Opinion
DOCKET NO. A-3639-13T1
03-10-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. BRAYON GREEN, Defendant-Appellant.
Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Espinosa, and Currier. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 12-12-3056. Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief). Patrick D. Isbill, Assistant Prosecutor, argued the cause for respondent (Mary Eva Colalillo, Camden County Prosecutor, attorney; Mr. Isbill, of counsel and on the brief). PER CURIAM
Following a jury trial, defendant Brayon Green was convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f); third-degree resisting arrest, N.J.S.A. 2C:29-2, and second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7. He was acquitted of third-degree terroristic threats, N.J.S.A. 2C:12-3(b), and convicted of the lesser included offense of harassment, and the charge of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4, was dismissed at trial.
Defendant's challenge to his conviction rests upon one allegation of plain error, the trial court's failure to give an instruction on identification sua sponte. We find under the facts presented that the absence of such an instruction did not constitute plain error. For the following reasons, we affirm his convictions and sentence and remand for the correction of the judgment of conviction.
The jury heard evidence that on September 1, 2012, Officer Mark Hoopes of the Camden City Police Department (CPD) was on duty driving a patrol vehicle when he received information about possible criminal activity in the area. After calling for backup, Hoopes responded to Broadway where he spotted a man standing at the corner of Broadway and Emerald Street. Hoopes testified that the man was "a black male, [of] medium build, [wearing a] black t-shirt and green pants," and he broadcasted this description to other officers on his radio. As Hoopes approached, the man began to walk away from the car. Hoopes got out of his vehicle and proceeded to chase the man on foot. As Hoopes followed him, the man ran "south on Broadway . . . [then] went west on Emerald Street." At this point, two other officers arrived in their car, and as Hoopes saw them pursuing the man, he got back into his car, and followed them down Emerald Street. When Hoopes again got out of his car the man ran past him and Hoopes lost sight of him somewhere "in the area of Broadway between Emerald and Viola Street." Throughout this time, Hoopes was transmitting the man's location on his radio. Hoopes saw the man later that day at the detective bureau and identified defendant as the person he had pursued that afternoon.
Sergeant Madrid Matthews of the CPD testified that she was in a vehicle with Detective Angel Nieves when they received a request for backup from Hoopes and responded within two to three minutes to Broadway and Ferry Avenue. She observed Hoopes exit his car as defendant "took off running." Matthews and Nieves pursued defendant in their vehicle.
Matthews testified that as defendant headed down Emerald Street, she saw him "[d]iscard a handgun" approximately twenty feet away from her. Matthews got out of her car and picked the gun up, putting it in the trunk. She testified that she saw defendant that day after he was arrested and identified him as the person she had seen drop the gun. She also identified defendant in the courtroom.
Nieves recalled at trial that he and Matthews arrived at the area of Broadway and Ferry within a minute after they heard Hoopes's call on the radio. He saw Hoopes getting out of his vehicle and defendant, whom he identified in court, running in the opposite direction from the officers. As he followed defendant in the car, Nieves saw him throw a gun to the ground. After Nieves saw defendant try to get through a locked gate, he got out of his car and pursued on foot. Nieves said when he lost sight of defendant in the area of Broadway and Viola Street, he and other officers set up a perimeter in the area. Within two to three minutes, Nieves heard on the radio that defendant had been apprehended. Later that day, Nieves identified defendant as the man he had been pursuing and who had dropped a gun.
Patrolman Kurt Gunson of the CPD testified that he received a description of the suspect over his police radio. After responding to the scene, Gunson helped set up a perimeter in the area where the suspect had last been seen. When he heard that the suspect had run into an alleyway, Gunson ran to the other end of the alley. Defendant spotted Gunson, turned around and took off running when he was apprehended "[s]ix to ten feet" from Gunson by Sergeant Jason Pike of the CPD. In the courtroom, Gunson identified defendant as being the man in the alleyway.
Pike testified that he also responded to a request for assistance. He heard a description of the suspect on the radio and observed a man on the rooftop of a shed approximately twenty feet away from him. Pike chased defendant into an alleyway where defendant turned around as he saw Gunson heading towards him. Pike physically stopped defendant and, with the help of others, subdued and handcuffed him. In the courtroom at trial, he identified defendant as the man he apprehended.
In her opening statement, defense counsel did not mention an identification issue as to defendant. She did not elicit any inconsistencies in the statements of the officers who had identified defendant. She did not request a jury instruction on identification during the lengthy charge conference. In her summation, defense counsel argued to the jury for the first time that there were no proofs that the person the officers originally saw in the area of Broadway and subsequently chased down Emerald Street was the same person ultimately arrested by Pike. She continued: "Even if you believe that it was [defendant] . . . walking down South Broadway and walking around Jasper, running down Emerald and running all around this whole area, I still submit that the State has failed to prove that that person actually discarded a gun right here on Emerald Street."
Defendant was sentenced on the conviction of unlawful possession of a weapon as a persistent offender with a term of sixteen years in prison with an eight-year period of parole ineligibility. The sentences on the other convictions were to run concurrently with that extended term.
On appeal, defendant contends:
POINT I: A NEW TRIAL SHOULD OCCUR BECAUSE THE DEFENSE RAISED MISTAKEN IDENTIFICATION, YET THE COURT FAILED TO GIVE ANY JURY INSTRUCTIONS WHATSOEVER ON IDENTIFICATION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PARA. 1. (not raised below)
POINT II: A NEW SENTENCING SHOULD OCCUR BECAUSE, IN THIS RUN-OF-THE-MILL GUN POSSESSION CASE, THE COURT IMPROPERLY RELIED ON GENERAL DETERRENCE TO JUSTIFY AN EXCESSIVE EXTENDED TERM OF SIXTEEN YEARS WITH [AN] EIGHT-YEAR PAROLE DISQUALIFIER.
POINT III: THE JUDGMENT SHOULD BE CORRECTED TO REFLECT THAT GREEN WAS CONVICTED OF PETTY-DISORDERLY-PERSONS HARASSMENT, NOT FOURTH-DEGREE HARASSMENT.
We address first defendant's contention that the court's failure to instruct the jury on identification requires a reversal of his convictions and a new trial. As the jury instruction was not requested at the time of trial, we review this issue under the plain error standard. R. 2:10-2.
We are instructed that in trials where identification is at issue, the trial judge must "provide[] appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." State v. Henderson, 208 N.J. 208, 296 (2011) (alteration in original) (internal citation and quotation marks omitted). In Henderson, a witness was shown a photo array thirteen days after the crime. Id. at 220-21. When the witness could not make the identification, one of the detectives encouraged him to "do what you have to do and we'll be out of here." Id. at 224. Although the witness then identified defendant and did not thereafter recant, he nevertheless stated at the Wade hearing that he felt the detective was "nudging" him to choose defendant's photo and that he was pressured to make a choice. Ibid. After the trial judge found the photo identification to be reliable under the totality of the circumstances and defendant was convicted on several of the charges, we disagreed. We found the identification procedure was impermissibly suggestive and reversed and remanded for a new Wade hearing. Id. at 227-28.
United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed. 2d 1149 (1967).
After granting the petition for certification, and reviewing briefs, a Special Master's report, and oral argument, the Court determined that a new framework was needed to assess eyewitness identification. Id. at 228. It included the development of enhanced jury charges for trial judges to use when identification is at issue. Id. at 298. In trials where "identification is at issue in a case, trial courts will continue to provide[] appropriate guidelines to focus the jury's attention on how to analyze and consider the trustworthiness of eyewitness identification." Id. at 296 (alteration in original) (internal citation and quotation marks omitted).
Mindful of the guidance provided by the Court in Henderson, we turn to the case at hand and find it to be dissimilar. The identification of defendant was not a central issue in this case. There were no concerns raised as to eyewitness reliability. No less than five officers involved in the pursuit and apprehension of defendant identified him the day of these events and again during the trial. Numerous officers pursued defendant; when one officer could not keep up with the chase or lost sight of defendant, another saw him and gave pursuit. Ultimately, defendant ran into an alleyway where an officer stood at its end and as he turned around he ran into the officer who finally stopped him. At all times, the various officers were transmitting the description and location of defendant on their radios. The events occurred in a very short period of time and the officers testified that there were no other people running in this area to distract them.
There was no contradiction of the officers' identification of defendant during trial; no alibi defense was presented. The only mention by trial counsel of the State's failure to identify was her comments in her summation, followed by contingent language that the main focus for the jury was whether there was proof that defendant was the man seen dropping a gun.
"But remember there are clear gaps in the [officers'] testimony. . . . Each of [the officers] lost sight of the person they were chasing. . . . There's no testimony how somebody got on the rooftop."
As to this point, we find no merit to defendant's argument on misidentification. Two officers less than twenty feet from defendant observed him drop a gun. One of the officers immediately picked it up and put it into her car. --------
We find that the State presented overwhelming corroborative evidence in support of the identification of defendant so that the failure to issue an identification instruction is not plain error. See State v. Cotto, 182 N.J. 316, 327 (2005) (finding that the strength and quality of the State's corroborative evidence rendered harmless any deficiency in the instruction and precluded a finding of plain error).
Finally, we note that the trial judge instructed the jury on the State's burden of proving beyond a reasonable doubt each element of each charged crime. The judge began his charge by explaining the burden of proof to the jury:
The burden of proving each element of the charge beyond a reasonable doubt rests upon the State, and that burden never shifts to the defendant. The defendant in a criminal case has no obligation or duty to prove his innocence or to offer any proof relating to his innocence.The judge explained the jury's role in examining the evidence presented:
Whether or not the defendant has been proven [guilty] beyond a reasonable doubt is for you to determine based upon all of the evidence presented during trial.
. . . .
The ultimate determination of whether or not . . . the State has proven the defendant's guilt beyond a reasonable doubt is to be made only by the jury.
As the judge charged each count, he reiterated that in order to convict defendant, the State must prove each element beyond a reasonable doubt:
In order to convict the defendant, the State must prove each of the following elements beyond a reasonable doubt . . . . The first element the State must prove beyond a reasonable doubt is that S-4 was a handgun . . . . The second element the State must prove beyond a reasonable doubt is that the defendant knowingly possessed a handgun.
. . . .
If you find that the State has failed to prove any of the elements of the crime beyond a reasonable doubt, your verdict must be not guilty. On the other hand, if you are satisfied that the State has proven all the elements of the crime beyond a reasonable doubt, your verdict must be guilty.
The jury was charged with identical language on each of the alleged offenses. Although we conclude that the judge erred in failing to give the jury identification charge, we are confident that the instructions given made it clear to the jury that the State was saddled with the burden of proving beyond a reasonable doubt that defendant was the wrongdoer. The judge repeatedly explained the State's burden to the jury. Our examination of the evidence in light of the issues in dispute and the charge as a whole leads us to conclude that the deficiency in the instruction was clearly incapable of producing an unjust result and is harmless error. See R. 2:10-2; Cotto, supra, 182 N.J. at 326-27.
We next briefly address defendant's argument regarding his sentence. There is no dispute that defendant was statutorily eligible for an extended term sentence. "The persistent offender statute, N.J.S.A. 2C:44-3(a), grants the sentencing court discretion to impose an extended sentence when the statutory perquisites for an extended-term are present." State v. Pierce, 188 N.J. 155, 161 (2006). We find the judge properly reviewed the aggravating and mitigating factors and crafted an appropriate sentence within the specified range. Where, within the range of the sentences, the trial court "chooses to sentence a defendant remains in the sound judgment of the court — subject to reasonableness and the existence of credible evidence in the record to support the court's finding of aggravating and mitigating factors and the court's weighing and balancing of those factors found." Id. at 169.
Lastly, we find, and the State agrees, that the judgment of conviction must be corrected to reflect the proper degree of harassment, a petty disorderly offense.
We therefore affirm as to the convictions and sentence, but remand for the limited purpose of correcting the judgment of conviction. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION