STATE OF NEW JERSEY VS. DEMETRIUS C. COPE (06-10-1455, BURLINGTON 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NOT FOR PUBLICATION WITHOUT THE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-4491-16T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEMETRIUS C. COPE, a/k/a
RAASHID HABSHIN, RASHEED
COPE, DEMETRIUS M. COPE,
RASHID BUATUADOWA,
and RAASHID ADOWA,

Defendant-Appellant.
_______________________________

Argued November 27, 2018 – Decided April 11, 2019

Before Judges Rothstadt and Gilson.

On appeal from Superior Court of New Jersey, Law
Division, Burlington County, Indictment No. 06-10-
1455.

John Vincent Saykanic, Designated Counsel, argued
the cause for appellant (Joseph E. Krakora, Public
Defender, attorney; John Vincent Saykanic, on the
briefs).
 Lila B. Leonard, Deputy Attorney General, argued the
cause for respondent (Gurbir S. Grewal, Attorney
General, attorney; Lila B. Leonard, of counsel and on
the brief).

PER CURIAM

Defendant Demetrius Cope, also known as Raashid Adowa, appeals from

his conviction and sentence that were imposed after a jury found him guilty of

second-degree Certain Persons Not to Have Weapons, N.J.S.A. 2C:39-7(b)

(certain persons offense). The charge arose from the seizure of a rifle and

ammunition found in his apartment in July 2006. On appeal, defendant contends

the trial court (1) improperly reinstated his conviction after the prosecutor

agreed to dismiss it one week earlier, (2) erred by failing to grant his motion for

an acquittal, and (3) incorrectly excluded any gap-time credits in determining

his sentence. We find no merit to defendant's contentions. Accordingly, we

affirm.

A brief recitation of the procedural history in this case is necessary to give

context to our determination of defendant's appeal. The trial that led to the entry

of the judgment of conviction under appeal was the result of defendant's second

trial for the same offense. In October 2006, defendant was charged in a four-

count indictment with various weapons charges. Prior to his first trial in 2011,

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three of the counts were dismissed and he proceeded to trial on the one certain

persons offense. State v. Cope, 224 N.J. 530, 536-37 n.1 (2016).

After his first conviction on that charge, defendant appealed and we

reversed based upon the trial court's denial of his motion to suppress and its

interference with his ability to pursue a defense of third party guilt. See State

v. Cope, No. A-2165-11 (App. Div. Mar. 21, 2014). The Supreme Court granted

the State's petition for certification. State v. Cope, 220 N.J. 40 (2014). In a later

opinion, the Court disagreed with our determination as to the denial of

suppression, but concurred with our assessment of the third party guilt issue and

ordered a new trial. See Cope, 224 N.J. at 536.

After we remanded the matter for a new trial and before the State filed its

petition for certification, the trial court released defendant. On April 4, 2014,

the prosecutor moved to dismiss the indictment, which the trial court granted.

At the time, however, due to a miscommunication, the prosecutor was unaware

that the Office of the State Attorney General made a determination to pursue a

petition for certification, even though its intention had been expressed to the

prosecutor's office and defense counsel on March 28, 2014. For that reason, on

April 9, 2014, the Attorney General filed a Notice of Petition for Certification,

and on April 11, 2014, filed a motion to reinstate the indictment. On May 7,

A-4491-16T1
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2014, the trial court granted that motion. The State filed its petition for

certification on May 21, 2014.

While the State's petition for certification was pending, defendant filed a

motion with us, for leave to appeal from the reinstatement of the indictment.

We declined to consider the application because we lacked jurisdiction while

the matter was before the Court. We indicated that if the petition was denied,

"defendant may reactivate his motion for leave to appeal . . . ." Defendant never

raised the issue of the indictment's reinstatement before the Court.

Defendant's new trial took place in December 2016. Essentially, the same

facts that led to defendant's arrest and conviction that were developed at

defendant's first trial were again adduced at the new trial. The Court

summarized those facts in its earlier opinion. See Cope, 224 N.J. at 537-38. We

again summarize them here to the extent that they are pertinent to our

consideration of the present appeal.

On July 5, 2006, then-Detective David Brintzinghoffer and five other

police officers went to defendant's home to execute a warrant for defendant's

arrest. Id. at 537. At the time the warrant was being executed, some of the

officers were familiar with defendant based upon his several prior drug and

weapons convictions. Id. at 537 n.2.

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 Defendant lived in a second-floor apartment that included a balcony. Id.

at 537. In executing the warrant, Lieutenant Richard Sullivan, Sergeant

Christopher Ent and another officer positioned themselves behind the building

to observe the balcony while Brintzinghoffer and two others knocked on the

door. Id. at 537-38. There was a "commotion" and one of the officers in the

back notified the others that defendant came out onto the balcony while bending

over and then "run[ning] into the apartment from the back porch." Id. at 538.

Brintzinghoffer banged on the door and a female voice asked him to hold on; he

stated "that he had a warrant for the defendant and that the door would be kicked

in unless defendant answered." Ibid.

Defendant's adult daughter, A.G., opened the door, and police found

defendant lying on the couch. Ibid. Once defendant was arrested,

Brintzinghoffer conducted a protective sweep of the apartment, including the

balcony, where he found a camouflage rifle bag containing an assault-type rifle

and ammunition. Ibid. The rifle and its accessories were seized as evidence, id.

at 538, and defendant was charged in the indictment with various weapons

possession offenses, including the subject certain persons offense. Id. at 536-

37.

A-4491-16T1
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 At defendant's second trial, the State called Brintzinghoffer, Sullivan, and

one of the other officers present at defendant's house on July 5, 2006. They all

testified to the events surrounding defendant's arrest. The State also called Alison

Rees and Jodi Marsanopoli of the Bureau of Alcohol, Tobacco, and Firearms who

testified that there were no identifiable fingerprints on the rifle and that the rifle was

operable.

After the State rested, defendant moved for acquittal under Rule 3:18-1 on the

basis that "there [was] no evidence presented that [he] had ever come into contact

with this firearm or the firearm case or really knew it was ever there." The trial court

denied the motion based on the testimony from the officers that while defendant did

not actually possess the rifle bag, he had been seen bending over the place where it

was found and as such, a reasonable jury could find, at the very least, that he

possessed the bag by virtue of it being in his apartment.

Defendant, who at the time was serving a sentence on federal weapons

charges, did not testify, but called his daughter to explain the events surrounding his

arrest in July 2006. She also testified that her father had his own construction

company and that his employees would come over to the apartment.

Defendant also called William McGovern, a police officer who interviewed

D.S., an individual who worked with defendant and was the subject of defendant's

A-4491-16T1
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third-party defense claim. McGovern testified that D.S. had signed an affidavit in

2011 in which he stated that in 2006 he owned the rifle in question and left it at

defendant's apartment, "[w]ithout permission [and he] also decided to stash it on . . .

[defendant's] balcony until work was finished because [he] was going to sell it . . . ."

The videotape of McGovern's May 3, 2011 interview was played for the jury and it

depicted D.S. being placed under oath and stating that he worked for defendant and

left his rifle at defendant's house, though he did not know the date he left it there,

but that it had to have been before his own May 2006 incarceration. During cross-

examination, McGovern testified that his research indicated D.S. was already

incarcerated by July 5, 2006, the date the rifle was found by police on defendant's

balcony.

In rebuttal, the State called Lanny Frederick, an investigator for the Public

Defender's Office. Frederick described being present during a conversation between

defense counsel and D.S. on November 9, 2016, concerning D.S. telling the truth if

he was called as a witness. According to D.S.'s statements to defense counsel and

Frederick, he was coerced into providing the 2011 statement where he claimed

ownership of the rifle and he "made it clear [that] he wanted no involvement in this

matter."

A-4491-16T1
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 After considering the evidence, the jury returned a unanimous guilty verdict

on the certain persons offense. The trial court then scheduled defendant for

sentencing.

At sentencing, defendant argued that he had not committed any offenses

since his release in 2014. He requested time served and provided a

comprehensive breakdown of his periods of incarceration in order to receive

2,176 days of jail credit with prior service and gap-time. The State rejected

defendant's calculation, and argued that he should not be entitled to 492 days

"from the time [he] was taken into custody on . . . federal charges until a detainer

was issued" out of state court.

The federal charges to which the State referred arose from unrelated

charges for which defendant was arrested and indicted in another county in 2007.

Defendant remained in custody on those charges until he made bail in November

2007. In July 2008, he was re-arrested by federal authorities because the United

States Attorney assumed jurisdiction over those charges. As a result, the county

prosecutor dismissed its indictment, which led to defendant's indictment on

federal weapons charges to which he pled guilty in December 2009. In May

2010, the United States District Court for the District of New Jersey sentenced

A-4491-16T1
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defendant to five years in federal prison. He completed his federal sentence

before being sentenced in this matter.

While in federal custody, a detainer was issued on November 30, 2009, to

the federal authorities requesting defendant not be released but held for pick up

by the county sheriff for prosecution in this action. The federal authorities

acknowledged receipt of the detainer and promised to advise of defendant's

anticipated release. Thereafter, defendant requested that he be brought before

the Law Division to resolve this matter pursuant to the Interstate Agreement on

Detainers, N.J.S.A. 2A:159A-4(a).

At sentencing in this action, the trial court denied the State's motion to

impose a sentence in the extended term and sentenced defendant on February

23, 2017, to five years in prison with a five-year period of parole ineligibility.

On March 2, 2017, in response to defendant’s motion, the trial court amended

its sentence and awarded defendant 663 days of jail credits for July 18, 2008

through May 11, 2010, the period after his arrest in this case through sentencing

in federal court; prior service credits of 957 days (August 13, 2011 to March 26,

A-4491-16T1
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2014); and 458 gap-time credits for the period when he began his federal

sentence (May 12, 2010 to August 12, 2011).1

The State objected to the award of jail credits. It argued that defendant

was on bail on state charges when he was in federal custody, which would mean

he would be ineligible for gap or jail credits. Defendant argued that the State

agreed he was entitled to thirty-nine days of jail credit when "the State asked for

a revocation of [his] bail." The trial court concluded that the credits were

awarded in accordance with State v. Hernandez, 208 N.J. 24 (2011), which

directed it "give people maximum jail credits and that . . . should not be

conditioned upon whether a detainer has been lodged . . . ."

On March 9, 2017, the State filed for reconsideration of defendant's

sentence, relying on the Court's opinion in State v. Joe, 228 N.J. 125 (2017),

which had recently been decided. The State argued that defendant was not

entitled to credit for time spent in federal custody. Defendant maintained that

his federal charges were not non-New Jersey charges under Joe because they

stemmed from a State investigation that was ultimately superseded by the

1
The State stipulated defendant was entitled to thirty-nine days credit (from
September 25, 2007 to November 2, 2007) when "the State asked for a
revocation of [defendant]'s bail." This was for a September 25, 2007 conspiracy
charge in Burlington County (bail was never revoked, however).
A-4491-16T1
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federal government. He distinguished his case from Joe by arguing that he did

not flee the jurisdiction and that Joe created a new rule of law that was not

applicable to him. Defendant also contended that his sentence should run

concurrent to the federal sentence "because at the time he was incarcerated on

[the present] charges, . . . the federal . . . sentence was . . . pending."

On May 11, 2017, the trial court granted the State's motion and

resentenced defendant to amend the credit calculations by awarding no gap-time

credit, fifty-four days of jail credit, and 585 days of prior service credit. The

court stated that Joe clarified precedent regarding out-of-state-custody and gap-

time credits and added that the ruling "ma[de] it clear that this [c]ourt's

construction . . . of Hernandez was in error and this defendant was not entitled

to the panoply of jail and gap[-]time credits . . . ." This appeal followed.

On appeal, defendant specifically argues the following:

POINT I

[THE TRIAL COURT] ABUSED [ITS] DISCRETION
IN GRANTING THE STATE'S MOTION TO
REINSTATE THE INDICTMENT IN VIOLATION
OF DEFENDANT'S DUE PROCESS RIGHT
ESPECIALLY SINCE THERE IS NO INDICATION
THAT THE STATE'S MOTION WAS TIMELY
FILED.

A-4491-16T1
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POINT II

[THE TRIAL COURT] ERRED IN GRANTING THE
STATE'S MOTION FOR RECONSIDERATION OF
SENTENCE BASED ON STATE V. JOE, 228 N.J. 125
(2017).

A. DEFENDANT SHOULD RECEIVE
GAP-TIME CREDITS.

....

B. EVEN IF THIS COURT
FINDS THAT JOE APPLIES TO THE
FACTS IN COPE THE COURT BELOW
MUST STILL BE REVERSED AND
DEFENDANT COPE AWARDED 458
DAYS OF GAP-TIME CREDIT SINCE
JOE CREATES A NEW RULE OF LAW
AND SHOULD NOT BE APPLIED
RETROACTIVELY.

C. FUNDAMENTAL
FAIRNESS REQUIRES THAT
DEFENDANT COPE BE AWARDED
ALL CREDITS INCLUDING ANY "GAP-
TIME" CREDITS FROM NOVEMBER
25, 2009, WHEN [THE TRIAL COURT]
IMPROPERLY ISSUED A BENCH
WARRANT FOR FAILURE TO APPEAR
WHEN DEFENDANT WAS IN
FEDERAL CUSTODY AT THE TIME,
RESULTING IN DEFENDANT'S
CUSTODY STATUS CHANGING TO
MAXIMUM.

D. EVEN IF THIS COURT
DECLINES TO GRANT JAIL CREDITS

A-4491-16T1
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 THE PRESENT SENTENCE SHOULD
BE SERVED CONCURRENT WITH THE
COMPLETED FEDERAL SENTENCE.

POINT III

THE COURT BELOW ERRED IN
DENYING THE MOTION FOR
JUDGMENT OF ACQUITTAL AS THE
STATE FAILED TO PROVE EACH AND
EVERY ELEMENT OF THE OFFENSE
BEYOND A REASONABLE DOUBT.

POINT IV

AN INCREASE OF ANY SENTENCE BY
WAY OF A RECONSIDERATION OF
SENTENCE CONSTITUTES A
VIOLATION OF DEFENDANT'S
PROHIBITION AGAINST DOUBLE
JEOPARDY RIGHTS UNDER THE
FEDERAL AND NEW JERSEY STATE
CONSTITUTIONS. (NOT RAISED
BELOW).

At the outset, we conclude defendant's argument that it was error for the

trial court to reinstate the indictment under the circumstances is without

sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).

Suffice it to say, the dismissal was due to the prosecutor's mistake that was

immediately cured without any prejudice to defendant. Moreover, because

defendant never raised the issue of the indictment's dismissal with the Supreme

Court after we declined jurisdiction, he waived his contention that the

A-4491-16T1
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indictment was improperly reinstated. See State v. Dorn, 233 N.J. 81, 92 (2018)

("[i]t is a longstanding principle that litigants may waive objections through

inaction.").

We reach a similar conclusion regarding defendant's contention that his

motion for acquittal was denied in error. Defendant argues that the evidence

presented about D.S. owning the rifle and placing it in defendant's home created

the "reasonable doubt required to acquit," which warranted the granting of his

motion. We disagree.

Our review of the denial of a Rule 3:18-1 motion of acquittal is de novo.

State v. Dekowski, 218 N.J. 596, 608 (2014). We use "the same standard as the

trial court in determining whether a judgment of acquittal was warranted." State

v. Ellis, 424 N.J. Super. 267, 273 (App. Div. 2012). In our review, we "assess[]

whether the State presented sufficient evidence to defeat an acquittal motion."

Dekowski, 218 N.J. at 608. "We must determine whether, based on the entirety

of the evidence and after giving the State the benefit of all its favorable

testimony and all the favorable inferences drawn from that testimony, a

reasonable jury could find guilt beyond a reasonable doubt." Ibid. (quoting State

v. Williams, 218 N.J. 576, 594 (2014)); see also State v. Reyes, 50 N.J, 454,

458-59 (1967). Like the trial court, we "must consider only the existence of

A-4491-16T1
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such evidence, not its 'worth, nature, or extent.'" State v. Brooks, 366 N.J.

Super. 447, 453 (App. Div. 2004) (quoting State v. Kluber, 130 N.J. Super. 336,

342 (1974)).

In order to determine whether the State produced sufficient evidence, we

must consider the elements of the offense. "The elements of the certain persons

offense are straightforward: conviction of a predicate offense and possession of

a firearm." State v. Bailey, 231 N.J. 474, 488 (2018) (citing N.J.S.A. 2C:39-

7(b)(1)). "In a certain persons trial, the State must prove that the defendant was

convicted of an enumerated predicate offense and later possessed a firearm.

Each element must be proved beyond a reasonable doubt." Ibid.

Applying these guiding principles, we conclude that the trial court

correctly denied defendant's motions substantially for the reasons that the court

placed on the record. The State clearly presented sufficient evidence that the

jury could rely upon to convict defendant as the direct evidence and "the

favorable inferences support the conclusion" that defendant, who was

indisputably previously convicted of a predicate offense, was in, at least,

constructive possession of the rifle. Dekowski, 218 N.J. at 610. The fact that

there was other evidence, which if accepted by the jury, could lead to his

acquittal does not support a finding that defendant satisfied his burden on the

A-4491-16T1
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motion. The standard is whether "'a reasonable jury could find guilt of the

charge beyond a reasonable doubt,'" not that the evidence mandated a

conviction. State v. Bunch, 180 N.J. 534, 548-49 (2004) (emphasis added)

(quoting State v. Josephs, 174 N.J. 44, 80 (2002)). See also State v. Muhammad,

182 N.J. 551, 577 (2005); State v. DiFernando, 345 N.J. Super. 382, 399 (App.

Div. 2001).

Finally, we turn to defendant's arguments about the trial court's decision

to deny him an award of gap-time credits for the period he spent in federal

custody. Defendant contends that the court's decision was fundamentally unfair

and that the Court's holding in Joe is inapplicable to his entitlement to credits.

According to defendant, (1) he "was never arrested nor charged in any other

state when the detainer was lodged," (2) the "federal New Jersey charge was

related strictly to the State New Jersey charges," and if it was not, (3) his federal

sentence does not qualify as an out-of-state conviction under Joe. He also argues

that he never fled the jurisdiction or incurred other charges from other states,

despite being confined out-of-state. He accuses the State of "double dipping"

and notes that he served each day of his federal sentence and that the detainer

raised his custody level to maximum in federal prison. Defendant also maintains

that if the Court's holding in Joe applies, it creates a new rule of law not subject

A-4491-16T1
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to retroactive application. And, he states that because of the "tortured

procedural history" and the procedural delays, he should be credited for all gap-

time or jail credits accordingly. Because he is entitled to the credits, defendant

argues that we "should use [our] authority" to have the current five-year

mandatory sentence run concurrent with his federal sentence.

Defendant also argues that his resentencing without gap-time credits

violated his constitutional protections against double jeopardy. Relying upon

our opinion in State v. Hyland, 452 N.J. Super 372, 381 (App. Div. 2017)

(observing that "an illegal sentence [is] one that 'exceeds the maximum penalty

provided in the Code for a particular offense' or a sentence 'not imposed in

accordance with the law'" (quoting State v. Acevedo, 205 N.J. 40, 45 (2011))),

defendant contends that sentencing appeals by the State implicate double

jeopardy protections against multiple punishments and that the withdrawal of

his gap-time credits increased his sentence and violated the prohibition against

double jeopardy. We disagree.

An appeal from an award of jail credits presents an issue of law. "A challenge

to an award or denial of jail credits, as inconsistent with Rule 3:21-8, constitutes an

appeal of a sentence 'not imposed in accordance with law.'" State v. DiAngelo, 434

N.J. Super. 443, 451 (App. Div. 2014) (quoting State v. Rippy, 431 N.J. Super. 338,

A-4491-16T1
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347 (App. Div. 2013)). For that reason, our review is de novo. Hernandez, 208 N.J.

at 48-49. In our review, we accord "no special deference to a trial judge's

'interpretation of the law and legal consequences that flow from established facts[.]'"

DiAngelo, 434 N.J. Super. at 451 (alteration in original) (quoting State v. McKeon,

385 N.J. Super. 559, 567 (App. Div. 2006)). See also State ex rel I.C., 447 N.J.

Super. 247, 254 (App. Div. 2016).

Defendants are entitled to receive credits for time served while in custody

awaiting trial or serving a sentence on charges unrelated to those for which they

are being sentenced. Depending on their custodial status, they are either entitled

to jail credits or gap-time credits.

Jail credits are credited toward a defendant's sentence for "time served in

custody in jail . . . between arrest and the imposition of a sentence." R. 3:21-8; see

also Hernandez, 208 N.J. at 48; Richardson v. Nickolopoulos, 110 N.J. 241, 242

(1988).

Jail credits promote equal protection and fundamental
fairness by preventing the "double punishment" of
indigent defendants who cannot afford bail. . . . [and
they] must be applied "in a manner that prevents the
real time served from turning on 'happenstance,' such
as whether the same charges are included in one
indictment or spread over multiple indictments," and
"to promote uniformity in sentencing."

A-4491-16T1
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 [State v. S.A., __ N.J. Super. __, __ (Law Div. 2019)
(slip op. at 3-4) (quoting Joe, 228 N.J. at 130-31)].2

Jail credits accrue from the period that a defendant is placed in custody for the

offense charged until he is sentenced and they are applied to the minimum mandatory

term a defendant must serve before being eligible for parole. See Hernandez, 208

N.J. at 36-37.

If at the time of sentencing a defendant is already serving a term of

imprisonment for another unrelated offense, he may be entitled to "gap-time" credits.

See N.J.S.A. 2C:44-5(b). Such credits provide "a defendant who is given two

separate sentences on two different dates credit toward the second sentence for the

time spent in custody since he or she began serving the first sentence." Hernandez,

208 N.J. at 38. However, those credits are applied to the "back end" of the sentence

and do not reduce a period of parole ineligibility. Ibid.

In order to grant gap-time credit, rather than jail credit, the following three

facts must be found: "(1) the defendant has been sentenced previously to a term

of imprisonment[;] (2) the defendant is sentenced subsequently to another

term[;] and (3) both offenses occurred prior to the imposition of the first

sentence." Id. at 38 (alterations in original) (quoting State v. Franklin, 175 N.J.

2
Approved for publication March 8, 2019.
A-4491-16T1
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456, 462 (2003)). If these three facts are established, "the sentencing court is

obligated to award gap-time credits," rather than jail credits. Ibid.

Here, as discussed earlier, before defendant was sentenced in this matter,

he pled guilty to the federal charges and was sentenced in 2010. Both his federal

offense and the present offense occurred before he was sentenced in 2010. Had

defendant been sentenced in state court and held in state custody for the

unrelated offense to which he previously pled guilty, he would be, as the trial

court originally found, entitled to gap-time credit.

However, as the trial court also determined, in Joe, the Supreme Court

clarified its holding in Hernandez and explained clearly "that defendants who are

confined out of state on non-New Jersey charges are not entitled to jail credit for

time spent in pre-sentence custody." Joe, 228 N.J. at 138. The Court expressly

"limit[ed] jail credit to defendants who are either detained out of state exclusively

on New Jersey charges" or who are confined in the state. Ibid. "The Joe Court

reasoned that if courts were 'to award defendants jail credit for time spent in out-of-

state prisons on unrelated charges, it would not further equal protection concerns,

discourage gamesmanship by New Jersey prosecutors, or promote uniformity in

sentencing.'" S.A., __ N.J. Super. __ (slip op at 8-9) (quoting Joe, 228 N.J. at 136-

37).

A-4491-16T1
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 The same reasoning applies here because defendant was not being held in

federal custody on exclusively New Jersey charges. Contrary to defendant's

contention, the fact that his federal conviction arose from a New Jersey investigation

and indictment did not change the fact that the New Jersey indictment was dismissed,

a new federal indictment issued, and defendant was sentenced solely on the charge

contained in that indictment. Moreover, Joe did not constitute a new rule of law that

made its holding inapplicable to defendant. Under these circumstances, defendant

was not entitled to any gap-time or jail credits for the time he spent in federal custody

before his sentence in this case.

To the extent we have not specifically addressed any of defendant's remaining

arguments, we find them to be without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(2).

Affirmed.

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