STATE OF NEW JERSEY VS. NAFEISHA T. BROWN(14-12-0663, SALEM COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2037-15T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

NAFEISHA T. BROWN,

Defendant-Appellant.
——————————————————————————————-

Argued March 2, 2017 – Decided May 31, 2017

Before Judges Lihotz and Hoffman.

On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No. 14-
12-0663.

Jaime B. Herrera, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender, attorney;
Ms. Herrera, of counsel and on the brief).

Derrick Diaz, Assistant Prosecutor, argued the
cause for respondent (John T. Lenahan, Salem
County Prosecutor, attorney; Mr. Diaz, of
counsel and on the brief).

PER CURIAM

On December 3, 2014, a Salem County grand jury returned an

indictment charging defendant Nafeisha Brown with third-degree
aggravated assault, N.J.S.A. 2C:12-1(b) (count one); fourth-degree

unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two);

fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1

(count three); and third-degree resisting arrest, N.J.S.A. 2C:29-

2(a) (count four). Defendant moved to dismiss the indictment,

which the trial judge granted in part, dismissing counts one and

three.

Defendant then moved to exclude the State's evidence of Mobile

Video Recorder (MVR) footage from the patrol car of one of her

arresting officers. The trial judge denied this motion after a

pre-trial hearing; defendant later moved to sanitize the MVR

footage, which the judge also denied.

Following trial, a jury found defendant guilty of count two

and a lesser-included offense of count four, resisting arrest as

a disorderly person, N.J.S.A. 2C:29-2(a). The judge then sentenced

defendant to concurrent three-year probationary terms on both

counts.

On appeal, defendant argues (1) the trial judge erred by

admitting highly prejudicial evidence of other bad acts; (2) the

judge should have granted her motion for acquittal on count two

because she did not possess a "weapon" as defined by statute, and

(3) she received an inequitable and excessive sentence. We have

2 A-2037-15T1
reviewed the arguments presented in light of the record and

applicable law. For the reasons that follow, we affirm.

We first summarize the relevant testimony from the trial

record. On June 11, 2014, at approximately 8:00 p.m., Patrolman

George Manganaro responded to a reported dispute between a man and

a woman at a residence in Penns Grove. On cross-examination,

Patrolman Manganaro identified this woman as defendant's relative.

The officer did not arrest or charge either person because "it was

just a loud talk."

One hour later, at approximately 9:00 p.m., Patrolman

Manganaro responded to a reported fight at the same residence.

Upon approaching the scene in his patrol car, he observed defendant

chasing the man from the first call "around a white Town Car."

The officer stopped behind the Town Car and exited his vehicle,

at which point he saw defendant throw a white cylindrical object

and heard a "metal noise" when the object hit the ground. Police

recovered this cylinder, which they later identified as a pepper

spray called "Back Off Dog Repellent."

Patrolman Manganaro said he detected the odor of a chemical

spray at the scene, which he recognized as pepper spray or

oleoresin capsicum spray (OC Spray) due to his training and

experience. He noted the substance was an "aerosol," meaning,

"once it's in the air anyone that's in that surrounding area will

3 A-2037-15T1
be contaminated by it[,] and I was contaminated." Because the

substance was "all over [his] face" and hands, the officer washed

himself with special wipes designed to reduce the effects of the

spray.

Patrolman Anthony Minguez, Patrolman Manganaro's supervisor,

arrived on the scene and made the decision to take defendant into

custody. Patrolman Manganaro attempted to place defendant in

handcuffs; however, "she kept tensing her arms and was resisting."

He said defendant persisted in pulling her arms away from him

while using profane language. Because of defendant's resistance,

the officer "arm barred" her and brought her to the front of the

Town Car, where he and Patrolman Minguez were able to secure her

in handcuffs.

The officers then placed defendant in the back of a patrol

car. Defendant "continued to kick the doors and kick around in

the car making the car move," which prompted the officers to place

her in shackles. Patrolman Manganaro described defendant's

demeanor as "[v]ery combative."

At trial, the State played some of the MVR footage from the

patrol car for the jury. The tape depicted defendant's arrest

outside the patrol car, and it also contained the audio of

statements defendant made from inside the car after her arrest.

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 Both officers also testified regarding their experience with

OC Spray. According to Patrolman Manganaro, OC Spray is composed

of ground-up peppers. The bottle police retrieved at the scene

contained oleoresin capsicum, the same ingredient as a bottle of

police-issue OC Spray, but at a lower level of concentration and

strength. Patrolman Manganaro read the label of the bottle to the

jury, which stated, "[B]ack off dog repellant, personal

protections against dog attacks. . . . Caution: irritating spray.

. . . Strongly irritating to eyes, nose and skin."

Patrolman Manganaro related getting sprayed with OC Spray

during his training and explained it affects an individual's

vision, balance, and breathing. The effects of the spray last for

approximately thirty minutes but do not cause permanent damage.

Patrolman Minguez similarly noted the spray causes blurred vision,

breathing issues, itching, and confusion. He also noted residual

exposure would cause a burning sensation and coughing, only less

severe than direct exposure.

After the trial court sentenced defendant, she filed this

appeal. She presents the following arguments for consideration:

POINT I

THE TRIAL COURT ERRED IN ADMITTING HIGHLY
PREJUDICIAL EVIDENCE OF BROWN'S OTHER BAD ACTS
ON THE DATE IN QUESTION. (PARTIALLY RAISED
BELOW).

5 A-2037-15T1
 POINT II

BROWN MUST BE ACQUITTED OF UNLAWFUL POSSESSION
OF A WEAPON UNDER N.J.S.A. 2C:39-5d BECAUSE
THE ALLEGED "WEAPON," A CAN OF DOG REPELLENT,
FAILS TO SATISFY N.J.S.A. 2C:39-1'S
REQUIREMENT THAT A "WEAPON" BE "READILY
CAPABLE OF LETHAL USE OR OF INFLICTING SERIOUS
BODILY INJURY."

POINT III

BROWN SHOULD RECEIVE A NEW SENTENCING HEAIRNG
BECAUSE HER SENTENCE WAS INEQUITABLE GIVEN HER
WILLINGNESS TO ACCEPT THE PLEA BARGAIN FOR A
LESSER SENTENCE, AND BECAUSE IT WAS EXCESSIVE
GIVEN THE PREPONDERANCE OF MITIGATING FACTORS

We address these points in the order presented.

I.

Defendant first argues the trial judge erred by permitting

the State to introduce the irrelevant and highly prejudicial post-

arrest MVR footage of defendant in the police patrol car. We

review the trial judge's evidentiary rulings for an abuse of

discretion. State v. Fortin, 178 N.J. 540, 591 (2004).

The MVR footage consisted of two tapes. The first depicted

defendant's arrest outside of the patrol car, and it also contained

audio of defendant's statements in the patrol car following her

arrest. These statements essentially consisted of her using

derogatory and profane language towards the arresting officer.

The second tape captured audio and video of defendant's actions

while she was in the back seat of the patrol car.

6 A-2037-15T1
 During the proceedings, defendant made several arguments to

exclude the post-arrest footage and to sanitize the profane

language, claiming it was irrelevant and prejudicial to her

defense. The trial judge ultimately permitted the State to play

the first video for the jury, including the audio of defendant's

post-arrest statements in the patrol car, finding they were

"allegedly corroborative of what the [o]fficer encountered in the

street and the way that [defendant] continued to act within the

car." The judge concluded the statements would assist the jury

in their determination of whether defendant resisted arrest, and

he found the potential prejudice did not outweigh the probative

value.

On appeal, defendant argues the judge should have excluded

the evidence of her post-arrest conduct as prohibited "other

crimes" evidence under N.J.R.E. 404(b). The State responds that

the evidence was intrinsic to the charge for resisting arrest and

therefore need only be analyzed under N.J.R.E. 403, not under

N.J.R.E. 404(b). See State v. Rose, 206 N.J. 141, 177-78 (2011).

"[E]vidence that is intrinsic to the charged crime is exempt from

the strictures of Rule 404(b) even if it constitutes evidence of

uncharged misconduct that would normally fall under Rule 404(b)

because it is not 'evidence of other crimes, wrongs, or acts.'"

Id. at 177 (emphasis in original).

7 A-2037-15T1
 There are two types of intrinsic evidence. "First, evidence

is intrinsic if it 'directly proves' the charged offense." Id.

at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d

Cir. 2010)). "Second, 'uncharged acts performed contemporaneously

with the charged crime may be termed intrinsic if they facilitate

the commission of the charged crime.' But all else must be

analyzed under Rule 404(b)." Rose, supra, 206 N.J. at 180 (quoting

Green, supra, 617 F.3d at 248-49).

Here, defendant's post-arrest statements in the patrol car

directly proved the charged offense. A defendant is guilty of

resisting arrest if she "purposely prevents or attempts to prevent

a law enforcement officer from effecting an arrest." N.J.S.A.

2C:29-2(a). The statutory definition of "purposely" states, "A

person acts purposely with respect to the nature of his conduct

or a result thereof if it is his conscious object to engage in

conduct of that nature or to cause such a result. . . ." N.J.S.A.

2C:2-2(b)(1). We find defendant's statements in the vehicle were

directly probative as to whether she was acting with purpose to

resist arrest. The trial judge correctly noted this evidence was

necessary to corroborate the officers' testimony regarding

defendant's mental state prior to her arrest.

Therefore, we conclude the footage of defendant's statements

was intrinsic. Accordingly, we need not determine whether it was

8 A-2037-15T1
admissible as extrinsic evidence under N.J.R.E. 404(b). Because

the evidence was intrinsic, the trial judge did not err by failing

to apply the four-prong test established in State v. Cofield, 127

N.J. 328, 338 (1992). See State v. Jones, 425 N.J. Super. 258,

274 (App. Div. 2012) (noting our review is plenary where the trial

court fails to conduct a required Cofield hearing (citing Rose,

supra, 206 N.J. at 157-58)).

Moreover, this evidence was relevant under N.J.R.E. 401, and

its prejudicial effect did not substantially outweigh its

probative value under N.J.R.E. 403. We further reject defendant's

contention that the outside footage of her arrest and the officers'

testimony constituted less prejudicial evidence proving the same

point. See State v. Covell, 157 N.J. 554, 569 (1999). Therefore,

we will not disturb defendant's conviction on this basis.

II.

Defendant next urges us to vacate her conviction because the

criminal statute that defines "weapon" is facially deficient; she

further argues the canister of dog repellant failed to satisfy the

statutory definition of a "weapon." We disagree.

We first address defendant's statutory interpretation

argument. "When construing a statute, our goal is to discern and

effectuate the Legislature's intent. The starting point for that

inquiry is the language of the statute itself." State v. Brannon,

9 A-2037-15T1
178 N.J. 500, 505-06 (2004). "The Court's objective is to

determine the meaning of a statute to the extent possible by

looking to the Legislature's plain language." State v. Regis, 208

N.J. 439, 447 (2011).

Defendant was charged with fourth-degree unlawful possession

of a weapon, N.J.S.A. 2C:39-5(d).1 Our Criminal Code defines

"weapon" in a different statute as

anything readily capable of lethal use or of
inflicting serious bodily injury. The term
includes, but is not limited to, all (1)
firearms, even though not loaded or lacking a
clip or other component to render them
immediately operable; (2) components which can
be readily assembled into a weapon; (3)
gravity knives, switchblade knives, daggers,
dirks, stilettos, or other dangerous knives,
billies, blackjacks, bludgeons, metal
knuckles, sandclubs, slingshots, cesti or
similar leather bands studded with metal
filings or razor blades imbedded in wood; and
(4) stun guns; and any weapon or other device
which projects, releases, or emits tear gas
or any other substance intended to produce
temporary physical discomfort or permanent
injury through being vaporized or otherwise
dispensed in the air.

[N.J.S.A. 2C:39-1(r).]

Defendant asserts this definition contains "an

irreconcilable conflict in the statutory language." Specifically,

defendant argues the language, "anything readily capable of lethal

1
We recognize the indictment charged defendant with possession
of "cap-stun," which is a name-brand pepper spray, rather than the
lower-strength dog repellant.
10 A-2037-15T1
use or of inflicting serious bodily injury," conflicts with the

subsequent language, "any other substance intended to produce

temporary physical discomfort." The Criminal Code defines serious

bodily injury as "bodily injury which creates a substantial risk

of death or which causes serious, permanent disfigurement, or

protracted loss or impairment of the function of any bodily member

or organ." N.J.S.A. 2C:11-1(b). Defendant contends the initial

requirement that an object be capable of serious bodily injury

conflicts with the lesser requirement of temporary discomfort.

However, we do not find these provisions contradictory. The

statute clearly intends "anything readily capable of lethal use

or of inflicting serious bodily injury" as blanket statement

covering all objects with such capabilities. N.J.S.A. 2C:39-1(r).

The statute then provides a non-exclusive list of items it also

considers weapons, including devices intended to produce temporary

discomfort. See State ex rel. G.C., 359 N.J. Super. 399, 405-06

(App. Div. 2003) (noting N.J.S.A. 2C:39-1(r) includes items

capable of lethal use or serious injury and "also lists particular

objects that are considered weapons"), rev'd on other grounds, 179

N.J. 475 (2004). Defendant's argument therefore lacks merit.

Defendant also cites N.J.S.A. 2C:39-6(h) and N.J.S.A. 2C:39-

6(i), which under certain circumstances exempt the possessor of a

substance that produces "temporary physical discomfort" from being

11 A-2037-15T1
charged under N.J.S.A. 2C:39-5. Defendant argues these statutes

show the legislature did not intend to include substances such as

the OC spray within the definition of "weapon."

However, we find these statutes reinforce the opposite

position. N.J.S.A. 2C:39-6(h) exempts public utility and postal

service employees, while performing their duties, from possessing

a device that temporarily immobilizes certain animals. It further

warns the substance "shall be used solely to repel only those

canine or other animal attacks" where the animals are not

restrained. Ibid. The other cited provision, N.J.S.A. 2C:39-

6(i), exempts from a weapons charge

any person who is 18 years of age or older and
who has not been convicted of a crime, from
possession for the purpose of personal self-
defense of one pocket-sized device which
contains and releases not more than three-
quarters of an ounce of chemical substance not
ordinarily capable of lethal use or of
inflicting serious bodily injury, but rather,
is intended to produce temporary physical
discomfort . . . .

As such, rather than showing the Legislature intended to

exempt such sprays from the definition of "weapon," these statutes

clearly show the Legislature considered such sprays as weapons,

except when used in narrow circumstances not applicable to the

instant matter. Indeed, defendant is not a public employee, nor

was she using her spray on an animal. See N.J.S.A. 2C:39-6(i).

The record also shows she was not using the spray in self-defense,
12 A-2037-15T1
and there is no information in the record regarding the weight of

the canister. Moreover, defendant had a prior conviction in

Delaware that precluded her from exemption under N.J.S.A. 2C:39-

6(i).

Finally, defendant argues the State failed to prove she

possessed a weapon as defined by N.J.S.A. 2C:39-1(r). Defendant

previously raised this argument before the trial judge when she

moved for a judgment of acquittal under Rule 3:18-1. "We review

the record de novo in assessing whether the State presented

sufficient evidence to defeat an acquittal motion." State v.

Dekowski, 218 N.J. 596, 608 (2014). "We must determine whether,

based on the entirety of the evidence and after giving the State

the benefit of all its favorable testimony and all the favorable

inferences drawn from that testimony, a reasonable jury could find

guilt beyond a reasonable doubt." Ibid. (quoting State v.

Williams, 218 N.J. 576, 594 (2014)).

Defendant contends the State did not meet its burden because

the canister at issue did not have the capacity to cause serious

bodily injury. See N.J.S.A. 2C:39-1(r). Indeed, the officers'

testimony at trial showed the effects of the chemical were only

temporary. However, as noted, our Legislature included within the

definition of "weapon," any "device which projects, releases, or

emits . . . any other substance intended to produce temporary

13 A-2037-15T1
physical discomfort . . . through being vaporized or otherwise

dispensed in the air." Ibid. Although the dog repellant at issue

was of lesser strength than police-issue pepper spray, the warning

labels of the dog repellant identified it as "irritating spray"

that was "[s]trongly irritating to eyes, nose and skin."

Therefore, when used by defendant, it clearly met the statutory

definition of a "weapon." We discern no basis for reversal on

this issue.

III.

Lastly, defendant urges us to remand for resentencing,

claiming she received an inequitable and excessive sentence. We

disagree.

Prior to trial, the State extended a plea offer to defendant

of one year of probation in exchange for a guilty plea to

obstructing administration of law as a disorderly person.

Defendant, a resident of Delaware, told the judge she would accept

the plea offer if she could transfer her probation to that state.

Defense counsel stated she believed it was not possible to transfer

probation on a disorderly persons' offense, so the judge gave

counsel until the following week to resolve the issue; however,

there is no record of any further discussion, and the case

proceeded to trial.

14 A-2037-15T1
 At sentencing, the judge found aggravating factors N.J.S.A.

2C:44-1(a)(6) (defendant's prior criminal record and seriousness

of the offense) and (9) (need for deterrence). He found mitigating

factors N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result

of circumstances unlikely to reoccur), (9) (defendant's character

indicates she is unlikely to commit another offense), and (10)

(defendant is likely to respond affirmatively to probationary

treatment). The judge rejected mitigating factors N.J.S.A. 2C:44-

1(b)(1) (defendant's conduct neither caused nor threatened serious

harm) and (2) (defendant did not contemplate her conduct would

cause or threaten serious harm). In rejecting these factors, the

judge noted defendant's conduct "did potentially result in serious

harm. There's Cap-Stun spray. The officers had to decontaminate

from that spray and there was the risk of other harm . . . based

upon the way that she was handling herself in the presence of

those officers." He also rejected mitigating factor N.J.S.A.

2C:44-1(b)(11) (imprisonment would entail excessive hardship to

defendant or her dependents).

Defendant now argues her three-year probationary term is

inequitable because she was willing to plead guilty in exchange

for a one-year term. She also argues the judge erred by rejecting

mitigating factors N.J.S.A. 2C:44-1(b)(1) and (2) because she

15 A-2037-15T1
possessed dog repellant rather than "Cap-Stun," and because her

conduct during her arrest did not threaten serious harm.

We review the judge's sentencing decisions for an abuse of

discretion. State v. Blackmon, 202 N.J. 283, 297 (2010). If the

sentencing judge has identified and balanced the aggravating and

mitigating factors, and sufficient credible evidence in the record

supports his or her finding, we will affirm. State v. Cassady,

198 N.J. 165, 180-81 (2009). We will modify a sentence if it

"shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364

(1984) (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).

However, we must remand if the sentencing judge fails to find

mitigating factors that "clearly were supported by the record."

State v. Bieniek, 200 N.J. 601, 608 (2010).

Pursuant to these standards, defendant's arguments lack

merit. First, defendant cites no authority mandating a lesser

sentence based upon an initial willingness to accept a plea offer.

In fact, the record shows defendant wanted to accept this plea

offer if she could have her probation transferred to Delaware. We

note the judge rejected the State's request for 364 days of

incarceration. We are satisfied defendant's three-year

probationary term does not constitute an abuse of discretion, nor

does it shock our judicial conscience. Roth, supra, 95 N.J. at

364.

16 A-2037-15T1
 Moreover, we find the judge appropriately rejected mitigating

factors (1) and (2). The record shows defendant's actions in

resisting arrest threatened the safety of the officers. The judge

did not abuse his discretion by rejecting these factors.

Affirmed.

17 A-2037-15T1