NOT FOR PUBLICATION WITHOUT THE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-4860-14T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALSAMIR T. BROWN,
Defendant-Appellant.
____________________________
Submitted May 24, 2017 – Decided December 4, 2017
Before Judges Fuentes, Simonelli and Gooden
Brown.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment No. 13-
03-0592.
Joseph E. Krakora, Public Defender, attorney
for appellant (Richard Sparaco, Designated
Counsel, on the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Kayla E.
Rowe, Special Deputy Attorney General/Acting
Assistant Prosecutor, on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
Following a four-day jury trial, defendant Alsamir Brown was
convicted of second-degree unlawful possession of a weapon,
namely, an assault firearm, N.J.S.A. 2C:39-5(f); fourth-degree
unlawful possession of a defaced firearm, N.J.S.A. 2C:39-3(d); and
fourth-degree unlawful possession of a large capacity ammunition
magazine, N.J.S.A. 2C:39-3(j). He was sentenced to an aggregate
term of nine years with a four-and-one-half-year period of parole
ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
The charges stemmed from two police officers observing defendant
throw a machine gun into the trunk of a car before driving away.
In a subsequent motor vehicle stop, defendant opened the trunk,
revealing the gun in plain view.1
On appeal, defendant raises the following contentions:
POINT I – DEFENDANT WAS DENIED THE RIGHT TO A
FAIR TRIAL BECAUSE OF THE OFFICERS' TESTIMONY
THAT DEFENDANT "APPEARED" TO HAVE A MACHINE
GUN IN HIS HAND, THEREBY GIVING THE JURY THE
OFFICERS' LAY OPINIONS OR BELIEFS ON THE
ULTIMATE ISSUE. (NOT RAISED BELOW).
POINT II - DEFENDANT WAS DENIED THE RIGHT TO
A FAIR TRIAL WHEN THE JURY HEARD BAD CHARACTER
EVIDENCE, SPECIFICALLY DEFENDANT'S IMPLIED
INCARCERATION PRIOR TO TRIAL.
POINT III - THE SENTENCE OF NINE YEARS WAS
EXCESSIVE.
1
The trial court denied defendant's suppression motion on May 20,
2014.
2 A-4860-14T2
After considering the arguments presented, in light of the record
and applicable law, we affirm.
At trial, the State called Lieutenant Chris Gialanella and
Detective James Cosgrove, both longtime veterans of the Newark
Police Department. They testified that at about 9:15 p.m. on
August 21, 2012, they and Detective Richard Weber were patrolling
a crime-ridden residential area of Newark's south ward in an
unmarked police car. At one point, they observed an unoccupied
black sedan on Huntington Terrace. The sedan was parked
"haphazardly[,]" "almost in the middle of the street[,]" with its
trunk open, and its trunk light and tail lights illuminated. The
area was also "very well lit[,]" with street lights and porch
lights.
Cosgrove was driving and Gialanella was seated in the front
passenger seat. From this vantage point, they observed a man,
later identified as defendant, exit "the driveway of an abandoned
building[]" carrying what appeared "to be a machine gun in his
hand." When he reached the black sedan, defendant tossed the
weapon into the trunk, closed the trunk, hurried into the front
driver's seat, and sped off.
Gialanella described the weapon as "a machine gun" based on
his "training and experience[,]" having conducted hundreds of
investigations involving firearms. He testified the weapon had
3 A-4860-14T2
"an extended magazine" to "hold the bullets[,]" which was "not
normal for a gun that size." Due to the extended magazine, the
firearm was readily apparent to him "sticking out from behind
[defendant's] [waist] area." Cosgrove, who had also conducted
"hundreds" of investigations involving firearms, described the
firearm as "a MAC-10 assault weapon" because of "the outline of
the weapon[.]" Cosgrove also observed "the extended magazine
sticking out behind [defendant] and the barrel facing the ground."
Prior to that night, Cosgrove had observed a MAC-10 "probably
[forty] or [fifty]" times.2
After defendant pulled away, the officers conducted a motor
vehicle stop. Defendant exited his vehicle and, as he approached
the officers, blurted out "I was going fast, I have to take a
shit[.]" After Weber conducted a pat down of defendant with
negative results, he asked defendant to produce his driving
credentials. Instead, defendant reached into his vehicle and
"pressed the trunk release button[,]" opening the trunk of the
car. Gialanella, who by then was standing near the trunk of the
vehicle, "observed the same item that [he] saw in [defendant's]
hand previously . . . in the trunk in plain view." Gialanella
2
Weber testified that from the rear passenger compartment of the
car where he was seated, his view was obstructed. As a result,
he did not observe defendant carrying a firearm or place it in the
trunk of the vehicle.
4 A-4860-14T2
immediately alerted the other officers, and Weber placed defendant
under arrest without incident.
Before turning the firearm over to the crime scene detective
who responded to the scene, Gialanella secured the firearm by
removing one live round from the chamber and seventeen live rounds
from the magazine. Subsequent examination of the firearm by the
crime scene detective confirmed that it was a "MAC-10" and that
"[t]he serial number was obliterated[,]" rendering it a defaced
firearm. See N.J.S.A. 2C:39-1(b). However, no trace or
fingerprint evidence was recovered from the weapon. A firearms
ballistics expert testified that the firearm was classified as a
"semi-automatic" "assault weapon" with "a high capacity
magazine[]" and "full metal jacket" ammunition. After testing,
he determined that the firearm "was operable[.]"
The parties stipulated that defendant did not have a permit
to carry a firearm at any time. The parties also stipulated that
the following recorded telephone conversation occurred between
defendant and an unidentified person on March 8, 2014:3
OPERATOR: You have a prepaid call from --
[DEFENDANT]: Samir.
3
The trial court granted in part and denied in part the State's
pre-trial motion to admit defendant's statements. The court's
ruling allowed the introduction into evidence of these excerpts
from defendant's March 8, 2014 conversation.
5 A-4860-14T2
OPERATOR: To accept this call press one. To
refuse this call, hang up.
[DEFENDANT]: What's going, little Bro?
UNIDENTIFIED MALE VOICE: What's going is good.
[DEFENDANT]: I go to court Monday and we'll
see what they talk about but they sending my
discovery to my strap.4 They ain't even got
no fingerprints and nothing on my shit.
UNIDENTIFIED MALE VOICE: They don't?
[DEFENDANT]: I don’t know. It's just they
don't got it. They said they put it in and
that little chemical shit or whatever and it
came back insufficient like. They ain't got
no fingerprints on my shit. So I'm thinking
about taking my shit all the way, fuck it.
At the close of the State's case, the court denied defendant's
motion for a judgment of acquittal, Rule 3:18-1, and submitted the
case to the jury. Following the guilty verdict, defendant was
sentenced on June 1, 2015, to nine years of imprisonment with a
four-and-one-half-year period of parole ineligibility on the
unlawful possession of an assault firearm conviction, a concurrent
eighteen-month term with an eighteen-month period of parole
ineligibility on the unlawful possession of a defaced firearm
conviction, and a concurrent eighteen-month term on the unlawful
possession of a large capacity ammunition magazine conviction. A
4
The parties stipulated that the term "strapped is frequently
used to refer to a firearm."
6 A-4860-14T2
memorializing judgment of conviction was entered on June 16, 2015,
and this appeal followed.
Defendant argues, for the first time on appeal, that the
testimony of Gialanella and Cosgrove "concerning their belief that
the defendant was carrying a machine gun" was impermissible lay
opinion that "was unfairly prejudicial . . . because it allowed
the jury to hear the police officers' opinions on the ultimate"
issue of defendant's guilt. According to defendant, "the trial
court had an independent duty" to instruct the jury "that they
were the sole arbiters of whether or not the defendant" possessed
"an assault firearm."
Because defendant did not raise an objection before the trial
court, we review his argument under the "plain error" standard,
which mandates reversal only for errors "of such a nature as to
have been clearly capable of producing an unjust result[.]" R.
2:10-2; State v. Maloney, 216 N.J. 91, 104 (2013). The test is
whether the possibility of injustice is "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).
Lay opinion testimony is governed by N.J.R.E. 701, which
permits a lay witness' "testimony in the form of opinions or
inferences . . . if it (a) is rationally based on the perception
7 A-4860-14T2
of the witness and (b) will assist in understanding the witness'
testimony or in determining a fact in issue." Thus, N.J.R.E. 701
imposes two important limitations on lay witness testimony. First,
the testimony must be based on the perceptions of the witness,
that is, "the acquisition of knowledge through use of one's sense
of touch, taste, sight, smell or hearing." State v. McLean, 205
N.J. 438, 457 (2011). The second limitation is that lay witness
testimony must "assist the trier of fact either by helping to
explain the witness's testimony or by shedding light on the
determination of a disputed factual issue." Id. at 458.
A lay witness is not permitted to offer an opinion "on a
matter 'not within [the witness'] direct ken . . . and as to which
the jury is as competent as [the witness] to form a conclusion[.]'"
Id. at 459 (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super.
1, 8 (App. Div. 1955). The McLean Court stressed that lay
opinions may not "intrude on the province of the jury by offering,
in the guise of opinions, views on the meaning of facts that the
jury is fully able to sort out . . . [or] express a view on the
ultimate question of guilt or innocence." Id. at 461.
Here, because the officers provided permissible lay opinion
testimony, there was no error, much less plain error. The
officers' testimony, based upon their observations of defendant
carrying a firearm, which they recognized from their training and
8 A-4860-14T2
experience as a machine gun, did not exceed the bounds outlined
for lay opinion testimony in McLean, supra, and did not express a
view on the ultimate question of guilt or innocence. Rather,
their opinions explained their testimony, were based on their
perceptions, were within their "direct ken" and were on a matter
"as to which the jury" was not as competent to form a conclusion.
Next, defendant argues that the court erred in admitting the
"portion of the recording" of the prepaid telephone call, which
clearly indicated that "defendant was incarcerated prior to
trial." According to defendant, admission of the call violated
N.J.R.E. 404(b) and N.J.R.E. 403 and denied defendant his "right
to a fair trial." We disagree. The court correctly determined
that the reference to the call being prepaid was not "indicative
of incarceration or that it's made from the jail" because "[t]here
are numerous ways to make prepaid calls." We accord a trial
judge's evidentiary ruling "substantial deference," State v.
Morton, 155 N.J. 383, 453 (1998), cert. denied, 532 U.S. 931, 121
S. Ct. 1380, 149 L. Ed. 2d 306 (2001), and will reverse only when
the trial judge's ruling was "so wide of the mark that a manifest
denial of justice resulted." State v. Carter, 91 N.J. 86, 106
(1982). Applying this standard, we see no abuse of discretion.
Finally, defendant argues that his sentence was excessive
because, despite having "only one prior indictable conviction for
9 A-4860-14T2
eluding police[,] . . . [t]he court found that [a]ggravating
[f]actors [three], [six] and [nine] applied[]" with "no mitigating
factors," and sentenced "defendant towards the upper end of the
[second-degree] range[.]" "Appellate review of the length of a
sentence is limited." State v. Miller, 205 N.J. 109, 127 (2011).
We will
affirm the sentence unless (1) the sentencing
guidelines were violated; (2) the aggravating
and mitigating factors found by the sentencing
court were not based upon competent and
credible evidence in the record; or (3) "the
application of the guidelines to the facts of
[the] case makes the sentence clearly
unreasonable so as to shock the judicial
conscience."
[State v. Fuentes, 217 N.J. 57, 70 (2014)
(alteration in original) (quoting State v.
Roth, 95 N.J. 334, 364-65 (1984)).]
Here, in finding aggravating factors three, six and nine,
N.J.S.A. 2C:44-1a(3), (6), and (9), the court noted that defendant
was "[twenty-six] years of age," a "high school" graduate, and
"unmarried with one child." The court pointed out that defendant
had "eight prior arrests and one prior indictable conviction in
May of 2009 for eluding[,]" for which he received a prison
sentence. Defendant also had two cases pending trial, a drug
possession case and an aggravated assault case. The court found
no mitigating factors and, in the absence of any mitigating
factors, concluded "that the aggravating factors preponderate[d]."
10 A-4860-14T2
The sentence was two years above the mid-range, accounting
for the substantial and significant weight given the applicable
aggravating factors and reflecting the absence of any mitigating
factors. See Fuentes, supra, 217 N.J. at 73 ("[R]eason suggests
that when the mitigating factors preponderate, sentences will tend
toward the lower end of the range, and when the aggravating factors
preponderate, sentences will tend toward the higher end of the
range.") (quoting State v. Natale, 184 N.J. 458, 488 (2005)).
We do not "'substitute [our] assessment of aggravating and
mitigating factors' for the trial court's judgment." Miller,
supra, 205 N.J. at 127 (quoting State v. Bieniek, 200 N.J. 601,
608 (2010)). We acknowledge, however, that one prior indictable
conviction may not support a finding of aggravating factor six.
Nevertheless, despite this error, we conclude the factual findings
by the judge sufficiently support the sentence imposed, obviating
the need for a remand. We are satisfied that the excision of
aggravating factor six would not alter the term.
Affirmed.
11 A-4860-14T2