Opinion
DOCKET NO. A-4050-11T1
07-21-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. DYSHUN J. LEGETTE, a/k/a DAY LEGETTE, DASHSEAN LEGETTE, DAYSHAWN J. LEGETTE, DYSHAWN J. LEGETTE, DAYSHUN J. LEGETTE, DAYSHUN LEGETTE, and EDYSHUN LEGETTE, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief). Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stacey E. Zyriek, 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NOT FOR PUBLICATION WITHOUT THE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 Sapp-Peterson, Lihotz, and Hoffman.
On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 10-06-0636 and 10-06-0628.
Joseph E. Krakora, Public Defender, attorney for appellant (Amira R. Scurato, Assistant Deputy Public Defender, of counsel and on the brief).
Grace H. Park, Acting Union County Prosecutor, attorney for respondent (Stacey E. Zyriek, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
Appellant filed a pro se supplemental brief. PER CURIAM
A Union County grand jury indicted defendant Dyshun J. Legette on charges of second-degree unlawful possession of a weapon (an assault firearm), N.J.S.A. 2C:39-5(f) (count one); fourth-degree possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count two); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f) (count three); third-degree receiving stolen property, N.J.S.A. 2C:20-7 (count four); and third-degree possession of a controlled dangerous substance N.J.S.A. 2C:35-10(a)(1) (count five). The court dismissed count five prior to trial. In a separate Union County indictment, defendant was charged with second-degree certain persons not to have weapons, in violation of N.J.S.A. 2C:39-7 (count one).
Following trial, the jury convicted defendant of the first three counts of the indictment and acquitted him on count four. Thereafter, defendant pled guilty to the second indictment with no negotiated plea agreement in place. At sentencing, the court granted the State's motion to impose a discretionary extended term and sentenced defendant to twenty years imprisonment on the unlawful possession of weapons offense, concurrent eighteen-month sentences on counts two and three, and a concurrent five-year custodial term on the second indictment.
On appeal, defendant raises the following points for our consideration:
POTNT I
THE DEFENDANT'S RTGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNTTED STATES CONSTTTUTTON AND ART. T, PARA. 1 OF THE NEW JERSEY CONSTTTUTTON WAS VTOLATED BY THE TRTAL COURT'S FATLURE TO PROPERLY TNSTRUCT THE JURY ON THE LAW OF CROSS-RACTAL TDENTTFTCATTON, EVEN THOUGH TDENTTFTCATTON WAS A MATERTAL TSSUE TN THE CASE. (NOT RATSED BELOW).
POTNT II
THE TRTAL JUDGE REFERRED TO ANOTHER TNDTVTDUAL'S PRTOR JUVENTLE RECORD AND THEREAFTER TMPOSED AN EXCESSTVE SENTENCE.
POTNT III
THE DEFENDANT WAS DENTED HTS RTGHT OF A FATR TRTAL BY PROSECUTORTAL MTSCONDUCT, WHEREFORE THE CONVTCTTON MUST BE SET ASTDE AND A NEW TRTAL AWARDED.
POTNT TV
THE VERDTCT WAS AGATNST THE WETGHT OF THE EVTDENCE WHEREFORE THE CONVTCTTON SHOULD BE SET ASTDE AND THE TNDTCTMENT MUST BE DTSMTSSED TN TTS ENTTRETY. (NOT RATSED BELOW).
Point I of defendant's pro se supplemental brief.
Point II of defendant's pro se supplemental brief.
--------
I
After analyzing the record, the applicable law and the arguments raised, we affirm defendant's conviction and sentence. We agree the court erred at sentencing when it considered the juvenile record of another individual. However, this error was harmless, given defendant's four adult indictable convictions, rendering him eligible for imposition of a discretionary extended term. N.J.S.A. 2C:44-3.
With the exception of defendant's arguments related to the court's failure to properly instruct the jury on cross-racial identification, the remaining points raised are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). We therefore limit our discussion to the claimed error related to cross-racial identification, which defendant raises for the first time on appeal and which we therefore review under the plain error standard. R. 2:10-2 ("Any error or omission shall be disregarded by the appellate court unless it is of such a nature as to have been clearly capable of producing an unjust result[.]").
The jury was presented with the following evidence at trial. According to the testimony of thirteen-year veteran of the Linden Police Department, Detective Kenneth Mikolajczyk, on February 11, 2010, around 11:00 p.m., he, along with other police officers, executed a search warrant at a Linden private residence. Upon arrival at the home, police proceeded to the basement area. Defendant was not present during the search. However, his forty-five-year-old father, seventy-one-year-old grandmother, three females ranging in age from fourteen to twenty-three, and a six-year-old child were present.
The basement contained a bedroom where the detective found a 9mm luger handgun with a large capacity magazine loaded with bullets in a space near the ceiling above the door. He found a second magazine loaded with hollow nose bullets located atop a television stand. He also found one white pill and small amounts of green vegetation. The detective additionally observed men's clothing in the bedroom. In particular, he noticed a brown jacket he previously saw defendant wearing. He explained, "I liked it so it stuck in my mind when I had seen him wearing it." Detective Mikolajczyk stated that prior to the evening the search warrant was executed, he had seen defendant upwards of a dozen times and, on the evening of the search, he had seen defendant approximately forty-five minutes earlier. Although a warrant was issued for defendant's arrest in connection with the execution of the search warrant, he was not arrested until fifteen months later when he was in court in connection with an unrelated matter.
Detective David Kother of the Linden Police Department, an expert in fingerprinting, testified that he did not recover any fingerprints of any value from the gun, the two magazines, or the bullets. No attempt was made to recover DNA from the items. It was later determined that the pill was codeine and the green vegetation was marijuana.
Defendant's father testified that the bedroom in the basement belonged to his son, defendant. He also stated a guest, Quanisha James, would stay in the main area of the basement; however, when defendant was not there, she slept in the bedroom utilized by his son. He indicated James also had friends who would visit and "hang out in the basement." He stated defendant did not sleep at the house on a regular basis because he stayed with a "young lady." He explained that defendant's brother Wayne also stayed with a girlfriend except when "he gets mad and comes home." According to the father, both sons used the house address as their mailing address.
II.
Defendant contends the critical issue in this case was whether he was actively occupying the basement bedroom where contraband was found at the time the search warrant was executed. He urges that it was therefore crucial for the jury to determine whether Detective Mikolajczyk, who claimed he saw defendant forty-five minutes before the search warrant was executed, actually saw him and had previously seen defendant wearing the brown jacket which was located in the bedroom. We disagree.
The critical issue in this case was not identification in the sense of who the officer actually saw wearing the brown jacket on a prior occasion. The critical question was whether defendant possessed the contraband found in the basement bedroom. There was undisputed testimony from defendant's father that the enclosed bedroom in the basement belonged to defendant. There was also testimony that on occasion, James slept in the room when defendant was not there and that she had parties and guests in the basement. Although defendant's father testified his other son lived in the home, he did not testify that he shared the basement bedroom with defendant. Thus, the jury had to consider whether the evidence seized from the bedroom was consistent with defendant's occupancy of the room as distinguished from some other person or persons. The brown jacket Detective Mikolajczyk testified he observed defendant wearing was but one piece of evidence presented to the jury to support the State's position defendant occupied the bedroom and the items confiscated from that room were possessed by defendant. Other evidence pointing to defendant's occupancy of the room at the time the search warrant was executed included correspondence to defendant from Wachovia bank addressed to defendant at his father's address, an expired driver's license bearing defendant's name and the same address, and the fact that the Detective Mikolajczyk, who had seen defendant "upwards" of a dozen times before February 11, 2010, saw him leaving the residence forty-five minutes before the search warrant was executed.
Under these circumstances, we conclude no cross-racial identification instruction was required. "[N]ot every cross-racial identification triggers an obligation to give the jury an instruction" on cross-racial identification. State v. Walker, 417 N.J. Super. 154, 159 (App. Div. 2010) (citing State v. Cromedy, 158 N.J. 112, 132 (1999)). Rather, Detective Mikolajczyk's identification of defendant's jacket was incidental to the more direct evidence connecting defendant to the evidence in the bedroom. "A cross-racial instruction should be given only when . . . identification is a critical issue in the case, and an eyewitness's cross-racial identification is not corroborated by other evidence giving it independent reliability." Cromedy, supra, 158 N.J. at 132.
Although there was no forensic evidence, such as fingerprints from the gun or bullets, linking defendant to the gun, there was an abundance of circumstantial evidence linking defendant to the bedroom. A conviction can be based on circumstantial evidence alone. See State v. Josephs, 174 N.J. 44, 137 (2002) (finding that circumstantial evidence is sufficient for a criminal conviction, provided that the evidence satisfies the burden of proof); see also State v. Reyes, 50 N.J. 454, 459 (1967).
Notwithstanding our conclusion that the detective's identification of defendant as the individual wearing the brown jacket was not critical in this case, the trial judge charged the jury that it should consider "the fact that an identifying witness is not of the same race as the defendant and whether that fact may have had an impact on the accuracy of the witness' original perception and/or the accuracy of the subsequent identification." We deem this instruction to be sufficiently specific to alert the jury on the impact of cross-racial identification, if any, in this case, therefore meeting the requirement we articulated in State v. Davis, 363 N.J. Super. 556, 561 (App. Div. 2003), which the Court in State v. Cotto cited approvingly: "[T]he trial court is required to issue a 'specific instruction' even when defendant's misidentification argument is 'thin.'" 182 N.J. 316, 326 (2005) (quoting Davis, supra, 363 N.J. Super. at 561). This was not a situation where no instruction was given. Thus, assuming the court erred in failing to give a more detailed instruction on cross-racial identification, as defendant urges, the claimed error was harmless. R. 2:10-2.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION