NOT FOR PUBLICATION WITHOUT THE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-1872-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HASSAN E. BEY,
Defendant-Appellant.
__________________________
Submitted April 25, 2017 - Decided June 8, 2017
Before Judges Reisner and Mayer.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 14-07-1246.
Joseph E. Krakora, Public Defender, attorney
for appellant (Tamar Lerer, Assistant Deputy
Public Defender, of counsel and on the brief).
Esther Suarez, Hudson County Prosecutor,
attorney for respondent (Eric P. Knowles,
Assistant Prosecutor, on the brief).
PER CURIAM
Defendant Hassan E. Bey appeals from his conviction by a jury
for second-degree possession of a firearm by a convicted person.
N.J.S.A. 2C:39-7(b). He also appeals from the sentence of ten
years, half to be served without parole.1
On this appeal, defendant presents the following points of
argument:
POINT I
THE OFFICER'S TESTIMONY THAT DEFENDANT
"POSSESSED" A GUN WAS INAPPROPRIATE ULTIMATE-
ISSUE TESTIMONY, UNHELPFUL TO THE JURY, AND
HIGHLY PREJUDICIAL. ITS ADMISSION
NECESSITATES REVERSAL OF DEFENDANT'S
CONVICTION. (Not Raised Below)
POINT II
THE FAILURE TO INSTRUCT THE JURY THAT IT COULD
NOT CONSIDER THAT DEFENDANT HAD COMMITTED A
PREDICATE OFFENSE AS EVIDENCE OF HIS
PROPENSITY TO COMMIT CRIMES OR OF HIS BAD
CHARACTER VIOLATED HIS RIGHTS TO DUE PROCESS
AND A FAIR TRIAL AND NECESSITATES REVERSAL OF
HIS CONVICTION. (Not Raised Below)
POINT III
THE FAILURE TO ISSUE ANY INSTRUCTION ON
IDENTIFICATION NECESSITATES REVERSAL OF
DEFENDANT'S CONVICTION. (Not Raised Below)
POINT IV
THE TRIAL JUDGE ERRED IN TELLING THE JURORS
THEY COULD NOT USE A LACK OF EVIDENCE IN
REACHING THEIR VERDICT.
1
After his conviction on the weapons charge, defendant pled guilty
to possession of a controlled dangerous substance (CDS), N.J.S.A.
2C:35-10(a)(1), for which he received a three-year sentence
concurrent to that imposed on the weapons conviction. However,
defendant is not appealing from the CDS conviction or sentence.
2 A-1872-15T3
POINT V
DEFENDANT'S SENTENCE OF TEN YEARS WITH A FIVE-
YEAR PAROLE DISQUALIFIER IS MANIFESTLY
EXCESSIVE.
After reviewing the record, we find no plain error or other
basis to disturb the verdict. Nor do we find any abuse of
discretion or other error in the sentence. Accordingly, we affirm.
I
In light of the legal issues raised, the pertinent trial
evidence can be summarized as follows. At about 2:10 a.m., Officer
Kilroy and his partner were driving on patrol in an area of Jersey
City near Rutgers Avenue. The officers heard a booming gunshot,
which sounded like it came from a large caliber weapon, and they
drove in the direction of the sound. As they approached Rutgers
Avenue, the driver of a black Audi parked on the street began
"frantically" sounding the car horn as though trying to warn
someone. Officer Kilroy then spotted three men walking quickly
down the avenue. The men began walking faster when they saw the
police car.
According to Kilroy, the first man wore a red jacket and the
second man wore a black jacket.2 The third man wore dark clothing.
2
Due to an agreement between the State and the defense, reached
before the trial started, Officer Kilroy did not testify that he
already knew defendant. The defense asked that the State refrain
3 A-1872-15T3
Kilroy testified that the first two men were both walking as though
they were "holding something in their hand[s]." As the men turned
to look at the police car, Kilroy saw that two of the men were
each holding "a black metallic object in their hand" which he
believed was "a long gun." As the officers continued to drive
along the street, Kilroy saw the man in the red jacket crouch down
and "discard the item in his hand" under "a blue Dodge Neon." He
also saw the man in the black jacket discard a gun under a nearby
tan car.3 In the courtroom, Kilroy identified defendant as the
man in the red jacket who discarded the gun under the blue car.
After the men discarded the guns, Kilroy and his partner
attempted to arrest them. The men fled, but were arrested after
a brief chase. As Kilroy was chasing defendant, a back-up officer,
who had been called to the scene, was able to cut off defendant's
from presenting that testimony to avoid possibly giving the jury
the impression that Kilroy had previously arrested defendant. For
that reason, at the request of the defense, the prosecutor had
Kilroy identify defendant and his companions by the color of their
clothing.
3
During his direct testimony, Kilroy explained that in his police
report and his Grand Jury testimony, he mistakenly referred to
defendant having placed a shotgun under the tan car and the other
man having placed a gun under the blue car. He also explained
that he recently realized the mistake when he compared the report
with the crime scene photos and noticed that his report referred
to defendant having placed a shotgun under a car parked at a
specific address on Rutgers Avenue. The photos showed that the
blue car was parked at that address.
4 A-1872-15T3
escape route and arrest him. According to Kilroy, he had defendant
in his sight the entire time until he was apprehended.
Once defendant and the co-defendant in the black jacket were
under arrest, Kilroy and his partner went back to search for the
guns. They found the two shotguns under the Blue Neon and the tan
car. The State also presented testimony from Officer Egan, who
physically removed the two shotguns from under the cars. A third
police witness confirmed that the guns were operable.
The defense rested without presenting any evidence or
witnesses.
II
Addressing defendant's first point, we find no error in
Officer Kilroy's testimony, given without objection, that
defendant "possessed" the shotgun. Unlike State v. McLean, 205
N.J. 438 (2011), this is not a case where the jury was being asked
to infer from circumstantial evidence that defendant committed a
crime, for example, by inferring that defendant was selling drugs
because an officer saw defendant hand an individual two small
objects and receive cash in return. Id. at 463. In that context,
it would be inappropriate for a police officer to give his opinion
"that the transaction he or she saw was a narcotics sale." Id.
at 461.
5 A-1872-15T3
In this case, Kilroy's testimony did not impermissibly offer
an opinion as to an inference that the jury should have been left
to draw from the evidence. The officer testified that he
personally observed defendant walking down Rutgers Avenue carrying
a long gun, and saw him discard the gun under the blue Neon. In
that context, it was not inappropriate to use the word "possessed."
State v. Cain, 224 N.J. 410 (2016), is not on point here. In that
case, a police witness improperly gave an opinion as to the
defendant's state of mind, by testifying that he "possessed" drugs
"with intent" to distribute them to others. Id. at 420. Here,
Kilroy was not using the term "possessed" as a legal term of art,
and he did not refer to defendant's intent; he was simply
describing what he saw defendant carrying. In his reply brief,
defendant contends that the words "held" or "carried" would have
been better terms. On this record, the argument is without
sufficient merit to warrant discussion. R. 2:11-3(e)(2).
II
Next, defendant argues that the trial court failed to give
the jury a limiting instruction concerning the predicate offense.
We review this claim for plain error, because no objection was
raised at trial. R. 1:7-2; R. 2:10-2. We agree with defendant
that the trial court should have given the limiting instruction,
6 A-1872-15T3
but in the context of this case we find no plain error. See State
v. Macon, 57 N.J. 325, 337-38 (1971).
Among the several sections of the Model Charge on possession
of a weapon by a convicted person, is a paragraph instructing the
jury as to the limited use for which they may consider evidence
that defendant committed a predicate offense:
[Charge in case which is based upon
defendant's prior conviction]
Normally evidence [of defendant’s prior
conviction(s)] or [of the predicate
offense(s)] is not permitted under our rules
of evidence. This is because our rules
specifically exclude evidence that a defendant
has committed prior crimes when it is offered
only to show that he/she has a disposition or
tendency to do wrong and therefore must be
guilty of the present offense. However, our
rules do permit evidence of prior crimes when
the evidence is used for some other purpose.
In this case, the evidence has been
introduced for the specific purpose of
establishing an element of the present
offense. You may not use this evidence to
decide that defendant has a tendency to commit
crimes or that he/she is a bad person. That
is, you may not decide that, just because the
defendant has committed [a] prior crime[s],
he/she must be guilty of the present crime[s].
The evidence produced by the State concerning
[a] prior conviction[s] is to be considered
in determining whether the State has
established its burden of proof beyond a
reasonable doubt.
[Model Charge (Criminal), Certain Persons Not
to Have Any Firearms, N.J.S.A. 2C:39-7(b)(1).]
7 A-1872-15T3
That type of limiting instruction is not unique to this
weapons possession charge. It derives from the recognition of the
prejudice that may result whenever a jury learns that a defendant
has previously committed a crime. See State v. Cofield, 127 N.J.
328, 340-41 (1992); N.J.R.E. 404(b) (evidence of a defendant's
prior crimes or bad acts may not be introduced as evidence of the
defendant's propensity to commit crimes). There is no exception
to that rule where a defendant stipulates that he committed a
predicate offense for purposes of N.J.S.A. 2C:39-7(b), and the
Model Charge contains no such exception. In fact, the limiting
instruction portion of the Model Charge follows directly after the
section setting forth the charge to be used where a defendant
stipulates to the predicate offense.4
In State v. Brown, 180 N.J. 572, 582 (2004), the Court held
that a prosecution under N.J.S.A. 2C:39-7(b) need not be bifurcated
4
We note, however, that the Model Charge as to both N.J.S.A.
2C:39-7(a) and -7(b) may be confusing to judges and attorneys in
the way it is organized. In particular, after the paragraph on
"Joint Possession," an instruction appears to "[Choose the
appropriate next paragraph from the following three]" relating to
methods of proving a prior conviction. However, there are actually
four paragraphs after this instruction, with the limiting
instruction appearing as the third paragraph. Moreover, there is
no "[OR]" preceding the fourth paragraph, which states the third
alternative charge concerning proof of a prior conviction.
Additionally, as this opinion makes clear, the limiting paragraph
must be read to the jury regardless of whether a defendant
stipulates to the predicate offense.
8 A-1872-15T3
into a trial on whether a defendant possessed a weapon, followed
by a trial on whether the defendant had a prior conviction.
Instead, "the elements of an offense should be tried in a unitary
trial in which prejudice is minimized by appropriate curative jury
instructions." State v. Brown, supra, 180 N.J. at 582. The Court
emphasized that "an appropriate limiting instruction" must be
"given to reduce the risk of undue prejudice tainting the jury's
work." Id. at 584.
Although we agree with defendant that it was error to omit
the limiting instruction, we do not find that the omission of the
charge had the clear capacity to produce an unjust result. R.
2:10-2. In light of the overwhelming evidence of defendant's
guilt, it is unlikely that the instruction would have made a
difference to the jury's verdict. See Macon, supra, 57 N.J. at
337-38.
III
Defendant's next two points are without merit and warrant
little or no discussion. Defendant did not request an
identification charge, and thus we review the issue for plain
error. See R. 1:7-2; R. 2:10-2. We find no error, much less
plain error, in the trial court's failure to sua sponte give the
charge, because there was no issue as to defendant's identity or
his presence at the scene. See State v. Cotto, 182 N.J. 316, 325-
9 A-1872-15T3
26 (2005). Although the jury was not told that Office Kilroy knew
defendant, the circumstances the jury did hear made
misidentification highly unlikely. The witness was a trained
police officer, who saw a man wearing a red jacket carrying a gun
and saw him discard the gun. The same man with the red jacket was
arrested shortly thereafter, not far from the scene, and the gun
was found under the car. The chances of misidentification were
minimal.
We find no error in the judge's response to the jury's
questions about evidence that was not presented to them. This
point is without sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(2).
IV
Finally, we find no error in the sentence. In light of
defendant's extensive criminal record, which included a prior
weapons offense, we find no abuse of discretion or other error in
the court imposing a ten-year term. See State v. Case, 220 N.J.
49, 64 (2014). The five years of parole ineligibility was
mandatory for this conviction. See N.J.S.A. 2C:39-7(b)(1). The
court also rejected the State's request to impose a consecutive
term for a third-degree drug charge, for which defendant was
sentenced at the same time. Instead, the court imposed the minimum
three-year term and made it concurrent to the ten-year sentence.
10 A-1872-15T3
Affirmed.
11 A-1872-15T3
STATE OF NEW JERSEY VS. HASSAN E. BEYÂ (14-07-1246, HUDSON COUNTY AND STATEWIDE)
Combined Opinion