STATE OF NEW JERSEY v. ANDRE M. DAWSON, JR

NOT FOR PUBLICATION WITHOUT THE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.

ANDRE M. DAWSON, JR.,

a/k/a ANDRE DAWSON, a/k/a

ANDRE M. DAWSON, a/k/a

ANDREA DAWSON, a/k/a ANDREA

ANDRE MARIO DAWSON, a/k/a

ANDRE M. DAWSON, III,

Defendant-Appellant.

______________________________________________________________

August 5, 2014

Submitted January 8, 2014 Decided

Before Judges Maven and Hoffman.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 10-04-0396.

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

Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a three-day trial, a jury convicted defendant Andre M. Dawson, Jr. of third-degree attempted burglary, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:18-2 (count one), and fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two). Defendant, immediately thereafter, pled guilty to a single count of fourth-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. The judge sentenced defendant to an aggregate four-and-one-half year term of imprisonment.

Defendant raises the following points on appeal:

I. THE TRIAL WAS TAINTED WITH IRRELEVANT AND PREJUDICIAL EVIDENCE THAT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. U.S. CONST. AMEND. V.

II. THE TRIAL JUDGE FAILED TO SUA SPONTE DISMISS THE UNLAWFUL POSSESSION OF A WEAPON CHARGE WHEN THE STATE FAILED TO MEET ITS BURDEN OF PROOF. THAT ERROR WAS EXACERBATED BY PROSECUTORIAL MISCONDUCT IN CLOSING ARGUMENT WHICH DEPRIVED DEFENDANT OF DUE PROCESS, A FAIR TRIAL AND AN IMPARTIAL JURY. U.S. CONST. AMEND. XIV, N.J. CONST. (1947); ART. I, PARS. 1, 9, 10. (Not Raised Below).

III. THE TRIAL JUDGE IMPROPERLY CHARGED THE JURY ON ATTEMPTED BURGLARY, INCLUDING EXTRANEOUS PORTIONS OF THE STATUTE NOT CHARGED IN THE INDICTMENT OR SUPPORTED BY THE FACTS OF THE CASE. THE ERRONEOUS CHARGE CLEARLY HAD THE CAPACITY TO CONFUSE AND MISLEAD THE JURY, DEPRIVING [DEFENDANT] OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL AND REQUIRES REVERSAL OF [DEFENDANT'S] CONVICTION. U.S. CONST. AMEND. XIV; N.J. CONST. (1947) ART. I, PAR. 1.

IV. IN LIGHT OF THE FACT THIS WAS [DEFENDANT'S] FIRST SENTENCE TO STATE PRISON, THE FOUR AND ONE[-]HALF YEAR SENTENCE WAS EXCESSIVE.

After careful consideration of defendant's contentions in light of the record and applicable legal principles, we affirm.

I.

The facts as adduced from the trial record are as follows. Around noon on December 17, 2009, Sergeant Scott Pevonis was on patrol in the area of Lincoln Avenue in Elizabeth, in an unmarked patrol car. He was on burglary detail due to a rash of recent burglaries in that neighborhood. Specifically, Sergeant Pevonis was "looking for individuals who [were] . . . going on and off property . . . ringing doorbells, loitering on porches, . . . in and out of driveways, . . . or any suspicious vehicles that might be parked in front of any location[] or in driveways."

Sergeant Pevonis spotted a man, later identified as defendant, walking out of a driveway from a Lincoln Avenue residence (the subject residence). Noticing a "shocked look" on defendant's face, Sergeant Pevonis broadcasted a description of him to other units in the area while he followed defendant in his patrol car. Shortly thereafter, Detective Amilcar Colon stopped defendant. At that time, Sergeant Pevonis had not received any information regarding defendant from any other source.

Sergeant Pevonis approached defendant and Detective Colon. After defendant removed his hands from his pockets, Sergeant Pevonis observed a silver and black lock-blade knife in defendant's right jacket pocket. The officers arrested defendant and performed a search incident to arrest. Sergeant Pevonis recovered several pieces of jewelry, including silver and gold charms, as well as $478 in cash. It was later determined the recovered jewelry belonged to the victim of a burglary that occurred at a different location.

After Sergeant Pevonis detained defendant, he returned to the location where he first spotted defendant and investigated the rear of the house. He observed a window screen in the back of the house that had been sliced horizontally. He also observed a milk crate and a trash can positioned close to the window. The owner of the home, who was not present at the time of the attempted burglary, testified that upon returning home, some things in her yard, including her milk crate, had been moved and placed under the rear window. She also confirmed the sliced screen was intact when she left the house that morning.

Although the screen had been sliced, the State did not present any evidence that defendant entered the owner's home that day. Rather, residents of Lincoln Avenue testified to having seen defendant ringing doorbells and knocking on doors of other homes on the block. Two of those residents were asked by police to participate in a show-up identification of defendant. They were only able to identify defendant by the clothing he was wearing that day.

One resident, who lived several doors down from the victim's house, testified she saw defendant at three other houses across the street from hers before he stopped at the victim's house. He stayed at the victim's house for approximately fifteen minutes, at which point he left to stop at a nearby convenience store to purchase a soda. Defendant then returned to the victim's house, where he stayed for an additional twenty minutes.

A second resident testified she saw defendant outside of the victim's house ringing the doorbell. When no one answered, he walked through the driveway to the back of the house and then returned to the front. Defendant repeated this routine three or four times. The resident estimated defendant was on the block for approximately forty-five minutes that day, spending two to three minutes in the rear of the victim's house.

Lastly, a third resident testified she was at home when defendant knocked loudly on her front door. The resident did not answer the door because she thought it was the police. Instead, she hid and watched defendant through her window walk to the house next door, the victim's house. The resident recalled having seen defendant at the victim's property two or three times shoveling snow, including one time in February 2010 after his arrest.

II.

On appeal, defendant contends the trial court erred in admitting into evidence (1) police officers' testimony regarding involvement in a burglary detail as a result of a high number of reported burglaries in the area where defendant was arrested; (2) eyewitness testimony that defendant was knocking on doors and ringing doorbells of other homes on the block; and (3) testimony that defendant was in possession of jewelry.

The judge considered the evidence at a Rule 104 hearing. Defendant now contends the court erred by allowing evidence that could have led a jury to infer that defendant committed other burglaries. First, defendant argues testimony that the police officers were assigned to a burglary detail was overly prejudicial. The judge correctly ruled the testimony admissible to explain the police presence in the neighborhood. State v. Bankston, 63 N.J. 263, 268 (1973). A police witness may testify that he took action "based on information received" so long as the testimony does not lead to an inference that the out-of-court information was specifically about defendant. See State v. Vandeweaghe, 177 N.J. 229, 240-41 (2003); Bankston, supra, 63 N.J. at 268; see also State v. Luna, 193 N.J. 202, 217 (2007) ("[T]estimony should be limited in a manner that allows the witnesses to provide appropriate context but not secondhand details about the crime or the defendants.").

In this instance, the police department created a burglary detail in response to its concerns of burglaries in the Lincoln Avenue neighborhood. Several officers testified that they had been assigned to patrol the area as part of their regular duties. The officers were not targeting defendant while patrolling the neighborhood. Defendant has not challenged the actions of the police; he concedes the police had a legitimate reason for patrolling the neighborhood and that they were not acting arbitrarily when they stopped him. We agree with the trial judge that the officers' testimonies were advanced merely to explain the police presence at the scene and implied nothing about defendant. Defendant was not prejudiced by this testimony. Consequently, there was no error in its admission.

Second, defendant contends that the testimony referencing defendant's conduct in the neighborhood, knocking on doors and ringing doorbells, was irrelevant to the instant charge and prejudicial, in that it could have led the jury to infer defendant's involvement in other bad acts. We disagree.

"Trial court decisions concerning the admission of other-crimes evidence should be afforded 'great deference,' and will be reversed only in light of a 'clear error of judgment.'" State v. Gillespie, 208 N.J. 59, 84 (2011) (quoting State v. Barden, 195 N.J. 375, 390-91 (2008)). The admissibility of such evidence is left to the sound discretion of the trial court, as that court is in the best position to conduct the balancing required under Cofield1 due to its "intimate knowledge of the case." State v. Covell, 157 N.J. 554, 564 (1999). Therefore, a trial court's decision concerning the admission of other-crimes evidence will not be disturbed absent a finding of abuse of discretion. Ibid. Our review of a trial judge's purely legal conclusions, however, is plenary. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).

That said, we are mindful that since "other-crime evidence is highly inflammatory, having the unique tendency to turn a jury against the defendant, trial courts are required to make a careful and pragmatic evaluation of the evidence based on the specific context in which it is offered." State v. Hernandez, 170 N.J. 106, 119 (2001) (citation and internal quotation marks omitted). The admission of other-crime evidence is governed by N.J.R.E. 404(b), which states:

[E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.

In Cofield, the Supreme Court established a four-part test to govern the admissibility of such evidence for those purposes. The Cofield tests require that:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[State v. Williams, 190 N.J. 114, 122 (2007) (citing Cofield, supra, 127 N.J. at 338).]

As for defendant knocking on doors and ringing doorbells, the State argued the testimony of the neighbors was admissible under N.J.R.E. 404(b), to show defendant's intent and plan for committing the burglary. The judge agreed and deemed the testimony admissible under the Cofield/Marrero2 test as highly relevant, from which the jury may "deduce that there was a plan, [or] a scheme." The judge found the testimony was "not admissible to prove any . . . other crime, wrong or act." We discern no abuse of discretion by the court in admitting this evidence.

Next, defendant argues any testimony regarding the jewelry should have been excluded because the jury could have speculated that defendant committed a burglary of those items. After considering the arguments at the Rule 104 hearing, the judge allowed the officers' testimony regarding the jewelry, limited to its identification as an item on the police property list.

Upon our review, we agree the court erred in permitting the State to introduce testimony that defendant possessed jewelry at the time of his arrest. The testimony constituted evidence of "other crimes, wrongs or acts" subject to N.J.R.E. 404(b). The error was compounded when, at trial, the testifying police officer stated defendant was found in possession of "female" jewelry. After defendant's objection, the court struck any reference to the gender identification of the jewelry. There was no more mention of the jewelry by the State, although defense counsel briefly discussed the jewelry in his closing argument. The judge gave a limiting instruction, to steer the jury away from using the jewelry evidence to decide defendant had a propensity to commit crimes, or he was a bad person:

Now, [you have] heard testimony in this case regarding certain items . . . in the possession of the defendant at the time he was detained . . . . The fact that the defendant had currency and jewelry in his possession at the time he was detained has no bearing on his guilt or innocence of the crimes alleged in this indictment.

The sole purpose for such testimony was . . . to allow the witnesses to testify as to the contents of the property report and what they actually found on the defendant. [You are] not to use the fact that the defendant had these items in his possession to infer guilt of the crimes charged. This information must be completely eliminated from your deliberations in any way regarding the guilt or innocence of the defendant regarding the crimes charged.

When a trial court fails to apply the Cofield factors, an appellate court is obliged to exercise plenary review over the trial court's decision to admit other-crimes evidence. State v. Lykes, 192 N.J. 519, 534 (2007) ("Although we review the admissibility of prior bad acts or other-crimes evidence under the abuse of discretion standard, we conduct a plenary review when a trial court does not analyze the admissibility of other-crimes evidence under [Cofield].") (citations omitted).

Even if evidence is relevant for "other purposes", the trial judge must "engage in a 'careful and pragmatic evaluation' focusing on 'the specific context in which the evidence is offered' by weighing its probative value against its apparent or undue prejudice.'" State v. Castagna, 400 N.J. Super. 164, 175 (App. Div. 2008) (citation omitted). In determining whether prong one is met, "[t]he other crime evidence must be relevant to an issue genuinely in dispute." State v. G.V., 162 N.J. 252 (2000) (quotation and citation omitted). The other crime evidence must also be "necessary" to prove the disputed issue. Ibid.

As the trial court did not apply these standards, we do so in the exercise of plenary review. We conclude the record does not support the admission of evidence that defendant possessed jewelry. The State argues the evidence was admissible merely to identify the items found in defendant's possession at the time of his arrest, namely the jewelry, as well as a knife,3 cash money, and a cell phone. We are not persuaded.

Turning to the application of the Cofield factors, the evidence does not satisfy the first prong, as the inventory of defendant's possessions is in no way relevant to the crime for which defendant was charged. Given that defendant was charged with attempted burglary, the State was clearly aware the jewelry did not come from the victim's home, as her home had not actually been breached. Moreover, there was no other evidence in the record of reported stolen jewelry or defendant's involvement in other burglaries involving stolen jewelry.

Notwithstanding the potential to prejudice the jury, we are satisfied the trial judge gave an appropriate instruction advising the jury on the limited permissible use of the jewelry evidence. See State v. P.S., 202 N.J. 232, 240 (2010). Under the circumstances of this case, we conclude that the limiting instruction was sufficient to preclude a finding of error clearly capable of producing an unjust result. R. 2:10-2.

As already stated, in a careful review of the entire record and viewing the alleged errors, separately and in the aggregate, we find them non-existent or harmless. In light of other evidence of record, namely defendant's presence at the victim's home for a prolonged period and his knocking on doors in the neighborhood proximate to his apprehension by police, we conclude that the admission of the jewelry evidence was harmless. Certainly we discern no error was so unduly prejudicial to defendant as to warrant a reversal. See State v. La Porte, 62 N.J. 312, 320 (1973) (citing State v. Orecchio, 16 N.J. 125, 129 (1954)).

III.

Next, defendant contends the trial judge's failure to dismiss count two, unlawful possession of a weapon, based on insufficient proof is reversible error. More pointedly, defendant argues the State did not present any evidence that he possessed the lock-blade knife for an unlawful purpose. Alternatively, defendant argues even if the State's proofs were sufficient to relate the knife to the attempted burglary and cut window screen, that could only establish use of the knife as a tool, not a weapon.

A defendant commits a fourth-degree offense if he or she "knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses." N.J.S.A.2C:39-5(d). "Weapon," for purposes of this offense, includes "anything readily capable of lethal use or of inflicting serious bodily injury" and includes various types of knives. N.J.S.A.2C:39-1(r)(3).

"[T]he unlawful purpose or subjective intent of a defendant . . . may be inferred from the totality of the circumstances, including the use of the weapon." State v. Harris, 384 N.J. Super. 29, 53-54 (App. Div.) (quoting State v. Diaz, 144 N.J.628, 636 (1996)), certif. denied, 188 N.J.357 (2006). More specifically:

"[S]urrounding circumstances such as the size, shape and condition of the knife, the nature of its concealment, the time, place and actions of the carrier when found in his possession" indicate that the purpose of carrying the knife is its use as a weapon. Those same circumstances indicate that possession of a knife may be "not manifestly appropriate" for its lawful use.

[State v. Lee, 96 N.J. 156, 162 (1984) (quoting State v. Green, 62 N.J. 547, 560 (1973)); see also State v. Williams, 168 N.J. 323, 340 (2001); State v. Blaine, 221 N.J. Super. 66, 70 (App. Div. 1987) (where an implement is susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting the possessor to criminal liability is entirely dependent on the circumstances).]

We reject defendant's contention and conclude there was no basis for the court to order, sua sponte, a judgment of acquittal as to count two. As a threshold matter, defendant never moved for such relief under either Rule 3:18-1 or Rule 3:18-2. Nevertheless, under either rule, the trial court "is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the State." State v. Papasavvas, 170 N.J. 462, 521 (2002) (quoting State v. Kluber, 130 N.J. Super. 336, 342 (App. Div. 1974), certif. denied, 67 N.J. 72 (1975)). We apply the same standard. Harris, supra, 384 N.J. Super. at 52.

The defense relies on State v. Riley, 306 N.J. Super. 141 (App. Div. 1997), in which we held that a defendant must use or intend to use a knife in the commission of a robbery for it to be determined a weapon. Id. at 149. However, under the circumstances of that case, there was insufficient evidence to connect the knife with the commission of the crime. Ibid. In the case at hand, we conclude there was more than sufficient evidence from which a reasonable jury could infer that defendant possessed the knife for other than a lawful purpose. Defendant had been seen lurking around the front and backyard of the victim's house for several minutes. A trash can and milk crate had been moved and placed under a window at the home, and the window screen had been sliced. Defendant was apprehended near the victim's house with the knife in his possession. Based on these proofs alone a reasonable jury could find, beyond a reasonable doubt, that the knife was used in the commission of the crime. See State v. Bunch, 180 N.J. 534, 548-49 (2004).

IV.

We turn to defendant's argument that the judge erroneously charged the jury on the offense of burglary, which in turn caused jury confusion as to the required mental state for attempted burglary. We disagree.

At the outset, we recognize that "[a]n essential ingredient of a fair trial is that a jury receive adequate and understandable instructions. Correct jury instructions are 'at the heart of the proper execution of the jury function in a criminal trial.'" State v. Afanador, 151 N.J. 41, 54 (1997) (citation omitted) (quoting State v. Alexander, 136 N.J. 563, 571 (1994)). In assessing such instructions, an appellate court should examine the charge as a whole in evaluating whether it was inadequate or misinformed the jury of the applicable law. State v. R.B., 183 N.J. 308, 325 (2005); State v. Hipplewith, 33 N.J. 300, 317 (1960).

Mindful that defendant's trial counsel did not object to the aspects of the charge that are now criticized on appeal, we review this matter under the plain error standard. R. 2:10-2. Applying that standard, an error is reversible if it was "clearly capable of producing an unjust result." State v. Taffaro, 195 N.J. 442, 454 (2008) (quoting R. 2:10-2). The trial court has an "independent duty . . . to ensure that the jurors receive accurate instructions on the law as it pertains to the facts and issues of each case, irrespective of the particular language suggested by either party." State v. Reddish, 181 N.J. 553, 613 (2004). "Erroneous jury instructions on matters material to a jury's deliberations are ordinarily presumed to be reversible error." State v. Jackmon, 305 N.J. Super. 274, 277-78 (App. Div. 1997), certif. denied, 153 N.J. 49 (1998). Where a jury charge was "inadequate to guide the jury in the course its deliberation should take," the conviction is to be reversed. Id. at 290. Moreover, "because clear and correct jury instructions are fundamental to a fair trial, erroneous instructions in a criminal case are 'poor candidates for rehabilitation under the plain error theory.'" State v. Adams, 194 N.J. 186, 207 (2008) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)); see also State v. Walker, 203 N.J. 73, 90 (2010).

We conclude there were no errors in the jury instructions. Here, the judge instructed the jury on the substantive elements of the burglary offense and attempt, as well as the lesser-included offense of criminal mischief. The jury instructions that were issued in this case largely tracked the model charges for each offense. See Model Jury Charge (Criminal), "Burglary in the Third Degree" (Nov. 10, 1997), "Criminal Mischief" (May 16, 2005) and "Attempt" (June 15, 2009). The use of model jury charges is "recommended as a method, albeit not perfect, for avoiding error." Pressler & Verniero, Current N.J. Court Rules, comment 8.1 on R. 1:8-7 (2014). The instructions provided by the judge were accurate. They clearly outlined the relevant statutory elements. No error occurred, let alone plain error.

V.

Defendant's final point argues the judge erred by failing

to merge the unlawful possession of a weapon charge with the attempted burglary charge, and as such his sentence is manifestly excessive. We do not agree.

In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court noted that the role of an appellate court is not to substitute its judgment about appropriate sentencing factors for that of the sentencing judge. Id. at 608. When the sentencing court adheres to the "sentencing principles set forth in the Code and defined in our case law, its discretion [is] immune from second-guessing." Id. at 612.

Here, the trial court 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 criminal record and the seriousness of the offenses of which defendant 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 court found no mitigating factors. Additionally, the judge supported his finding of aggravating factors three and six by noting the defendant's prior record, and the fact that it included other similar offenses. Specifically, the sentencing judge noted that this was defendant's fourth indictable conviction and his prior three convictions were also for burglary. The nine juvenile adjudications were all theft, criminal trespass, and burglary offenses. Inasmuch as this was defendant's first state prison sentence, the judge sentenced defendant to four-and-one-half years in State prison. We find no abuse of discretion in the judge's findings with respect to aggravating and mitigating factors. See Bieniek, supra, 200 N.J. at 610-11. Because the trial judge imposed concurrent sentences, the outcome on the merger issues will not, in any event, affect the aggregate sentence. The sentence imposed is well-supported by the record and we discern no basis to disturb this sentence on appeal.

Affirmed.

1 State v. Cofield, 127 N.J. 328 (1992).

2 State v. Marrero, 148 N.J. 469, 482-83 (1997).

3

Defendant did not challenge the admissibility of the pocket knife.