STATE OF NEW JERSEY VS. TROY J. HENDERSON (13-09-0786, UNION 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NOT FOR PUBLICATION WITHOUT THE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-5383-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

TROY J. HENDERSON, a/k/a
TROY ANDERSON,

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

Submitted September 12, 2017 – Decided October 2, 2017

Before Judges Hoffman and Gilson.

On appeal from Superior Court of New Jersey,
Law Division, Union County, Indictment No. 13-
09-0786.

Joseph E. Krakora, Public Defender, attorney
for appellant (Anderson D. Harkov, Designated
Counsel, on the brief).

Thomas K. Isenhour, Union County Prosecutor,
attorney for respondent (Milton S. Leibowitz,
Assistant Prosecutor, of counsel and on the
brief).

PER CURIAM

After a jury found defendant guilty of second-degree certain

persons not to have weapons, N.J.S.A. 2C:39-7(b), the trial judge
sentenced defendant to a nine-year prison term, with five years

of parole ineligibility. On this direct appeal, defendant presents

two arguments:

POINT ONE

THE TRIAL COURT ERRED WHEN IT PERMITTED THE
STATE TO INTRODUCE TESTIMONY THAT ALLOWED THE
JURY TO INFER THERE WERE HEARSAY DETAILS
PROVIDED TO THE POLICE THAT DEFENDANT
POSSESSED A HANDGUN, WHICH FORMED THE BASIS
FOR THE SEARCH WARRANT THE POLICE WERE
EXECUTING WHEN THEY DISCOVERED A GUN IN
DEFENDANT'S ROOM. (NOT RAISED BELOW)

POINT TWO

DEFENDANT'S SENTENCE WAS EXCESSIVE AND
CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING
HIS SENTENCE BE VACATED AND THE CASE REMANDED
TO THE TRIAL COURT FOR A NEW SENTENCE HEARING.

We reject these arguments and affirm.

I.

We derive the following facts from the trial record. On May

4, 2013, a Family Part judge issued a temporary restraining order

(TRO) against defendant, pursuant to the Prevention of Domestic

Violence Act,1 after hearing testimony from defendant's former

girlfriend that he assaulted her. The judge also issued a domestic

violence search warrant for a handgun the victim testified

defendant possessed. When the police executed the warrant, they

1
N.J.S.A. 2C:25-17 to -35.

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located and seized a handgun from a room defendant rented. A

grand jury indicted defendant on one count of second-degree

possession of a handgun by certain persons prohibited from

possessing weapons, based upon defendant "having been previously

convicted of [a]ggravated [a]ssault." Defendant moved to suppress

the handgun. Following a hearing, the trial court denied the

motion.

At trial, the State presented the detective who seized the

handgun. During his testimony, he explained he went to the home

where defendant resided, pursuant to a search warrant. At this

point, the trial court instructed the jurors they cannot

presume the guilt of the defendant because a
search warrant was issued. . . . Evidence that
a search warrant has been . . . issued is
allowed only to establish that the police
acted properly in searching the area and the
jury can use that evidence only for that
purpose.

Defendant did not object to the instruction. In addition, the

prosecutor did not mention the search warrant in his opening

statement or closing argument.

In his final charge, the trial judge again instructed the

jury that it could not presume defendant's guilt based on the

issuance of a search warrant. Again, defendant did not object to

the instruction.

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 II.

In his first argument, defendant contends that the trial

court erred in permitting the detective to testify that the police

had a search warrant and that the detective had been advised to

look for a handgun. As noted, defendant failed to object to this

testimony and also failed to object to the court's instructions

concerning this testimony.

Because defendant failed to raise the issue in the trial

court, "defendant must demonstrate plain error to prevail." State

v. Timmendequas, 161 N.J. 515, 576 (1999), cert. denied, 534 U.S.

858, 122 S. Ct. 136, 151 L. Ed. 2d 89 (2001). This requires us

to disregard "[a]ny error or omission . . . unless it is of such

a nature as to have been clearly capable of producing an unjust

result[.]" R. 2:10-2; State v. Ross, 218 N.J. 130, 142-43 (2014).

The possibility of an unjust result must be "sufficient to raise

a reasonable doubt as to whether the error led the jury to a result

it otherwise might not have reached." State v. Macon, 57 N.J.

325, 336 (1971).

Our Supreme Court recently confirmed the admissibility of

testimony regarding the issuance of a search warrant. State v.

Cain, 224 N.J. 410, 433 (2016).

To be sure, the prosecutor has the right
to convey to the jury that the police were
authorized to search a home. Every juror

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 surely knows that the police typically cannot
search a home without a warrant. The jury
should not be left guessing whether the police
acted arbitrarily by entering a home without
a search warrant.

[Ibid.]

However, the Court acknowledged "[i]t would be wrong for the jury

to infer guilt from a judge's issuance of a warrant." Id. at 434-

35. The Court then held:

A search warrant can be referenced to
show that the police had lawful authority in
carrying out a search to dispel any
preconceived notion that the police acted
arbitrarily. A prosecutor, however, may not
repeatedly mention that a search warrant was
issued by a judge if doing so creates the
likelihood that a jury may draw an
impermissible inference of guilt.

[Id. at 435.]

Here, the detective testified that he acted pursuant to a

warrant, searching for a handgun. The prosecutor made no reference

to the search warrant in his opening statement or closing argument.

The trial court gave appropriate limiting instructions to the jury

concerning the issuance of a search warrant. Nevertheless,

defendant now argues that the detective's testimony was

"irrelevant and prejudicial." Specifically, defendant contends

the detective's testimony suggested there was a witness who had

testified that defendant possessed the handgun. Thus, defendant

contends that such testimony violated the Confrontation Clause of

5 A-5383-14T4
the Sixth Amendment. The record does not support this argument.

The officer did not testify someone told him defendant had a

handgun. Instead, the detective testified he made a search

pursuant to a warrant, after receiving instruction to look for a

handgun. Applying the Court's holding in Cain, we see no error

in permitting such testimony. Moreover, the court's limiting

instructions cured any potential prejudice.

In his second argument, defendant contends he received an

excessive sentence. We disagree. The trial judge found

aggravating factors six, N.J.S.A. 2C:44-1(a)(6) ("[t]he extent of

the defendant's prior criminal record and the seriousness of the

offenses of which he has been convicted") and nine, N.J.S.A. 2C:44-

1(a)(9) (need for deterrence). He found no mitigating factors.

Defendant had eight adjudications as a juvenile and four prior

indictable convictions — including two convictions for aggravated

assault — along with six disorderly persons convictions. The

record supports the trial court's finding of aggravating factors

six and nine; the record further supports the court's finding that

no mitigating factors apply.

We are required to affirm a sentence as long as it "properly

identifies and balances aggravating and mitigating factors"

supported by credible evidence and does not shock the judicial

conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

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Additionally, under N.J.S.A. 2C:39-7(b), the five-year period of

parole ineligibility was mandatory.

We conclude the judge made findings of fact concerning

aggravating factors and the absence of mitigating factors based

on competent and reasonably credible evidence in the record. The

judge also properly balanced the aggravating factors against the

nonexistent mitigating factors, and the application of the factors

to the law do not constitute such clear error of judgment as to

shock our judicial conscience. O'Donnell, supra, 117 N.J. at 215-

16. Accordingly, we discern no basis to second-guess the sentence.

Affirmed.

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