Opinion
DOCKET NO. A-1903-12T4
08-07-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL D. DEAS, Defendant-Appellant.
Susan Brody, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief). Ian David Brater, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Simonelli, Leone and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-02-0431. Susan Brody, Deputy Public Defender II, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Brody, of counsel and on the brief). Ian David Brater, Special Deputy Attorney General, Acting Assistant Prosecutor, argued the cause for respondent (Christopher J. Gramiccioni, Acting Monmouth County Prosecutor, attorney; Mr. Brater, of counsel and on the brief). PER CURIAM
Defendant Michael D. Deas appeals his judgment of conviction entered October 17, 2012. He challenges the denial of suppression and claims errors at trial. We affirm.
I.
We summarize the trial testimony. Around 12:50 a.m. on March 25, 2008, Marcus Williams heard voices from people talking in front of his home on a quiet street in Neptune. He looked out the window and observed a red sedan parked on his side of the street facing the wrong direction. Parked behind the red sedan was another car, whose lights he saw. He also saw movement behind the red sedan and between the two cars. He then called the police.
Patrol officer Frederick Faulhaber, Jr. arrived about five minutes later and spoke to Williams. Faulhaber found an unoccupied red 2007 Toyota Camry parked facing the wrong direction. He determined it was a rental car, and was advised by the dispatcher that the car recently had been operated by defendant, who lived about a block and a half away from where the car was parked. Faulhaber requested a drug K-9 dog, which arrived five to ten minutes later. The drug K-9 alerted to the car.
Officer Faulhaber then went to defendant's house, spoke to his wife, and asked to speak with defendant, without success. A few minutes later, defendant ran up to the red Toyota and told Faulhaber his wife had not known he was home because he parked the car down the street to deceive her. Faulhaber said the drug dog had alerted to the car. Defendant was visibly nervous. He initially said he would consent to the search of the car, changed his mind, and then went to his house to get his car keys. The car's trunk then opened remotely. Later, defendant returned and claimed he had accidently opened the trunk and then lost the keys. The officers had the car towed to a secure garage so a search warrant could be sought. Detective Lieutenant James Hunt confirmed defendant had rented the car. He then got a spare set of keys from the rental agency, and based on the above facts obtained a search warrant.
Executing the warrant, Officer Hunt found a total of 251 bags of heroin in the glove compartment. Hunt also discovered a wooden bat under the front passenger seat. He also found defendant's wallet, driver's license, birth certificate, and other identifying information, as well as a receipt from a Neptune gas station. Hunt determined defendant had purchased gas from the station at 12:15 a.m. on March 25. At trial, a rental car company representative testified the company had cleaned the car, including the glove compartment, before renting it to defendant on February 16. The representative also testified that the car had been rented to defendant from February 16 through March 25.
Another wooden bat was found in the trunk, but ultimately was not admitted into evidence.
Defendant was charged with third-degree possession of heroin, N.J.S.A. 2C:35-10(a)(1) (count one); third-degree possession of heroin with intent to distribute, N.J.S.A. 2C:35-5(b)(3) (count two); fourth-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count three); and second-degree possession of a weapon in the course of committing a violation of N.J.S.A. 2C:35-5, N.J.S.A. 2C:39-4.1(c) (count four). After a nine-day trial, the jury convicted defendant on all counts. The trial court sentenced defendant to an extended term of six years in prison with three years of parole ineligibility on count two, imposed a consecutive term of five years in prison on count four, and merged the other counts.
Defendant appealed, raising the following arguments:
POINT I - THE DRUG DETECTION DOG'S ALERT ON THE CAR WAS NOT AN ADEQUATE BASIS TO ESTABLISH PROBABLE CAUSE OF THE ISSUANCE OF A SEARCH WARRANT BECAUSE THE DOG'S RELIABILITY HAD NOT BEEN PROVEN. THE COURT ERRED IN DENYING THE DEFENSE REQUEST FOR AN EVIDENTIARY HEARING ON THE ISSUE.
POINT II - THE COURT ERRED IN REFUSING TO STRIKE EVIDENCE, OR TO AT LEAST TO PROVIDE THE JURY WITH A CURATIVE INSTRUCTION, REGARDING DAMAGING HEARSAY STATEMENTS ATTRIBUTABLE TO MARCUS WILLIAMS, AFTER THOSE STATEMENTS WERE CONTRADICTED BY THE DECLARANT'S TESTIMONY.
POINT III - THE COURT'S IMPROPER RESPONSE TO THE JURY'S QUESTIONS ABOUT POSSIBLE LAWFUL USES FOR THE WOODEN BAT RENDERED THE VERDICTS ON THE TWO WEAPON CHARGES UNRELIABLE (Partially Raised Below).
II.
Defendant challenges the denial of his motion to suppress. Defendant first claims there was no probable cause for the court to issue the search warrant. "It is well settled that a search executed pursuant to a warrant is presumed to be valid and that a defendant challenging its validity has the burden to prove 'that there was no probable cause supporting the issuance of the warrant or that the search was otherwise unreasonable.'" State v. Jones, 179 N.J. 377, 388-89 (2004). "Accordingly, courts 'accord substantial deference to the discretionary determination resulting in the issuance of the warrant.'" State v. Keyes, 184 N.J. 541, 554 (2005).
"[A]n appellate court's role is not to determine anew whether there was probable cause for issuance of the warrant, but rather, whether there is evidence to support the finding made by the warrant-issuing judge." State v. Chippero, 201 N.J. 14, 20-21 (2009). "Doubt as to the validity of the warrant should ordinarily be resolved by sustaining the search." Keyes, supra, 184 N.J. at 554 (internal quotation marks omitted). We must hew to this standard of review.
"Probable cause for the issuance of a search warrant requires 'a fair probability that contraband or evidence of a crime will be found in a particular place.'" Chippero, supra, 201 N.J. at 28. To determine whether there was probable cause, we look only at the information within "'the four corners of the supporting affidavit.'" Id. at 26.
Here, Officer Hunt's affidavit showed a fair probability that drugs would be found in defendant's rental car. The affidavit included the above facts, as well as the following additional facts. Williams told police the illegally-parked red car and the other car had been parked back-to-back, and it appeared two persons were transferring items from one vehicle to another. Officer Faulhaber was familiar with defendant from drug investigations. Defendant had six prior felony convictions for drug distribution, assault, and tampering with public records. In November 2006, Neptune police officers found defendant had fifty bags of heroin in a rental vehicle. On February 21, 2008, defendant received a seat belt ticket in the same rented red 2007 Toyota. On March 13, 2008, defendant was arrested for attempting to push his wife out of the same car. Defendant's wife told Faulhaber about defendant's activities earlier that night, which contradicted what defendant later told Faulhaber.
Regarding the drug K-9, the warrant affidavit stated:
Patrolman Faulhaber contacted Sergeant Emmons who requested a Drug K-9 respond to his location. Patrolman Paul Mabin [] of the Wall Township Police Department responded to this location with his Drug K-9 Tre. . . . Patrolman Mabin and K-9 Tre examined the 2007 Toyota and indicated to the presence of a narcotic odor at the trunk and at the right rear passenger side door of the vehicle.At oral argument on the suppression motion, defendant's counsel alleged that the drug K-9 did not alert to the car, and that the officers made that up. He requested an evidentiary hearing to cross-examine the officers to show the affidavit was false.
The trial court properly denied an evidentiary hearing. State v. Broom-Smith, 406 N.J. Super. 228, 240-41 (App. Div. 2009), aff'd, 201 N.J. 229, 237 n.4 (2010). There is "'a presumption of validity with respect to the affidavit supporting the search warrant.'" Id. at 240 (quoting Franks v. Delaware, 438 U.S. 154, 171, 98 S. Ct. 2674, 2684, 57 L. Ed. 2d 667, 682 (1978)). To obtain an evidentiary hearing to challenge the veracity of a warrant affidavit (a "Franks hearing"), a defendant must make "a substantial preliminary showing that a false statement knowingly and intentionally, or with reckless disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of probable cause[.]" Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672; accord State v. Howery, 80 N.J. 563, 566-68, cert. denied, 444 U.S. 994, 100 S. Ct. 527, 62 L. Ed. 2d 424 (1979).
"The requirement of a substantial preliminary showing" is designed "to prevent the misuse of a veracity hearing for purposes of discovery or obstruction." Franks, supra, 438 U.S. at 170, 98 S. Ct. at 2684, 57 L. Ed. 2d at 681. "'[T]he challenger's attack must be more than conclusory and must be supported by more than a mere desire to cross-examine. . . . [The] allegations must be accompanied by an offer of proof. . . . Affidavits or sworn or otherwise reliable statements of witnesses should be furnished, or their absence satisfactorily explained.'" Broom-Smith, supra, 406 N.J. Super. at 240-41 (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682).
Defendant failed to provide the required "offer of proof including reliable statements by witnesses[.]" Howery, supra, 80 N.J. at 567. As the trial court noted, defendant did not proffer any witnesses or evidence, or present any affidavits. Defense counsel argued that the drug K-9 could not have alerted at the trunk and at the right rear passenger side door, as the affiant stated, because the drugs were found in the glove compartment when the warrant was executed. However, courts "do not evaluate probable cause in hindsight, based on what a search does or does not turn up." Florida v. Harris, ___ U.S. ___, ___, 133 S. Ct. 1050, 1054, 1058-59, 185 L. Ed. 2d 61, 65, 70-71 (2013) (holding that a drug dog's alert to a vehicle provided probable cause even though the search of the vehicle "did not turn up any of the drugs [the dog] was trained to detect"). Moreover, defendant offered no affidavit from an expert showing that scenario was impossible or even unlikely. Thus, defendant made no showing the affiant falsely swore that scenario had occurred.
Defense counsel repeatedly told the trial court he was challenging only the veracity of the officers, not the reliability of the drug K-9. However, on appeal he argues the dog was unreliable if it alerted as the affiant stated. Such an argument cannot justify a Franks hearing, because it does not show that the affiant made "a false statement knowingly and intentionally, or with reckless disregard for the truth." Franks, supra, 438 U.S. at 155-56, 98 S. Ct. at 2676, 57 L. Ed. 2d at 672. "'Allegations of negligence or innocent mistake [even by the affiant] are insufficient. The deliberate falsity or reckless disregard whose impeachment is permitted [by Franks] is only that of the affiant, not of any nongovernmental informant.'" Broom-Smith, supra, 406 N.J. Super. at 241 (quoting Franks, supra, 438 U.S. at 171, 98 S. Ct. at 2684, 57 L. Ed. 2d at 682). Thus, alleging a drug dog alerted mistakenly or negligently is no basis to obtain a Franks hearing. See State v. Martinez, 387 N.J. Super. 129, 141 (App. Div.) (ruling that "a good faith mistake [by another officer] is insufficient to strike down the warrant"), certif. denied, 188 N.J. 579 (2006).
Because defendant's arguments on appeal lack merit, we need not decide whether they are barred under the invited error doctrine. See State v. A.R., 213 N.J. 542, 561-62 (2013).
Defendant on appeal also faults the affidavit for not detailing the training or reliability of the drug dog Tre. This argument is also no basis to obtain a Franks hearing. Defendant did not proffer any information showing the dog was not trained or reliable, let alone make "a substantial preliminary showing that the affiant, either deliberately or with reckless disregard for the truth, [knew and] failed to apprise the issuing judge of" such information. State v. Sheehan, 217 N.J. Super. 20, 25 (App. Div. 1987). Because defendant failed to make a substantial preliminary showing, the trial court "properly concluded that defendant was not entitled to a hearing to determine the veracity of the statements in the affidavit." State v. Marshall, 123 N.J. 1, 72 (1991), cert. denied, 507 U.S. 929, 113 S. Ct. 1306, 122 L. Ed. 2d 694 (1993).
Defendant's argument also fails as a challenge to probable cause. As the trial court noted, the judge issuing the warrant could properly infer that Tre was "a trained and certified dog" because the affidavit stated that the officers requested a "Drug K-9," and that the Wall Township Police Department supplied and used its "Drug K-9 Tre." See, e.g., United States v. Grupee, 682 F.3d 143, 147 (1st Cir.) (finding an affidavit's reference to a state police "drug detection K-9" provides a sufficient "showing of reliability" and "passes muster under existing circuit precedent on searches authorized by warrant"), cert. denied, ___ U.S. ___, 133 S. Ct. 581, 184 L. Ed. 2d 381 (2012); United States v. Berry, 90 F.3d 148, 153 (6th Cir.) (finding an "affidavit's references to the dog as a 'drug sniffing or drug detecting dog' reasonably implied that the dog was a 'trained narcotics dog.'"), cert. denied, 519 U.S. 999, 117 S. Ct. 497, 136 L. Ed. 2d 389 (1996).
Defendant cites to a statement in Harris that the State is required to submit, and the defense allowed to challenge, evidence of a drug dog's reliability at an evidentiary hearing. However, Harris involved a warrantless search. Harris, supra, ___ U.S. at ___, 133 S. Ct. at 1053-54, 1057, 185 L. Ed. 2d at 65, 69. A warrantless search is "presumed invalid" and the government bears "the burden of creating an evidentiary record necessary to uphold its conduct" at a hearing. State v. Wilson, 178 N.J. 7, 14, 17 (2003). By contrast, as set forth above, a search warrant is presumed to be valid, and it is the defendant's burden to show entitlement to an evidentiary hearing under Franks. Defendant has failed to carry that burden.
In any event, defendant cannot show plain error. "'[D]efendant has the burden of proving that the error was clear and obvious.'" State v. Koskovich, 168 N.J. 448, 529 (2001). Defendant has cited no case showing that any "error is clear under current law." United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 519 (1993); see also State v. Chew, 150 N.J. 30, 82 (1997). Moreover, at trial, Officer Mabin testified that his drug K-9 Tre had received extensive training and been certified to detect drugs, including heroin. Defendant received the records of Tre's training and certification in discovery, and never showed any deficiencies therein.
Finally, Tre's alerts at the trunk and rear passenger-side door do not prove unreliability:
[I]f the dog alerts to a car in which the officer finds no narcotics, the dog may not have made a mistake at all. The dog may have detected substances that were too well hidden or present in quantities too small for the officer to locate. Or the dog may have smelled the residual odor of drugsThus, defendant cannot show that any error was "clearly capable of producing an unjust result." R. 2:10-2.
previously in the vehicle or on the driver's person.
[Harris, supra, ___ U.S. at ___, 133 S. Ct. at 1056, 185 L. Ed. 2d at 68.]
III.
Defendant next claims the admission at trial of testimonial and video evidence incorporating Williams' initial statements to the police was error because Williams' subsequent trial testimony was more limited. "'[C]onsiderable latitude is afforded a trial court in determining whether to admit evidence, and that determination will be reversed only if it constitutes an abuse of discretion.'" State v. Kuropchak, 221 N.J. 368, 385 (2015). "However, if the party appealing did not make its objection to admission known to the trial court, the reviewing court will review for plain error[.]" State v. Rose, 206 N.J. 141, 157 (2011).
Defendant challenges Officer Faulhaber's testimony answering why he was sent to the location of the Toyota: "For a suspicious vehicle, possibly two vehicles parked on the street, trunk to trunk, with subjects moving in between moving items, possibly." Defendant did not complain until six days later. The court ruled that the statement was admitted without objection, and that it was "not offered for the truth of the matter asserted, just offered for the fact that an officer received a dispatch and went to the scene."
However, the jury was not told the statement was not admitted for its truth. Moreover, police officers "may testify that they took certain investigative steps based 'upon information received[,]' [b]ut they cannot repeat specific details about a crime relayed to them by a radio transmission or another person without running afoul of the hearsay rule." State v. Luna, 193 N.J. 202, 217 (2007) (quoting State v. Bankston, 63 N.J. 263, 268-69 (1973)).
Williams, the source of the officer's information, "testified and [was] cross-examined at defendant's trial, thereby obviating [any] Confrontation Clause claim." State v. Kemp, 195 N.J. 136, 155 (2008).
Nonetheless, "in the overall context of the trial," defendant has not shown that any error in admitting Officer Faulhaber's statement was "'clearly capable of producing an unjust result.'" State v. Cotto, 182 N.J. 316, 337 (2005) (quoting R. 2:10-2). Defendant was charged with possession of heroin with intent to distribute. The evidence proved defendant knowingly possessed 251 bags of heroin in his red Toyota. An expert in narcotics testified that the intent to distribute was shown by: the packaging of the heroin in five fifty-bag bricks with one attached sample bag attached labelled "VIP"; the absence of any user paraphernalia; and the use of a rental car, which drug dealers utilize to avoid forfeiture of their personal vehicles. "The jury could have predicated its findings of guilt upon [that evidence] without any resort to or reliance on the hearsay testimony." State v. Roach, 146 N.J. 208, 226, cert. denied, 519 U.S. 1021, 117 S. Ct. 540, 136 L. Ed. 2d 424 (1996).
Defendant emphasizes Williams' subsequent testimony that, because his view of the second car was obscured by a large tree, he did not know what direction the second car was facing, he did not see the people engaging in activity between the two cars, and he never said he saw anyone exchanging items. However, Williams did testify that there was a second car behind the red Toyota, that there was movement between them, and that he heard voices and people talking. In any event, the prosecutor did not mention Faulhaber's brief statement in his opening or summation, he did not ask the jury to infer that Williams had seen or heard a distribution, and defendant was not charged with distribution.
"For a hearsay error to mandate reversal, '[t]he possibility [of an unjust verdict] must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached.'" State v. Hightower, 120 N.J. 378, 410 (1990) (alterations in original). Here, "[c]onsidering the strength of the State's case," ibid., defendant has failed to show plain error. State v. Irving, 114 N.J. 427, 447 (1989).
Defendant also challenges statements on a video taken by the police car's mobile video recorder showing Officer Faulhaber and Sergeant Emmons discussing with defendant whether he would consent to the search of the red Toyota. As originally admitted, the video showed Faulhaber relating to defendant that "[a]nother car was backed up to this car both trunks were open and people were exchanging items," and that "it is possible that two cars are parked back to back," and Emmons telling defendant he would be able to go home if he "was down here with somebody else in the trunk of your car" if there was nothing in the car.
Despite having received the video years before trial, defendant did not object to those statements until after trial was in progress and after the parties had already redacted the video and its transcript. Citing that delay, the court initially denied defendant's objection and admitted the video. The court added it was "sure there's going to be testimony later on to support" the statements. After Williams testified but did not say that the cars were back to back or that their trunks were open, the court revisited and sustained defendant's objection. The court redacted the statements from both the video and transcript. Thus, the court excluded the evidence defendant now challenges.
Defendant also cites Officer Faulhaber's statement on the video that "we got a call for suspicious activity at the trunk of this car," but that was supported by Williams' testimony.
Because the jury had already watched the video, the prosecutor proposed the jury be instructed not to consider the statements. The judge was concerned that if he referenced the specific language, he would be "reinforcing something I'm redacting." The court proposed, defendant approved, and the judge gave an instruction to the jury that the video "was redacted as a result of a hearsay objection by the defense which I ultimately sustained based on later testimony in the case by Marcus Williams." Defense counsel said that instruction was "fine" and made sense to him.
Despite having agreed to this curative instruction, defendant now argues the trial court failed to provide a curative instruction. However, "he is barred from raising an objection for the first time on appeal" by the invited error doctrine. State v. A.R., 213 N.J. 542, 561 (2013). "Under that settled principle of law, trial errors that were induced, encouraged or acquiesced in or consented to by defense counsel ordinarily are not a basis for reversal on appeal[.]" Ibid. (internal quotation marks omitted); see also Kemp, supra, 195 N.J. at 155-56 (invited error bars Bankston claim); State v. Ramseur, 106 N.J. 123, 282 (1987) (invited error bars instructional claim).
Indeed, defense counsel made these statements a centerpiece of his summation, to show the prosecution's witnesses did not testify as it expected. He quoted the statements by Officer Faulhaber from his testimony and redacted from the video. He then argued that Williams testified contrary to the officer's statements, that the officers thus made those statements up, and that the jury therefore should disbelieve the testimony of the officers, who "gave you the inaccurate account of Mr. Williams' version of what happened." "The doctrine of invited error does not permit a defendant to pursue a strategy . . . and then when the strategy does not work out as planned, cry foul and win a new trial." State v. Williams, 219 N.J. 89, 101 (2014 ), cert. denied, ___ U.S. ___, 1355 S. Ct. 1537, 191 L. Ed. 2d 565 (2015).
IV.
Finally, defendant challenges the trial court's response to a jury question concerning the wooden bat (Exhibit S-66) found under the front passenger seat near the drugs. Count three charged defendant with knowingly having possession of a weapon "under circumstances not manifestly appropriate for such lawful uses as it may have[.]" N.J.S.A. 2C:39-5(d). In its charge, the judge read the jury the Model Jury Charge (Criminal) "Unlawful Possession of a Weapon" (2005), including its paragraph addressing the element quoted above. That paragraph stated it was "not necessary for the State to prove that the defendant formed an intent to use S-[66] as a weapon," but that it was necessary for the State to prove that the wooden bat "was possessed under such circumstances that a reasonable person would recognize that it was likely to be used as a weapon; in other words, under circumstances where it posed a likely threat of harm to others[.]" Ibid.
See N.J.S.A. 2C:39-1(r) (defining "weapon" as "anything readily capable of lethal use or of inflicting serious bodily injury"). --------
During deliberations, the jury asked: "What is included in a lawful use of S-66, which is the wooden bat, pin, however you want to describe it; i.e., would self-defense be a lawful use?" With the agreement of counsel, the court responded by referring the jury to the model paragraph discussed above, and adding "a lawful use is anything not contrary to the law." The court gave examples that the jury might find the bat could be used as a bowling pin or juggling pin, to hammer a nail, or for "whatever" and "as many" lawful uses the jury could conceive.
With regard to self-defense, the court proposed to tell the jurors "there is no claim of self-defense in this case." After defense counsel objected to "that line, phrase[d] like that," the court offered to also tell the jurors that "they can find it as a lawful use," and that though there was no self-defense claim "it can be a lawful use." Defense counsel replied: "That's fine[.]" The court instructed the jury:
Well, under the appropriate circumstances self-defense would be a lawful use, clearly. And again it just depends on the circumstances of that situation where one could use that wooden bat in self-defense. And I think that you do know that there is no specific claim of self-defense in this case. However, again, under the appropriate circumstance of self-defense would be a lawful use of using that wooden bat.
Defendant concedes that he failed to object to the revised instruction. In fact, defendant "acquiesced in or consented to" the revised instruction, thus barring his claim under the invited error doctrine. A.R., supra, 213 N.J. at 561.
In any event, there was no error. As defendant admits, defense counsel never claimed defendant had the bat for self-defense. Counsel conceded the jury knew there was "no issue" of self-defense.
Indeed, there were no circumstances suggesting self-defense. "'The issue is not whether a weapon could be lawfully used, but whether the circumstances surrounding the possession were manifestly appropriate for such lawful uses.'" State v. Burford, 163 N.J. 16, 20 (2000) (quoting State v. Colon, 186 N.J. Super. 355, 357 (App. Div. 1982) (rejecting self-defense argument under N.J.S.A. 2C:39-5(d)). "Although self-defense involves a lawful use of a weapon, it does not justify the unlawful possession of the weapon under section 5d except when a person uses a weapon after arming himself or herself spontaneously to repell an immediate danger." State v. Kelly, 118 N.J. 370, 386 (1990). Self-defense is no excuse under N.J.S.A. 2C:39-5(d) "'when a person arms himself prior to a danger becoming imminent.'" Id. at 381. "Indeed, precautionary arming during a non-emergency situation is the type of conduct that the Legislature sought to interdict under section 5d." Id. at 386. Thus, defendant "possessed the weapon under manifestly inappropriate circumstances" even had he claimed "anticipatory self-defense." Ibid. Therefore, we reject his challenge to count three, and his derivative challenge to count four.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION