STATE OF NEW JERSEY v. SHARIFF H. ROBINSON
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0626-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
SHARIFF H. ROBINSON,
Defendant-Appellant.
_____________________________
Submitted April 18, 2018 – Decided June 1, 2018
Before Judges Alvarez and Currier.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 13-
09-0176.
Joseph E. Krakora, Public Defender, attorney
for appellant (Stephen P. Hunter, Assistant
Deputy Public Defender, of counsel and on the
brief).
Gurbir S. Grewal, Attorney General, attorney
for respondent (Arielle E. Katz, Deputy
Attorney General, of counsel and on the
brief).
PER CURIAM
Defendant Shariff Robinson appeals from his convictions after
a jury trial, contending that the trial judge erred in permitting
certain reputation and opinion testimony from the State's
witnesses, and failed to give a proper jury charge. We affirm.
Defendant was indicted of second-degree unlawful possession
of a weapon,
N.J.S.A. 2C:39-5(b) (count one); fourth-degree
unlawful disposition of a weapon,
N.J.S.A. 2C:39-9(d) (count two);
fourth-degree possession of hollow nose or body armor penetrating
bullets,
N.J.S.A. 2C:39-3(f) (count three); fourth-degree
distribution of a controlled dangerous substance,
N.J.S.A. 2C:35-
5(a)(1) and (b)(12) (count four); and fourth-degree possession of
a controlled dangerous substance,
N.J.S.A. 2C:35-10(a)(3) (count
five).
Count five was dismissed, and defendant was convicted of the
remaining counts after a jury trial. He was sentenced on count
one to a five-year prison term, with three years of parole
ineligibility pursuant to the Graves Act,
N.J.S.A. 2C:43-6.2.
The sentences on the remaining counts were concurrent.
At trial, the State alleged that defendant sold a handgun to
its cooperating witness, Stefan Farrar. New Jersey State Police
Detective Michael Gregory testified that Farrar told him that
defendant was selling marijuana and "had a handgun for sale."
Gregory met with Farrar and devised a plan to "attempt to buy the
marijuana and the handgun that [Farrar] was telling us [defendant]
had." To confirm Farrar's information prior to executing the
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plan, Gregory conducted an "overhear" in which he listened to a
phone conversation between Farrar and defendant regarding the
marijuana and handgun. In that conversation, defendant told Farrar
the marijuana and handgun would cost $550, and set a time and
place for the sale.
A second conversation between Farrar and defendant was
recorded by Gregory and played for the jury. During that
conversation, defendant said to Farrar: "I'm on [the] way to the
'hood now so we'll meet as soon as I get back" and "I'm going to
be ready for you." Gregory explained to the jury that these
phrases meant defendant would have the weapon and marijuana ready
for Farrar when they met.
Farrar was instructed by Gregory on the protocol for a
"controlled buy." He explained that a "controlled buy" involves
the police searching an informant's person and vehicle, placing
an "on-body recording device that he does not know how to operate
. . . covertly on his body," and maintaining surveillance of him.
Gregory also gave Farrar $550.
The jury also heard the recording from the device that Farrar
wore during the meeting with defendant. They heard defendant show
Farrar a gun that he was not selling, describing it as a "little
sub-compact joint that shit spit rapid." The prosecutor asked
Gregory, if "based on your investigation and your knowledge and
3 A-0626-15T3
experience at that time," he knew what the defendant meant by
those comments. Gregory testified that defendant was referencing
a "second handgun that was present at the scene of the recording."
Farrar then started bragging to defendant about the amount
of money he would make re-selling the drugs and weapons himself.
Farrar said he would actually need more drugs to sell than they
discussed earlier and asked about a bag defendant had with him.
Gregory testified that the bag contained marijuana. Defendant and
Farrar haggled over the price of the marijuana, but it is not
clear from the transcript whether or not they actually agreed on
a price. Eventually defendant told Farrar he had to leave to get
a "black one." The prosecutor again asked Gregory if "based on
your training and experience and throughout the investigation
during this time," he knew what defendant meant by a "black one."
Gregory testified that it meant another gun.
Gregory testified that he waited outside where the meeting
took place, watched Farrar go into the house, and then emerge with
defendant. Gregory saw defendant carrying a brown leather case
in his right hand, which Gregory testified was "formed in the
shape of a gun" and was a "gun case." Gregory observed defendant
hand Farrar the gun case.
Farrar drove to a police station and Gregory followed him.
When they arrived, Farrar turned over the items defendant had
4 A-0626-15T3
given him, "a dime bag of marijuana and the gun case." Gregory
opened the case and found a silver .357 magnum firearm inside.
When searching the gun case, he found hollow-point bullets.
Several other officers confirmed that they watched Farrar enter
and exit the meeting for the controlled purchase, and followed his
car to the police station.
Because defendant asserted an entrapment defense, the State
presented Farrar as a witness to show that defendant had a
reputation for selling marijuana. Defendant objected to the
testimony and the judge conducted a N.J.R.E. 104 hearing. During
the hearing, Farrar testified that he had known defendant for six
or seven years, and had personally observed defendant selling
marijuana to other people in the neighborhood. Farrar said he
purchased marijuana from defendant "like every other week" for
"some months." He identified a street corner where defendant sold
drugs as well as the address of a residence. Defendant renewed
his objection to the testimony regarding defendant's reputation
in the community for criminal activities.
In permitting the testimony, the court found that defendant
"raised the claim of entrapment as a defense and thus brought into
issue his predispositions in connection with the crimes charged
in the indictment relating to the marijuana as well as the crimes
5 A-0626-15T3
charged in the indictment relating to the guns." The judge
reasoned that,
the proof presented does amount to clear and
convincing evidence . . . of the reputation
of the defendant by way of activities in the
community and the witness has gotten on the
witness stand here and testified in a way that
does amount to a declaration against interest
admitting his own involvement in [il]licit
activity and has demonstrated that he lived
in the neighborhood and had experience in the
neighborhood, [and] knows the defendant.
The judge concluded that the testimony was "admissible in
light of and in the face of the defense of entrapment to show the
intent, the motive, the purpose of the defendant, the lack of
innocence and the absence of susceptibility of entrapment."
However, because Farrar had not testified as to knowledge of any
reputation of defendant for dealing in guns, he forbade the State
from arguing to the jury that defendant had a reputation in the
community for gun dealing.
In addition to the above-described testimony, Farrar also
told the jury that he learned defendant was selling a gun "[j]ust
from word of mouth, people telling me." Farrar provided
information to the police that defendant had a .357 revolver that
he wanted to sell. Although at the conclusion of the transaction
Gregory gave him two hundred dollars for the information, Farrar
told the jury that he decided to work with the police because he
6 A-0626-15T3
"had a couple of friends that got shot by guns . . . in the last
year . . . [and] just wanted to get as many [guns] off the street
as possible." He was not promised anything by the prosecutor's
office or law enforcement in exchange for his testimony.
Farrar described the details of the transaction,
corroborating the testimony provided by Gregory and the other
officers. Although he requested defendant contact him if he had
more guns to sell in the future, he did not hear from defendant
again.
Defendant also testified he had known Farrar for about ten
years, but denied ever selling marijuana to him. According to
defendant, a few weeks before his arrest, Farrar called and asked
him if he knew anybody that was selling a gun. Defendant stated
that he eventually found someone selling a silver .357 magnum.
However, Farrar told him he only wanted to deal with defendant
directly and that he was willing to spend between $400 to $600 for
the gun.
Defendant testified that he received the handgun from his
friend. When they met for the purchase of the gun, defendant told
Farrar he could get another handgun for him. However, when Farrar
called him later that day to confirm the second gun purchase,
defendant stated that his friend no longer had another gun.
7 A-0626-15T3
Defendant testified that Farrar asked him to sell him a
firearm "about fifteen times" in the three weeks prior to the
controlled buy. He eventually sold Farrar a gun because Farrar
told him he owed someone money and that he could pay off the debt
by reselling the gun.
When asked about the gun he showed to Farrar during the
meeting that was not for sale, defendant testified that it was not
a real gun, but described it as a toy gun or BB gun. He conceded
that he did give Farrar marijuana that day, but denied that he was
a dealer or had ever sold drugs.
During the jury instructions, the judge advised the jury that
defendant was asserting the defense of entrapment. After reading
the model jury charge, the judge added:
The State has introduced evidence to
demonstrate, if believed, that the defendant
was not an innocent person who would not have
committed the gun, hollow-nose bullet and
marijuana crimes charged were it not for the
inducement of law enforcement officers and/or
the officers' agent. That is . . . that he
was predisposed to commit the . . . crimes
charged.
Therefore, for this purpose, the [c]ourt
has permitted for your consideration the
introduction of evidence of defendant's
reputation . . . on or about October 2, 2012
for engaging in unlawful activities involving
marijuana and/or guns, and evidence of
defendant's having and admitting possession of
a black gun not charged in the indictment, as
well as discussing potential future gun sales
8 A-0626-15T3
for profit during a recorded and transcribed
conversation in person between the defendant
and the law enforcement's agent, the witness
Stefan F[a]rrar on October 2, 2012 . . . .
Whether such evidence, along with the
other facts and surrounding circumstances
shows a predisposition on the part of the
defendant to commit the crimes charged is for
you to determine.
. . . .
Now, the State has introduced evidence
that the defendant had and admitted possession
of a black gun not charged in the indictment
and discussed potential future gun sales for
profit during the recorded and transcribed
conversation in person between the witness
Stefan F[a]rrar and the defendant on October
2, 2012 . . . . Normally, such evidence is not
permitted under our rules of evidence. . . .
. . . .
However, our rules do permit evidence of
other crimes, wrongs or acts when the evidence
is used for certain specific narrow purposes.
In this trial, the State has offered the
evidence in an effort to convince you that the
defendant's intent, readiness, motive and lack
of innocence, as well as absence of
susceptibility to entrapment in his possession
and transfer of the handgun . . . and hollow-
nose bullets . . . for profit in the course
of the defendant's conscious involvement in
contemporaneous possession of another gun on
October 2, 2012 and anticipated . . .
possession of additional guns after October
2, 2012.
. . . .
However, you may not use this evidence to
decide that the defendant has a tendency to
9 A-0626-15T3
commit crimes or that . . . he's a bad person.
That is, you may not decide just because a
defendant has committed other acts, including
statements, he must be guilty of the present
crimes.
I have admitted the evidence to help you
decide the specific question of the
defendant's guilt, motive, readiness and lack
of innocence, as well as absence of
susceptibility to entrapment in possession and
transfer of the handgun . . . and the hollow-
nose bullets . . . admitted in evidence. You
. . . may not consider it for any other purpose
and may not find the defendant guilty of the
crimes charged simply because the State has
offered evidence that he committed other acts,
including the statements I mention.
There was no objection to the charge.
On appeal, defendant raises the following issues:
POINT I: IN EXPLAINING THE MATERIAL FACTS
RELEVANT TO THE ENTRAPMENT CHARGE, THE TRIAL
COURT COMMITTED PLAIN ERROR WHEN IT DISCUSSED
THE STATE'S EVIDENCE SIGNIFICANTLY, IN FACT,
OVERSTATING THE EVIDENCE, BUT FAILED TO EVEN
MENTION THE DEFENDANT'S CONTRARY CONTENTIONS.
U.S. Const. Amend. XIV; N.J. Const. Art. I,
¶¶ 1, 10 (Not raised below).
POINT II: THE DETECTIVE'S OPINION TESTIMONY
IMPROPERLY INVADED THE PROVINCE OF THE JURY
AND IMPLIED THAT HE POSSESSED SUPERIOR
KNOWLEDGE OUTSIDE THE RECORD, AND THEREFORE
WAS PLAIN ERROR. U.S. Const. Amends. VI, XIV;
N.J. Const. Art. I, ¶¶ 1, 10 (Not raised
below).
POINT III: THE ADMISSION OF FARRAR'S
UNCORROBORATED TESTIMONY THAT DEFENDANT HAD A
REPUTATION FOR SELLING MARIJUANA DENIED
DEFENDANT A FAIR TRIAL. U.S. Const. Amends.
XIV; N.J. Const. Art. I ¶¶ 1, 9, 10.
10 A-0626-15T3
POINT IV: THE TRIAL COURT'S FAILURE TO ADDRESS
DUE PROCESS ENTRAPMENT REQUIRES A REMAND FOR
FURTHER PROCEEDINGS. U.S. Const. Amend. XIV;
N.J. Const. Art. I, [¶] 10 (Not raised below).
We review the jury instructions under the plain error
standard, disregarding any error "unless it is of such a nature
as to have been clearly capable of producing an unjust result."
State v. Funderburg,
225 N.J. 66, 79 (2016) (quoting R. 2:10-2).
To warrant reversal, the error "must be sufficient to raise 'a
reasonable doubt . . . as to whether the error led the jury to a
result it otherwise might not have reached.'" Ibid. (quoting
State v. Jenkins,
178 N.J. 347, 361 (2004)).
Defendant argues that the trial judge erred in discussing the
State's evidence as part of its charge on entrapment. He contends
it was error to focus only on the State's evidence and not mention
any evidence offered by the defense, and that the jury should have
been charged on "due process entrapment." We disagree.
Jury instructions should "relate the law to the facts of a
case." State v. Savage,
172 N.J. 374, 389 (2002). The "trial
judge has the right, and oftentimes the duty, to review the
testimony and comment upon it, so long as he clearly leaves to the
jury the ultimate determination of the facts and the rendering of
a just and true verdict on the facts as it finds them." State v.
11 A-0626-15T3
Concepcion,
111 N.J. 373, 379 (1988) (quoting State v. Laws,
50 N.J. 159, 177 (1967), modified,
51 N.J. 494 (1968)).
In fact, in certain circumstances, the trial judge is required
to give instructions limiting the way in which the jury may
consider certain evidence. State v. Reddish,
181 N.J. 553, 611
(2004). Those circumstances were present here. In Reddish, the
Court held that where evidence is involved that tends to show that
the defendant has a propensity to commit crimes in general, the
court must give an "explicit instruction that the jury should not
make any inferences about defendant's propensity to commit
crimes." Ibid. If the entrapment defense is raised, "the
defendant's specific predisposition to commit a particular crime
is at issue but not his general 'criminal propensity,'" and the
trial judge must make that clear in his instructions. State v.
Gibbons,
105 N.J. 67, 88 (1987).
The trial judge properly mentioned the State's evidence in
the particular jury charge in order to provide the necessary
limiting instructions on how the jury could consider the evidence.
The judge discussed the State's evidence of defendant's reputation
for selling drugs and that "defendant had and admitted possession
of a black gun not charged in the indictment." He subsequently
explained to the jury that while "[n]ormally, such evidence is not
permitted under our rules of evidence[,] . . . our rules do permit
12 A-0626-15T3
evidence of other crimes, wrongs or acts when the evidence is used
for certain narrow purposes." The permissible purpose for which
the evidence was being used here was "in an effort to convince you
[of] the defendant's intent, readiness, motive and lack of
innocence, as well as absence of susceptibility to entrapment."
The judge was required to give this limiting instruction, and it
was for that purpose that he discussed some of the State's
evidence. See Gibbons,
105 N.J. at 88. The evidence presented
by the defense did not require a limiting instruction and,
therefore, the court did not err in mentioning the State's evidence
without discussing the evidence defendant used to counter it.
We discern no merit to defendant's argument, raised for the
first time on appeal that the jury should have been charged with
due process entrapment. "The essence of due process entrapment
inheres in the egregious or blatant wrongfulness of the government
conduct." State v. Johnson,
127 N.J. 458, 470 (1992). A defendant
may not be convicted if "the government's overall involvement in
[the] crime was so outrageous as to violate due process." Ibid.
(quoting Kevin H. Marino, Outrageous Conduct: The Third Circuit's
Treatment of the Due Process Defense,
19 Seton Hall L. Rev. 606,
613 (1989)).
The doctrine is not applicable to the circumstances of this
case. The use of informants to buy drugs or weapons from those
13 A-0626-15T3
who sell them is common practice for law enforcement. There is
nothing particularly outrageous or unreasonable about that
government conduct. We perceive no plain error.
We turn to a review of defendant's contentions that the trial
judge erred in allowing Gregory to give "opinion testimony" and
in permitting Farrar to testify about defendant's reputation in
the community as a drug dealer. Specifically, defendant objects
to Gregory's testimony interpreting several phrases in the
conversations recorded between him and Farrar. There was no
objection to the testimony at trial.
Police officers may give lay opinion testimony so long as
that testimony is "based on, and supported by testimony about, the
officer's personal perception and observation." State v. McLean
205 N.J. 438, 459 (2011). However, a lay witness, even a police
officer, may not offer an opinion on a matter "not within [the
witness's] direct ken . . . and as to which the jury is as competent
as he to form a conclusion." Ibid. (quoting Brindley v. Firemen's
Ins. Co.,
35 N.J. Super. 1, 8 (App. Div. 1955)).
Here, Gregory did not tell the jury his opinion of what he
thought was happening. Rather, he was asked to provide the jury
with the meaning of some street slang used in the recorded
conversations, familiar to him because of his experience. In
14 A-0626-15T3
McLean, the Court found this type of lay opinion testimony
permissible, noting that
a lay witness was permitted to offer an
opinion about the meaning of street slang that
defendant used during a conversation relating
to a crime because it was "unfamiliar to the
average juror, . . . [it] was of assistance
in determining the meaning and context of his
conversation with defendant and was obviously
relevant to the issue of defendant's motive
and intention."
[McLean,
205 N.J. at 458 (quoting State v.
Johnson,
309 N.J. Super. 237, 263 (App. Div.
1998)).]
During the trial, over a defense objection, Farrar testified
as to defendant's reputation for selling marijuana. Defendant
argues this impermissible testimony denied him a fair trial. We
disagree. In asserting the defense of entrapment, defendant
created the "one situation where the State in a criminal case may
introduce other crime evidence to show that a defendant is
predisposed toward committing crime as a basis for an inference
that the defendant committed the offense in question." Gibbons,
105 N.J. at 76 (quoting Biunno & Givavini, N.J. Rules of Evidence,
cmt. 11 on N.J.R.E. 55 (1986)). While other crimes or bad acts
evidence is normally inadmissible to show predisposition to commit
the charged crime, N.J.R.E. 404(b), the State may rebut an
entrapment defense "with evidence of predisposition, of which
15 A-0626-15T3
similar bad-acts are probative." State v. Davis,
390 N.J. Super.
573, 597 (App. Div. 2007).
Because defendant raised the entrapment defense, it was
permissible for the prosecution to ask Farrar about defendant's
prior bad acts to show a predisposition to commit the charged
crime. Farrar's testimony about defendant's past drug dealing was
proffered to show that the crime committed did not originate with
the State or its agent, but rather was something defendant would
have done without State involvement. The evidence was relevant
to the charged offenses and its admission was not an abuse of
discretion.
Affirmed.
16 A-0626-15T3
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