Opinion
DOCKET NO. A-3983-13T2
06-28-2016
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DERRICK HESTER, a/k/a JEFFERY HESTER, DEE HESTER, CASSAN POWELL, and HOWARD TERRY, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Rothstadt and Currier. On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 09-01-0044 and 09-01-0045. Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Meredith L. Balo, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). Appellant filed a pro se supplemental brief. PER CURIAM
Following a jury trial, defendant Derrick Hester was convicted of second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and fourth-degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(d). After the verdict, he pled guilty to second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b). He now appeals his convictions and sentence. After reviewing the arguments in light of applicable legal principles, we affirm.
The jury heard evidence that in the early morning hours of September 13, 2008, while on patrol, two Elizabeth police officers were alerted by a motorist to a vehicle driving erratically on the roadway in their location. After pulling the vehicle over, one of the officers got out of the car and as he walked towards the vehicle he heard a sound. He "looked towards that sound [and] saw that there was a handgun laying on the ground." The weapon was lying on the ground two feet from the vehicle that had been stopped with the driver's window opened. Defendant was identified as the driver of that car.
Defendant was eligible for an extended term sentence as a persistent offender, N.J.S.A. 2C:44-3(a), and a mandatory extended term sentence under N.J.S.A. 2C:44-3(d) as a second offender with a firearm. Defendant was sentenced on the conviction of unlawful possession of a weapon as a persistent offender with a term of fifteen years in prison with a seven-and-one-half year period of parole ineligibility. The sentences on the other convictions were to run concurrently with that extended term.
On appeal, defendant contends through his attorney that:
POINT I: THE TRIAL JUDGE ERRED IN FAILING TO CHARGE "MERE PRESENCE" AS PART OF THE INSTRUCTION ON CONSTRUCTIVE POSSESSION. (Not Raised Below)
POINT II: THE 15-YEAR TERM IMPOSED FOR THE PURELY UNREMARKABLE POSSESSION OF A HANDGUN IN THIS MATTER IS EXCESSIVE.
He raises the following arguments in a pro se supplemental brief:
POINT I: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON OTHER CRIME EVIDENCE (NOT RAISED BELOW).
POINT II: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON THE MODEL JURY CHARGE (CRIMINAL), "STIPULATIONS" (2005) (NOT RAISED BELOW).
POINT III: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S INSTRUCTION TO THE JURY DURING VOIR DIRE ON DEFENDANT'S ELECTION NOT TO TESTIFY (NOT RAISED BELOW).
POINT IV: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S REFUSAL TO SUBSTANTIVELY ANSWER A QUESTION POSED BY THE JURY DURING DELIBERATIONS (NOT RAISED BELOW).
POINT V: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE TRIAL COURT'S FAILURE TO PROVIDE THE JURY WITH A [CLAWANS] CHARGE (NOT RAISED BELOW).
POINT VI: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION [WERE] VIOLATED BY THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON ALL OF THE ELEMENTS OF THE OFFENSE OF POSSESSING A DEFACED FIREARM (NOT RAISED BELOW).
POINT VII: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION [WERE] VIOLATED BY THE TRIAL COURT'S FAILURE TO RECORD A SIDEBAR CONFERENCE (NOT RAISED BELOW).
POINT VIII: THE DEFENDANT'S RIGHTS TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ARTICLE I, PARAGRAPH 1 OF THE NEW JERSEY CONSTITUTION [WERE] VIOLATED BY THE CUMULATIVE EFFECT OF THE ERRORS LISTED IN POINTS I THROUGH VII.
We address first defendant's contention that the court's failure to instruct the jury on mere presence 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.
During the trial, the State argued that defendant was in constructive possession of the handgun that was found on the ground. Defendant elicited discrepancies in the officers' testimony as to their ability to accurately recall the events of that early morning. Defendant contended the gun could have been dropped by anyone and he was merely present at the place where a gun had been discarded. He argues, therefore, that the judge should have sua sponte included the "mere presence" charge.
It is established that "constructive possession cannot be based on mere presence," State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992), aff'd o.b., 133 N.J. 481 (1993), but there must be "'circumstances beyond mere presence' that permit a reasonable inference of the defendant's intention and capacity to exercise control over the object and the defendant's knowledge of what the object is." State v. Randolph, 441 N.J. Super. 533, 559 (App. Div. 2015) (quoting Whyte, supra, 265 N.J. Super. at 523), certif. granted, ___ N.J. ___ (2016).
In looking to the totality of the circumstances presented, as we must, State v. Hurdle, 311 N.J. Super. 89, 96 (App. Div. 1998), we find sufficient evidence to support the constructive possession charge. The officer testified that as he approached defendant's vehicle, he heard a sound. He described the sound as "metal hitting concrete." The officer immediately looked to the ground and saw a gun two feet from defendant's car adjacent to an open window.
The judge told the jury:
Constructive possession means possession in which the person does not physically have the handgun but though not physically on one's person he is aware of the presence of the handgun and is able to exercise intentional control or dominion over it. A person who although not in actual possession has knowledge of it[]s character, knowingly has both the power and the intention at a given time to exercise control over a handgun either directly or through another person or persons is then in constructive possession of it.The charge instructs the jury that more than being present in the area of the gun was required to satisfy the element of possession. Our examination of the evidence leads us to conclude that the jury instructions were properly supported by the evidence.
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 prerequisites 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.
We find the remainder of defendant's arguments raised in a supplemental pro se brief to be without sufficient merit to warrant further discussion. R. 2:11-3(e)(2).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION