NOT FOR PUBLICATION WITHOUT THE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-1798-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
RAHEEM H. ROGERS,
Defendant-Appellant.
______________________________
Submitted September 26, 2017 – Decided October 17, 2017
Before Judges Reisner and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Salem County, Indictment No.
14-12-0662.
Joseph E. Krakora, Public Defender, attorney
for appellant (Marcia Blum, Assistant Deputy
Public Defender, of counsel and on the
brief).
John T. Lenahan, Salem County Prosecutor,
attorney for respondent (Derrick Diaz,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Defendant Raheem Rogers appeals from his conviction for
certain persons not to have weapons (certain persons), N.J.S.A.
2C:39-7(b). Defendant contends the trial judge committed
reversible error by failing to instruct the jury that he stipulated
to the predicate offense for the certain persons charge, and
instead admitting an unsanitized judgment of conviction (JOC) into
evidence. Defendant further contends that his constitutional
right to a fair trial and effective assistance of counsel were
violated. We disagree and affirm.
On September 4, 2014, three Salem police officers were
patrolling in an unmarked police car. One of the officers,
Detective Richard Ware, saw defendant walking down the street.
Ware recognized defendant from prior contacts with law
enforcement, and stopped the car to arrest defendant on an
outstanding warrant.
According to Ware, defendant bent at the waist and reached
toward his waistband while disobeying instructions to stop and
show his hands. When told he was under arrest, defendant attempted
to flee. Ware followed and caught defendant. While wrapping his
arms around defendant, Ware felt a metallic object strike his
hand. While taking defendant to the ground, Ware heard the sound
of metal striking the pavement. Ware alerted his fellow officers
to what he believed was the sound of a gun striking the ground.
Investigator Ray-DiGregorio, a fellow officer at the scene, saw
and heard a gun slide across the concrete away from defendant.
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Ray-DiGregorio secured the gun. At trial, evidence indicated the
gun was operable and capable of discharge. Defendant did not have
a permit to purchase or carry the gun.
On December 3, 2014, a Salem County grand jury returned
Indictment No. 14-12-0662, charging defendant with fourth-degree
resisting arrest in violation of N.J.S.A. 2C:29-2(a) (Count 1),
and fourth-degree tampering with evidence in violation of N.J.S.A.
2C:28-6(1) (Count 2); third-degree receiving stolen property in
violation of N.J.S.A. 2C:20-7 (Count 3); second-degree unlawful
possession of a firearm in violation of N.J.S.A. 2C:39-4(a) (Count
4); second-degree unlawful possession of an unlicensed handgun in
violation of N.J.S.A. 2C:39-5(b) (Count 5), and second-degree
certain persons not to have weapons in violation of N.J.S.A. 2C:39-
7(b) (Count 6).
Before jury selection, the State indicated that defendant
stipulated to the JOC for the certain persons charge. During the
charge conference, counsel again discussed defendant's stipulation
to the JOC for the certain persons charge and confirmed that the
JOC would be given to the jury. The JOC established that defendant
was previously convicted of distributing cocaine.
The case proceeded as a bifurcated trial. The judge reserved
the certain persons charge to be determined by the same jury after
the jury rendered a verdict on the other charges. On August 13,
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2015, the jury returned a verdict on Counts One through Five,
acquitting defendant of tampering with evidence and convicting him
of resisting arrest and unlawful possession of a weapon.
Thereafter, the judge immediately proceeded to the second
phase of the trial on the certain persons charge. The judge
charged the jury that one element of the certain persons charge
is that defendant had "been convicted of the crime of the third
degree, distribution of cocaine," precluding him from possessing
a weapon under N.J.S.A. 2C:39-7(b).
During the second phase of the trial, the prosecutor told the
jury that defendant stipulated to his prior conviction of "the
predicate offense, a third degree offense . . . that would trigger
the Certain Persons Not to Have Weapons" charge. The prosecutor
also moved to admit the JOC for defendant's prior offense, stating
that defendant stipulated to the admissibility of the document.
Defense counsel agreed that defendant stipulated to the document,
and the JOC was admitted into evidence. The judge then instructed
the jury that the document was a certified judgment of conviction
to which the parties had stipulated and arguably established that
defendant had a prior conviction that would trigger the certain
persons offense. Neither party objected to the stipulation as
expressed by the judge. Nor did the parties discuss whether the
JOC admitted into evidence needed to be sanitized.
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In charging the jury on the certain persons offense the judge
instructed them to disregard their verdict from the first phase
of the trial and consider the evidence anew. The judge reminded
the jury that defendant was "entitled to the presumption of
innocence" on the certain persons charge. The jury was instructed
that to find defendant guilty, each of the following elements had
to be "proven by the State beyond a reasonable doubt": (1) Exhibit
S-1 was a firearm; (2) defendant purchased, owned, possessed, or
controlled the firearm; and (3) defendant was previously convicted
of a predicate offense under the statute.
As to the third element, the judge told the jury that evidence
of a defendant's prior convictions is usually not permitted under
the rules of evidence, but where the prior conviction is being
introduced to establish an element of a crime, it is permissible.
The judge also instructed the jury that evidence of the prior
conviction may not be considered to establish that defendant has
poor character or a tendency to commit crimes, and therefore likely
committed the present crime:
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
Raheem Rogers has a tendency to commit crimes
or that he is a bad person. That is, you may
not decide that just because Mr. Rogers has
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committed a prior crime, he must be guilty of
the present crimes.
The jury was given the JOC to review during deliberations.
The JOC not only listed the crime to which defendant stipulated
for the certain persons charge, it also contained other charges
against defendant which were dismissed, and disclosed that
defendant was sentenced to three years on the prior drug
distribution conviction. The unsanitized JOC also listed the
aggravating factors considered by the court in sentencing
defendant for the prior offense.
The jury convicted defendant on the certain persons charge.
The judge imposed a five-year sentence with a five-year period of
parole ineligibility on that charge, and a lesser term of
imprisonment for the resisting arrest and unlawful possession of
a weapon convictions, to run concurrent to the sentence on the
certain persons conviction.
Defendant raises the following argument on appeal:
INSTEAD OF LIMITING ITS INSTRUCTION ON THE
CERTAIN-PERSONS GUN CHARGE TO INFORMING THE
JURY THAT DEFENDANT HAD STIPULATED THAT HE
HAD THE PREDICATE CONVICTION, THE COURT GAVE
THE JURY THE UNSANITIZED JUDGMENT OF
CONVICTION FOR THE PREDICATE OFFENSE, WHICH
CONTAINED THE FULL RECORD OF THE PRIOR
INDICTMENT, CONVICTION, AND SENTENCE. (Not
Raised Below).
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Although not expressly stated in his single point heading,
defendant raises two arguments on appeal. First, defendant argues
that the judge erred in failing to charge the jury that he
stipulated the predicate offense, and should not have admitted the
JOC in evidence. Second, he argues that the judge should have
sanitized the JOC before admitting it into evidence. Defendant
argues that admission of the unsanitized JOC violated his
constitutional right to a fair trial and effective assistance of
counsel pursuant to the Sixth and Fourteenth Amendments.
To challenge a jury instruction, or the absence of an
instruction, on appeal, the party must object during the trial
before the jury begins deliberations. R. 1:7-2. Where a party
fails to object to an instruction at trial, the appellate court
may only notice "plain error" that is "clearly capable of producing
an unjust result." R. 2:10-2; see also State v. Feaster, 156
N.J. 1, 40 (1998). To vacate a conviction, the error must have
"made it easier for the State to get a conviction." State v.
Docaj, 407 N.J. Super. 352, 362 (App. Div.), certif. denied, 200
N.J. 370 (2009). 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. Taffaro, 195 N.J. 442, 454 (2008) (quoting State v. Macon,
57 N.J. 325, 336 (1971)).
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There is no plain error if the charge did not have the
"capacity to lead the jurors astray," and the jurors were clearly
instructed on how to use the evidence during deliberations. State
v. Miller, 205 N.J. 109, 127 (2011) (citation omitted). We
likewise apply the plain error rule to the introduction of
evidence, where the defendant raised no objection. See R. 2:10-
2.
Although defendant agreed to the admission of the JOC in
evidence, had he not agree, his stipulation would have sufficed
without introduction of the JOC. See State v. Brown, 180 N.J.
572, 585 (2011) (citing Old Chief v. United States, 519 U.S. 172,
186, 117 S. Ct. 644, 136 L. Ed. 2d 574 (1997)). We agree with
defendant that, before admitting the JOC into evidence for the
jury's consideration, the judge should have sanitized the
document. However, we find this error to be harmless as it did
not produce an unjust result that requires vacating defendant's
conviction. The judge gave the jury an appropriate limiting
instruction concerning the JOC, and on this record the result
would have been the same even if the JOC had been sanitized.
Defendant's remaining arguments, including his claim of
ineffective assistance of counsel, are without sufficient merit
to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
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