STATE OF NEW JERSEY v. DARRELL ROBINSON

NOT FOR PUBLICATION WITHOUT THE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/

Cross-Appellant,

v.

DARRELL ROBINSON,

Defendant-Appellant/

Cross-Respondent.

_______________________________

June 13, 2013

Submitted June 4, 2014 Decided

Before Judges Fuentes, Fasciale and Haas.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-10-2966.

Joseph E. Krakora, Public Defender, attorney for appellant/cross-respondent (Alan I. Smith, Designated Counsel, on the brief).

John J. Hoffman, Acting Attorney General, attorney for respondent/cross-appellant (Kenneth Burden, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Darrell Robinson appeals from his convictions for third-degree possession of a controlled dangerous substance (CDS), N.J.S.A. 2C:35-10a(1) (Count One); second-degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5b(2) (Count Two); third-degree possession of CDS within 1000 feet of a school, N.J.S.A. 2C:35-7 (Count Three); second-degree possession of CDS within 500 feet of a public housing facility, N.J.S.A. 2C:35-7.1 (Count Four); fourth-degree possession of drug paraphernalia, N.J.S.A. 2C:36-3 (Count Five); two counts of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5b (Counts Six and Eight); and two counts of second-degree committing a drug offense while possessing a firearm, N.J.S.A. 39-4.1 (Counts Seven and Nine). The State cross-appeals from defendant's sentence. We affirm.

On March 6, 2008, police officers executed a search warrant regarding a barbershop in Newark owned by defendant's uncle. Upon entering, they discovered defendant and two other men. In response to the officers' questions, defendant indicated that he was the owner of the barbershop. The officers served defendant with the warrant and detained all three men. They searched the barbershop and discovered two handguns, ammunition, a shaving kit containing cocaine, empty plastic bags, and two digital scales in a plastic bin against the rear wall. They arrested defendant. An Essex County grand jury indicted and charged him with committing these crimes.

A judge and jury tried defendant over a period of three days in May and June 2010. Defendant's uncle testified that he had no knowledge of the drugs or weapons, that he first learned of the search when he found the shop "tore all to pieces," and that defendant "didn't say too much to me about it. He didn't say nothing." The manager of the barbershop's building testified that he lived upstairs and sometimes heard the barbershop gates opening at 2:00 a.m. or 3:00 a.m. One of the detectives who executed the search testified on cross-examination that, after police found the drugs and weapons, defendant "kept quiet" and "never contested" that they were his. The jury found defendant guilty as charged.

In July 2010, the judge sentenced defendant. On Counts One through Six and Count Eight, he imposed an aggregate prison term of five years with a three-year parole disqualifier. On Counts Seven and Nine, the judge imposed a consecutive, aggregate term of five years flat.

On appeal, defendant raises the following points:

POINT I

DEFENDANT'S CONSTITUTIONAL RIGHT TO REMAIN SILENT WAS VIOLATED DURING THE TRIAL AND THE IMPROPRIETY CONSTITUTES PLAIN ERROR BECAUSE THE STATE'S PROOFS WERE NOT SUBSTANTIAL AND BECAUSE THE TRIAL COURT FAILED TO ISSUE AN AMELIORATING INSTRUCTION (NOT RAISED BELOW).

POINT II

REPEATED REFERENCES TO THE SEARCH WARRANT THAT WAS ISSUED IMPROPERLY BOLSTERED THE STATE'S PROOFS BECAUSE IT SUGGESTED THAT THERE WAS EVIDENCE OF DEFENDANT'S GUILT THAT WAS OUTSIDE OF THE TRIAL RECORD (NOT RAISED BELOW).

POINT III

THE TRIAL COURT MISAPPLIED ITS DISCRETION IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

On cross-appeal, the State argues:

POINT IV

DEFENDANT'S SENTENCES FOR THE CONVICTIONS ON COUNTS SEVEN AND NINE ARE ILLEGAL AND MUST BE AMENDED [(NOT RAISED BELOW)].

After carefully considering the record and the briefs, we conclude that defendant's arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2). Applying the plain error standard of review, R. 2:10-2, we add the following brief comments.

We disagree with defendant that certain testimony regarding his silence during and after his arrest warrants a reversal. In general, New Jersey's privilege against self-incrimination "does not allow a prosecutor to use at trial a defendant's silence [against a defendant] when that silence arises at or near the time of arrest, during official interrogation, or while in police custody." State v. Elkwisni, 190 N.J. 169, 177 (2007) (quoting State v. Muhammad, 182 N.J. 551, 569 (2005)) (internal quotation marks omitted). Under the Fourteenth Amendment of the Federal Constitution, "the State may not 'impeach a defendant's exculpatory story, told for the first time at trial, by cross-examining the defendant about his failure to have told the story . . . at the time of his arrest.'" Ibid. (quoting Doyle v. Ohio, 426 U.S. 610, 611, 96 S. Ct. 2240, 2241, 49 L. Ed. 2d 91, 94 (1976)).

We conclude that the assistant prosecutor did not run afoul of these standards. Defense counsel, not the assistant prosecutor, elicited the detective's testimony that defendant was silent during the search. Defense counsel did not object, and the assistant prosecutor's summation did not encourage the jury to draw adverse inferences from defendant's silence. Although the assistant prosecutor elicited defendant's uncle's testimony that defendant "didn't say too much" to him about why the barbershop was disheveled after the search, this testimony did not imply guilt, it was brief, and it would not have affected the jury's verdict. See id. at 181; see generally State v. Macon, 57 N.J. 325, 337 (1971) (applying the plain error standard of Rule 2:10-2 in the context of a jury trial). Similarly, testimonial references to the search warrant occurred primarily in response to defense counsel's questions, and were mostly fleeting. We see no error, let alone plain error.

The State challenges the sentence for the first time on appeal. It is well-settled that we will generally "decline to consider questions or issues not properly presented to the trial court when an opportunity for such a presentation is available." Nieder v. Royal Indemn. Ins. Co., 62 N.J. 229, 234 (1973). The assistant prosecutor never objected, and the State did not apply to amend the sentence until after defendant filed this appeal. We therefore decline to adjudicate the merits of the State's cross-appeal.

Affirmed.