STATE OF NEW JERSEY VS. DEON L. BROWNE (15-08-0997, MERCER 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NOT FOR PUBLICATION WITHOUT THE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-0371-17T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DEON L. BROWNE,

Defendant-Appellant.
___________________________

Submitted September 9, 2019 – Decided September 13, 2019

Before Judges Sabatino and Geiger.

On appeal from the Superior Court of New Jersey,
Law Division, Mercer County, Indictment No. 15-08-
0997.

Joseph E. Krakora, Public Defender, attorney for
appellant (Michael Timothy Denny, Assistant Deputy
Public Defender, of counsel and on the briefs).

Angelo J. Onofri, Mercer County Prosecutor, attorney
for respondent (Laura C. Sunyak, Assistant
Prosecutor, of counsel and on the brief).

PER CURIAM
 Tried to a jury, defendant Deon L. Browne was found guilty of the second-

degree offense that prohibits "certain persons" from possessing a firearm,

N.J.S.A. 2C:39-7(b). The trial judge sentenced defendant to a seven-year

custodial term, with a five-year period of parole ineligibility.

In this direct appeal, defendant argues the trial court erred in granting the

State's pretrial application to obtain a buccal swab from him to extract a sample

of his DNA. The State's laboratory analysis, which was admitted into evidence

at trial, showed defendant's DNA matched DNA found on a handgun he

discarded when he was seen fleeing from the police. Defendant contends the

incriminating DNA proof should have been excluded because the buccal swab

was obtained without a sufficient foundation, as prescribed by State v. Gathers,

234 N.J. 208 (2018). He further argues the jury charge on the certain -persons

offense was flawed, and he is thereby entitled to a new trial.

For the reasons that follow, we affirm defendant's conviction. 1 We

conclude he waived the right to appeal the trial court's admission of the DNA

evidence, by failing to move to suppress the buccal swab sample he claims was

illegally obtained. In addition, we discern no flaw in the jury charge requiring

appellate relief.

1
Defendant does not appeal his sentence.
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 I.

According to the State's proofs at trial, at approximately 1:00 a.m. on

April 19, 2015, Trenton Police Detective Jose Gonzalez and his partner Antonio

Wilkie-Guiot were on patrol. They were dispatched to the intersection of

Phillips Avenue and Dexter Street in Trenton in response to a report o f a "light-

skinned black male, with blue jeans, black hooded sweatshirt, [and] with a gun

in his waist." Two other officers also responded to the report.

Detective Gonzalez testified he saw a group of five men on the sidewalk

at the specified location. The officers illuminated the group with a spotlight on

their marked police vehicle, causing the group to start dispersing. Defendant's

garb matched the clothing description provided by dispatch.

According to Gonzalez, when defendant saw his police car, he "bladed"

(meaning turned) his body away towards a wall, and grabbed his waistband as

if he were trying to conceal something. Gonzalez and Wilkie-Guiot got out of

their police car and pointed one or more flashlights at the men. The officers

ordered the men to show their hands. Everyone but defendant complied.

Defendant began running away from the officers, and Gonzalez and

another officer pursued him. Gonzalez noticed that defendant was holding a

silver handgun while he ran.

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 Gonzalez ordered defendant to stop running, stating that he was under

arrest. Defendant nevertheless continued running, and, as described by

Gonzalez, flung the handgun "across his body" and into the "side of [a] house."

Gonzalez heard the "distinct sound" of "heavy metal . . . hitting concrete."

Defendant continued running, and hopped a fence. Gonzalez also hopped

the fence, tackled defendant to the ground, and placed him under arrest.

Wilkie-Guiot recovered the handgun. He similarly testified that he saw

defendant throw "a shining silver item."

Defendant subsequently was charged by a grand jury in a four-count

indictment with various offenses, including the certain-persons offense. The

State eventually dismissed all the charges, other than the certain-persons count.

In June 2016, the State applied to the court to obtain a buccal swab from

defendant. In support of that application, the State submitted a certification by

an acting assistant prosecutor explaining that the handgun the police observed

defendant discarding had been submitted to the State Police laboratory for

analysis and testing for the presence of DNA. The certification asserted that it

was "necessary to obtain a buccal swab reference from the defendant to

determine if his DNA was recovered from the handgun."

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 Defendant's trial counsel advised the court that she was "not consenting"

to the buccal swab. She specifically expressed concerns about the trial date

being delayed to enable the DNA testing. Counsel did not, however, raise any

specific objection to the sufficiency of the State's certification.

The trial court granted the State's application for the buccal swab. The

court noted that the presence or absence of defendant's DNA on the discarded

handgun was likely to have "great relevance for both sides in this case."

The buccal swab was thereafter obtained from defendant, and the DNA

extracted from it was compared to the DNA found on the handgun. A forensic

scientist from the State Police who performed the comparison testified at trial

that defendant was the source of the DNA profile that had been obtained from

the gun.

Defendant presented no competing DNA expert testimony at trial.

However, his attorney did argue to the jury that the DNA taken from the gun

was suspect. The defense attorney noted the gun had been handled by multiple

persons, and questioned the reliability of the testing methods used by the State's

expert. The attorney maintained the State had failed to prove beyond a

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reasonable doubt that defendant had possessed the handgun, and thus he was not

guilty of the certain-persons offense. 2

As we have already noted, the jury returned a verdict in favor of the State,

and this appeal followed.

II.

On appeal, defendant presents two arguments for our consideration:

POINT I

THE TRIAL COURT ERRED IN GRANTING THE
MOTION FOR A DNA SWAB OF THE
DEFENDANT BECAUSE THE STATE HAD
FAILED TO SHOW THE NECESSARY PROBABLE
CAUSE FOR THE SEARCH.

POINT II

THE COURT'S CHARGE ON THE CERTAIN
PERSONS NOT TO HAVE ANY FIREARMS
COUNT WAS INCORRECT BECAUSE IT
EXPANDED THE SCOPE OF CERTAIN PERSONS
OFFENSES, ALLOWING THE JURY TO CONVICT
THE DEFENDANT WITHOUT PROOF BEYOND A
RE[A]SONABLE DOUBT AND WITHOUT
UNANIMITY AMONGST THE JURORS. (Not
Raised Below).

2
The parties did stipulate that defendant had previously committed a predicate
offense prohibiting him from possessing a firearm, and that he lacked a permit
to possess one.
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 A.

We first consider defendant's contention that the trial court erroneously

permitted the State to extract a buccal swab from him, and that consequently the

DNA proof the prosecution presented against him at trial was inadmissible. In

particular, defendant argues the State's certification submitted in support of its

buccal swab application in 2016 was insufficient under the standards set forth

by the Supreme Court two years later in Gathers, 234 N.J. at 221-25.

In its responding brief on appeal, the State argues, as a threshold matter,

that defendant waived the ability to appeal the admission of the DNA evidence

from his buccal swab. Defendant did not file a reply brief countering this

argument. However, upon reviewing the State's contention of waiver, we invited

defendant to submit a supplemental brief on the subject, and have considered

that additional submission. 3 Having now done so, we agree with the State that

defendant failed to preserve his right to appeal the trial court's allowance of the

buccal swab evidence.

3
We also invited counsel to address whether the Supreme Court's recent grant
of leave to appeal in In re the Investigation of Burglary & Theft, 236 N.J. 629
(2019), a case that concerns DNA buccal swab applications, should affe ct our
consideration of this appeal. Both parties agreed that the issues before the
Court in that case are unlikely to affect the present case, and that we should
proceed to decide the appeal.
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 Rule 3:5-7 prescribes the procedures that must be followed in the trial

court if a criminal defendant contends he has been aggrieved by an allegedly

unlawful search or seizure of evidence. Subsection (f) of that rule clearly

delineates the consequences of a defendant's failure to make an appropriate

timely motion to suppress such evidence:

If a timely motion [to suppress] is not made in
accordance with this rule, the defendant shall be
deemed to have waived any objection during trial to
the admission of evidence on the ground that such
evidence was unlawfully obtained.

[R. 3:5-7(f) (emphasis added).]

This provision sensibly requires that an orderly suppression proceeding should

occur before trial in instances where a defendant seeks to preclude the State from

presenting certain evidence to the jury on the grounds that it was illegally

obtained. The rule calls for such admissibility challenges to be resolved in

advance of the trial, so that both parties will know before a jury is empaneled

whether the evidence will be admissible. See R. 3:10-2(b) (concerning the

timing of pretrial motions). If the trial court decides to suppress the evidence,

the State would have the opportunity to pursue interlocutory appellate review of

that decision from this court. See R. 2:5-6(a).

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 Our courts have repeatedly enforced the waiver provision set forth in Rule

3:5-7(f). See, e.g., State v. Martin, 87 N.J. 561, 566-67 (1981) (noting that "Rule

3:5-7 plainly requires a motion to suppress to be made before trial and in a timely

manner. Failure to make a timely motion results in a waiver of a defendant's

right to object to the evidence's admission at trial."); State v. Johnson, 365 N.J.

Super. 27, 33-34 (App. Div. 2003) (recognizing the same mandate, but noting

the procedural bar does not extend to claims of ineffective assistance of

counsel); State v. Cox, 114 N.J. Super. 556, 559-60 (App. Div. 1971) (enforcing

the rule's waiver requirement). We shall adhere to the rule in this case as well.

We recognize that defendant's trial attorney advised the court at the June

2016 hearing she did not consent to the buccal swab testing when the State

presented its application. Nonetheless, a lawyer's assertion of non-consent is

not an affirmative motion to suppress.

Even if we were to indulgently treat counsel's expression of non-consent

as an objection, there is no indication in the record that defendant voiced to the

trial court any specific challenges to the sufficiency of the State's application

and its supporting certification. Had defendant done so in a timely manner, the

State would have had the opportunity and the incentive to present any additional

supporting grounds that might have existed to justify the buccal swab.

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 For instance, defendant now argues for the first time on appeal that the

supporting certification is inadequate because, among other things, it was not

based on the personal knowledge of the assistant prosecutor who signed it and

is not trustworthy. Had that argument been made below, the State potentially

could have amplified the prosecutor's certification with supporting

documentation from police records, or perhaps an additional certification from

one of the police officers. That process did not occur because defendant

presented no timely opposing arguments.

Moreover, there is no indication that defendant ever moved to suppress

the DNA evidence once the laboratory testing revealed an incriminating match.

Had such a pretrial motion to suppress been made, the State would have had a

fair opportunity to oppose the motion and marshal responsive proofs. Instead

of filing such a motion, defendant's counsel at trial simply attempted to attack

the chain of custody of the DNA samples and the testing methodology, but did

not argue the buccal swab had been illegally obtained.

In light of this clear non-compliance with Rule 3:5-7(f), we must reject

defendant's belated effort to resuscitate arguments that should have been duly

presented to the trial court. The issue has been waived. Consequently, we do

not reach the merits of defendant's present contentions of illegality of the buccal

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swab. In particular, we need not decide here whether the standards for such

applications delineated by the Supreme Court in Gathers in July 2018

retroactively apply to an application the State presented nearly two years earlier

in 2016.

B.

Defendant's other argument concerning the certain-persons jury charge is

also unavailing, and it requires little comment.

In its final charge to the jury, the trial court explained the discrete

elements that must be established to prove guilt of a certain-persons offense. As

part of that charge, the court appropriately instructed that, as the third listed

element, the jury would need to find that "defendant is a person who has

previously been convicted of a predicate offense." (Emphasis added). The court

then went on to advise the jury that the parties had "stipulated or agreed that the

defendant had previously been convinced [sic] of a crime or a predicate offense."

(Emphasis added). 4 The court went on to summarize this instruction, reiterating

that the State was obligated to prove defendant "is a person who was previously

convicted of a crime that is a predicate offense." (Emphasis added).

4
This wording also appears on the written draft charge.
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 Defendant did not object to any of these jury instructions at trial. On

appeal, he now seizes upon the court's one-time reference to "a crime or a

predicate offense," instead of stating a crime that "is" a predicate offense.

(Emphasis added). Defendant hypothesizes that the jury must have been

confused by this phraseology, and possibly one or more jurors voted to convict

him by impermissibly finding that he previously had been guilty of a crime that

was not an enumerated predicate offense under N.J.S.A. 2C:39-7(b). He

contends the verdict might not have been unanimous, because one or more jurors

might have mistakenly thought he had not committed a predicate offense but

merely a "crime" that is not enumerated in the statute.

There is no merit to this semantic argument. Since defendant did not

object to the jury charge, he must demonstrate plain error on appeal to obtain

relief. State v. Walker, 203 N.J. 73, 89-90 (2010). The claimed error must be

so egregious that it "rais[es] a reasonable doubt as to whether the error [in the

charge] led the jury to a result it otherwise might not have reached." State v.

Tierney, 356 N.J. Super. 468, 477 (App. Div. 2003) (quoting State v. Macon, 57

N.J. 325, 336 (1971)). Moreover, in assessing whether such a plain error

occurred in connection with a jury charge, we must consider the charge as a

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whole, not just an isolated segment of it. State v. Torres, 183 N.J. 554, 564

(2005).

We discern no plain error here. At most, the trial court's singular reference

to "a crime or a predicate offense" appears to be a minor lapse, one that was

promptly cured by the court's reference moments later to the State's obligation

to prove defendant is a person who was previously convicted of a crime that " is

a predicate offense." (Emphasis added). Moreover, the verdict sheet supplied to

the jurors plainly set forth this element, accurately reflecting the parties'

stipulation:

How do you find as to the Count One of the
Indictment, which charges the Defendant, Deon
Browne, with Certain Persons not to Possess a Firearm,
in that on April 19, 2015, in the City of Trenton, he did,
having been convicted of a predicate offense, possess
and/or control a firearm, to wit: a Cobra Firearm .380
handgun?

[(Emphasis added).]

For these many reasons, defendant's request for a new trial on this basis

must fail.

Affirmed.

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