Opinion
DOCKET NO. A-3891-12T4
11-10-2014
STATE OF NEW JERSEY, Plaintiff-Respondent, v. MICHAEL E. SMITH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Hayden and Leone. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 12-01-0232. Joseph E. Krakora, Public Defender, attorney for appellant (Michael J. Confusione, Designated Counsel, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent (Deborah Bartolomey, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Michael E. Smith appeals from his April 2, 2013 judgment of conviction. He was charged with and convicted of second-degree unlawful possession of a .45 caliber Glock 21 handgun. N.J.S.A. 2C:39-5(b). On March 18, 2013, the trial court sentenced defendant to five years in prison with three years of parole ineligibility.
Defendant appeals, raising the following arguments:
POINT 1 - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE.For the reasons discussed below, we affirm.
POINT 2 - THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL.
POINT 3 - THE JURY CHARGES WERE IMPROPER (NOT RAISED BELOW).
POINT 4 - THE PROSECUTOR'S SUMMATION WAS IMPROPER AND SKEWED THE ELEMENTS OF THE CRIME CHARGED AGAINST DEFENDANT (NOT RAISED BELOW).
POINT 5 - DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
I.
We first summarize the evidence at the suppression hearing, starting with the testimony of Officer Anthony Grajales. On October 29, 2011, a citizen called the Atlantic City Police Department and gave her name. The citizen reported there was a male "flashing" a handgun in a white vehicle with a Pennsylvania license plate, near a shopping center two blocks from the Boardwalk. The citizen told the police the vehicle's full license plate number.
This information was broadcasted over police radio and heard by Officer Grajales, who was patrolling the tourism district near the Boardwalk. Sergeant Mary Louise Cook radioed that she had spotted and stopped the vehicle with that exact license plate number a block away from the shopping plaza which was a high crime area. Officer Grajales and other officers arrived at the scene.
Defendant was the only person in the vehicle. Because it was a high-risk stop, the officers drew their weapons, ordered defendant to roll the driver's window down, place the keys on the roof of the vehicle, exit the vehicle with his hands up, and walk toward them to be frisked. Defendant complied. The frisk found no gun on defendant, who was detained for investigative purposes.
Officer Grajales went to the driver's door, which defendant had left open. The officer looked into the vehicle, starting on the driver's side. The vehicle was very messy, with trash and clothing everywhere. After a "couple minutes," the officer stuck his head in and saw a black gun box on the front passenger-side floor.
The officer immediately knew it was a gun box based on his experience and training. The police department and its officers used similar gun lock boxes to store their weapons, as did friends of the officer. The officer had also found such gun boxes in investigating criminal activities. As soon as the officer saw the gun box, he believed there would be a weapon inside based on the nature of the box and the radio call.
The officer saw the gun box was unlocked and the lid was open about one-half inch. The officer went into the vehicle and opened the gun box further. In the gun box, he saw a black Glock handgun containing a magazine, a second magazine, defendant's passport, and a flashlight. The officer removed the gun box from the car, showed the gun box and gun to his sergeant, and placed the gun box on the back seat. Defendant was arrested.
Defendant testified at the suppression hearing. He agreed with many aspects of the officer's testimony, including that the gun and the magazines were in the gun box. However, he asserted that the gun box was locked, and that the key was on the ring with his car keys. He also claimed that an officer asked for consent to search the car, that he refused consent, that several officers searched his car anyway, and that they took the key in order to unlock the gun box.
The suppression judge found Officer Grajales testified credibly, and accepted his testimony. The court had several problems with defendant's testimony. The court found that the police had reasonable suspicion to stop defendant's vehicle. The court also found that the officer lawfully saw the gun box, that he had probable cause to believe there was a gun in the vehicle, and that his seizure of the gun was justified by both plain view and exigent circumstances.
We must hew to our "deferential standard of review." State v. Rockford, 213 N.J. 424, 440 (2013). "[A]n appellate court reviewing a motion to suppress must uphold the factual findings underlying the trial court's decision so long as those findings are supported by sufficient credible evidence in the record." Ibid. (internal quotation marks omitted). "Those findings warrant particular deference when they are substantially influenced by [the trial judge's] opportunity to hear and see the witnesses and to have the 'feel' of the case, which a reviewing court cannot enjoy." Ibid. (alteration in original; internal quotation marks omitted). The suppression court's "'findings should be disturbed only if they are so clearly mistaken that the interests of justice demand intervention and correction.'" State v. Robinson, 200 N.J. 1, 15 (2009).
A.
Defendant argues first that the police lacked reasonable suspicion to stop his vehicle. "Both the United States and the New Jersey Constitutions protect citizens against unreasonable searches and seizures. U.S. Const. amend. IV, N.J. Const. art. I, ¶ 7. It is well established that the investigative stop of an automobile by police constitutes a seizure that implicates those constitutional protections." State v. Amelio, 197 N.J. 207, 211 (2008) (citing Delaware v. Prouse, 440 U.S. 648, 653, 99 S. Ct. 1391, 1396, 59 L. Ed. 2d 660, 667 (1979)). "'A lawful stop of an automobile must be based on reasonable and articulable suspicion that an offense . . . has been or is being committed.'" Ibid.
Here, the police had reasonable suspicion to stop defendant's vehicle. The citizen's report to police that the vehicle's occupant flashed a handgun provided reasonable suspicion that he had committed the offense of possessing a firearm for unlawful purposes. State v. Mello, 297 N.J. Super. 452, 458-60, 466-67 (App. Div. 1997) (brandishing a firearm to terrorize, threaten, or coerce violates N.J.S.A. 2C:39-4(a)(1)). The report also gave reasonable suspicion that he was committing the offense of possessing a handgun without a New Jersey permit. N.J.S.A. 2C:39-5(b)(1); see N.J.S.A. 2C:39-2(b). Providing the exact license plate number "imparted sufficient information via the 9-1—1 system to furnish a reasonable basis for the police to effect a constitutional stop [of the vehicle] under the totality of circumstances." State v. Golotta, 178 N.J. 205, 224 (2003).
Defendant claims that the citizen's report was insufficiently reliable. He relies on cases involving tips from anonymous sources; particularly by Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L. Ed. 2d 254 (2000), and Alabama v. White, 496 U.S. 325, 110 S. Ct. 2412, 110 L. Ed. 2d 301 (1990). However, Officer Grajales testified that this was not an anonymous tip, and that the police knew the identity of the citizen-caller.
"Usually the reliability of anonymous informers, who are themselves criminals in many instances, must be established." State v. Davis, 104 N.J. 490, 506 (1986). However, "'[a] report by a concerned citizen' or a known person is not 'viewed with the same degree of suspicion that applies to a tip by a confidential informant' or an anonymous informant." State v. Amelio, 197 N.J. 207, 212 (2008) (quoting Wildoner v. Borough of Ramsey, 162 N.J. 375, 390 (2000)), cert. denied, 556 U.S. 1237, 129 S. Ct. 2402, 173 L. Ed. 2d 1297 (2009). An ordinary citizen reporting a crime is assumed to be acting "with an intent to aid the police in law enforcement because of his concern for society or for his own safety." Id. at 213 (internal quotation marks omitted); Davis, supra, 104 N.J. at 506. Moreover, by giving her name, and any additional identifying information collected by the 9-1-1 system, an identified citizen is subject to future questioning and possible prosecution if the information provided is false. See Golotta, supra, 178 N.J. at 218-19, 225-26. Thus, an ordinary citizen is presumed to be "providing reliable information," State v. Basil, 202 N.J. 570, 586 (2010), and further investigation of the citizen's reliability is not required "'before appropriate police action is taken,'" Davis, supra, 104 N.J. at 506.
Indeed, the officer testified the citizen "came in later and signed a complaint" and gave a statement. Had this occurred before the stop, the reliability of the citizen's report would have been "'heightened still further.'" Wildoner, supra, 162 N.J. at 391. It appears, however, that the citizen came to the station after the stop.
"The determination whether the police have the reasonable suspicion required to justify an investigatory stop depends on the totality of the circumstances known at the time" to the police. State v. Richards, 351 N.J. Super. 289, 300 (App. Div. 2002). This includes "the facts known to the officers from personal observation," White, supra, 496 U.S. at 330, 110 S. Ct. at 2416, 110 L. Ed. 2d at 309, and the information known to or communicated by police dispatch, State v. Crawley, 187 N.J. 440, 457, cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563 (2006). Here, the officer's testimony demonstrated that facts known to the police provided reasonable suspicion.
Accordingly, we need not consider defendant's testimony about a confrontation he had with a married couple before he encountered the police. The suppression judge felt defendant's testimony corroborated the citizen's report. However, defendant's testimony was unknown to police at the time of the stop.
B.
Defendant next challenges the search and seizure of the gun box. We hold the search of the passenger compartment and gun box was appropriate as a protective sweep for a gun under State v. Gamble, 218 N.J. 412 (2014).
"'A warrantless search is presumed invalid unless it falls within one of the recognized exceptions to the warrant requirement.'" Id. at 425. One recognized exception permits a warrantless vehicle "search for weapons based on an objectively-reasonable belief that an occupant of the vehicle is dangerous and may gain access to weapons." Id. at 426 (citing State v. Pierce, 136 N.J. 184, 205 (1994)).
The United States Supreme Court has held that, where police officers had "reason to believe that the vehicle contained weapons potentially dangerous to the officers," a "protective search of the passenger compartment was reasonable under the principles articulated in" Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968). Michigan v. Long, 463 U.S. 1032, 1035, 103 S. Ct. 3469, 3473, 77 L. Ed. 2d 1201, 1210 (1983). An officer may search the passenger compartment for weapons "if the police officer possesses a reasonable belief based on 'specific and articulable facts which, taken together with the rational inferences from those facts, reasonably warrant' the officer in believing that the suspect is dangerous and the suspect may gain immediate control of weapons." Ibid. (quoting Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1879, 20 L. Ed. 2d at 906). Such a search is permissible even after the suspect is detained, because a suspect could "break away from police control and retrieve a weapon from his automobile," and because, "if the suspect is not placed under arrest, he will be permitted to reenter his automobile, and he will then have access to any weapons inside." Id. at 1051-52, 103 S. Ct. at 3482, 77 L. Ed. 2d at 1221.
Our Supreme Court has held that "the Michigan v. Long rule is sound and compelling precedent and should be followed to protect New Jersey's police community." State v. Lund, 119 N.J. 35, 48 (1990); see Pierce, supra, 136 N.J. at 214. The United States Supreme Court has reaffirmed that rule as an "established exception[] to the warrant requirement" which helps "ensure that officers may search a vehicle when genuine safety" concerns arise. Arizona v. Gant, 556 U.S. 332, 346-47, 129 S. Ct. 1710, 1721, 173 L. Ed. 2d 485, 498 (2009). In Gamble, our Supreme Court recently applied that rule where police received an anonymous 9-1-1 call that an individual in a van had a gun on his lap. Gamble, supra, 218 N.J. at 427.
Here, the police had "'a reasonable belief that the vehicle contain[ed] weapons potentially dangerous to the officers.'" Ibid. (quoting Long, supra, 463 U.S. at 1034-35, 103 S. Ct. at 3473, 77 L. Ed. 2d at 1210). The officers lawfully stopped defendant's vehicle because they had a reasonable belief that its occupant flashed a handgun. "The same circumstances which justify an investigatory stop may also present the officer with 'a specific and particularized reason to believe that the suspect is armed.'" Id. at 432. Defendant does not contest that the officers properly ordered him out of the car and frisked him. "The frisk . . . failed to produce a weapon," which made it "reasonable for the officer to believe the [vehicle] contained a gun," and "underscored the need to inspect the interior of the vehicle to make sure it did not contain a weapon before the driver . . . reentered the [vehicle]," in order to reduce "the risk to officers and public safety." Id. at 419, 432-34. Therefore, "a protective sweep or frisk of the [vehicle] was constitutionally permissible." Id. at 433.
As defendant testified, the gun box was a "transport gun safe designed to stow a weapon safely for transport purposes." When Officer Grajales looked into the vehicle, he saw the box, which he recognized as a gun box based on his experience. Under Michigan v. Long, supra, he could search any area in the passenger compartment "in which a weapon may be placed or hidden." 463 U.S. at 1049, 103 S. Ct. at 3481, 77 L. Ed. 2d at 1220. A gun box is plainly an area where a gun may be located. Indeed, "'gun case[s] by their very nature cannot support any reasonable expectation of privacy because their contents can be inferred from their outward appearance.'" State v. Demeter, 124 N.J. 374, 381 (1991) (quoting Arkansas v. Sanders, 442 U.S. 753, 764 n.13, 99 S. Ct. 2586, 2593 n.13, 61 L. Ed. 2d 235, 245 n.13 (1979)); State v. Reininger, 430 N.J. Super. 517, 535 (App. Div. 2013). Accordingly, the officer had the right to search the gun box as part of the protective sweep.
Here, the officer testified, and the court credited, that the gun box was partially open. Defendant claimed the lid closes automatically, but the gun box was brought into court and a demonstration showed the lid remained open unless pushed closed. The officer had the right to open the gun box wider as part of the protective sweep. Once he saw the gun, he indisputably had probable cause to seize the gun box and its contents, including the gun.
Accordingly, defendant's motion to suppress the gun was properly denied. Thus, we need not address whether the search and seizure was justified under the plain view doctrine and exigent circumstances exceptions. See Gamble, supra, 218 N.J. at 433.
II.
Defendant next claims Judge Albert Garafolo should have granted his motion for judgment of acquittal at trial. Officer Grajales testified at trial as he had at the suppression hearing. His testimony was supported by the testimony of Sergeant Cooke and a forensic investigator. "'[V]iewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt.'" State v. Wilder, 193 N.J. 398, 406 (2008) (quoting State v. Reyes, 50 N.J. 454, 459 (1967)).
Defendant cites Officer Grajales' testimony that there was trash and clothing throughout the vehicle, and that he did not notice the gun box for a "[c]ouple of minutes. Two to four minutes." Based on that testimony, defendant argues that he could not have been in knowing possession of the gun because the debris must have obscured it from defendant's view. However, Officer Grajales testified at trial, as at the suppression hearing, that nothing was covering the gun box.
"A person constructively possesses an object when, although he lacks 'physical or manual control,' the circumstances permit a reasonable inference that he has knowledge of its presence, and intends and has the capacity to exercise physical control or dominion over it during a span of time." State v. Spivey, 179 N.J. 229, 236-37 (2004). It was a reasonable inference that defendant, as the driver and sole occupant of the vehicle, had knowledge and control over the gun box "in plain view on the floor of the [vehicle], in an area that was readily accessible to defendant." State v. Scott, 398 N.J. Super. 142, 151 (App. Div. 2006), aff'd o.b., 193 N.J. 227 (2008); see State v. Maristany, 133 N.J. 299, 308 (1993); N.J.S.A. 2C:39-2(a). Further, the gun box contained his passport and his Pennsylvania application to purchase the gun.
III.
On appeal, for the first time, defendant claims error in the jury charge. He fails to show plain error. R. 1:7-2, 2:10-2.
Prior to trial, defendant asked the court to admit evidence he had a Pennsylvania gun permit. When the State objected because N.J.S.A. 2C:39-5(b) required a New Jersey permit, defendant responded that a specific instruction from the court could avoid jury confusion. The trial court agreed to admit the Pennsylvania paperwork to defuse any negative inferences about defendant, and stated it would advise the jury that a New Jersey permit was required. Defendant was "fine" with informing the jury that the handgun was not properly carried under New Jersey law. He also stipulated to the admission of an affidavit from the Firearms Division of the New Jersey State Police that defendant did not apply for, or receive, a handgun permit in New Jersey. The State proposed a supplemental charge, without objection by defendant.
The trial court instructed the jury using the Model Jury Charge (Criminal) "Unlawful Possession of a Handgun" (Feb. 26, 2001), including that the State must prove defendant "did not have a permit to possess or carry the handgun." The court added that "[t]he permit to carry must be one issued by the State of New Jersey." The court then gave the following supplemental charge:
permits must be obtained in accordance with New Jersey law. Therefore, a nonresident gun owner may not avoid New Jersey gun control laws on the basis that possession of
the weapon was legal in the owner's state of residence and that the owner was merely transporting weapons through New Jersey without criminal intent and knowledge that New Jersey would regard possession as illegal. Jurors should interpret no flexibility or any intent to exclude nonresiden[ts] within or passing through New Jersey from these provisions.The court told the jury that defendant's Pennsylvania application to purchase the gun was admitted "to defuse any suspicion as to whether or not he originally came in to possession of a handgun by unlawful means."
The court's instructions accurately stated the law. A defendant acts unlawfully if he possesses a handgun "without first having obtained a permit to carry the same as provided in N.J.S. 2C:58-4." N.J.S.A. 2C:39-5(b). N.J.S.A. 2C:58-4 sets the requirements for the issuance of permits in New Jersey to carry a handgun in "this State." Moreover, our Supreme Court has held:
[A] non-resident gun owner may [not] avoid the sanctions of New Jersey's gun-control laws on the basis that possession of the weapon was legal in the owner's state of residence and that the owner was merely transporting weapons through New Jersey without criminal intent and knowledge that New Jersey would regard the possession as illegal.The Court also found New Jersey's gun control laws do not suggest "any flexibility or any intent to exclude nonresidents within or passing through New Jersey from the strict permit requirement." Id. at 88 (quoting State v. Hatch, 64 N.J. 179, 186 (1973)).
[In re Two Seized Firearms, 127 N.J. 84, 85-86 (1992).]
Defendant has thus failed to show "'[l]egal impropriety in the charge prejudicially affecting the substantial rights of the defendant sufficiently grievous to justify notice by the reviewing court and to convince the court that of itself the error possessed a clear capacity to bring about an unjust result.'" State v. Adams, 194 N.J. 186, 207 (2008).
Defendant also cannot show plain error regarding the court's instruction that "even if there is no evidence that the Defendant had or did not have a valid permit to carry such a handgun, that you may infer, if you think it appropriate to do so, based upon the facts presented, that he had no such permit." That instruction is essentially drawn from the Model Jury Charge (Criminal) "Unlawful Possession of a Handgun" (Feb. 26, 2001), and is authorized "once possession of a weapon is shown." State v. Ingram, 98 N.J. 489, 499-500 (1985). The instruction was proper here because the State's evidence was sufficient to show possession. The court also instructed the jury that it was "not required to draw" an inference. Defendant stated that instruction was "satisfactory."
IV.
Defendant similarly cannot show plain error regarding two comments in the prosecutor's closing argument. Defendant's "[f]ailure to make a timely objection indicates that defense counsel did not believe the remarks were prejudicial at the time they were made." State v. Timmendequas, 161 N.J. 515, 57 6 (1999), cert. denied, 534 U.S. 858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001).
The prosecutor's argument that defendant possessed the gun in the gun box "whether there's debris underneath the box or not, whether it ended up in the front seat or the back," was a response to defense arguments, not a redefinition of constructive possession. Similarly, we do not believe the prosecutor was trying to redefine reasonable doubt when he rhetorical asked the jurors if they had "an honest, unreasonable — an honest, reasonable doubt as to his guilt. Honest, reasonable certainty to his guilt." Both before and after that garbled comment, the prosecutor referred the jury to the court's instructions on the law.
In any event, the trial court properly instructed the jurors that constructive possession required defendant be aware of the gun, and that "[r]easonable doubt is an honest and reasonable uncertainty" about defendant's guilt. The court also instructed that "any statements by the attorneys as to what the law may be must be disregarded by you if they are in conflict with my instruction." "Any prejudice was cured by that instruction." State v. Loftin, 146 N.J. 295, 391 (1996).
V.
Defendant lastly challenges his sentence, which was the minimum for a second-degree offense. He notes that "where the court is clearly convinced that the mitigating factors substantially outweigh the aggravating factors and where the interest of justice demands, the court may sentence the defendant to a term appropriate to a crime of one degree lower than that of the crime for which he was convicted." N.J.S.A. 2C:44-1(f)(2).
Here, the trial court found there was "no way that I can say that the Mitigating Factors . . . outweigh so greatly the Aggravating [Factors] that the interest of justice require[s] me to reduce the sentence." Based on defendant's prior arrest record for burglary and theft which resulted in Pre-Trial Intervention (PTI), and his arrest and conviction for disorderly conduct, the court found aggravating factor three, "[t]he risk that the defendant will commit another offense." N.J.S.A. 2C:44-1(a)(3). The court also found aggravating factor nine, "[t]he need for deterring the defendant and others from violating the law," N.J.S.A. 2C:44(a)(9), "more for general deterrence than individual," because of the rampant unlawful possession and use of handguns in Atlantic City.
The court found mitigating factors one and two, that defendant did not contemplate he would cause or threaten serious harm, but noted that his possession of the gun "was rather cavalier" and that "when guns are cavalierly possessed" they often end up being used. The court further found mitigating factor seven, that defendant, despite his criminal activity, had led a law-abiding life for a substantial period of time. The court found mitigating factor ten, that defendant was likely to respond affirmatively to probationary treatment, but noted it was "pretty much a nullity" given the seriousness of the firearms offense. N.J.S.A. 2C:44-1(b)(1)-(2), (7), (10).
Defendant stresses the court's finding that aggravating factor three applied "but not substantially," and that individual deterrence merited slight weight. However, the court found general deterrence carried considerable weight. "Deterrence of others remains a proper sentencing reason," State v. Martin, 235 N.J. Super. 47, 60 (App. Div. 1989), at least where the court finds a need to deter the individual, State v. Fuentes, 217 N.J. 57, 79 (2014). Indeed, under N.J.S.A. 2C:44-1(f)(2), "[t]he focus [is] on the offense rather than the offender" in order "to assure the protection of the public and the deterrence of others." Megargel, supra, 143 N.J. at 500.
Defendant argues that four mitigating factors clearly outweigh two aggravating factors, but "[t]he sentencing court does more than quantitatively compare the number of pertinent aggravating factors with the number of applicable mitigating factors." Fuentes, supra, 217 N.J. at 72. Thus, a challenge "based upon a quantitative analysis of the number of factors to be balanced" is insufficient. See State v. Roth, 95 N.J. 334, 368 (1984).
The court found that the balance of factors was in equipoise, or perhaps slightly in favor of the mitigating circumstances. That was not an abuse of the court's "considerable sentencing discretion" under N.J.S.A. 2C:44-1(f)(2). State v. Lopez, 395 N.J. Super. 98, 108 (App. Div. 2007). Moreover, "[t]he reasons justifying a downgrade must be 'compelling,' and something in addition to and separate from, the mitigating factors that substantially outweigh the aggravating factors." Megargel, supra, 143 N.J. at 505. Defendant failed to make that showing as well. Thus, "this is not one of those rare cases that satisfies the interest of justice standard for a downgrade." State v. Lake, 408 N.J. Super. 313, 330 (App. Div. 2009).
Finally, defendant argues that the court should have found mitigating factors four, eight, nine, and eleven. The court properly rejected mitigating factor nine, "that he is unlikely to commit another offense," N.J.S.A. 2C:44-1(b)(9), given the court's finding that defendant posed some "risk of reoffending." For the same reason, the court could reject the argument that "defendant's conduct was the result of circumstances unlikely to recur." N.J.S.A. 2C:44-1(b)(8). Defendant claimed his Pennsylvania permit provided "substantial grounds tending to excuse or justify the defendant's conduct," N.J.S.A. 2C:44-1(b)(4), but the court was not required to accept such an excuse. See State v. Ghertler, 114 N.J. 383, 390 (1989) (rejecting drug dependency); State v. Setzer, 268 N.J. Super. 553, 567 (App. Div. 1993) (rejecting intoxication). That defendant had not been incarcerated before did not show that "[t]he imprisonment of the defendant would entail excessive hardship to himself or his dependents." N.J.S.A. 2C:44-1(b)(11).
"Appellate review of a criminal sentence is limited" and "deferential." State v. Bolvito, 217 N.J. 221, 228 (2014). Defendant has failed to make a "'clear showing of abuse of discretion.'" Ibid.
VI.
Finally, defendant contends his sentence should be considered in light of the September 24, 2014 memorandum issued by the Attorney General's Office clarifying its 2008 Graves Act Directive. The memorandum modifies the positions prosecutors should take regarding PTI, plea offers, and pre-sentencing motions under N.J.S.A. 2C:43-6.2. The clarifying memorandum states that, "[t]o the extent practicable, the provisions of this clarifying memorandum shall apply to all pending cases."
The State does not address, and we need not decide, whether the clarifying memorandum is intended to apply to cases where the defendant has already been tried and sentenced and is on direct appeal. Instead, the State points to the memorandum's proviso that "[n]othing in this memorandum affects or applies to any case where the prosecutor has reason to believe that the defendant had a purpose to use the firearm unlawfully in this State." Here, the prosecutor had reason for such a belief. The police received a citizen's 9-1-1 call that defendant was "flashing a firearm," which could constitute possession of a firearm for an unlawful purpose, as noted above.
Indeed, this information in the citizen's 9-1-1 call was confirmed by the citizen's November 1, 2011 statement to police and recorded interview. The citizen stated on October 29, she and her husband were parked outside a Taco Bell. She opened her car door, accidentally hitting a white vehicle with Pennsylvania tags. Defendant got out and complained, and her husband had words with defendant. The citizen reported that defendant said "I'll pop holes in you," and her husband saw defendant had a gun. The couple drove away and called the police.
Defendant corroborated the foregoing details in his suppression hearing testimony and his statement in the PSR.
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Because the prosecutor has reason to believe that the defendant had a purpose to use the firearm unlawfully in this State, we reject defendant's effort to invoke the Attorney General's recent clarifying memorandum.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION