. 2C:39-9g and three fourth-degree crimes unlawful sale of an assault firearm to an unlicensed purchaser, N.J.S.A. 2C:58-5 and N.J.S.A. 2C:39-10a, unlawful possession of a high-capacity magazine, N.J.S.A. 2C:39-3j, and forgery, N.J.S.A. 2C:21-1a(2). The judge sentenced defendant to concurrent terms of six years' imprisonment for each of the second-degree convictions, both of which are subject to three-year terms of parole ineligibility. The judge also sentenced defendant to three concurrent terms of eighteen months' imprisonment for each of his fourth-degree convictions, and those terms are also concurrent with his six-year terms.

Defendant appeals and challenges his convictions and sentence. He argues

I. THE FORGERY CHARGE SHOULD HAVE BEEN

DISMISSED AT THE END OF THE STATE'S CASE.

II. THE TRIAL COURT'S CHARGE ON FORGERY WAS DEFICIENT (Not Raised Below).

III. [DEFENDANT] WAS DEPRIVED OF DUE PROCESS (Partially Raised Below).

IV. NO FOUNDATION WAS LAID FOR THE USE OF DOCUMENTS FROM THE NATIONAL TRACING CENTER.

V. THE TRIAL COURT FAILED TO PROPERLY WEIGH THE ADMISSIBILITY OF THE EVIDENCE OF OTHER GUNS AND THE FIREARMS ID CARD AND FAILED TO GIVE INSTRUCTIONS LIMITING THE USE OF THAT EVIDENCE (Partially Raised Below).

VI. IT WAS IMPROPER FOR DET. SERGEANT ROSS TO TESTIFY ABOUT THE REQUIREMENTS OF THE NEW JERSEY GUN LAWS (Not Raised Below).

VII. THE PROSECUTOR MADE IMPROPER AND INFLAMMATORY REMARKS DURING SUMMATION.

VIII. THE DEFENDANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL (Not raised

Below).

IX. THE CUMULATIVE EFFECT OF MULTIPLE ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

X. THE TRIAL COURT IMPROPERLY WEIGHED THE

MITIGATING AND AGGRAVATING FACTORS IN

SENTENCING THE DEFENDANT.

For the reasons that follow, we reverse defendant's conviction for forgery and remand for an amendment of the judgment of conviction eliminating that conviction, but otherwise affirm his convictions and sentence.

I

Defendant's convictions are based on his sale of an Uzi to an undercover officer and the evidence that was seized pursuant to a warrant authorizing a search of his premises following that transaction. A detective of the Somerset County Prosecutor's Office had information that defendant was interested in selling an Uzi. Through a confidential informant, who defendant acknowledged was his mechanic and longtime acquaintance, the detective, posing as an interested buyer named "Harzula" willing to pay $1500 for the Uzi, met defendant at his residence in Bernardsville. When "Harzula" and defendant's acquaintance arrived, defendant met them outside, acknowledged his mechanic's presence and took "Harzula" to a studio out-building in the backyard. There, "Harzula" inquired about the Uzi and defendant produced a case containing the Uzi, two twenty-five round magazines and a "sling." Harzula asked defendant to include the magazines and sling in the $1500 price, and defendant agreed.

The sale took place on June 28, 2011. On receiving the cash, which consisted of bills with serial numbers that the prosecutor's office had on record, defendant presented a handwritten drawn bill of sale, on which defendant had already written his surname and a Basking Ridge address. He had also noted the Uzi was sold in "As-Is Condition" and "with no written or verbal [sic] warranties." Defendant had left blank spaces for "Harzula" to write his name, address and firearms purchaser identification card number.

According to the detective, he told defendant he did not have an identification card number. Defendant told him he would fill one in later. The detective also testified that defendant backdated the bill of sale to June 28, 2000. After the bill of sale was signed, defendant gave "Harzula" the gun and "Harzula" left with the gun, the magazines and defendant's mechanic. Defendant called the mechanic back and gave him $150 of the $1500 in recorded bills that he taken from "Harzula" for the purchase.

An officer backing up the detective who posed as "Harzula" was parked near defendant's residence and stayed behind. When defendant left his residence and started to drive away, that officer stopped and arrested defendant. The detective who posed as "Harzula" obtained a warrant authorizing a search of defendant's apartment, car and the studio. During the search that followed, the officers found defendant's expired driver's license, his expired firearms purchaser identification card, two shotguns, one of which was not assembled, and $1350 in cash.

The State also presented testimony from officers involved only in the investigation that followed the undercover purchase. A detective who had tested all three firearms determined that they were operable. In addition, a detective sergeant of the New Jersey State Division of Police determined that defendant did not have a license to sell firearms at wholesale or retail, a valid firearms purchaser identification card, a license to possess an assault weapon, a registration for target shooting with an assault firearm or a certificate demonstrating the inoperability of the Uzi. The detective sergeant explained that defendant previously had a firearms purchaser identification card that had been invalidated by court order four years before defendant sold the Uzi to "Harzula."

Defendant testified at trial, and he gave a different account of the transaction and an explanation for his conduct. Defendant acknowledged that he had told his mechanic he was interested in selling an Uzi and that he was having difficulty obtaining a price and a transaction date that were satisfactory to him. According to defendant, dealers had offered him no more than $700 to $1000, and none of those dealers was interested in buying an Uzi for several months.

Defendant testified that his mechanic called him several times on the day of the sale to tell him about a prospective buyer willing to pay $1500 that day. Defendant admitted that he did not have the firearms licenses, purchaser identification card, or assault weapons credentials that he needed to make the sale.

According to defendant, he had gotten the guns, which he claimed belonged to one of his brothers or his father, from his mother's attic, not by purchasing them. He also testified that the detective, not he, thought of and insisted upon a backdated bill of sale. Defendant admitted that he had taken the guns from his family's home and that he had not obtained permission to sell the Uzi from its owner or let anyone in his family know that he had taken the guns.

Defendant further testified that he thought he was making a lawful sale. His mechanic had told him, and the undercover detective had confirmed, that he was selling the Uzi to a licensed firearms dealer. In addition, the detective told him he had a firearms purchaser identification card but did not have it with him. By defendant's account, the undercover detective promised to give him a copy of his identification card within a few days.

The undercover detective was called as a rebuttal witness, and he contradicted defendant's account. He said he told defendant he did not have a firearms purchaser identification card and denied promising to bring defendant a copy of this identification card and saying anything about backdating the bill of sale.

The State presented extrinsic evidence to impeach defendant's testimony about how he acquired the guns. Specifically, the State presented copies of two Department of Justice documents from the "NATIONAL TRACING CENTER" (NTC). One indicated that Samuel Medway, born on the date of defendant's birth, had purchased a shotgun, with the same serial number as one recovered in the search, in South Plainfield on September 21, 1993. The other indicated that a person giving the same name and birth date had purchased an Uzi in Jersey City on June 1, 1989. In his summation, the assistant prosecutor argued that the defendant's version of the events could not be believed because the documents from the NTC showed the defendant had purchased two of the guns.

II

Defendant was entitled to a judgment of acquittal on the forgery charge at the close of the State's case. The State's evidence, viewed in the light most favorable to the State and with the benefit of every favorable inference, was insufficient to support a finding of an essential element of that crime beyond a reasonable doubt. State v. Reyes, 50 N.J. 454, 458-59 (1967).

To the extent defendant argues that the State must prove someone was actually defrauded or injured to prove forgery, he is wrong. State v. Gledhill, 67 N.J. 565, 572 (1975). But he is correct in asserting that there was inadequate evidence to permit a finding that he acted with the purpose required to defraud or injure another that is required for conviction.

In order to obtain a conviction for forgery under the provision of the statute charged in the indictment and the evidence presented at trial, the State had to prove that defendant

with purpose to defraud or injure anyone, or with knowledge that he is facilitating a fraud or injury to be perpetrated by anyone, the actor

. . . .

(2) Ma[de], complete[d], execute[d], authenticate[d], issue[d] or transfer[ed] any writing so that it purport[ed] . . . to have been executed at a time . . . other than was in fact the case, or to be a copy of an original when no such original existed[.]

[N.J.S.A. 2C:21-1a].

There was ample evidence to support a determination that defendant wrote the wrong date on the bill of sale, falsely purporting that it was executed eleven years earlier than it was, on June 28, 2000, rather than June 2011. But there was no evidence of how that misrepresentation would defraud or injure any person.

On appeal, the State argues that the jurors could infer that defendant backdated the bill of sale intending, or with the purpose of, injuring the State. At trial, the assistant prosecutor suggested that the jurors could find that defendant's purpose in backdating the bill of sale was to secure a defense to a charge of unlawful sale of an assault firearm by reflecting a sale of the Uzi prior to the effective date of the restrictive laws governing assault firearms. In this court, the State argues that after 2007 defendant was no longer able to legally possess firearms.

The State submits that the injury defendant presumably intended was the creation of a false appearance that he sold the gun at a time when he lawfully possessed it. That inference is not supported by the law, however. The gun for which the bill of sale was written was an Uzi, and defendant could not have lawfully sold an Uzi in 2000. Defendant and others who lawfully purchased Uzis prior to May 30, 1990, the effective date of the assault weapons law, L. 1990, c. 32, had only one year from May 30, 1990, to transfer the firearm to a person or entity lawfully entitled to own or possess one, or to render it inoperable or to voluntarily surrender it. N.J.S.A. 2C:58-13a(1).

Thus, the June 28, 2000 date defendant chose provides no reasonable support for an inference of a scheme to circumvent the law. One would have to infer, as the assistant prosecutor argued in summation, that defendant misunderstood the law he intended to circumvent.

Even if one were to conclude that the inference of this intended injury to the State were reasonable, the question remains whether the intent to avoid prosecution for another crime, as opposed to an intent to facilitate another crime, is sufficiently connected with defendant's falsification of information on the bill of sale to support a conviction for forgery. There is a narrow class of cases in which our courts have recognized that the State may be the person the defendant intended to defraud or injure by a forgery.

Judge Gilroy discussed our opinions addressing the State as a party intended to be defrauded or injured by a forgery in State v. Felsen, 383 N.J. Super. 154, 160-61 (App. Div. 2006). In those cases the forged document was either presented to a government official or a record maintained by the government. State v. Johnson, 115 N.J. Super. 6, 9 (App. Div. 1971), involved the utterance of a false driver's license to a police officer, and State v. Longo, 132 N.J.L. 515, 519 (Sup. Ct.), aff'd, 133 N.J.L. 301 (E. & A. 1945), involved an alteration of a voting record.

In Felsen, we relied on those cases and concluded that the State was defrauded by a person who presented a forged prescription for a controlled dangerous substance (CDS) to a pharmacist. 383 N.J. Super. at 160-64. Considering the comprehensive statutes and regulations controlling the sale and use of prescription drugs and the dispensing of a CDS by pharmacists filling prescriptions issued by licensed practitioners, we held that "the State has a direct interest in protecting its highly regulatory scheme controlling the prescription, sale, and use of CDS, and therefore, the State is a proper injured 'person' under the forgery statute when a defendant attempts to pass a forged prescription to a regulated pharmacy." Id. at 161-62.

There is no question that the State has a significant interest in the sale and possession of firearms and has developed a comprehensive statutory and regulatory scheme controlling it. See In the Matter of the Application of Preis, 118 N.J. 564, 571 (1990); Siccardi v. State, 59 N.J. 545, 557 (1971); Burton v. Sills, 53 N.J. 86, 93 (1968), appeal dismissed, 394 U.S. 812, 89 S. Ct. 1486, 22 L. Ed. 2d 748 (1969).

The significant difference between this case and Felsen is that bills of sale for firearms, unlike prescriptions for a CDS, have no role in the pertinent regulatory scheme. There was no testimony in this case about the pertinence of a "bill of sale" to records on firearms sales and transfers kept by the State. Moreover, there is no statute addressing firearms in the Code of Criminal Justice that mentions a bill of sale and no regulation promulgated by the Division of State Police concerning firearms that requires submission of or otherwise addresses bills of sale. Cf. N.J.S.A. 2C:58-3b (requiring a person who is not a dealer in firearms to file a certification, on a form prescribed by the superintendent of Division of State Police, with the superintendent or local police chief).

The connection the State asserts here between the false date of execution stated on the bill of sale and the injury to the scheme for regulating firearms is far too attenuated to support an inference of purpose to injure the State. Moreover, because the law governing possession and sale of assault firearms was the same on the date of the actual transaction and the date stated on the bill of sale, the misstatement of the date on the bill of sale was immaterial to the application of the firearms law.

Having concluded that defendant was entitled to a judgment of acquittal on the forgery, there is no reason to address his objections to the jury instruction on that crime.

III

Defendant's objection to the trial court's ruling on disclosure of the informant's identity has insufficient merit to warrant extended discussion. R. 2:11-3(e)(2). Defendant and the State both knew the identity of the informant and the trial court did not preclude defendant from presenting the testimony of his mechanic and longtime acquaintance. Indeed, in responding to defense counsel's request for an instruction authorizing the jurors to draw a negative inference from the State's failure to produce the informant, the trial court made it clear that defense counsel had subpoenaed and was free to present the witness' testimony.

IV

Although there was no objection at trial, defendant now objects to the State's use of hearsay information obtained from the NTC to impeach defendant's testimony during cross-examination. Confronted with the NTC documents on cross-examination, defendant acknowledged what those documents indicated that he purchased a Mini Uzi in Jersey City on June 1, 1989, and a shotgun in South Plainfield on September 21, 1993. He also acknowledged the serial numbers for those firearms reported on the NTC documents.

Ordinarily, evidentiary rulings are reviewed for abuse of discretion, but where hearsay is admitted without objection, review is for plain error, pursuant to Rule 2:10-2. State v. Gore, 205 N.J. 363, 382-83 (2011); State v. Frisby, 174 N.J. 583, 591 (2002). Under that standard, relief is available only if the admission of the hearsay could reasonably have led the jury to "reach a conclusion that it otherwise might not have reached." Gore, supra, 205 N.J. at 383.

The State argues that the NTC information was not hearsay because it was offered for the limited purpose of impeaching defendant's testimony about finding those guns in his mother's attic, not for the truth of the matter asserted. N.J.R.E. 801(c). In that regard, the State is mistaken. Where, as here, the probative value of impeachment evidence depends upon the veracity of a statement made by a declarant who does not testify, it has no relevance to credibility apart from the truth of the matter asserted. See, e.g., Zweig v. E.R. Squibb & Sons, Inc., 222 N.J. Super. 306, 309-11 (App. Div.) (concluding that the trial judge properly excluded package insert warnings offered to bolster the credibility of plaintiff's expert because the inserts would not have that effect unless the jury accepted the contents of the inserts as true), certif. denied, 111 N.J. 614 (1988). Moreover, the assistant prosecutor referred to the NTC information in closing argument as if it were offered to prove the truth of the matters asserted therein.

In the alternative, the State contends that if an objection had been raised, the State may well have been able to establish a foundation for admission as a business or public record pursuant to N.J.R.E. 803(c)(6) or N.J.R.E. 803(c)(8). An important consideration supporting review for plain error when no objection is raised at trial is that when there is no objection the trial court has no opportunity to address issues of this sort. See N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J. 328, 339-41 (2010) (by consenting to the admission of the documents, the defendant deprived the Division of the opportunity to overcome any objection and deprived the trial court of the necessity to make a ruling based on the arguments presented by both sides); State v. Cordero, 293 N.J. Super. 438, 442 (App. Div. 1996) (lack of an objection is itself a serious omission, for if it had been lodged the trial court would have had an opportunity to remedy the omitted instruction before the case went to the jury), certif. denied, 147 N.J. 577 (1997); Dafler v. Raymark Indus., Inc., 259 N.J. Super. 17, 37 (App. Div. 1992) (failure to object to an alleged error deprives the trial court of the ability to issue a curative instruction or a corrected charge), aff'd, 132 N.J. 96 (1993).

For several reasons, we conclude that defendant has failed to establish plain error. The question whether defendant purchased the Uzi and shotgun years before the day he met with the undercover detective, as the NTC information indicated, or acquired the guns from his mother's attic on the day in question, as he testified at trial, had no bearing on an element of any offense for which defendant was convicted. Thus, the error did not involve evidence essential to any of the guilty verdicts.

To be sure, we recognize that the NTC information could have had a significant impact on the jury's view of defendant's credibility. Defendant himself, however, had cast significant doubt on his own credibility. We refer to his testimony that he had taken the Uzi from a member of his family and was selling it without the owner's permission and with no intention of giving the owner the proceeds.

Most important, to our conclusion that the testimony could not reasonably lead the jury to reach a conclusion it would not otherwise have reached is the strength of the State's evidence. The evidence supporting the verdicts was overwhelming, and the evidence of defendant's claim of entrapment was extremely weak. In short, his claim was that he was induced to sell the Uzi because the undercover detective was willing to pay $1500 right away while other dealers defendant had approached were willing to pay no more than $700 to $1000 and none were interested in making a purchase in the immediate future. That is hardly the sort of inducement that a jury could conclude would lead one not predisposed to commit a crime. N.J.S.A. 2C:12-2. With respect to entrapment, it is worth noting that defendant's claim of entrapment was strongest with respect to the charge of forgery, which was based on his backdating of the bill of sale. We have, however, reversed that conviction on a different ground.

V

We turn to explain our disposition of defendant's remaining claims. Having considered the record in light of the arguments presented in Points VI, VII, IX and X, we have determined that none has sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). Finally, because the arguments defendant raises in support of Point VIII, his claim of a denial of effective assistance of counsel, require consideration of matters not disclosed on the trial record, it is appropriate for us to refrain from addressing them on direct appeal and preserve them for consideration in the event defendant files a petition for post-conviction relief. State v. Preciose, 129 N.J. 451, 460-63 (1992).

Affirmed in part, reversed in part and remanded for amendment of the judgment of conviction in conformity with this opinion.