STATE OF NEW JERSEY v. GREGORY JEAN-BAPTISTE

NOT FOR PUBLICATION WITHOUT THE
                       APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-3753-16T2

STATE OF NEW JERSEY,

              Plaintiff-Appellant,

v.

GREGORY JEAN-BAPTISTE,

          Defendant-Respondent.
_________________________________

              Submitted April 19, 2018 – Decided April 30, 2018

              Before    Judges    Simonelli,     Haas    and   Gooden
              Brown.

              On appeal from Superior Court of New Jersey,
              Law Division, Monmouth County, Indictment No.
              14-01-0064.

              Christopher J. Gramiccioni, Monmouth County
              Prosecutor, attorney for appellant (Monica do
              Outeiro, Assistant Prosecutor, of counsel and
              on the brief).

              Respondent has not filed a brief.

PER CURIAM

        By leave granted, the State appeals from the Law Division's

March 23, 2017 order granting defendant's in limine motion to

suppress a recorded telephone call with his mother that the State
sought    to     introduce     at        trial    as   evidence    of    defendant's

consciousness of guilt in this gun possession case.                           Having

considered the State's arguments in light of the record and

applicable principles of law, we reverse.

       On May 3, 2013, a concerned neighbor reported there was a

man,     later    identified        as     defendant,     vomiting      outside   his

residence.       Two firefighters responded to defendant's home and

found him lying on a sofa on the porch, intoxicated and asleep.

The firefighters also saw a handgun on a small table that was

within arm's reach of defendant on the sofa.                      The firefighters

took possession of the handgun and gave it to the police.                    A grand

jury   subsequently     returned          a   one-count    indictment,      charging

defendant with second-degree certain persons not to have weapons,


N.J.S.A. 2C:39-7(b)(1).

       At trial, the State sought to introduce a recording it made

of a June 22, 2015 telephone call between defendant and his mother

while defendant was in jail.1              During the call, defendant did not

directly admit to possessing the handgun.                  However, he told his

mother that his attorney said if he could "find someone who lives

in the house who can say that the gun belongs to them, because



1
   Defendant and his mother spoke in Creole on the recording, and
the State later had a transcript prepared that translated the
recording into English.

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they can't charge them with the gun[,] . . . [t]he case will be[,]

you know, I would win."      Defendant also said he "was wondering if

Ali can do it for me[,] . . . Ali has to make believe . . . They're

not going to charge him with anything[,] . . . We have to lie to

these people."

     Defendant's mother told him "Little Ali won't do it[,]" and

that she "can't say it's for me" because "where am I going to say

I bought [it] from--where did I find it?"              Defendant then asked

his mother to lie and say that "a male cousin" left the gun in the

house and she put it outside after finding it.            Defendant further

explained that if his mother failed to help him, he could get "15

or 20 years for this stupid thing."

     On the first day of trial, defendant made a motion to bar the

State from introducing the recorded telephone call to establish a

reasonable inference as to defendant's consciousness of guilt and,

thus, his control over the handgun.              After oral argument, the

trial judge granted defendant's motion.

     In a brief oral decision, the judge first noted that defendant

did not dispute that the recording was admissible under N.J.R.E.

803(b) as an exception to the hearsay rule.            The judge also found

that the recording was relevant as "evidence having a tendency in

reason   to   prove   or   disprove   a   fact    of   consequence   to   the

determination of the action" under N.J.R.E. 401.              However, the

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judge concluded the recording was inadmissible under N.J.R.E. 403

because its probative value was outweighed by the risk of undue

prejudice to defendant.

     While stating that a reasonable inference could be drawn from

defendant's requests that his mother persuade "Ali" to lie and

tell the police the gun belonged to him, or that his mother falsely

report that a "male cousin" left the weapon at her home, the judge

observed that defendant never confessed to possessing the handgun.

Because of this, the judge found that other inferences could be

drawn from the substance of the telephone call. By way of example,

the judge pointed to defendant's claim during oral argument that

his statements could be interpreted to mean he never possessed the

gun, and was motivated to have someone else claim possession of

the gun solely by his fear that his own denials would not be

believed.   Thus, the judge found that the recording had the

potential to confuse the jury and barred its admission at trial.

This appeal followed.2

     On appeal, the State argues that the trial "court erred in

ordering the exclusion of defendant's jail call."   We agree.

     "Once evidence is deemed relevant, it is admissible, N.J.R.E.

402, unless 'its probative value is substantially outweighed by


2
   The judge granted the State's motion to stay the trial pending
its appeal.

                                4                           A-3753-16T2
the risk of [] undue prejudice,' N.J.R.E. 403, or some other bar

to its admission is properly interposed."              State v. Nantambu, 
221 N.J. 390, 402 (2015) (alteration in original) (quoting Brenman v.

Demello, 
191 N.J. 18, 34-35 (2007)).            While we generally defer to

the trial court's evidentiary rulings and apply an abuse of

discretion standard of review, we owe no such deference if they

reflect a clear error of judgment or are premised on an erroneous

legal conclusion.        Ibid. (citations omitted).

     Here, the recording clearly demonstrates that defendant asked

his mother to lie about the ownership of the gun, or to have others

falsely claim ownership.         Therefore, the State sought to offer the

recording as consciousness-of-guilt evidence against defendant.

Contrary    to    the    trial   judge's     ruling,   this    was   manifestly

appropriate.      Indeed, the Supreme Court has recently noted that

"[o]ur    jurisprudence     regarding       consciousness-of-guilt      evidence

derives    from    the     principle    that     certain      conduct   may     be

'intrinsically indicative of a consciousness of guilt,' and may

therefore be admitted as substantive proof of the defendant's

guilt."    State v. Cole, 
229 N.J. 430, 454 (2017) (quoting State

v. Phillips, 
166 N.J. Super. 153, 160 (App. Div. 1979)).

     Defendant is charged with a certain persons not to have

weapons offense and, therefore, the State had to demonstrate that

he possessed, owned, or controlled the handgun found within arm's

                                        5                                A-3753-16T2
reach on the sofa where he was found.        
N.J.S.A. 2C:39-7(b)(1); see

also Cole, 
229 N.J. at 447 (relevance is "determined by reference

to the applicable substantive law").         In a case where the State

seeks to prove constructive possession of an item, "possession

cannot be based on mere presence at the place where contraband is

located.    There must be other circumstances or statements of [the]

defendant permitting the inference of [the] defendant's control

of the contraband."        State v. Whyte, 
265 N.J. Super. 518, 523

(App. Div. 1992) (emphasis added), aff'd o.b., 
133 N.J. 481 (1993).

       Thus, "[t]he State's proffer [in this case was] classic

consciousness[-]of[-]guilt        evidence   in   the   form   of   .   .    .

[statements made by defendant] inducing others to lie[.]"               State

v. Williams, 
190 N.J. 114, 129 (2007).        Faced with this evidence,

a jury could certainly infer from defendant's attempt to have his

mother or others lie for him that he was guilty of possessing the

handgun.

       Although the jury might have been able to draw a different

inference from the statements, this was insufficient to warrant

the suppression of the evidence. Instead, "[s]uch evidence belongs

in front of the jury; objections thereto should be evaluated by

the jury as part of its weighing of the evidence."             Id. at 127.

This   is   so   because   when   consciousness-of-guilt       evidence     is

introduced, the judge must give "a strong limiting instruction

                                     6                              A-3753-16T2
. . . informing the jury that it should not draw any inference of

consciousness of guilt by defendant from his post-crime conduct

unless it believes that defendant acted to cover up a crime."

Cole, 
229 N.J. at 454 (quoting Williams, 
190 N.J. at 134).

     Under these circumstances, the judge mistakenly exercised his

discretion by barring the admission of the recorded telephone

call.    Defendant's requests that his mother have "Ali" lie that

the gun was his, or that his mother falsely claim it belonged to

a "male cousin," were highly probative of his consciousness of

guilt.     Moreover, an appropriate jury instruction would have

obviated    any   prejudice   to   defendant,   and   eliminated   the

possibility of jury confusion in its evaluation of this evidence.

Therefore, we are constrained to reverse the March 23, 2017 order

and remand for further proceedings.

     Reversed and remanded.    We do not retain jurisdiction.




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