STATE OF NEW JERSEY VS. AL-SHAREEF METZ (12-06-1491 AND 12-06-1492, ESSEX 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NOT FOR PUBLICATION WITHOUT THE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-4003-14T4
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JUAN COLON, a/k/a B-BOY JUAN
and B-BOY,

Defendant-Appellant.
_________________________________

Submitted September 13, 2016 – Decided April 3, 2017

Before Judges Fasciale and Kennedy.

On appeal from the Superior Court of New
Jersey, Law Division, Mercer County,
Indictment No. 13-03-0344.

Joseph E. Krakora, Public Defender, attorney
for appellant (Michele E. Friedman, Assistant
Deputy Public Defender, of counsel and on the
brief).

Angelo J. Onofri, Acting Mercer County
Prosecutor, attorney for respondent (Dorothy
Hersh, Special Deputy Attorney General/Acting
Supervising Assistant Prosecutor, of counsel
and on the brief).

PER CURIAM

Defendant appeals from his convictions for second-degree

aggravated assault, N.J.S.A. 2C:12-1(b)(1); second-degree
possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-

4(a); second-degree unlawful possession of a weapon, N.J.S.A.

2C:39-5(b); and second-degree certain persons not to possess

firearms, N.J.S.A. 2C:39-7. We affirm.

The incident that led to defendant's convictions occurred in

a residence where several people lived. Defendant and one of the

residents (the resident) were arguing, which awakened defendant's

girlfriend (the girlfriend) and her friend (the friend). Defendant

fired a gun at the resident as the resident ran up the stairs.

The police searched the residence, found a bullet hole at the top

of the stairs, and located a projectile above another bullet hole

in a bedroom ceiling. Defendant left the state and went to

Florida. When the law enforcement officers found defendant there,

he blurted out that he shot at the resident and another individual

in the residence.

After the appropriate merger, the court imposed a

discretionary twenty-year prison term, subject to the No Early

Release Act, N.J.S.A. 2C:43-7.2, on the aggravated assault

conviction. The judge sentenced defendant to eight years in prison

with four years of parole ineligibility on the conviction for

unlawful possession of a weapon, concurrent to eight years in

prison with five years of parole ineligibility on the certain

persons conviction. The judge made the concurrent sentences on

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the weapons convictions consecutive to the imposition of the

twenty-year prison term.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN
FAILING TO ISSUE THE REQUESTED JURY
INSTRUCTION ON [DEFENDANT'S] ELECTION NOT TO
TESTIFY.
(Not raised below)

POINT II

THE TRIAL COURT ERRED TO [DEFENDANT'S]
DETRIMENT IN FAILING TO CHARGE THE JURY ON THE
LESSER-INCLUDED OFFENSE OF AGGRAVATED ASSAULT
BY POINTING A FIREARM.
(Not raised below)

POINT III

THE TRIAL COURT SHOULD HAVE GRANTED THE
DEFENSE'S MOTION FOR A MISTRIAL AFTER A
DETECTIVE TESTIFIED THAT A "CERTAIN PERSONS"
CHARGE WAS LODGED AGAINST [DEFENDANT].

POINT IV

THE INTRODUCTION AND REPEATED REFERENCES TO
THE UNSANITIZED DETAILS OF [DEFENDANT'S] PRIOR
CONVICTIONS TO PROVE THE ["]CERTAIN PERSONS["]
OFFENSE DEPRIVED HIM OF A FAIR TRIAL.
(Not raised below)

POINT V

THE PROSECUTOR COMMITTED MISCONDUCT WHEN
PROVIDING THE JURY WITH HIS PERSONAL OPINION
REGARDING [DEFENDANT'S] PURPORTED STATEMENT
TO THE DETECTIVES.
(Not raised below)

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 POINT VI

[DEFENDANT'S] SENTENCE IS MANIFESTLY
EXCESSIVE AND UNDULY PUNITIVE.

A. The Sentencing Court
Improperly Considered [Defendant's]
Lack of Remorse and Refusal to
Accept Responsibility When
Imposing the Sentence.

B. The Sentencing Court Ascribed
Undue Weight to [Defendant's] Prior
Convictions, Resulting In
Duplicative Consideration of His
Prior Record.

C. The Sentencing Court Erred in
Ordering Count Two to Run
Consecutively to Counts Six and
Seven.

After considering the record and the briefs, we conclude that

defendant's arguments in Points V and VI are "without sufficient

merit to warrant discussion in a written opinion[.]" R. 2:11-

3(e)(2).

I.

We turn first to defendant's argument that the trial judge

erred by not giving the election-not-to-testify charge.

Defendant, who did not testify at trial, argues that the failure

to give the charge resulted in a violation of his right against

self-incrimination.

A non-testifying criminal defendant is entitled to a no-

adverse-inference instruction, also known as a Carter instruction.

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Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d

241 (1981). Our Supreme Court has repeatedly held that "the trial

court, on request, must instruct the jury that it may draw no

negative inferences from [the] defendant's silence[.]" State v.

Daniels, 182 N.J. 80, 90 (2004) (citation omitted). Although

"silence may suggest to the jury that the defendant has something

to hide," that concern "may be tempered by the trial court's

instruction to the jury that it should not draw an adverse

inference [therefrom]." State v. Brunson, 132 N.J. 377, 385 (1993)

(citations omitted). The judge should have given the charge,

although defense counsel never objected to that failure.

In State v. Camacho, our Supreme Court considered whether the

failure to provide the jury with a Carter instruction was per se

error warranting automatic reversal. 218 N.J. 533, 537 (2014).

The Court noted that although the instruction is of constitutional

dimension, the failure to provide the instruction is akin to a

trial error, rather than a structural one, and subject to a

harmless-error analysis. Id. at 550–52. The error is rendered

harmless if the trial's outcome would have been the same had the

error not been made. Id. at 554. As such, we reverse only if the

error was "clearly capable of producing an unjust result[.]" R.

2:10-2. Such is not the case here.

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 The State presented testimony from the girlfriend and friend,

two eyewitnesses to the shootings. They testified consistently

that defendant was present in the residence and fired the gun up

the stairs. Moreover, after conducting the search, the police

found two bullet holes located in the direction in which defendant

fired the weapon: at the top of the stairs and in the bedroom

ceiling. The police also seized one of the projectiles from above

the ceiling bullet hole, which corroborated the eyewitness

testimony that defendant fired the gun that night. Defendant, who

had fled from New Jersey and was discovered shortly thereafter in

Florida, blurted out to the police that he fired the weapon.

In light of this overwhelming evidence, the trial judge's

failure to administer a Carter instruction amounts to nothing more

than a harmless error. Moreover, the record reveals that the

judge provided the jury with the "functional equivalent" of a

Carter instruction. Camacho, supra, 218 N.J. at 554. On multiple

occasions, the trial judge explained to the jury the State's burden

of proof and reiterated that defendant had no obligation to present

any evidence.

II.

We reject defendant's argument made for the first time on

appeal that the trial judge failed to give an instruction on a

lesser-included offense of fourth-degree aggravated assault,

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N.J.S.A. 2C:12-1(b)(4). Defendant contends that instead of

convicting him of second-degree aggravated assault, the jury could

have convicted him of fourth-degree aggravated assault because he

did not intend to harm the resident.

A defendant's failure to object to jury instructions is

"considered a waiver to object to the instruction[s] on appeal."

State v. Maloney, 216 N.J. 91, 104 (2013). In the absence of an

objection to a charge or request for a charge, however, "a trial

court has an independent obligation to instruct on lesser-included

charges when the facts adduced at trial clearly indicate that a

jury could convict on the lesser while acquitting on the greater

offense." State v. Jenkins, 178 N.J. 347, 361 (2004). This is

because "[a]n erroneous jury charge 'when the subject matter is

fundamental and essential or is substantially material' is almost

always considered prejudicial." Maloney, supra, 216 N.J. at 104-

05 (quoting State v. Green, 86 N.J. 281, 291 (1981)).

Such errors present "'[a] presumption of reversible error

. . .' that can only be excused if the error is determined to be

'harmless beyond a reasonable doubt.'" Id. at 105 (quoting State

v. Collier, 90 N.J. 117, 123 (1982)). We therefore consider

defendant's challenge to the court's failure to charge fourth-

degree aggravated assault as a lesser-included offense under the

plain error standard. R. 2:10-2; Maloney, supra, 216 N.J. at 104;

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see also Jenkins, supra, 178 N.J. at 360 (finding the plain error

standard applied to defendant's challenge on appeal to a jury

charge to which he did not object at trial). We must first

determine if the court erred by failing to give the instruction

and if it did, whether the failure "was clearly capable of

producing an unjust result such that a reasonable doubt is raised

as to whether the error led the jury to a result it otherwise

might not have reached." Jenkins, supra, 178 N.J. at 360-61

(quoting State v. Brims, 168 N.J. 297, 306 (2001)); State v.

Ramsey, 415 N.J. Super. 257, 266 (App. Div. 2010), certif. denied,

205 N.J. 77 (2011).

We conclude the facts adduced at trial do not clearly indicate

that a jury could convict on the lesser while acquitting on the

greater offense. Two eyewitnesses testified that defendant fired

the gun in the direction of the resident and the friend. The

police verified that the bullet at the scene made a hole "straight

ahead" at the top of the stairs. The location of the bullet holes

and projectile corroborate the direction in which defendant fired

the gun. Moreover, defendant admitted to shooting the gun in the

direction of the resident. Even if the lesser charge was clearly

indicated by the evidence, which is not the case, we further

conclude that the error was harmless beyond a reasonable doubt.

8 A-4003-14T4
 III.

Defendant argues that the judge erred by denying his motion

for a mistrial after a detective made a fleeting reference to

"certain persons" in his testimony.

"A motion for a mistrial is addressed to the sound discretion

of the court; and the denial of the motion is reviewable only for

an abuse of discretion." State v. Witte, 13 N.J. 598, 611 (1953),

cert. denied, 347 U.S. 951, 74 S. Ct. 675, 98 L. Ed. 1097 (1954).

"Unless the vice is plainly ineradicable by an instruction to the

jury, a mistrial is not allowable of right." Ibid. "A mistrial

is an extraordinary remedy" that should be employed "[o]nly when

there has been an obvious failure of justice." State v. Mance,

300 N.J. Super. 37, 57 (App. Div. 1997).

"Whether manifest necessity mandates the grant of a mistrial

depends on the specific facts of the case and the sound discretion

of the court." State v. Allah, 170 N.J. 269, 280 (2002) (citing

State v. Loyal, 164 N.J. 418, 435 (2000)). When "the court has

an appropriate alternative course of action[,]" it should deny a

request for a mistrial. Id. at 281 (citing Loyal, supra, 164 N.J.

at 436-37). The trial judge in this case perceived no obvious

failure of justice, and nor do we.

Here, a detective testified on direct examination that

defendant had been charged with "[a]ggravated assault, aggravated

9 A-4003-14T4
assault, possession of a weapon for an unlawful purpose, unlawful

possession of a weapon and certain persons." Defense counsel

objected, the judge sustained the objection, struck the question

and answer from the record, and gave a limited instruction

directing the jury to disregard the question and answer. We must

assume that the jurors followed the court's instructions. State

v. T.J.M., 220 N.J. 220, 237 (2015) (citing State v. Ross, 218

N.J. 130, 152 (2014)). Given our standard of review, we see no

abuse of discretion.

IV.

After the jury found defendant guilty of aggravated assault

and the related weapons offenses, the matter proceeded to the

trial on the certain persons charge. As it relates solely to the

State's proof on the certain persons charge, defendant argues for

the first time on appeal that the trial court's failure to sanitize

the details of his prior convictions prejudiced him. We conclude

that such a failure was not clearly capable of producing an unjust

result.

We are mindful that a trial court's evidentiary rulings are

"entitled to deference absent a showing of an abuse of discretion,

i.e., there has been a clear error of judgment." State v. Brown,

170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469,

484 (1997)). "Under that standard, an appellate court should not

10 A-4003-14T4
substitute its own judgment for that of the trial court, unless

'the trial court's ruling was so wide of the mark that a manifest

denial of justice resulted.'" Ibid. (quoting Marrero, supra, 148

N.J. at 484). We see no clear error of judgment.

Because defendant did not stipulate to his prior convictions,

the assistant prosecutor introduced into evidence defendant's

prior judgments of conviction. This evidence established that

defendant had prior convictions for assault and robbery.

Defendant's prior convictions have no other evidentiary

significance other than demonstrating that defendant had committed

a predicate offense.

We emphasize that the jury heard the complained-of evidence

after it found him guilty of aggravated assault and the related

weapons charges. Nevertheless, the judge should have sanitized

the convictions during the trial on the certain persons offense.

The judge's strong jury instructions, however, overcame any

prejudice. The judge repeatedly instructed the jury on defendant's

presumption of innocence, admonished the jury about using the

prior-conviction evidence to decide whether defendant has a

propensity to commit crimes, and reminded the jury that the State

must prove each element of the offense beyond a reasonable doubt.

Moreover, the judge followed the Model Jury Charge (Criminal),

11 A-4003-14T4
"Certain Persons Not To Have Any Firearms" [N.J.S.A. 2C:39-

7(b)(1)] (2005).

Affirmed.

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