NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2037-15T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
NAFEISHA T. BROWN,
Defendant-Appellant. ——————————————————————————————-
Argued March 2, 2017 – Decided May 31, 2017
Before Judges Lihotz and Hoffman.
On appeal from Superior Court of New Jersey, Law Division, Salem County, Indictment No. 14- 12-0663.
Jaime B. Herrera, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Ms. Herrera, of counsel and on the brief).
Derrick Diaz, Assistant Prosecutor, argued the cause for respondent (John T. Lenahan, Salem County Prosecutor, attorney; Mr. Diaz, of counsel and on the brief).
PER CURIAM
On December 3, 2014, a Salem County grand jury returned an
indictment charging defendant Nafeisha Brown with third-degree aggravated assault, N.J.S.A. 2C:12-1(b) (count one); fourth-degree
unlawful possession of a weapon, N.J.S.A. 2C:39-5(d) (count two);
fourth-degree obstructing administration of law, N.J.S.A. 2C:29-1
(count three); and third-degree resisting arrest, N.J.S.A. 2C:29-
2(a) (count four). Defendant moved to dismiss the indictment,
which the trial judge granted in part, dismissing counts one and
three.
Defendant then moved to exclude the State's evidence of Mobile
Video Recorder (MVR) footage from the patrol car of one of her
arresting officers. The trial judge denied this motion after a
pre-trial hearing; defendant later moved to sanitize the MVR
footage, which the judge also denied.
Following trial, a jury found defendant guilty of count two
and a lesser-included offense of count four, resisting arrest as
a disorderly person, N.J.S.A. 2C:29-2(a). The judge then sentenced
defendant to concurrent three-year probationary terms on both
counts.
On appeal, defendant argues (1) the trial judge erred by
admitting highly prejudicial evidence of other bad acts; (2) the
judge should have granted her motion for acquittal on count two
because she did not possess a "weapon" as defined by statute, and
(3) she received an inequitable and excessive sentence. We have
2 A-2037-15T1 reviewed the arguments presented in light of the record and
applicable law. For the reasons that follow, we affirm.
We first summarize the relevant testimony from the trial
record. On June 11, 2014, at approximately 8:00 p.m., Patrolman
George Manganaro responded to a reported dispute between a man and
a woman at a residence in Penns Grove. On cross-examination,
Patrolman Manganaro identified this woman as defendant's relative.
The officer did not arrest or charge either person because "it was
just a loud talk."
One hour later, at approximately 9:00 p.m., Patrolman
Manganaro responded to a reported fight at the same residence.
Upon approaching the scene in his patrol car, he observed defendant
chasing the man from the first call "around a white Town Car."
The officer stopped behind the Town Car and exited his vehicle,
at which point he saw defendant throw a white cylindrical object
and heard a "metal noise" when the object hit the ground. Police
recovered this cylinder, which they later identified as a pepper
spray called "Back Off Dog Repellent."
Patrolman Manganaro said he detected the odor of a chemical
spray at the scene, which he recognized as pepper spray or
oleoresin capsicum spray (OC Spray) due to his training and
experience. He noted the substance was an "aerosol," meaning,
"once it's in the air anyone that's in that surrounding area will
3 A-2037-15T1 be contaminated by it[,] and I was contaminated." Because the
substance was "all over [his] face" and hands, the officer washed
himself with special wipes designed to reduce the effects of the
spray.
Patrolman Anthony Minguez, Patrolman Manganaro's supervisor,
arrived on the scene and made the decision to take defendant into
custody. Patrolman Manganaro attempted to place defendant in
handcuffs; however, "she kept tensing her arms and was resisting."
He said defendant persisted in pulling her arms away from him
while using profane language. Because of defendant's resistance,
the officer "arm barred" her and brought her to the front of the
Town Car, where he and Patrolman Minguez were able to secure her
in handcuffs.
The officers then placed defendant in the back of a patrol
car. Defendant "continued to kick the doors and kick around in
the car making the car move," which prompted the officers to place
her in shackles. Patrolman Manganaro described defendant's
demeanor as "[v]ery combative."
At trial, the State played some of the MVR footage from the
patrol car for the jury. The tape depicted defendant's arrest
outside the patrol car, and it also contained the audio of
statements defendant made from inside the car after her arrest.
4 A-2037-15T1 Both officers also testified regarding their experience with
OC Spray. According to Patrolman Manganaro, OC Spray is composed
of ground-up peppers. The bottle police retrieved at the scene
contained oleoresin capsicum, the same ingredient as a bottle of
police-issue OC Spray, but at a lower level of concentration and
strength. Patrolman Manganaro read the label of the bottle to the
jury, which stated, "[B]ack off dog repellant, personal
protections against dog attacks. . . . Caution: irritating spray.
. . . Strongly irritating to eyes, nose and skin."
Patrolman Manganaro related getting sprayed with OC Spray
during his training and explained it affects an individual's
vision, balance, and breathing. The effects of the spray last for
approximately thirty minutes but do not cause permanent damage.
Patrolman Minguez similarly noted the spray causes blurred vision,
breathing issues, itching, and confusion. He also noted residual
exposure would cause a burning sensation and coughing, only less
severe than direct exposure.
After the trial court sentenced defendant, she filed this
appeal. She presents the following arguments for consideration:
POINT I
THE TRIAL COURT ERRED IN ADMITTING HIGHLY PREJUDICIAL EVIDENCE OF BROWN'S OTHER BAD ACTS ON THE DATE IN QUESTION. (PARTIALLY RAISED BELOW).
5 A-2037-15T1 POINT II
BROWN MUST BE ACQUITTED OF UNLAWFUL POSSESSION OF A WEAPON UNDER N.J.S.A. 2C:39-5d BECAUSE THE ALLEGED "WEAPON," A CAN OF DOG REPELLENT, FAILS TO SATISFY N.J.S.A. 2C:39-1'S REQUIREMENT THAT A "WEAPON" BE "READILY CAPABLE OF LETHAL USE OR OF INFLICTING SERIOUS BODILY INJURY."
POINT III
BROWN SHOULD RECEIVE A NEW SENTENCING HEAIRNG BECAUSE HER SENTENCE WAS INEQUITABLE GIVEN HER WILLINGNESS TO ACCEPT THE PLEA BARGAIN FOR A LESSER SENTENCE, AND BECAUSE IT WAS EXCESSIVE GIVEN THE PREPONDERANCE OF MITIGATING FACTORS
We address these points in the order presented.
I.
Defendant first argues the trial judge erred by permitting
the State to introduce the irrelevant and highly prejudicial post-
arrest MVR footage of defendant in the police patrol car. We
review the trial judge's evidentiary rulings for an abuse of
discretion. State v. Fortin, 178 N.J. 540, 591 (2004).
The MVR footage consisted of two tapes. The first depicted
defendant's arrest outside of the patrol car, and it also contained
audio of defendant's statements in the patrol car following her
arrest. These statements essentially consisted of her using
derogatory and profane language towards the arresting officer.
The second tape captured audio and video of defendant's actions
while she was in the back seat of the patrol car.
6 A-2037-15T1 During the proceedings, defendant made several arguments to
exclude the post-arrest footage and to sanitize the profane
language, claiming it was irrelevant and prejudicial to her
defense. The trial judge ultimately permitted the State to play
the first video for the jury, including the audio of defendant's
post-arrest statements in the patrol car, finding they were
"allegedly corroborative of what the [o]fficer encountered in the
street and the way that [defendant] continued to act within the
car." The judge concluded the statements would assist the jury
in their determination of whether defendant resisted arrest, and
he found the potential prejudice did not outweigh the probative
value.
On appeal, defendant argues the judge should have excluded
the evidence of her post-arrest conduct as prohibited "other
crimes" evidence under N.J.R.E. 404(b). The State responds that
the evidence was intrinsic to the charge for resisting arrest and
therefore need only be analyzed under N.J.R.E. 403, not under
N.J.R.E. 404(b). See State v. Rose, 206 N.J. 141, 177-78 (2011).
"[E]vidence that is intrinsic to the charged crime is exempt from
the strictures of Rule 404(b) even if it constitutes evidence of
uncharged misconduct that would normally fall under Rule 404(b)
because it is not 'evidence of other crimes, wrongs, or acts.'"
Id. at 177 (emphasis in original).
7 A-2037-15T1 There are two types of intrinsic evidence. "First, evidence
is intrinsic if it 'directly proves' the charged offense." Id.
at 180 (quoting United States v. Green, 617 F.3d 233, 248-49 (3d
Cir. 2010)). "Second, 'uncharged acts performed contemporaneously
with the charged crime may be termed intrinsic if they facilitate
the commission of the charged crime.' But all else must be
analyzed under Rule 404(b)." Rose, supra, 206 N.J. at 180 (quoting
Green, supra, 617 F.3d at 248-49).
Here, defendant's post-arrest statements in the patrol car
directly proved the charged offense. A defendant is guilty of
resisting arrest if she "purposely prevents or attempts to prevent
a law enforcement officer from effecting an arrest." N.J.S.A.
2C:29-2(a). The statutory definition of "purposely" states, "A
person acts purposely with respect to the nature of his conduct
or a result thereof if it is his conscious object to engage in
conduct of that nature or to cause such a result. . . ." N.J.S.A.
2C:2-2(b)(1). We find defendant's statements in the vehicle were
directly probative as to whether she was acting with purpose to
resist arrest. The trial judge correctly noted this evidence was
necessary to corroborate the officers' testimony regarding
defendant's mental state prior to her arrest.
Therefore, we conclude the footage of defendant's statements
was intrinsic. Accordingly, we need not determine whether it was
8 A-2037-15T1 admissible as extrinsic evidence under N.J.R.E. 404(b). Because
the evidence was intrinsic, the trial judge did not err by failing
to apply the four-prong test established in State v. Cofield, 127
N.J. 328, 338 (1992). See State v. Jones, 425 N.J. Super. 258,
274 (App. Div. 2012) (noting our review is plenary where the trial
court fails to conduct a required Cofield hearing (citing Rose,
supra, 206 N.J. at 157-58)).
Moreover, this evidence was relevant under N.J.R.E. 401, and
its prejudicial effect did not substantially outweigh its
probative value under N.J.R.E. 403. We further reject defendant's
contention that the outside footage of her arrest and the officers'
testimony constituted less prejudicial evidence proving the same
point. See State v. Covell, 157 N.J. 554, 569 (1999). Therefore,
we will not disturb defendant's conviction on this basis.
II.
Defendant next urges us to vacate her conviction because the
criminal statute that defines "weapon" is facially deficient; she
further argues the canister of dog repellant failed to satisfy the
statutory definition of a "weapon." We disagree.
We first address defendant's statutory interpretation
argument. "When construing a statute, our goal is to discern and
effectuate the Legislature's intent. The starting point for that
inquiry is the language of the statute itself." State v. Brannon,
9 A-2037-15T1 178 N.J. 500, 505-06 (2004). "The Court's objective is to
determine the meaning of a statute to the extent possible by
looking to the Legislature's plain language." State v. Regis, 208
N.J. 439, 447 (2011).
Defendant was charged with fourth-degree unlawful possession
of a weapon, N.J.S.A. 2C:39-5(d).1 Our Criminal Code defines
"weapon" in a different statute as
anything readily capable of lethal use or of inflicting serious bodily injury. The term includes, but is not limited to, all (1) firearms, even though not loaded or lacking a clip or other component to render them immediately operable; (2) components which can be readily assembled into a weapon; (3) gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood; and (4) stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.
[N.J.S.A. 2C:39-1(r).]
Defendant asserts this definition contains "an
irreconcilable conflict in the statutory language." Specifically,
defendant argues the language, "anything readily capable of lethal
1 We recognize the indictment charged defendant with possession of "cap-stun," which is a name-brand pepper spray, rather than the lower-strength dog repellant. 10 A-2037-15T1 use or of inflicting serious bodily injury," conflicts with the
subsequent language, "any other substance intended to produce
temporary physical discomfort." The Criminal Code defines serious
bodily injury as "bodily injury which creates a substantial risk
of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily member
or organ." N.J.S.A. 2C:11-1(b). Defendant contends the initial
requirement that an object be capable of serious bodily injury
conflicts with the lesser requirement of temporary discomfort.
However, we do not find these provisions contradictory. The
statute clearly intends "anything readily capable of lethal use
or of inflicting serious bodily injury" as blanket statement
covering all objects with such capabilities. N.J.S.A. 2C:39-1(r).
The statute then provides a non-exclusive list of items it also
considers weapons, including devices intended to produce temporary
discomfort. See State ex rel. G.C., 359 N.J. Super. 399, 405-06
(App. Div. 2003) (noting N.J.S.A. 2C:39-1(r) includes items
capable of lethal use or serious injury and "also lists particular
objects that are considered weapons"), rev'd on other grounds, 179
N.J. 475 (2004). Defendant's argument therefore lacks merit.
Defendant also cites N.J.S.A. 2C:39-6(h) and N.J.S.A. 2C:39-
6(i), which under certain circumstances exempt the possessor of a
substance that produces "temporary physical discomfort" from being
11 A-2037-15T1 charged under N.J.S.A. 2C:39-5. Defendant argues these statutes
show the legislature did not intend to include substances such as
the OC spray within the definition of "weapon."
However, we find these statutes reinforce the opposite
position. N.J.S.A. 2C:39-6(h) exempts public utility and postal
service employees, while performing their duties, from possessing
a device that temporarily immobilizes certain animals. It further
warns the substance "shall be used solely to repel only those
canine or other animal attacks" where the animals are not
restrained. Ibid. The other cited provision, N.J.S.A. 2C:39-
6(i), exempts from a weapons charge
any person who is 18 years of age or older and who has not been convicted of a crime, from possession for the purpose of personal self- defense of one pocket-sized device which contains and releases not more than three- quarters of an ounce of chemical substance not ordinarily capable of lethal use or of inflicting serious bodily injury, but rather, is intended to produce temporary physical discomfort . . . .
As such, rather than showing the Legislature intended to
exempt such sprays from the definition of "weapon," these statutes
clearly show the Legislature considered such sprays as weapons,
except when used in narrow circumstances not applicable to the
instant matter. Indeed, defendant is not a public employee, nor
was she using her spray on an animal. See N.J.S.A. 2C:39-6(i).
The record also shows she was not using the spray in self-defense, 12 A-2037-15T1 and there is no information in the record regarding the weight of
the canister. Moreover, defendant had a prior conviction in
Delaware that precluded her from exemption under N.J.S.A. 2C:39-
6(i).
Finally, defendant argues the State failed to prove she
possessed a weapon as defined by N.J.S.A. 2C:39-1(r). Defendant
previously raised this argument before the trial judge when she
moved for a judgment of acquittal under Rule 3:18-1. "We review
the record de novo in assessing whether the State presented
sufficient evidence to defeat an acquittal motion." State v.
Dekowski, 218 N.J. 596, 608 (2014). "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)).
Defendant contends the State did not meet its burden because
the canister at issue did not have the capacity to cause serious
bodily injury. See N.J.S.A. 2C:39-1(r). Indeed, the officers'
testimony at trial showed the effects of the chemical were only
temporary. However, as noted, our Legislature included within the
definition of "weapon," any "device which projects, releases, or
emits . . . any other substance intended to produce temporary
13 A-2037-15T1 physical discomfort . . . through being vaporized or otherwise
dispensed in the air." Ibid. Although the dog repellant at issue
was of lesser strength than police-issue pepper spray, the warning
labels of the dog repellant identified it as "irritating spray"
that was "[s]trongly irritating to eyes, nose and skin."
Therefore, when used by defendant, it clearly met the statutory
definition of a "weapon." We discern no basis for reversal on
this issue.
III.
Lastly, defendant urges us to remand for resentencing,
claiming she received an inequitable and excessive sentence. We
disagree.
Prior to trial, the State extended a plea offer to defendant
of one year of probation in exchange for a guilty plea to
obstructing administration of law as a disorderly person.
Defendant, a resident of Delaware, told the judge she would accept
the plea offer if she could transfer her probation to that state.
Defense counsel stated she believed it was not possible to transfer
probation on a disorderly persons' offense, so the judge gave
counsel until the following week to resolve the issue; however,
there is no record of any further discussion, and the case
proceeded to trial.
14 A-2037-15T1 At sentencing, the judge found aggravating factors N.J.S.A.
2C:44-1(a)(6) (defendant's prior criminal record and seriousness
of the offense) and (9) (need for deterrence). He found mitigating
factors N.J.S.A. 2C:44-1(b)(8) (defendant's conduct was the result
of circumstances unlikely to reoccur), (9) (defendant's character
indicates she is unlikely to commit another offense), and (10)
(defendant is likely to respond affirmatively to probationary
treatment). The judge rejected mitigating factors N.J.S.A. 2C:44-
1(b)(1) (defendant's conduct neither caused nor threatened serious
harm) and (2) (defendant did not contemplate her conduct would
cause or threaten serious harm). In rejecting these factors, the
judge noted defendant's conduct "did potentially result in serious
harm. There's Cap-Stun spray. The officers had to decontaminate
from that spray and there was the risk of other harm . . . based
upon the way that she was handling herself in the presence of
those officers." He also rejected mitigating factor N.J.S.A.
2C:44-1(b)(11) (imprisonment would entail excessive hardship to
defendant or her dependents).
Defendant now argues her three-year probationary term is
inequitable because she was willing to plead guilty in exchange
for a one-year term. She also argues the judge erred by rejecting
mitigating factors N.J.S.A. 2C:44-1(b)(1) and (2) because she
15 A-2037-15T1 possessed dog repellant rather than "Cap-Stun," and because her
conduct during her arrest did not threaten serious harm.
We review the judge's sentencing decisions for an abuse of
discretion. State v. Blackmon, 202 N.J. 283, 297 (2010). If the
sentencing judge has identified and balanced the aggravating and
mitigating factors, and sufficient credible evidence in the record
supports his or her finding, we will affirm. State v. Cassady,
198 N.J. 165, 180-81 (2009). We will modify a sentence if it
"shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364
(1984) (citing State v. Whitaker, 79 N.J. 503, 512 (1979)).
However, we must remand if the sentencing judge fails to find
mitigating factors that "clearly were supported by the record."
State v. Bieniek, 200 N.J. 601, 608 (2010).
Pursuant to these standards, defendant's arguments lack
merit. First, defendant cites no authority mandating a lesser
sentence based upon an initial willingness to accept a plea offer.
In fact, the record shows defendant wanted to accept this plea
offer if she could have her probation transferred to Delaware. We
note the judge rejected the State's request for 364 days of
incarceration. We are satisfied defendant's three-year
probationary term does not constitute an abuse of discretion, nor
does it shock our judicial conscience. Roth, supra, 95 N.J. at
364.
16 A-2037-15T1 Moreover, we find the judge appropriately rejected mitigating
factors (1) and (2). The record shows defendant's actions in
resisting arrest threatened the safety of the officers. The judge
did not abuse his discretion by rejecting these factors.
Affirmed.
17 A-2037-15T1