STATE OF NEW JERSEY v. DONALD HARRIS
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3703-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DONALD HARRIS,
Defendant-Appellant.
________________________________________
Submitted October 17, 2017 – Decided December 21, 2017
Before Judges Yannotti and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Indictment
Nos. 14-07-0826 and 14-07-0813.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen W. Kirsch, Assistant
Deputy Public Defender, of counsel and on the
brief).
Christopher S. Porrino, Attorney General,
attorney for respondent (Sarah C. Hunt, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant was tried before a jury and found guilty of second-
degree unlawful possession of a weapon, contrary to
N.J.S.A. 2C:39-
5(b), and other offenses. He also pled guilty to second-degree
certain persons not to have weapons, contrary to
N.J.S.A. 2C:39-
7(b). He appeals from a judgment of conviction dated March 23,
2016. We affirm in part, reverse in part, and remand for
resentencing.
I.
Defendant was charged under Indictment No. 14-07-0813 with:
second-degree unlawful possession of a weapon, a .25 caliber
automatic pistol,
N.J.S.A. 2C:39-5(b) (count one); fourth-degree
unlawful possession of a weapon, a sword,
N.J.S.A. 2C:39-5(d)
(count two); two counts of second-degree possession of a weapon
during the distribution of a controlled dangerous substance (CDS),
N.J.S.A. 2C:39-4.1(a) to (c) (counts three and four); three counts
of third-degree possession of CDS, specifically, heroin,
Oxycodone, and Xanax,
N.J.S.A. 2C:35-10(a)(1) (counts five, seven,
and nine); three counts of third-degree possession of CDS with the
intent to distribute, specifically, heroin, Oxycodone, and Xanax,
N.J.S.A. 2C:35-5(a)(1) and
N.J.S.A. 2C:35-5(b)(3) to (13) (counts
six, eight, and ten); and fourth-degree resisting arrest,
N.J.S.A.
2C:29-2(a)(2) (count eleven). In addition, defendant was charged
2 A-3703-15T2
under Indictment No. 14-07-0826 with second-degree certain persons
not to possess weapons,
N.J.S.A. 2C:39-7(b).
The CDS distribution-related charges in counts three, four,
six, eight, and ten of Indictment No. 14-07-0813 were dismissed.
Defendant was tried before a jury on the remaining charges in that
indictment.
At the trial, Officer George Vit of the South Brunswick police
testified that at around 10:40 p.m. on November 9, 2013, he
observed defendant driving a Chevrolet Trailblazer out of a hotel
with "no regard for safety." Defendant's vehicle was swerving back
and forth. Vit turned on the overhead lights on his marked police
vehicle, activating his mobile video recorder (MVR). Vit followed
defendant, noting that he was swerving over the dashed lines in
the road and coming close to hitting the concrete divider.
Vit turned on his vehicle's sirens, but defendant did not
pull over. Defendant stopped at a red light, but when the light
turned green, he continued driving. Vit activated the public
address system in his vehicle and told defendant to "pull over to
the right." Defendant continued to drive without stopping for
approximately one mile, before driving up onto a curb, then back
onto the road, and ultimately coming to a stop.
Vit ran a check on the plates of the car defendant was
driving, and it showed the car was registered in the name of a
3 A-3703-15T2
"middle-aged male" named M.Z.1 Vit then called for a backup unit
to assist him, and he approached defendant's vehicle on the
driver's side. Vit saw there was only one person in the car, and
he was not a middle-aged man, but a younger "black male."
Vit also observed a white powdery substance underneath
defendant's nose. Vit asked defendant for his license,
registration, and proof of insurance. Vit said defendant was moving
about, making it look like he was complying with the request, "but
he was just acting busy." Vit asked defendant to exit the car and
he grabbed the door handle, but it was locked.
The vehicle began to roll forward, and Vit thought defendant
was trying to get away or run him over. Vit drew his weapon and
told defendant to put the vehicle in "park." Defendant complied
and unlocked the door. Vit told defendant to exit and walk to the
rear of the car. Defendant got out but he walked to the passenger
side of the car. Vit thought defendant might try to flee.
Vit was uneasy and frisked defendant for weapons. His pat
down revealed a cylindrical object that felt suspicious. Vit pulled
the object out. It was later determined to be a container with
twenty-two tablets of Oxycodone. Vit then administered a sobriety
test to defendant. He testified that defendant needed to be
1
We use initials to protect the identity of this individual.
4 A-3703-15T2
continuously corrected, was not following instructions, and "just
started walking around." During the test, Officer John Niper
arrived on the scene.
Vit approached defendant with handcuffs and told defendant
he was under arrest for driving while intoxicated. Defendant ran
off, with Vit and Niper in pursuit. Niper caught defendant. Vit
then handcuffed defendant and searched his person, finding $745
in cash. Vit had injured his ankle while pursuing defendant, and
he requested additional assistance. Other officers responded. Vit
placed defendant in an officer's patrol car. Defendant was
transported to the police station, and Vit called a towing company
to retrieve defendant's car. Vit deactivated his MVR.
Vit and Officer Gassman checked the car for any form of
identification so that they could inform the tow-truck driver who
owned the car. Immediately after opening the car door, Gassman
noted a handgun between the passenger seat and center console.
Gassman testified that he was one hundred percent certain the gun
was between the passenger seat and the center console, and he
would "bet [his] five-year-old's life on it." Gassman secured the
weapon by clearing the chamber and "dropping the magazine."
Vit continued to look in the car with a flashlight. He found
another fully loaded magazine where the gun had been recovered.
Vit had the car towed to police headquarters. There, Vit had
5 A-3703-15T2
defendant provide a urine sample, which came back positive for
Oxycodone, Xanax, and cocaine.
Vit conducted a further search of the vehicle. He found: (1)
two amphetamine pills in the cup-holder; (2) a marijuana grinder
in the center console; (3) a .25 caliber bullet on the passenger-
side seat; (4) a five-hour energy bottle that contained Xanax
pills; (5) a "sword along the backseat"; (6) four folds of heroin
beneath the passenger seat; and (7) twenty-two shotgun shells
underneath the backseat.
On cross-examination, defendant's attorney asked Vit whether
he had ever investigated a "hotel party" in South Brunswick where
"somebody rents a room and they have a lot of people go there."
Vit responded that he had. He said the police usually investigate
a hotel party if hotel management calls and informs the police a
party is out of control. Vit said he did not investigate the hotel
that defendant was seen leaving because he was "kind of tied up
with [his] arrest." When asked if all the other members of the
South Brunswick police force were tied up as well, Vit responded
"I don't know what the other officers were doing."
Sergeant James Napp was responsible for checking the .25
caliber gun, two magazines, and eleven cartridges for
fingerprints. Napp testified that he was unable to retrieve any
fingerprints from these items. He explained to the jury the various
6 A-3703-15T2
reasons why this was not unusual, given the materials that the
items were made of.
M.Z., the owner of the car defendant was driving when he was
arrested, testified. He stated that he is the grandfather of
defendant's son and that his daughter had possessed the car for
two to three years before defendant's arrest. M.Z. further
testified that the gun, sword, and drugs found in the vehicle did
not belong to him.
Defendant was found not guilty on counts two (unlawful
possession of a weapon — a sword) and five (possession of CDS -
heroin). He was convicted on counts one (unlawful possession of a
weapon – a handgun), seven (possession of CDS - Oxycodone), nine
(possession of CDS - Xanax), and eleven (resisting arrest).
Defendant then pled guilty to certain persons not to possess
weapons, as charged in Indictment No. 14-07-0826.
Defendant was sentenced on March 18, 2016. On the charges in
Indictment No. 14-07-0813, the judge sentenced defendant to an
eight-year prison term, with four years of parole ineligibility,
on count one. The judge merged counts nine and seven, and sentenced
defendant to a consecutive five-year term, with two years of parole
ineligibility on count seven. The judge also imposed a one-year
concurrent term on count eleven. In addition, the judge sentenced
defendant to a concurrent six-year term, with five years of parole
7 A-3703-15T2
ineligibility, for the certain persons offense charged in
Indictment No. 14-07-0826. This appeal followed.
On appeal, defendant argues:
POINT I
THE JUDGE IMPROPERLY PREVENTED DEFENSE COUNSEL
FROM ARGUING TO THE JURY THAT THE POLICE WERE
TOO EASILY SATISFIED THAT DEFENDANT WAS THE
POSSESSOR OF ALL THE CONTRABAND IN THE CAR
WHEN THEY COULD HAVE USED BROADER
INVESTIGATIVE TECHNIQUES.
POINT II
DEFENDANT POSSESSED A WEAPON DURING THE GUN-
AMNESTY PERIOD OF LATE 2013; CONSEQUENTLY, HIS
CONVICTION FOR POSSESSION OF A WEAPON FOR AN
UNLAWFUL PURPOSE SHOULD BE REVERSED (PARTIALLY
RAISED BELOW).
POINT III
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
II.
Defendant argues that the trial judge erred by preventing his
attorney from arguing to the jury in summation that while he was
found with twenty-two tablets of Oxycodone, the police were
otherwise too easily satisfied that defendant possessed the
remaining contraband recovered from the vehicle. Defendant notes
that on cross-examination, Officer Vit was questioned about hotel
parties and he conceded that he and the other South Brunswick
police officers did not go back to investigate whether such a
party had taken place at the hotel from which defendant was seen
leaving on the night of his arrest.
8 A-3703-15T2
In his closing argument, defense counsel challenged Vit's
credibility. He then stated
Officer Vit . . . he was the first guy that
testifies. He said he's . . . been working in
. . . South Brunswick for many years, he knows
about these hotel parties as I alluded to
before. He never went back and checked it out
. . . . Could be weapons, there could be
drugs, there could be knives . . . . Obtain
some video, obtain some statements, obtain
some witnesses . . . . Let's do a proper
investigation. But, see, when you got a guy,
a young black kid with dreadlocks, there's no
reason to do anything else, and that's what
happened here. There's no reason to do
anything else, just stop right there, and
that's what they did.
The assistant prosecutor objected to these remarks, asserting
that there was no evidence of any racial discrimination in the
case. The judge agreed, pointing out that Vit had testified he
could not see who was operating the vehicle until he walked up to
the window of the car after he stopped it. Defense counsel
continued, asserting:
I'm not saying that they profiled him at night
when he's driving in the car because they
couldn't see it was him. I'm saying once they
saw it was him they (indecipherable) . . . .
If that was Donald Trump, I told you, or
Hillary Clinton in the front seat of that car,
you tell me they're going to handle it the
same way. Tell me that. Go ahead and tell me
that with a straight face.
The assistant prosecutor objected again and the trial judge
sustained the objection.
9 A-3703-15T2
In the context of summations, it is understood that
"[c]ounsel's arguments are expected to be passionate, 'for indeed
it is the duty of a trial attorney to advocate.'" Jackowitz v.
Lang,
408 N.J. Super. 495, 504-05 (quoting Geler v. Akawie,
358 N.J. Super. 437, 463 (App. Div.), certif. denied,
177 N.J. 223
(2003)). However, "[t]he scope of defendant's summation argument
must not exceed the 'four corners of the evidence.'" State v.
Loftin,
146 N.J. 295, 347 (1996) (citing State v. Reynolds,
41 N.J. 163, 176, cert. denied,
377 U.S. 1000 (1964)).
"A trial court must exclude from summation those arguments
that the evidence does not reasonably support." State v. Reddish,
181 N.J. 553, 629 (2004). Thus, "it is proper for a trial court
to preclude references in closing arguments to matters that have
no basis in the evidence." State v. Jones,
308 N.J. Super. 174,
185 (App. Div.), certif. denied,
156 N.J. 380 (1998).
We are convinced that the trial judge did not err by
sustaining the prosecutor's objection to the aforementioned
comments of defendant's attorney. As the judge found, the evidence
did not reasonably support an inference that Vit and the other
officers decided not to conduct an investigation at the hotel
because they had arrested an African-American male. There was no
evidence that there had been a party at the hotel or that defendant
had attended it. There was no support in the evidence to suggest
10 A-3703-15T2
that the police would have investigated the hotel if defendant had
not been an African-American. Furthermore, there was no evidence
from which an inference of racial discrimination could have been
reasonably drawn.
III.
Next, defendant argues that his conviction for unlawful
possession of a handgun should be reversed because he possessed
the weapon during the amnesty period established by L. 2013, c.
117, § 1, which provides:
Any person who has in his possession a handgun
in violation of subsection b. of [N.J.S.A.]
2C:39-5 or a rifle or shotgun in violation of
subsection c. of [
N.J.S.A.] 2C:39-5 on the
effective date of this act may retain
possession of that handgun, rifle, or shotgun
for a period of not more than 180 days after
the effective date of this act.
During that time period, the possessor of that
handgun, rifle, or shotgun shall:
1) transfer that firearm to any person
lawfully entitled to own or possess it;
or
2) voluntarily surrender that firearm
pursuant to the provisions of [N.J.S.A.]
2C:39-12.
[(emphasis added).]
In this case, defendant made a motion for acquittal at trial
pursuant to Rule 3:18-1. He argued that the State had not presented
sufficient evidence to support his conviction. Defendant did not,
11 A-3703-15T2
however, raise the amnesty issue. In any event, defendant's
argument is entirely without merit.
Here, defendant was convicted under
N.J.S.A. 2C:39-5(b),
which makes it an offense to possess a handgun without first
obtaining a permit to carry. In State v. Harper, the Court held
that "[a] defendant charged under that statute for possession
during the amnesty period may raise the amnesty law as an
affirmative defense."
229 N.J. 228, 241 (2017). Defendant must,
however, establish:
1) that he possessed a handgun in violation
of
N.J.S.A. 2C:39-5(b) or (c) "on the
effective date of this act" -- in other
words, that he unlawfully possessed a
handgun on August 8, 2013; and
2) that he took steps to transfer the
firearm or voluntarily surrender it
during the 180-day period beginning on
August 8, 2013 . . . that is, before
authorities brought any charges or began
to investigate his unlawful possession.
[Ibid. (citing L. 2013, c. 117, § 1;
N.J.S.A. 2C39-12).]
A defendant must also give pretrial notice of his intention
to rely on the amnesty provision. Ibid. (citing R. 3:12-1).
Moreover, "[a]s with other affirmative defenses, a defendant must
timely assert the defense or it is waived." Id. at 242.
Here, defendant waived his right to raise this affirmative
defense on appeal because he failed to assert the defense prior
12 A-3703-15T2
to trial. Even if he had timely asserted the defense in the trial
court, defendant did not present any evidence showing that he (1)
unlawfully possessed the gun on August 8, 2013 — the effective
date of the amnesty law, or (2) that he took steps to transfer or
voluntarily surrender the gun before he was charged under
N.J.S.A.
2C:39-5(b). Therefore, defendant failed to establish either of the
criteria under Harper for the amnesty defense.
IV.
Defendant further argues that his sentences are manifestly
excessive. In this case, the judge 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 nine,
N.J.S.A. 2C:44-1(a)(9) (need to deter
defendant and others from violating the law). The judge found no
mitigating factors.
As stated previously, with regard to the charges in Indictment
No. 14-07-0813, on count one (unlawful possession of a handgun),
the judge sentenced defendant to an eight-year prison term, with
four years of parole ineligibility. The judge merged count nine
with count seven (possession of CDS, Oxycodone), and sentenced
defendant on that count to a consecutive five-year term, with two
years of parole ineligibility. The judge imposed a concurrent
one-year term on count eleven (resisting arrest). In addition, the
13 A-3703-15T2
judge sentenced defendant to a concurrent six-year term, with five
years of parole ineligibility, on the certain persons offense,
charged in Indictment No. 14-07-0826.
Defendant contends the judge improperly omitted two
mitigating factors from his analysis. Defendant argues that the
balancing of the aggravating and mitigating factors does not
support the parole-ineligibility periods imposed by the judge. He
also argues that the judge erred because he did not engage in an
analysis of the relevant factors for determining whether a sentence
should be concurrent or consecutive.
An appellate court's review of the trial court's "sentencing
decisions is relatively narrow and is governed by an abuse of
discretion standard." State v. Blackmon,
202 N.J. 283, 297 (2010).
When reviewing a sentence, we consider "whether the trial court
has made findings of fact that are grounded in competent,
reasonably credible evidence and whether the 'factfinder [has
applied] correct legal principles in exercising its discretion.'"
Ibid. (quoting State v. Roth,
95 N.J. 334, 363 (1984)).
An appellate court should not set aside a trial court's
sentence "unless: (1) the sentencing guidelines were violated; (2)
the findings of aggravating and mitigating factors were not 'based
upon competent credible evidence in the record;' or (3) 'the
application of the guidelines to the facts' of the case 'shock[s]
14 A-3703-15T2
the judicial conscience.'" State v. Bolvito,
217 N.J. 221, 228
(2014) (alteration in original) (quoting Roth,
95 N.J. at 364-65).
Defendant argues that the judge erred by failing to find
mitigating factor one,
N.J.S.A. 2C:44-1(b)(1) (defendant's conduct
did not cause or threaten serious harm); and mitigating factor
two,
N.J.S.A. 2C:44-1(b)(2) (defendant did not contemplate that
his conduct would cause or threaten serious harm). Defendant
asserts that no one was injured or threatened by his possession
of the gun or the CDS. We disagree.
Possession of a handgun and illegal drugs, by their very
nature, threaten serious harm. Moreover, a defendant who engages
in this conduct can fairly be said to have contemplated that it
would cause or threaten serious harm. See State v. Tarver,
272 N.J. Super. 414, 434-35 (App. Div. 1994). We therefore reject
defendant's contention that the judge erred by failing to find
mitigating factors one and two.
Defendant also argues that the judge erred by failing to
properly balance the aggravating factors and mitigating factors
in establishing the periods of parole ineligibility. On count one,
the judge was required to impose a period of parole ineligibility
equal to one-half of the overall term, or forty-two months,
whichever is greater.
N.J.S.A. 2C:43-6(c). Here, the judge
sentenced defendant to eight years of incarceration. Therefore,
15 A-3703-15T2
the four-year period of parole ineligibility on count one was the
legal minimum and was consistent with the sentencing guidelines.
On count seven, the judge sentenced defendant to a two-year
period of parole ineligibility. The judge was authorized to impose
a period of parole ineligibility "not to exceed one-half of the
term set" if the judge is "clearly convinced that the aggravating
factors substantially outweigh the mitigating factors."
N.J.S.A.
2C:43-6(b).
Although the judge did not articulate his reasons for the
two-year period of parole ineligibility, the judge found no
mitigating factors. Therefore, the aggravating factors
substantially outweighed the mitigating factors. Thus, the two-
year parole ineligibility period imposed on count seven was
consistent with the sentencing guidelines and not an abuse of the
judge's sentencing discretion.
Defendant further argues that the judge erred by imposing a
consecutive sentence on count seven. In State v. Yarbough,
100 N.J. 627, 644 (1985), cert. denied,
475 U.S. 1014, 106 (1986),
the Court established criteria to be applied by the trial courts
in determining whether to impose a consecutive sentence. Among
other things, the trial court should consider whether
a) the crimes and their objectives were
predominantly independent of each other;
16 A-3703-15T2
b) the crimes involved separate acts of
violence or threats of violence;
c) the crimes were committed at different
times or separate places, rather than
being committed so closely in time and
place as to indicate a single period of
aberrant behavior;
d) any of the crimes involved multiple
victims;
e) the convictions for which the sentences
are to be imposed are numerous.
[Ibid.]
"A trial court is expected to give 'a separate statement of reasons
for its decision to impose consecutive sentences.'" State v.
Molina,
168 N.J. 436, 442 (2001) (quoting State v. Miller,
108 N.J. 112, 122 (1987)).
Here, the trial judge did not provide any reasons for imposing
a consecutive sentence on count seven. Therefore, we are
constrained to reverse and remand for resentencing on count seven.
On remand, the judge shall consider the Yarbough factors. If the
judge decides that a consecutive sentence should be imposed, he
shall provide a statement of reasons for that decision.
Accordingly, defendant's convictions and the sentences
imposed on counts one and eleven of Indictment No. 14-07-0813, and
for the certain persons offense charged in Indictment No. 14-07-
0826 are affirmed. The sentence imposed on count seven of
17 A-3703-15T
2 Indictment No. 14-07-0813 is reversed and the matter remanded to
the trial court for resentencing on that count.
Affirmed in part, reversed in part, and remanded for
resentencing on count seven of Indictment No. 14-07-0813. We do
not retain jurisdiction.
18 A-3703-15T2
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