STATE OF NEW JERSEY VS. HANIF HOPSON (16-03-0421, HUDSON 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NOT FOR PUBLICATION WITHOUT THE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-4678-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
HANIF HOPSON,
Defendant-Appellant.
_____________________________
Argued September 19, 2017 – Decided October 3, 2017
Before Judges Fasciale and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Hudson County, Indictment No.
16-03-0421.
Michael Confusione argued the cause for
appellant (Hegge & Confusione, LLC, attorneys;
Mr. Confusione, of counsel and on the brief).
Erin M. Campbell, Assistant Prosecutor, argued
the cause for respondent (Esther Suarez,
Hudson County Prosecutor, attorney; Ms.
Campbell, on the brief).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant appeals from his conviction for second-degree
certain persons not to have weapons, N.J.S.A. 2C:39-7(b). After
dismissal of all other counts, the State properly proceeded to
trial solely on the certain persons charge. We reject defendant's
contentions that the assistant prosecutor committed prosecutorial
misconduct; the judge erroneously allowed into evidence testimony
showing defendant fled from the scene and the police had known him
from prior encounters; and the judge erred by denying his motion
for acquittal and by imposing an excessive sentence. We affirm.
The police responded to a call reporting that a group of
males, one possibly with a gun, was outside. Officer Steven Gerges
noticed defendant began to run as soon as he arrived at the scene
and exited his police vehicle. As the officer pursued defendant
on foot, he observed defendant fidgeting as if something had been
falling down his pant leg. Officer Gerges then heard a metal
object strike the ground. The officer noticed defendant kneel
down, retrieve the object, and place it by his right ankle.
Officer Angelo Soler responded to the dispatch call and watched
defendant toss what appeared to be a handgun over a gate. The
police apprehended defendant and located a loaded gun on nearby
property.
A grand jury indicted and charged defendant with second-
degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b);
second-degree possession of a weapon for an unlawful purpose,
N.J.S.A. 2C:39-4(a); fourth-degree resisting arrest, N.J.S.A.
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2C:29-2(a); third-degree receiving stolen property, N.J.S.A.
2C:20-7; and second-degree certain persons not to have weapons,
N.J.S.A. 2C:39-7(b)(1). Immediately before the trial began, the
judge granted the State's motion to dismiss the first four charges,
and a jury found defendant guilty on the remaining certain persons
charge. The judge sentenced defendant to an extended fifteen-year
prison term, pursuant to N.J.S.A. 2C:43-7(a)(3).
On appeal, defendant raises the following arguments:
POINT I
THE COURT SHOULD REVERSE AND REMAND FOR A NEW
TRIAL BECAUSE OF THE PROSECUTOR'S ELEVENTH-
HOUR DISMISSAL OF THE OTHER CHARGES TO BE
TRIED, WHICH ALLOWED THE PROSECUTOR TO
SUDDENLY INTRODUCE BEFORE THE JURY THE FACT
THAT DEFENDANT WAS A "PREDICATE FELON," THE
INTRODUCTION OF "OTHER CRIMES OR WRONGS"
EVIDENCE AGAINST DEFENDANT THAT WAS NOT AT
ISSUE BEFORE THE JURY BELOW, AND THE ALLOWANCE
OF TESTIMONY AT TRIAL TELLING THE JURY THAT
TESTIFYING POLICE OFFICERS HAD HAD "PREVIOUS
ENCOUNTERS" AND "OTHER INCIDENTS" WITH
DEFENDANT BEFORE THE INCIDENT IN QUESTION.
POINT II
THE PROSECUTOR WENT BEYOND FAIR COMMENT ON THE
EVIDENCE AND DEPRIVED DEFENDANT OF A FAIR JURY
TRIAL BY TELLING THE JURY THAT IN ORDER TO
FIND THE DEFENDANT NOT GUILTY THEY WOULD HAVE
TO FIND THAT ALL THE POLICE OFFICERS ENGAGED
IN A CONSPIRACY TO LIE.
POINT III
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S
MOTION FOR ACQUITTAL.
POINT IV
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DEFENDANT'S SENTENCE IS IMPROPER AND
EXCESSIVE.
We begin by addressing defendant's contentions raised in
Point I. Defendant argues primarily that the late dismissal of
the first four charges enabled the State to introduce evidence
showing (1) he was a predicate felon; (2) he engaged in other
"crimes and wrongs" in violation of N.J.R.E. 404(b); and (3) the
police had "previous encounters" and "other incidents" with
defendant.
At the outset, we note that it is not inherently improper for
the State to seek a dismissal of the first four counts of the
indictment and proceed solely on the remaining certain persons
charge. After all, the State could have simply indicted and tried
defendant only on the certain persons charge right from the
beginning. Had the State not dismissed the first four charges,
then defendant would have been entitled to a bifurcated trial.
See State v. Ragland, 105 N.J. 189 (1986). But here, there was
only one charge necessitating one trial. That said, we conclude
defendant's arguments in Point I are "without sufficient merit to
warrant discussion in a written opinion[.]" R. 2:11-3(e)(2). We
add the following brief remarks.
The parties stipulated that defendant had a predicate offense
conviction, and that the weapon retrieved by the police was a
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firearm. The main issue during the trial was whether defendant
purchased, owned, possessed or controlled the .40 caliber Smith
and Wesson semi-automatic handgun that the police had located near
where they apprehended him. On that point, defendant argues the
judge erred by admitting into evidence testimony showing that the
police knew him from previous encounters, and that defendant fled
after the police arrived at the scene. These assertions pertain
to evidentiary rulings.
We accord "substantial deference to a trial court's
evidentiary rulings." 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). "[T]he decision of the trial court must stand unless it
can be shown that the trial court palpably abused its discretion,
that is, that its finding was so wide of the mark that a manifest
denial of justice resulted." State v. Carter, 91 N.J. 86, 106
(1982). Here, there was no error.
Evidence of flight showed consciousness of defendant's guilt
that he purchased, owned, possessed or controlled the handgun
knowing that he was a certain person not permitted to do so.
Although an officer, who was present at the scene, testified that
she used defendant's name on the police radio because she had
recognized him from previous encounters in the neighborhood, the
witness did not elaborate about the nature of those encounters.
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Rather, defense counsel cross-examined the officer extensively as
to how she had known him.
Next, defendant argues that the prosecutor made improper
summation comments that deprived him of a fair trial. While
prosecutors are entitled to zealously argue the merits of the
State's case, State v. Smith, 212 N.J. 365, 403 (2012), cert.
denied, 568 U.S. 1217, 133 S. Ct. 1504, 185 L. Ed. 2d 558 (2013),
they occupy a special position in our system of criminal justice.
State v. Daniels, 182 N.J. 80, 96 (2004). "[A] prosecutor must
refrain from improper methods that result in a wrongful conviction,
and is obligated to use legitimate means to bring about a just
conviction." Ibid. (quoting State v. Smith, 167 N.J. 158, 177
(2001)).
In considering this argument as to the comments by the
assistant prosecutor, we examine whether defense counsel made a
timely objection, whether the assistant prosecutor withdrew the
remarks, or whether the judge acted promptly and provided
appropriate instructions. Smith, supra, 212 N.J. at 403. A
prosecutor may vigorously rebut specific arguments made by defense
counsel. State v. R.B., 183 N.J. 308, 329-32 (2005).
"Our task is to consider the fair import of the State's
summation in its entirety." State v. Jackson, 211 N.J. 394, 409
(2012) (citation and internal quotation marks omitted). "Whether
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particular prosecutorial efforts can be tolerated as vigorous
advocacy or must be condemned as misconduct is often a difficult
determination to make. In every instance, the performance must
be evaluated in the context of the entire trial. . . ." State v.
Negron, 355 N.J. Super. 556, 576 (App. Div. 2002). Even if the
prosecutor exceeds the bounds of proper conduct, "[a] finding of
prosecutorial misconduct does not end a reviewing court's inquiry
because, in order to justify reversal, the misconduct must have
been 'so egregious that it deprived the defendant of a fair
trial.'" Smith, supra, 167 N.J. at 181 (quoting State v. Frost,
158 N.J. 76, 83 (1999)). Such is not the case here.
The assistant prosecutor's remarks pertained to defense
counsel's comments during his summation that Officer Soler lied
about the location from where the police located the gun. The
assistant prosecutor stated:
For you to believe that the defendant did not
possess the handgun on that night, you'd not
only have to find that all three of these
officers were unsure about what they saw and
heard and said that night[,] but you'd have
to find a number of other things. You'd have
to find either that the officers . . . had
this gun lying around and decided they were
going to plant it on somebody that night,
those three officers[,] who have less than a
year on the job, you'd have to find that by
sheer coincidence they happen to find a gun
in the backyard right next to where the
defendant was apprehended.
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For you to believe that the defendant did not
possess the handgun on that night, you'd not
only have to find that all three of these
officers were unsure about what they saw and
heard that night and said that night, . . .
. . . .
but you'd have to find that they were able to
come up with this elaborate scheme and somehow
be able to do it without any of it making its
way onto these recordings.
Defense counsel objected to the comments, and after a colloquy
with counsel, the judge gave a strong curative instruction, which
the judge reiterated in the final jury instructions. The judge
stated:
During [the] summations . . . you heard
the [assistant prosecutor] say that you would
have to believe that there was a conspiracy
in order to find the defendant did not possess
the firearm. No. You don't have to find any
conspiracies to find he possessed the firearm
or not. I am going to instruct you on the
law. Okay.
You're going to make certain findings of
fact based on the evidence that you heard in
this courtroom. Conspiracy . . . plays no
role in your function. . . [t]here's no charge
of conspiracy. There's nothing you have to
find because this side of the table . . . they
don't have to prove anything during the course
of the trial. They don't have to prove
anything during the course of this trial. The
burden of proof remains on the State on this
side of the table and that never shifts. So
in terms of what you heard about conspiracy,
I'm going to ask you to just disregard
anything you heard. . . . [Y]ou're only to
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make findings as I am going to instruct you
now to the facts as you find them to be.
We presume the jury understood and followed those instructions.
Smith, supra, 212 N.J. at 409.
We reject defendant's contention that the judge erred by
denying his acquittal motion. We review the judge's denial of
defendant's motion for judgment of acquittal de novo, State v.
Dekowski, 218 N.J. 596, 608 (2014), and conduct an independent
assessment of the evidence, applying the same standard as the
trial court. State v. Williams, 218 N.J. 576, 593-94 (2014). Rule
3:18-1 governs a motion for judgment of acquittal, stating in
pertinent part that
[a]t the close of the State's case or after
the evidence of all parties has been closed,
the court shall, on defendant's motion or its
own initiative, order the entry of a judgment
of acquittal of one or more offenses charged
in the indictment or accusation if the
evidence is insufficient to warrant a
conviction.
Here, there was ample evidence in the record to convict defendant.
Defendant stipulated to the operability of the handgun and that
he had a predicate offense conviction. Defendant fled the scene;
one officer knew him; defendant was fidgeting during the foot
chase; one officer saw defendant holding something as it fell down
defendant's pants, and heard a metal object fall to the ground and
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watched defendant pick it up; and the police recovered the gun in
the area where defendant discarded it.
We reject defendant's contention that the judge imposed an
improper and excessive sentence. We conclude defendant's
sentencing argument lacks sufficient merit to warrant extended
discussion in a written opinion. R. 2:11-3(e)(2). We add these
brief remarks.
The decision to sentence a defendant within the extended term
range "remains in the sound judgment of the [sentencing] court"
subject to review under "an abuse of discretion standard." State
v. Pierce, 188 N.J. 155, 169 (2006). Defendant qualified as a
persistent offender pursuant to N.J.S.A. 2C:44-3(a), and faced
prison time between five and twenty years. This is defendant's
ninth indictable conviction.
In imposing the sentence, the judge remarked that defendant
carried a loaded gun through a residential neighborhood shortly
after serving prison time for the same offense. The judge's
findings of aggravating factors three, six, and nine outweighing
the non-existing mitigating factors are supported by adequate
evidence in the record. The sentence is neither inconsistent with
sentencing provisions of the Code of Criminal Justice nor shocking
to the judicial conscience. See State v. Bieniek, 200 N.J. 601,
608 (2010).
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Finally, defendant filed a pro se supplemental letter brief.
We conclude that defendant's arguments contained in that brief are
"without sufficient merit to warrant discussion in a written
opinion[.]" R. 2:11-3(e)(2).
Affirmed.
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