NOT FOR PUBLICATION WITHOUT THE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-5004-17T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
STEVEN L. BOOKMAN, a/k/a
SHAWN L. FORREST, STEVEN
BOOKMAN, SHAWN FORREST,
STEVEN SHARP, WILLIAM
BOOKMAN, LAMONT BOOKMAN,
and SHAW FORREST,
Defendant-Appellant.
_______________________________
Submitted July 14, 2020 – Decided July 29, 2020
Before Judge Sabatino and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Indictment No. 16-07-2072.
Joseph E. Krakora, Public Defender, attorney for
appellant (Susan Brody, Assistant Deputy Public
Defender, of counsel and on the brief).
Jill S. Mayer, Acting Camden County Prosecutor,
attorney for respondent (Linda Anne Shashoua, Special
Deputy Attorney General/Acting Assistant Prosecutor,
of counsel and on the briefs).
Appellant filed pro se supplemental briefs.
PER CURIAM
Tried by a jury, defendant Steven L. Bookman was found guilty of second-
degree unlawful possession of a firearm, N.J.S.A. 2C:39-5(b) (count one); and
fourth-degree resisting arrest, N.J.S.A. 2C:29-2(a) (count two). The jury
acquitted defendant of third-degree hindering apprehension, N.J.S.A. 2C:29-
3(b) (count three). In a second phase of the trial, the jury also convicted
defendant of a second-degree "certain persons" offense, i.e., possession of a
firearm by a convicted felon, N.J.S.A. 2C:39-7(b) (count four).
At sentencing, the court denied as untimely the State's motion for an
extended term. The court imposed an aggregate custodial sentence of thirteen
years. The sentence consisted of an eight-year term with a four-year parole
eligibility period on count one, a concurrent eighteen-month term on count two,
and a consecutive five-year term with a five-year parole disqualifier on count
four.
On appeal, defendant raises the following points in his counsel's brief:
A-5004-17T3
2
POINT I
THE PROSECUTOR'S ACTS OF MISCONDUCT
DEPRIVED DEFENDANT OF HIS
CONSTITUTIONAL RIGHTS TO DUE PROCESS
AND A FAIR TRIAL. (Not Raised Below).
POINT II
THE TRIAL JUDGE ERRED IN REFUSING TO
GRANT DEFENSE COUNSEL'S REPEATED
REQUESTS FOR ADJOURNMENT.
POINT III
THE TRIAL JUDGE ERRED IN IMPOSING A
CONSECUTIVE SENTENCE FOR THE CERTAIN
PERSONS OFFENSE.
In a pro se supplemental brief, defendant also argues the jury charges for
hindering apprehension and unlawful possession of a weapon were improper,
that the jury charges as a whole failed to appropriately conform to his version
of events, and that the court erred in denying his motion to suppress evidence.
Having fully considered these arguments, we affirm defendant's
convictions but remand for resentencing, at which time the court shall eliminate
the consecutive sentence imposed for the "certain persons" violation.
I.
The State's proofs at trial showed that a Camden police detective
encountered defendant in the early evening hours of May 9, 2016 after a motor
A-5004-17T3
3
vehicle stop. The detective, who was on uniformed patrol in a marked police
car, stopped the vehicle after observing a faulty brake light.
When the detective requested the driver to identify himself, defendant
initially told the detective falsely that he was "Lamont Smith," and did not
produce any documents with his identification. The detective then conducted a
computer search of that name, which came up negative.
The detective approached the vehicle again. By that point, the detective
recognized defendant, with whom he had previous dealings. Defendant
apologized and then told the officer he was "William" Bookman and also stated
he believed he had an outstanding arrest warrant.
As the detective again returned to his patrol car to verify the new
information, defendant opened the driver's side of the car and ran off.
Meanwhile, another Camden County police officer arrived as backup. That
officer pursued defendant on foot, repeatedly advising him to stop. The officer
chased defendant through a yard and an alleyway. Defendant then ran through
an abandoned lot, doubled back, and jumped a fence. The detective got out of
his patrol car and ordered defendant to the ground, but he ignored the command,
tussled with the detective, and then continued to flee.
A-5004-17T3
4
Shortly thereafter, the officers apprehended defendant on the ground in an
alleyway. The whole episode lasted an estimated twenty or thirty seconds.
The officers brought defendant back to the patrol car and searched him
incident to his arrest. They found a loaded semi-automatic nine-millimeter
handgun in his pants pocket. Defendant, who was breathing heavily, was
transmitted to the local hospital, where he apparently revealed his actual first
name, Steven.
Initially, the police issued motor vehicle summonses in the name of
"William" Bookman, which happens to be the name of defendant's brother.
These summonses were dismissed, as the detective realized that William
Bookman was "a lot taller" than defendant and could tell the difference between
the brothers "without a doubt."
Both the detective and the back-up officer testified at trial and explained
their apprehension of the car driver. Defendant's theory at trial was that the
State had accused the wrong person.
Defendant presented testimony from his brother William, who claimed he
had been driving defendant's car, had given the false name, and had run away
from the officers. Defendant further called to the stand his uncle, who testified
that defendant had been at his house that day to do yard work.
A-5004-17T3
5
Finally, defendant himself testified. He denied that he had been driving
the car, lied to the detective about his identity, ran away from the police, and
possessed a gun. He claimed he had been at his uncle's house to take out the
trash while his brother William had asked to borrow the car. Although defendant
admitted to being the person that the police arrested in the alleyway, he
attributed his heavy breathing upon arrest to mere nervousness.
II.
A.
We first address defendant's argument that he was deprived of a fair trial
because of the form of certain questions the prosecutor posed in cross-examining
defendant at trial about his prior criminal record and certain comments the
prosecutor made in closing argument. Because neither of these issues w ere
raised below, we apply a plain error standard of review to the contentions. State
v. Macon, 57 N.J. 325, 336 (1971); see also R. 2:10-2 (prescribing that appellate
courts generally should not provide relief on issues not raised below, unless they
are shown to be "clearly capable of producing an unjust result"). We discern no
such plain error and no deprivation of a fair trial.
As a general matter, when defense counsel fails to object to a prosecutor's
remarks during trial, courts presume that counsel did not perceive the remarks
A-5004-17T3
6
were unduly prejudicial within the atmosphere of the trial. State v. Irving, 114
N.J. 427, 444 (1989). Counsel's failure to object also deprives the trial judge of
the chance to take any curative action. Ibid. That said, appellate courts retain
the authority to set aside guilty verdicts if a defendant demonstrates on appeal
that a prosecutor's conduct was "clearly and unmistakably improper" and
substantially prejudiced the defendant's right to have the jury fairly evaluate the
merits of the case. State v. Timmendequas, 161 N.J. 515, 575 (1999). No such
demonstration has been made here.
The first incident arises out of the prosecutor's cross-examination of
defendant concerning his prior criminal record. Defendant does not dispute that
N.J.R.E. 609 allows the State to present evidence of prior convictions to impeach
the credibility of a testifying witness. Nor does defendant contest the
admissibility of his prior convictions for that impeachment purpose. In
particular, the record discloses that defendant has five prior adult convictions,
three of which involved drug-dealing activity.
Defense counsel first opened the door to the jury's consideration of his
prior convictions by raising the topic in his direct examination. Then, on cross-
examination, defendant minimized his criminal background. He further claimed
that he did not know what a gun's magazine is, that he did not recognize the
A-5004-17T3
7
nine-millimeter gun seized from his pants pocket, and was unaware that he
needed a permit to carry the weapon. He claimed he was "not into" guns.
In response to defendant's testimony claiming his naivete, the prosecutor
asked him a series of questions designed to impeach those contentions.
Defendant acknowledged that he had been previously convicted of third-degree
possession of drugs with an intent to distribute them. He also acknowledged
that he is able to walk, drive a car, and work. The prosecutor then followed up
on these queries, pointing out to defendant that "in [his] lifetime, you've chosen
to sell drugs, isn't that right?" Defendant acknowledged in response that he "sold
drugs in the past."
Notably, in its instructions to the jurors at the end of the trial, the judge
appropriately issued the model jury charge. Those instructions advised,
consistent with N.J.R.E. 609, that the sole proper evidential use of defendant's
prior convictions was for the purpose of impeaching his credibility, and that the
convictions could not be used to infer defendant has a propensity to engage in
criminal conduct.
Given the circumstances, we are unpersuaded that the prosecutor's
unobjected-to reference to defendant's "choice" to engage in past drug dealing
deprived him of a fair trial. Defendant chose to portray himself as a naïve and
A-5004-17T3
8
law-abiding person who had no familiarity with guns, and who claimed he had
been mistaken for his brother and had yet been running away from the officers.
Although it perhaps would have been preferable for the prosecutor to have
refrained from commenting on defendant's "life choices," the comments did not
demonstrably cause undue prejudice and were ameliorated by the court's
instruction to the jury. The jurors are presumed to have faithfully heeded the
judge's admonitions. State v. Martini, 187 N.J. 469, 477 (2006).
The second event at issue concerns the prosecutor's following comment
during closing argument:
We all understand that William Bookman loves his
brother, and he doesn't want any harm to come to his
brother. That's called bias.
We detect no error, much less plain error, in this argument. The prosecutor was
entitled to argue to the jury that the testimony of defendant's brother was not
worthy of belief because of the inherent natural inclination of a family member
to not want another family member to be sent to prison. The Supreme Court
recently recognized the propriety of such an inference of familial bias. State v.
Scott, 229 N.J. 469 (2017). In that case, the Court held it would be appropriate
to question a mother about her relationship with her son to demonstrate bias and
thereby impeach her anticipated trial testimony offering a benign explanation
A-5004-17T3
9
for why drugs were found in his pants pocket. Id. at 473-74; 482-83; see also
State v. Bass, 224 N.J. 285, 302 (2016).
B.
Defendant next argues that the trial court abused its discretion in denying
his attorney's request to adjourn the trial for an additional time. We disagree.
As defendant's brief acknowledges, the trial court is reposed with
substantial discretion "to control its own calendar." State v. Miller, 216 N.J 40,
65 (2013). A trial court's decision on an application for a trial adjournment is
generally reviewed "under a deferential standard." Ibid. "Absent an abuse of
discretion, [the] denial of a request for an adjournment does not constitute
reversible error." State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965). The
denial of an adjournment request "will not lead to reversal unless it appears from
the record that the defendant suffered manifest wrong or injury." State v. Hayes,
205 N.J. 522, 537 (2011). Such a manifest injury may exist where, for example,
a trial court arbitrarily denied a defendant an adjournment when he was forced
to change counsel mid-trial and was effectively left without representation. See,
e.g., State v. Kates, 216 N.J. 393 (2014).
The present circumstances do not reveal any such prejudice or manifest
injustice. The case had been listed for trial for early August 2017, following a
A-5004-17T3
10
twelfth pretrial conference at which defendant switched from private counsel to
representation by a public defender. A lengthy adjournment was granted from
early August 2017 to December 2017 to enable the public defender to prepare
for trial. The judge announced he would be on vacation for several weeks during
that time and would not be imposing on counsel's time during that interval.
On November 29, 2017, the trial judge denied defendant's motion to
suppress evidence. On that date, defendant's attorney sought another
adjournment in light of certain other charges brought by another prosecuting
agency that apparently complicated the possibility of a global plea. The judge
declined the request. The following week, on the scheduled trial date of
December 5, the judge offered defendant time to consult with his attorney to
continue plea negotiations, but defense counsel told the court that "[w]e don't
need any time," and that defendant "is not interested in a [negotiated] plea."
In light of these circumstances, we are satisfied the trial court afforded
defendant and his counsel an ample opportunity to prepare for trial. The denial
of the adjournment was not an abuse of discretion.
C.
The last issue presented by defendant's appellate counsel concerns the
consecutive sentence imposed for the "certain persons" violation on top of the
A-5004-17T3
11
custodial term imposed on count one, the conviction for unlawful possession of
a firearm. We agree with defendant that these two gun possessory offenses
should not have produced consecutive sentences. Both counts concerned the
illegal possession of the same gun at the same time and place. The elements of
the unlawful possession count under N.J.S.A. 2C:39-5(b) overlap with the
"certain persons" count under N.J.S.A. 2C:39-7(b), in that both counts involve
defendant's possession of a firearm that he was not allowed to possess. Neither
offense concerns defendant's purpose in possessing the gun, an element which
would have added another significant ingredient to the charges.
We respectfully disagree with the trial court's observation that the two
possessory counts and their objectives are "predominantly independent of each
other." Although we agree with the court that it is "abhorrent" that defendant
has reoffended after two previous convictions involving firearms offenses, the
imposition of consecutive sentences in this situation was inappropriate. See
State v. Yarbough, 100 N.J. 627 (1985) (delineating the standards for
consecutive sentences); see also State v. Cuff, 239 N.J. 321, 347-49 (2019)
(reaffirming the Yarbough factors). It was unlawful for defendant, regardless
of his intent, to possess the nine-millimeter gun on the specified date for two
reasons: (1) his lack of a required permit; and (2) his status as a convicted felon
A-5004-17T3
12
ineligible to possess a gun because of his criminal record. The conduct and its
objectives were fundamentally the same.
There is no justification in this case for the consecutive "certain persons"
term. That said, the trial court is free on remand at resentencing to re-calibrate
the eight-year sentence on the unlawful possession count, so long as the
aggregate sentence does not exceed the present aggregate term. State v. Cuff,
239 N.J. at 354; State v. Rodriguez, 97 N.J. 263, 276 (1984) (finding that
defendant's double jeopardy protections were not violated where he successfully
raised a merger issue on appeal and on remand the court imposed the same
aggregate term by increasing the sentence for one offense); State v. Kosch, 458
N.J. Super. 344, 352 (App. Div. 2019) (finding that defendant's right against
double jeopardy was not violated where, after defendant successfully appealed
three of his nine convictions, the court imposed the same aggregate term by
changing one sentence to an extended term), certif. denied, 240 N.J. 20 (2019).
D.
We have considered the arguments presented by defendant in his pro se
supplemental brief and conclude they lack sufficient merit to warrant discussion
in this written opinion. R. 2:11-3(e)(2). We simply note that there was no error
in the substantive portions of the jury instructions, which tracked the appropriate
A-5004-17T3
13
model charges and were not objected to by defendant's trial counsel. In addition,
the trial court's suppression denial was well supported, given the detective's
lawful motor vehicle stop of defendant's vehicle, and the clear presumption of
probable cause to arrest him when he fled and disobeyed police commands.
Affirmed as to defendant's convictions; remanded for resentencing. We
do not retain jurisdiction.
A-5004-17T3
14