STATE OF NEW JERSEY v. JAZIR GORDON

After his motion to suppress physical evidence was denied

without an evidentiary hearing, defendant Jazir Gordon proceeded

to trial and was found guilty by a jury of third-degree possession

of heroin, N.J.S.A. 2C:35-10a(1); second-degree unlawful

possession of a handgun, N.J.S.A. 2C:39-5b; fourth-degree

possession of a defaced firearm, N.J.S.A. 2C:39-3d; fourth-degree

possession of hollow nose bullets, N.J.S.A. 2C:39-3f; third-degree

resisting arrest by physical force or violence, N.J.S.A. 2C:29

2a(3)(a); and fourth-degree resisting arrest by flight, N.J.S.A.

2C:29-2a(2). The jury acquitted him of the remaining charges.

On the unlawful possession of a firearm conviction, the judge

imposed a seven-year term of imprisonment with a forty-two-month

period of parole ineligibility pursuant to the Graves Act, N.J.S.A.

2C:43-6(c). The judge imposed concurrent terms on the remaining

counts.

On appeal, defendant raises the following points for our

consideration.

POINT I



THE TRIAL COURT'S FAILURE TO PROVIDE CORRECT JURY INSTRUCTIONS WAS PLAIN ERROR. ADDITIONALLY, THE TRIAL COURT IMPROPERLY DIRECTED A VERDICT ON COUNT FIVE. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶¶ 1, 10. (NOT RAISED BELOW)













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POINT II



THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON DEFENDANT'S MOTION TO SUPPRESS. U.S. CONST. AMEND. IV, XIV; N.J. CONST. ART. I, ¶¶ 1, 7.



POINT III



THE SENTENCE WAS EXCESSIVE. U.S. CONST. AMEND. VIII, XIV; N.J. CONST. ART. I, ¶¶ 1, 12.



I.

At trial, Essex County Sheriff's Detective Angel Cintron

testified that on the evening in question, he was surveilling an

intersection in Newark after receiving certain information.

Cintron saw a man approach defendant and engage in a hand-to-hand

transaction, in which defendant exchanged some "item" with the

other man and received cash. Defendant began to ride away from

the area on his bicycle, and Cintron radioed to backup units

present at the scene, and they responded.

Detective Anthony Docke intercepted defendant's bicycle with

his police vehicle. When defendant saw the detective, he pulled

a black handgun from his waistband, tossed it over a fence, dropped

his bicycle and ran. Docke retrieved the gun, a .40 caliber semi

automatic that contained four hollow point bullets. Its serial

number had been defaced.







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Sheriff Officer Frank Betts gave chase and ultimately caught

and tackled defendant. Betts tried to place handcuffs on

defendant, but defendant "flailed his arms around" so the officer

could not gain control of his wrists and hands. After defendant

was subdued, Betts found four glassine envelopes of heroin in the

rear pocket of defendant's shorts. Defendant had two dollars in

his front pocket.

Before the State rested, the prosecutor read the following

stipulation to the jury:

Upon request from the Essex County Prosecutor's Office, Detective Sergeant Brett Bloom caused the records of the firearms investigations unit to be thoroughly searched with regard to one Jazir Gordon, date of birth 4/22/95. The search failed to reveal the defendant making an application for, or being issued, a permit to carry a handgun, permits to purchase handguns, a firearms purchaser identification card, or a permit for an assault weapon with respect to the Smith & Wesson model High Point, caliber 40, serial number unknown. The Firearms Investigation Unit cannot conduct a search for firearms in our . . . database without serial numbers.



Defendant elected not to testify but called two witnesses,

an investigator and the property manager of a building near where

the gun was found. Together, they established that surveillance

cameras were in place and operational on the day in question, and

that law enforcement officers never requested to see the video

recordings.







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II.

In Point I, defendant argues the judge committed plain error

by omitting two portions of the model charge for unlawful

possession of a firearm, Model Jury Charges (Criminal), "Unlawful

Possession of a Handgun (N.J.S.A. 2C:39-5b)" (rev. Feb. 26, 2001)

(the Model Charge), and by directing a verdict on an essential

element of that crime. He asks us to reverse his conviction for

the unlawful possession of a firearm and related charges.

The judge began his jury instructions by defining some basic

principles, including "possession." His language generally

tracked Model Jury Charges (Criminal), "Possession (N.J.S.A. 2C:2

1)" (rev. June 20, 2014). He did not include the following portion

of that charge:

[WHERE APPLICABLE, charge: Possession cannot merely be a passing control, fleeting or uncertain in its nature.] In other words, to "possess" an item, one must knowingly procure or receive an item or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish his/her control if he/she chose to do so.



[Ibid.]



When providing instructions as to the substantive crime, the

judge reminded the jury that he had already defined "possession."

He did not include the following portion of the Model Charge:









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This possession cannot merely be a passing control that is fleeting or uncertain in its nature. In other words, to "possess" within the meaning of the law, the defendant must knowingly procure or receive the handgun possessed or be aware of his/her control thereof for a sufficient period of time to have been able to relinquish control if he/she chose to do so.



The judge also told the jury "that the State must prove beyond a

reasonable doubt . . . that . . . defendant did not have a permit

to possess such a handgun." He did not include the following

portion of the Model Charge:

If you find that the defendant knowingly possessed the handgun, and that there is no evidence that defendant had a valid permit to carry such a handgun, then you may infer, if you think it appropriate to do so based upon the facts presented, that defendant had no such permit. Note, however, that as with all other elements, the State bears the burden of showing, beyond a reasonable doubt, the lack of a valid permit and that you may draw the inference only if you feel it appropriate to do so under all the facts and circumstances.



Instead, he told the jury: "It is a stipulated fact that defendant

had no permit to carry a handgun." Defendant did not object or

take exception to the judge's instructions.

"Our rules provide that a defendant waives the right to

contest an instruction on appeal if he does not object to the

instruction. R. 1:7-2. We may reverse on the basis of

unchallenged error if we find error that was 'clearly capable of







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producing an unjust result.' R. 2:10-2." State v. Torres, 183

N.J. 554, 564 (2005). The Court has said that

[i]n the context of a jury charge, plain error requires demonstration of "[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. Burns, 192 N.J. 312, 341 (2007) (second alteration in original) (emphasis added) (quoting State v. Jordan, 147 N.J. 409, 422 (1997)).]



The allegation of error must be assessed in light of "the totality

of the entire charge, not in isolation." State v. Chapland, 187

N.J. 275, 289 (2006) (citing State v. DiFrisco, 137 N.J. 434, 491

(1994)). While an erroneous jury charge may be a "'poor

candidate[] for rehabilitation' under the plain error theory,"

Jordan, 147 N.J. at 422-23 (quoting State v. Simon, 79 N.J. 191,

206 (1979)), we nonetheless consider the effect of any error in

light "of the overall strength of the State's case." Chapland,

187 N.J. at 289.

While "model jury charges should be followed and read in

their entirety to the jury," State v. R.B., 183 N.J. 308, 325

(2005), the omission of instructions on "fleeting possession" was

not plain error capable of bringing about an unjust result in this







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case. Defendant's entire strategy focused on the lack of any

evidence, save Detective Docke's testimony, that defendant ever

had the gun. In summation, defense counsel emphasized that none

of the other officers saw defendant with the gun, there was another

person in the area who police never apprehended or questioned, the

gun was never processed for fingerprints and police never checked

to see if surveillance cameras recorded defendant discarding the

weapon, as the State claimed. A charge on "fleeting possession"

ran counter to this defense.

Defendant's second argument presents a closer question. It

is axiomatic that "[t]he prosecution bears the constitutional

burden of proving each element of a crime beyond a reasonable

doubt." State v. Grenci, 197 N.J. 604, 622 (2009) (citing In re

Winship, 397 U.S. 358, 364 (1970); State v. Denofa, 187 N.J. 24,

38 (2006)). "[P]roper explanation of the elements of a crime is

especially crucial to the satisfaction of a criminal defendant's

due process rights." State v. Burgess, 154 N.J. 181, 185 (1998)

(citing State v. Martin, 119 N.J. 2, 15-17 (1990)). It is improper

for the judge to relieve the State of its burden to prove an

element of any offense, and "when the constitutional deprivation

consists of a directed verdict, preservation of the integrity of

the right to trial by jury requires reversal." State v. Ragland,

105 N.J. 189, 196 (1986). "A directed verdict results when the







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court instructs the jury to find the defendant guilty of a

particular charge." Grenci, 197 N.J. at 622 (quoting Ragland, 105

N.J. at 202).

In Grenci, the defendant was charged with burglary and

aggravated assault. The State alleged that he and his co

defendants forced their way into the victim's apartment and engaged

in a violent brawl. Id. at 608. The melee followed the victim's

earlier visit to the home of the parents of a co-defendant, Fallas;

the victim, who had been in an earlier fight with Fallas, told the

parents he wanted to talk with their son and would be waiting for

him at home. Id. at 609.

The defendant was tried in absentia, and defense counsel

argued that the brawl was a consensual fight and the defendant had

not committed a burglary. Id. at 610. In providing instructions

on the elements of burglary, N.J.S.A. 2C:18-2a(1), the judge told

the jury without objection that "it's true with regard to [the

defendant] that [he] entered [the victim's apartment] without

license or privilege to be there." Ibid. The judge contrasted

the defendant's position with that of Fallas, by further telling

the jury that "there is some evidence here that . . . Fallas may

have — it could be inferred that he had license to be there or

some type of implied or expressed invitation." Id. at 621.







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The Court concluded these instructions "directed the jury to

find that [the] defendant was not licensed or privileged to enter

[the victim]'s apartment." Id. at 622. In concluding this was

plain error requiring reversal, the Court said, "[w]e doubt that

directing a verdict on an element of an offense can ever be

harmless." Id. at 623 (citing Torres, 183 N.J. at 564).

Here, the parties entered into a stipulation that the State's

search of relevant records failed to reveal defendant had ever

applied for or received the requisite firearms permit. The Model

Charge explains to the jury how to use this information: "you may

infer, if you think it appropriate to do so based upon the facts

presented, that defendant had no such permit." Model Jury Charges

(Criminal), "Unlawful Possession of a Handgun (N.J.S.A. 2C:39-5b)"

(rev. Feb. 26, 2001).

It was a mistake for the judge not to provide these

instructions, and he further erred by contorting the parties'

stipulation and telling the jury it was "a stipulated fact that

defendant had no permit to carry a handgun." However, the effect

of these errors was ameliorated by the judge's instructions on

stipulated evidence.

Some of the evidence in this case consists of stipulated facts. A stipulated fact is one that all parties have stated they agree upon as being true. You must regard such stipulations as proper evidence and you may







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accept the facts therein as having been proven. Remember, however, that you are the sole judges of the facts and even though there's no dispute over these stipulated facts, you must still determine how much weight, if any, to give them in your deliberations.



More importantly, unlike the defendant in Grenci, whose defense

was undercut entirely by the judge's instructions, for reasons

already discussed, defendant's lack of a permit to carry the weapon

did not impair the defense in the case, i.e., that defendant never

possessed the weapon at all. Indeed, we might assume that defense

counsel's failure to object evidenced a conscious strategy.

The effect of the judge's mischaracterization of the

stipulation and his failure to provide the proper instructions

effectively relieved the State of its burden to prove an element

of the offense. However, under the particular facts of this case,

we conclude this is one of those very rare instances where such

error was harmless beyond a reasonable doubt. See R.B., 183 N.J.

at 330 ("The harmless error standard thus requires . . . 'some

degree of possibility that [the error] led to an unjust result.

The possibility must be real, one sufficient to raise a reasonable

doubt as to whether [it] led the jury to a verdict it otherwise

might not have reached.'") (alterations in original) (quoting

State v. Bankston, 63 N.J. 263, 273 (1973)).









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III.

In Point II, defendant argues the motion judge, who was not

the trial judge, erred by failing to hold an evidentiary hearing

on his motion to suppress the drugs and gun seized by police.

Neither party has supplied us with the motion and supporting or

opposing papers that were filed.

As a result, we rely upon the transcript of the proceedings,

which began with the judge acknowledging receipt of defendant's

notice of motion, the State's brief, and defendant's reply brief.

The judge asked if there were any other documents counsel wished

him to review; both attorneys answered in the negative. The judge

then acknowledged receipt of a "statement of facts from the State,

statement of facts from the [d]efense," and asked if either

attorney wished to argue. The prosecutor submitted on the papers,

as did defense counsel.

The judge quoted Rule 3:5-7(c), which states "[i]f material

facts are disputed, testimony . . . shall be taken in open court."

Relying on State v. Green, 346 N.J. Super. 87 (App. Div. 2001);

State v. Kadonsky, 288 N.J. Super. 41, 45-46 (App. Div. 1996), and

State v. Hewins, 166 N.J. Super. 210, 214 (Law. Div. 1979), aff'd,

178 N.J. Super. 360 (App. Div. 1981), the judge proceeded to

consider defendant's motion by extensively reciting the facts

contained in each side's brief.







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We need not repeat all those facts. It suffices to say that

the State alleged Cintron and another officer received information

from a confidential informant that a man fitting defendant's

description would be selling heroin at a certain intersection,

while sitting on a bicycle and armed with a handgun. The balance

of the State's version of events mirrored the trial testimony

described above.

The judge then read defendant's counter-statement of facts:

On August 26th, 2013, Mr. Gordon was standing with a group of associates at the intersection of 7th Avenue and Cutler Street in Newark. While at this location, several dark-colored vehicles "came into the lot at a rapid pace." Fearing for his safety, he and several other people ran from the area.



Contrary to the incident report and opposition brief, Mr. Gordon never tossed a handgun to the ground. Contrary to the incident report and State's opposition brief, Mr. Gordon stopped when he heard someone yell "police," these officers ran up to the apartment and forced their way inside to find Mr. Gordon.



Ms. King1 never gave them permission to enter or search her apartment. Most important, prior to the police entering the parking lot, Mr. Gordon was not engaged in any suspicious behavior that would have warranted the search.



1 It is unclear from the record who "Ms. King" is.







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The judge concluded, "defendant has failed to place specific

material facts in dispute sufficient to warrant an evidentiary

hearing. His blanket statement that he was 'not engaging in any

suspicious behavior that would have warranted a search'

constitutes the conclusory assertion of unconstitutional search

deemed insufficient by the Hewins and Kadonsky courts." Citing

State v. Moore, 181 N.J. 40 (2004), the judge determined the

officers had probable cause to arrest defendant based upon the

observed exchange of money for an object. The judge further

concluded he "need not address the abandonment doctrine" regarding

the firearm, because the seizure of "any object within the

constructive possession of defendant at or about the time of arrest

would have been incident to the lawful arrest."

Defendant does not challenge the legal conclusions reached

by the judge, but rather argues his counter-statement raised

"contested issues of fact going to the validity of the search."

He contends without any supporting legal argument that the judge

was required to hold an evidentiary hearing because "[i]f

defendant's version of the facts were found to be credible . . .

his motion to suppress should have been granted." He urges us to

remand for an evidentiary hearing. The State counters by arguing

defendant's counter-statement of facts was nothing more than the







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conclusory statements that the cases cited above hold do not

demonstrate material factual disputes requiring a hearing.

In our opinion, it was unwise for the judge not to have

conducted an evidentiary hearing. As the judge correctly noted,

the most critical fact asserted by the State was that officers

observed defendant consummate a drug deal, which gave them probable

cause to apprehend and arrest defendant. Defendant's counter

statement of facts, however, essentially contested that fact.

According to defendant, he was merely standing on a street corner

with some associates when police vehicles came upon the scene,

causing him to run in fear.

However, defendant not only failed to object to the judge

rendering a decision on his motion without testimony, but also

defense counsel affirmatively submitted the issue for the judge

to decide on the papers. Under the invited error doctrine, "trial

errors that 'were induced, encouraged or acquiesced in or consented

to by defense counsel ordinarily are not a basis for reversal on

appeal.'" State v. A.R., 213 N.J. 542, 561 (2013) (quoting State

v. Corsaro, 107 N.J. 339, 345 (1987)). Such was the case here.

IV.

Defendant argues the sentence imposed was excessive. He

contends the judge failed to find appropriate mitigating factors,

N.J.S.A. 2C:44-1b, and inappropriately weighed defendant's drug







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abuse and youth against him. The argument lacks sufficient merit

to warrant extensive discussion. R. 2:11-3(e)(2).

"Appellate review of the length of a sentence is limited."

State v. Miller, 205 N.J. 109, 127 (2011). As the Court has

reiterated:

The appellate court must affirm the sentence unless (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."



[State v. Fuentes, 217 N.J. 57, 70 (2014) (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]



The judge found aggravating factors three and nine. See N.J.S.A.

2C:44-1a(3) (the risk of re-offense); a(9) (the need to deter

defendant and others). The record adequately supported both.

The judge did not find mitigating factors seven or eight,

N.J.S.A. 2C:44-1b(7) (the lack of any history of prior delinquency

or criminal activity); and b(8) (defendant's conduct resulted from

circumstances unlikely to recur). Defendant claims this was error

requiring re-sentencing.

However, there was no evidence to support factor eight. As

to factor seven, while this was defendant's first conviction, he

had a prior juvenile arrest and subsequent adult arrest, neither







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of which resulted in adjudications of delinquency or conviction.

Under the circumstances, the judge did not err by failing to find

mitigating factor seven. See State v. Torres, 313 N.J. Super.

129, 162 (App. Div. 1998) (finding no error in not finding

mitigating factor seven even though the defendant's two prior

juvenile arrests did not result in a "final disposition").

Affirmed.