NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5410-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM SPORMAN,
Defendant-Appellant. _________________________
Submitted March 2, 2020 – Decided April 29, 2020
Before Judges Geiger and Natali.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Municipal Appeal No. 19- 0025.
Roberts & Teeter, LLC, attorneys for appellant (Michael B. Roberts, on the briefs).
Michael H. Robertson, Somerset County Prosecutor, attorney for respondent (Lauren R. Casale, of counsel and on the brief).
PER CURIAM Defendant was convicted by a municipal court and, after a de novo appeal,
by the Law Division, for shoplifting in violation of N.J.S.A. 2C:20-11(b)(1),
possession of fifty grams or less of marijuana in violation of N.J.S.A. 2C:35 -
10(a)(4), and for possession of a controlled dangerous substance (CDS),
marijuana, in a motor vehicle while "operat[ing] . . . on any highway" in
violation of N.J.S.A. 39:4-49.1. The municipal court sentenced defendant to
fifteen days in county jail, imposed fines, penalties, and assessments, ordered
two years loss of license on the motor vehicle summons and a consecutive six-
month loss of license on the 2C:35-10(a)(4) violation. After considering the
parties' arguments against the applicable law and standards of review, we affirm
defendant's convictions, but we remand to the Law Division for the court to
sentence defendant.
I.
At the municipal court trial, the State presented the testimony of Jordan
Reagan, a loss prevention supervisor at Kohl's in Hillsborough, and Richard
Joseph Yock, a police officer with the Hillsborough Township Police
Department. Reagan testified that on August 9, 2018, he was monitoring the
store security cameras and observed defendant "select a Nike pair of sunglasses
and pull the tab off of them . . . throw [the tag] down in [the] Men's Basics
A-5410-18T1 2 [Department] [and] conceal[] the sunglasses in his pocket." He further observed
defendant "conceal[] a pair of socks in his pants, exit[] the store and . . . g[e]t
into his vehicle." Reagan then contacted the local police department, gave them
defendant's license plate number, and "one of the officers that responded stopped
[defendant] as he was . . . exiting the parking lot."
Reagan provided the responding officers with a printed a receipt for the
sunglasses and socks showing a total value of $97.99, as well as a copy of the
security camera video footage. At trial, he also identified defendant as the
person he witnessed on the security cameras.
Officer Yock also testified with respect to the events that day. He noted
that he was dispatched to Kohl's with another officer based on a report of a
shoplifter who entered a vehicle with a specified license plate. After speaking
with Reagan, both officers approached defendant who was "next to a Mercedes
Benz," in the Kohl's parking lot. According to Yock, defendant's vehicle door
was open, he "was wearing said sunglasses[,] and he was [having] difficulty
starting his car." While Yock was looking in the vehicle for the socks that
defendant allegedly stole, he "saw a small broken glass vial in plain view in the
center console with greenish vegetative matter in it" consistent with marijuana.
A-5410-18T1 3 The officers also discovered approximately forty vaping devices in the trunk of
defendant's car.
Yock further testified that prior to being arrested, defendant voluntarily
told him that he removed "the sunglasses from the store without paying for them
and that he made a mistake." At a subsequent interview, and after his arrest,
defendant was read his Miranda1 rights, which according to Yock "he voluntarily
waived." Defendant then told Yock that he went to Kohl's to exchange a pair of
sneakers that he purchased earlier that day when he "saw the Nike sunglasses . .
. placed them on his head . . . put a pair of socks in his pocket . . . [and] left
without paying for either of them."2
According to Yock, defendant then advised police that "the marijuana that
was in his vehicle was given to him by a male that came to his house [earlier
that day]." Yock also identified defendant at trial as the person he approached
in the parking lot, and further identified a lab report, subsequently introduced
1 See Miranda v. Arizona, 384 U.S. 436 (1966). 2 Defendant did not challenge the admissibility of any of his statements in the municipal court, Law Division, or before us. We accordingly consider any objection to our consideration of defendant's statements by the municipal or Law Division judges waived. Sklodowsky v. Lushis, 417 N.J. Super. 648, 657 (App. Div. 2011) (holding that "[a]n issue not briefed on appeal is deemed waived"). A-5410-18T1 4 into evidence, confirming that the green matter he discovered in plain view in
the center console consisted of 1.11 grams of marijuana.
On cross-examination, Yock stated that the vial containing what was later
confirmed to be marijuana was "[a]bsolutely" in the car when he approached the
vehicle. On redirect, he also testified that but for a failure of the interlock device
in the vehicle, defendant "[a]bsolutely" would have left the scene.
On the second day of trial, defendant unsuccessfully moved to dismiss the
drug-related charges arguing that police "had been called because of the
shoplifting offense but there was certainly no reason to look into the vehicle to
do anything pertaining to the vehicle," Yock "should have limited his
observation to the merchandise[,] and [Yock] had no reason to go look further
in the car." The court denied defendant's motion noting that Yock "testified that
the vial was in plain view" and emphasized that defendant "had the sunglasses
on his head."
Defendant also unsuccessfully attempted to call Wendy Sporman,
defendant's mother, as a witness. The State objected and the court requested a
proffer of her relevant testimony. Defendant stated that Ms. Sporman would
testify that she was "the owner of the vehicle" and with respect to "complaints
she has made against the Hillsborough Police Department." The defense further
A-5410-18T1 5 stated that Ms. Sporman would testify that "it is her belief that . . . the
Hillsborough Police Department is targeting [defendant]." Significantly,
defendant did not provide any detail on the record regarding the alleged
complaints that either she or defendant had with the Hillsborough Police
Department or whether they involved any of the officers involved in defendant's
arrest. Nor did counsel claim, as he did in the Law Division and before us, that
Ms. Sporman would testify that the marijuana was hers, and not her son's.
Further, at no point did defendant request to supplement the record with an
affidavit or certification of Ms. Sporman attesting to any of these alleged facts.
In sustaining the State's objection to calling Ms. Sporman as a witness,
the court noted that it watched the security camera footage entered into evidence
and "it was clear what [defendant] did . . . [and the court was] not sure what
relevance she has to the shoplifting event and . . . the fact that [defendant]
possessed contraband in the center console, which was in plain view." The court
further noted that the State was not made aware in a timely fashion that the
defense would call Ms. Sporman as a witness and emphasized that had it known,
the State would have sequestered her as she was in the court throughout the trial.
Defendant again unsuccessfully moved to dismiss the summons for
possessing CDS in a motor vehicle stating that there was "no testimony that the
A-5410-18T1 6 vehicle was on [a] highway . . . [a]nd it was parked in the parking lot." In
denying defendant's motion, the court noted that it has "testimony from an
officer that says [defendant] was in his vehicle attempting to leave after
committing the offense of shoplifting, allegedly, in his vehicle with contraband
in the center console" and he was "attempting to start his vehicle, which was not
being operated only because the interlock device malfunctioned, according to
the testimony." The court further stated that "[t]here was an attempted operation
at the very least, given the testimony . . . [t]here was contraband in the vehicle
and I think if you look at the statute, you have all the elements that you need for
a conviction based on having drugs in the motor vehicle." The court also agreed
with the State's argument that according to the statute, "a parking lot for a store
that is used by the public in a normal course is also considered a public road or
highway for the purposes of our statutes."
In its March 18, 2019 oral decision, the court determined that based on
"post-[Miranda] admissions . . . the testimony of the officer and Jordan Reagan,
as well as the video, which [it] was permitted to watch," the State proved the
shoplifting count beyond a reasonable doubt. The court also found defendant
guilty of the possession charges and imposed a custodial sentence along with
fines and penalties.
A-5410-18T1 7 Defendant appealed to the Law Division and in a July 29, 2019 written
opinion and order, the Law Division judge denied defendant's appeal of his
convictions but remanded the matter to the municipal court for resentencing.
With respect to the municipal court's finding that the circumstances were
sufficient to prove defendant unlawfully possessed marijuana within the
meaning of N.J.S.A. 2C:35-10(a)(4), the Law Division judge noted that Yock
testified that defendant provided police with a post-Miranda statement admitting
the marijuana was in his vehicle and was given to him by a male that came to
his house that same day, the State Laboratory analyzed the recovered substance
and submitted a report indicating that the substance in defendant's possession
was marijuana, and Yock identified the report and testified that the results
revealed defendant was in possession of marijuana weighing 1.11 grams. 3
The Law Division judge also concluded there was sufficient evidence to
establish defendant possessed CDS while operating a motor vehicle on a
highway. Specifically, the court noted that it could draw a reasonable inference
3 Although defendant challenged the introduction of the State Laboratory report in the municipal court and Law Division, as with his statements to the police, see n. 2, supra, he has not challenged the admissibility of that report before us and we consider any objection is similarly waived. Sklodowsky, 417 N.J. Super. at 657.
A-5410-18T1 8 that a parking lot is a public highway under N.J.S.A. 27:1B-34 as that statute
provides that "public highways" include "rest areas" and "park-ride facilities."
The court found those phrases to be "similar in nature to that of a parking lot"
because they are "area[s] where pedestrians and motorists frequent" and have
"lower speed limits due to the potential danger to pedestrians and motorists in
these areas."
The court also relied on a Google Maps printout, submitted by the State
without objection, showing that defendant's residence was at least three and a
half miles away from the Kohl's parking lot, as well as defendant's statements to
the police and testimony that he was attempting to start the car, to "reasonably
conclude that [d]efendant transported the marijuana to the location where he was
arrested." The Law Division judge concluded that defendant also had
"constructive possession" of the CDS when it was discovered in plain view in
the center console of the vehicle he was attempting to start.
Regarding the court's preclusion of Ms. Sporman as a witness, the Law
Division judge agreed with the State that the municipal court properly denied
the defense from calling her as a witness. Relying on State v. Spivey, 179 N.J.
4 The Law Division mistakenly cited N.J.S.A. 27:113-3. The court likely meant to cite N.J.S.A. 27:1B-3, which defendant cites again on appeal for the definition of "public highway." A-5410-18T1 9 229, the court stated, "[a]s was proffered by [d]efendant, Ms. Sporman would
have testified that Officer Yock and the Hillsborough Police Department were
harassing her and [d]efendant and that she had an open [internal affairs]
complaint against Officer Yock . . . [which] is not relevant or germane to the
present matter."
The Law Division judge further determined Ms. Sporman not to be
credible because she was "[d]efendant's mother and . . . she would be interested
in the outcome of her son's trial and, considering what was proffered, she would
tailor her testimony to benefit her son." Further, the court noted that Ms.
Sporman's "[i]nternal [a]ffairs complaint against Officer Yock in 2013 . . . infers
that she would testify unfavorably against him," and in light of the evidence
against defendant including the surveillance video, testimony, and his post -
Miranda statement, "even if [her testimony was] admitted during the trial, [it]
would not have been credible or relevant." After thoroughly considering all of
the evidence, the Law Division concluded the testimony of defendant's mother
would not have "materially altered the outcome of the case."
Finally, the Law Division judge remanded the matter for resentencing.
The court acknowledged that both the State and defendant agreed that the
municipal court did not conduct a proper sentencing analysis noting that it
A-5410-18T1 10 neither considered aggravating and mitigating factors nor did it state its reasons
on the record before sentencing defendant to a fifteen-day custodial term. The
Law Division judge also noted that the municipal court should have merged the
fines, penalties, and license suspension for unlawful possession of marijuana
with those resulting from defendant's operation of a motor vehicle on a highway
while possessing CDS.
On appeal, defendant limits his challenge to the Law Division's July 29,
2019 order to the following arguments:
POINT I
THE STATE DID NOT PROVE DEFENDANT OPERATED A MOTOR VEHICLE ON A HIGHWAY WHILE IN POSSESSION OF A CONTROLLED DANGEROUS SUBSTANCE AND THE COURT BELOW SHOULD HAVE GRANTED DEFENDANT'S MOTION FOR A DIRECTED VERDICT.
A. THE STATE DID NOT PROVE OPERATION.
B. THE STATE DID NOT PROVE OPERATION ON A HIGHWAY.
POINT II
A RETRIAL IS REQUIRED WHEN THE COURT IMPROPERLY DENIED THE DEFENDANT'S ONLY WITNESS FROM TESTIFYING.
A-5410-18T1 11 II.
An appeal of a municipal court conviction must first be addressed by the
Law Division de novo. R. 3:23-8. The role of the Law Division is to make
independent findings of facts and conclusions of law based on the record
developed in the municipal court. State v. Avena, 281 N.J. Super. 327, 333
(App. Div. 1995) (citing State v. Johnson, 42 N.J. 146, 157 (1964)). The Law
Division is required to decide the case completely anew on the record made
before the municipal judge, "giving due, although not necessarily controlling,
regard to the opportunity of the" judge to evaluate witness credibility. Johnson,
42 N.J. at 157; see also State v. Cerefice, 335 N.J. Super. 374, 382-83 (App.
Div. 2000). The Law Division judge performs "an independent fact-finding
function in respect of defendant's guilt or innocence" and must "make his [or
her] own findings of fact." State v. Ross, 189 N.J. Super. 67, 75 (App. Div.
1983).
We review the Law Division's decision employing the "substantial
evidence rule." State v. Heine, 424 N.J. Super. 48, 58 (App. Div. 2012). "Our
review is limited to determining whether there is sufficient credible evidence
present in the record to support the findings of the Law Division judge, not the
municipal court." State v. Clarksburg Inn, 375 N.J. Super. 624, 639 (App. Div.
A-5410-18T1 12 2005) (citing Johnson, 42 N.J. at 161-62). We owe no deference to the trial
judge's legal conclusions. Manalapan Realty, L.P. v. Manalapan Twp. Comm.,
140 N.J. 366, 378 (1995) (citing State v. Brown, 118 N.J. 595, 604 (1990)).
III.
In his first point, defendant argues that the evidence was insufficient to
sustain the N.J.S.A. 39:4-49.1 charge because the State did not establish beyond
a reasonable doubt that defendant operated his motor vehicle "on a highway"
while possessing a CDS. Specifically, defendant argues that there is no basis on
the record below to find that he so operated his vehicle as "[t]here was no
testimony or evidence that [defendant] drove himself to the shopping mall . . .
no testimony how and when the vehicle arrived at the shopping mall . . . [and]
simply no evidence of operation; direct, circumstantial, or otherwise." He
further maintains that "[t]he municipal court erroneously held that 'attempted
operation' was sufficient . . . while the Law Division based its decision on
evidence that was not in the record." We disagree with defendant that the
evidence before the Law Division was insufficient to sustain defendant's
convictions, albeit for slightly different reasons than those stated by the Law
Division in its decision. See State v. Scott, 229 N.J. 469, 479 (2017) ("It is a
long-standing principle underlying appellate review that 'appeals are taken from
A-5410-18T1 13 orders and judgments and not from opinions . . . or reasons given for the ultimate
conclusion.'" (quoting Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199
(2001))).
N.J.S.A. 39:4-49.1 provides that "[a] person shall not operate a motor
vehicle on any highway while knowingly having in the person's possession or in
the motor vehicle any [CDS] as classified in Schedules I, II, III, IV and V of the
'New Jersey Controlled Dangerous Substances Act.'" In order to establish guilt
under the statute, the State must prove beyond a reasonable doubt that defendant:
1) operated a motor vehicle; 2) on a highway; 3) while in knowing possession
of CDS located on the operator or in the vehicle. See 17A N.J. Practice,
Municipal Court Practice §36:292 (Robert Ramsey) (rev. 3d ed. 2019); State v.
Judge, 275 N.J. Super. 194, 201 (App. Div. 1994) ("[I]t is a serious traffic
offense for a driver to 'operate a motor vehicle on any highway while knowingly
having in his possession or in the motor vehicle[]any controlled dangerous
substance . . .'" and "[m]arijuana is classified as a . . . [CDS]." (citations
omitted)).
Here, there was substantial, credible evidence in the record to establish all
elements of the offense, including operation of a vehicle on a highway. For
reasons unclear in the record, both defendant and the Law Division relied on the
A-5410-18T1 14 definition of "public highway" under the New Jersey Transportation Trust Fund
Authority Act contained in N.J.S.A. 27:1B-3.5 Relying on that erroneous
definition, the Law Division reasoned that a "parking lot" is a public highway
because "rest areas" and "park-ride facilities" are substantially similar in nature
to parking lots.
N.J.S.A. 39:4-49.1, however, explicitly states that a person shall not
operate a motor vehicle "on any highway" and does not refer to "public
highway." N.J.S.A. 39:1-1 specifically defines "highway" as "the entire width
between the boundary lines of every way publicly maintained when any part
thereof is open to the use of the public for purposes of vehicular travel."
5 N.J.S.A. 27:1B-3 defines "public highways" as:
public roads, streets, expressways, freeways, parkways, motorways and boulevards, including bridges, tunnels, overpasses, underpasses, interchanges, rest areas, express bus roadways, bus pullouts and turnarounds, park-ride facilities, traffic circles, grade separations, traffic control devices, the elimination or improvement of crossings of railroads and highways, whether at grade or not at grade, bicycle and pedestrian pathways and pedestrian and bicycle bridges traversing public highways and any facilities, equipment, property, rights of way, easements and interests therein needed for the construction, improvement, and maintenance of highways.
A-5410-18T1 15 As noted, we conclude the reasonable inferences from the evidence before
the Law Division supports the court's conclusion that defendant was operating a
vehicle on a highway, with CDS in the vehicle. The statute does not state that
defendant must be on a highway when stopped, but only that he operated a
vehicle on a highway with drugs inside the vehicle. In that regard, there was
sufficient direct and circumstantial evidence to support the court's determination
that defendant's conduct satisfied that criteria.
First, defendant admitted to Officer Yock that he visited Kohl's earlier in
the day and bought a pair of sneakers that he then came back to return. He also
admitted that he received the CDS from someone at his residence prior to the
shoplifting incident. It is reasonable to conclude that defendant would have had
to drive on a highway (public or otherwise), to arrive at Kohl's where police
made the plain-view observation of the CDS in his vehicle. Indeed, there simply
was no way for defendant to have arrived at the Kohl's parking lot without
having traversed on a public road or way. See State v. Emery, 27 N.J. 348, 356
(1958) (holding that a trial court may rely on direct and circumstantial evidence
to determine whether the elements of the offense are met); see also State v.
George, 257 N.J. Super. 493, 497 (App. Div. 1992) (proving operation of a car
may be done by direct or circumstantial evidence so long as it is competent an d
A-5410-18T1 16 meets the standards of proof). Defendant's argument that the evidence just as
likely indicates that some other individual drove him to the shopping mall or
parked the vehicle for him to retrieve at a later time is nothing more than
supposition unsupported by any record evidence or reasonable inference
sufficient to challenge the State's direct proofs and reasonable inferences.
As to the Law Division's use of Google Maps showing the distance
between defendant's residence and the parking lot, defendant notably did not
object to the State's use of such evidence when it was introduced. While we
acknowledge that typically the record before the Law Division is restricted to
that considered by the municipal court, Avena, 281 N.J. Super. at 333 (citing
Johnson, 42 N.J. 157), "[i]f a defendant, as here, does not object or otherwise
preserve an issue for appeal at the trial court level, we review the issue for plain
error . . . [and] must disregard any unchallenged errors or omissions unless they
are 'clearly capable of producing an unjust result.'" State v. Santamaria, 236
N.J. 390, 404 (2019) (quoting R. 2:10-2). Under the circumstances here, we
find no plain error with the Law Division's consideration of the Google Maps
document.
Even were we to conclude that the Law Division erroneously considered
the Google Maps exhibit, in light of defendant's admission that he received the
A-5410-18T1 17 CDS at his home and that he traveled to and from Kohl's that day, as well as the
fact that it is clear that he does not reside in either the Kohl's store or its parking
lot, we are satisfied that the other proofs and inferences are sufficient to sustain
the convictions. Any argument by defendant that someone other than him that
no one saw, spoke about, or mentioned, drove the vehicle to Kohl's and gave
him the keys to the vehicle he was seen attempting to start, are nothing more
than fanciful arguments that are insufficient to challenge that the State's proofs
and reasonable inferences that established defendant's guilt beyond a reasonable
doubt.
IV.
Finally, we disagree that a new trial is warranted because the municipal
court precluded defendant from calling his mother from testifying, again for
slightly different reasons than the Law Division. See Scott, 229 N.J. at 479.6
6 Specifically, we part company with the Law Division to the extent it based its decision, in whole or in part, on adverse credibility findings of Ms. Sporman as she did not testify in either the municipal or the Law Division proceedings. As noted, on de novo appeals, the Law Division judge must make independent findings of fact and conclusions of law but defers to the municipal court's credibility findings. State v. Robertson, 228 N.J. 138, 147, (2017). A court should refrain, however, from making credibility determinations without the opportunity to see the witness or hear testimony. See State v. Porter, 216 N.J. 343 (2013) (finding that the proper way to determine a witness's credibility was to assess the testimony on direct and cross-examination and that "[t]here is no
A-5410-18T1 18 Defendant maintains that his mother "was the registered owner of the vehicle
and had filed complaints against the Hillsborough Police Department and the
arresting and investigating officer in this case," "[s]ome of those incidents
involved the [d]efendant," and that "[b]oth lines of inquiry are relevant and
admissible to challenge the State's charges." Defendant also claims that he
should have been afforded the opportunity to present his mother as a witness "to
testify that the marijuana recovered was in fact hers and not [his] . . . [e]ven if
such a fact is contradicted by [Officer Yock's] testimony . . . [because]
[d]efendant still has the right to offer evidence of third party guilt."7
Moreover, defendant argues that Ms. Sporman "should have been
permitted to testify in the form of an opinion regarding the credibility of the
State's witness, the bias of the State's witness, [and] motive by the State's witness
to lie, as well as offering positive character evidence in support of . . .
substitute for placing a witness on the stand and having the testimony scrutinized by an impartial factfinder"). Thus, it was improper for the Law Division to base its decision on adverse credibility determinations of Ms. Sporman as she did not testify before either the municipal court or the Law Division. 7 We note that in the municipal court, defendant never proffered that his mother would testify that the drugs belonged to her. In addition, as to the complaints she had with the Hillsborough Police Department, defendant's counsel only vaguely claimed that Ms. Sporman made complaints against them in the past and that she believed they were targeting defendant. A-5410-18T1 19 [d]efendant." Defendant contends that the credibility of Officer Yock was an
issue of "paramount importance" because there were no other witnesses and his
plain view observations at the scene were admitted unchecked. He concludes
that without Ms. Sporman's testimony, defendant could not rebut Yock's version
of events because such testimony would be "self-serving and likely rejected by
the fact-finder."
The Supreme Court has held that a defendant must be afforded "a
meaningful opportunity to present a complete defense." Crane v. Kentucky, 476
U.S. 683, 690 (1986). Calling or compelling witnesses to testify in his defense
is a fundamental right of the accused protected by the due process clause of the
Fourteenth Amendment. Chambers v. Mississippi, 410 U.S. 284, 302 (1973);
Webb v. Texas, 409 U.S. 95, 98 (1972); see also State v. Feaster, 184 N.J. 235,
250 (2005) ("An accused in a criminal case has a constitutional right to present
witnesses in his defense, pursuant to the due process and the compulsory process
provisions of the federal and state constitutions.").
A defendant is not required "to provide evidence that substantially proves
the guilt of another, but to provide evidence that creates the possibility of
reasonable doubt." State v. Perry, 225 N.J. 222, 238 (2016) (quoting State v.
Cotto, 182 N.J. 316, 332 (2005)). "Indeed, even if there is no evidence linking
A-5410-18T1 20 another specific suspect to the crime, we 'have recognized that evidence that
tends to create reasonable doubt that someone else, generically, rather than
defendant, committed the offense, is admissible.'" Id. at 238-39 (quoting State
v. Loftin, 146 N.J. 295, 345 (1996) (citation omitted)).
Considering first defendant's unsupported argument that the marijuana in
the vehicle belonged to his mother, we note that N.J.S.A. 39:4-49.1 provides
that a person "shall not operate a motor vehicle on any highway while knowingly
having in the person's possession or in the motor vehicle any [CDS]." (Emphasis
added). The record before the Law Division fully supported its finding that
defendant had constructive possession of the marijuana while operating the
vehicle.
Constructive possession arises out of an individual's conduct with regard
to the subject item and is "a function of the relationship and conduct of the
parties." State v. Schmidt, 110 N.J. 258, 268, 272 (1998). Immediate control
and dominion over an object are not required; it must be shown a defendant had
the capacity, by direct or indirect means, to gain almost immediate physical
control, and the ability to affect the item during the time in question. Id. at 270-
71; see also State v. Brown, 80 N.J. 587, 597 (1979) (finding constructive
possession does not require "[p]hysical or manual control of the proscribed item
A-5410-18T1 21 . . . as long as there is an intention to exercise control over it manifested in
circumstances where it is reasonable to infer that the capacity to do so exists ").
Constructive possession, however, "cannot be based on mere presence at
the place where contraband is located. There must be other circumstances or
statements of defendant permitting the inference of defendant's control of the
contraband." State v. Whyte, 265 N.J. Super. 518, 523 (App. Div. 1992). "A
determination of constructive possession is fact sensitive and requires careful
scrutiny by a court . . . ." State v. Hurdle, 311 N.J. Super. 89, 96 (App. Div.
1998). A court must consider "the totality of the circumstances, including
defendant's presence at the location of the [contraband], as well as other factors
before . . . an inference of constructive possession [may] be drawn." Ibid.
Here, Yock testified that the CDS was in plain view in the center console
of the vehicle defendant was attempting to start when they approached him. As
noted above, defendant's mere presence in that vehicle containing CDS does not
necessarily rise to the level of constructive possession. When his presence in
that vehicle is coupled with defendant's statement to Yock that "the marijuana
that was in his vehicle was given to him by a male that came to his house,"
however, the Law Division judge's conclusion that defendant had constructive
possession of the CDS was fully supported by the record, and Ms. Sporman's
A-5410-18T1 22 unsupported claims that the marijuana belonged to her would not affect the
court's finding that defendant violated N.J.S.A. 39:4-49.1.
Next, defendant maintains that pursuant to N.J.R.E. 404(a)(1), he had the
right to offer character evidence regarding any of his pertinent character traits,
and under N.J.R.E. 608, he was permitted to present opinion testimony regarding
a witness's reputation for lack of truthfulness in the community, and the
preclusion of his mother's testimony constituted reversible error. We disagree
and instead concur with the Law Division that Ms. Sporman's proposed
testimony was neither "relevant [n]or germane."
"Traditional rules of appellate review require substantial deference to a
trial court's evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). We
uphold the trial court's rulings "absent a showing of an abuse of discretion, i.e.,
there has been a clear error of judgment." Perry, 225 N.J. at 233 (quoting State
v. Brown, 170 N.J. 138, 147 (2001)). If an abuse of discretion is found, "we
must then determine whether any error found is harmless or requires reversal."
State v. Prall, 231 N.J. 567, 581 (2018). Like the plain error standard, harmful
error will not lead to reversal unless it is "clearly capable of producing an unjust
result." R. 2:10-2. An error will be found "harmless" unless there is a
reasonable doubt that the error contributed to the verdict. State v. Macon, 57
A-5410-18T1 23 N.J. 325, 338 (1971). This is true even if the error is of constitutional dimension.
Ibid.; State v. Slobodian, 57 N.J. 18, 23 (1970).
Under Rule 404(a)(1), "pertinent" character traits of a defendant are
admissible if offered by the accused or by the prosecution to rebut the accused 's
assertion of his or her pertinent good character traits. See N.J.R.E. 404(a)(1);
State v. Abril, 444 N.J. Super. 553, 560 (App. Div. 2016). Pertinent evidence
"must relate to a character trait directly involved and apply to a relevant time
and place in the defendant's life." Biunno, Weissbard & Zegas, Current N.J.
Rules of Evidence, cmt. 3 on N.J.R.E. 404 (2019) (citing State v. Reyes, 50 N.J.
454, 468 (1967); State v. Raymond, 46 N.J. Super. 463, 467 (App. Div. 1957);
State v. Steensen, 35 N.J. Super. 103, 106-07 (App. Div. 1955)).
As our Supreme Court explained in Scott, N.J.R.E. 608 "preclude[s] the
use of specific instances of conduct to attack the credibility of a witness" and
"explicitly excludes specific instances of conduct as a means of proving a
character for untruthfulness, permitting only opinion or reputational evidence."
229 N.J. at 481, 483. Rule 608 imposes a complete ban on the use of specific
instances of conduct and "bars not only the use of extrinsic evidence but also
cross-examination into specific instances of misconduct. Id. at 488 (Rabner,
C.J., concurring).
A-5410-18T1 24 Our evidence rules "bar 'the use of prior instances of conduct to attack the
credibility of a witness for two essential reasons: to prevent unfairness to the
witness and to avoid confusion of the issues before the jury.'" Scott, 229 N.J. at
498 (quoting State v. Guenther, 181 N.J. 129, 141 (2004)) (Albin, J.,
concurring). Furthermore, N.J.R.E. 608 "was designed to prevent unfair
foraging into the witness's past" and to prevent "wide-ranging collateral attacks
on the general credibility of a witness [that] would cause confusion o f the true
issues in the case." Guenther, 181 N.J. at 141-42.
It appears from the Law Division's description of Ms. Sporman's letter to
the Hillsborough Police Department that her testimony was intended to address
specific instances of how Officer Yock treated her and her family in the past and
that she filed an internal affairs complaint against Officer Yock in 2013.8
8 The Law Division's opinion describes the letter as follows:
According to defendant, "On March 17, Wendy Sporman authored a three-page letter to Hillsborough Police Sergeant Carney detailing her internal affairs investigation into Officer [] Yock and her personal feelings about how the Hillsborough [P]olice [D]epartment has treated her and her family, including [] filing [] false allegations against her and her son." Defendant further explains that "this letter was provided to counsel for both parties in advance of Ms. Sporman's testimony and sets forth a detailed account
A-5410-18T1 25 Although defendant elected not to cross-examine Officer Yock on any of these
alleged incidents, which apparently took place years before defendant's arrest,
defendant's merits brief similarly indicates that Ms. Sporman sought to testify
regarding "complaints against the Hillsborough Police Department and [Officer
Yock]," that "[s]ome of those incidents involved . . . defendant," and about her
internal affairs complaint against him. It is clear from the limited record
presented that Ms. Sporman's proposed testimony involved improper specific
instances of bad conduct as opposed to proper opinion evidence related to
truthfulness permitted by N.J.R.E. 608.
As to the admissibility of her proposed testimony under N.J.R.E.
404(a)(1), defendant's merits brief merely states that defendant "had an absolute
right to call [her] as a character witness in support of his positive character of a
pertinent trait pursuant to [Rule 404(a)(1)]." We assume from this description
of her opinion that her son was being targeted by Hillsborough Police, but more specifically by Officer [] Yock who she filed an IA complaint against in 2013."
We note that because "our consideration is generally limited to the record on appeal, namely the appendices and transcripts," see W.H. Indus., Inc. v. Fundicao Balancins, Ltda, 397 N.J. Super. 455, 460 (App. Div. 2008), we could have rejected defendant's N.J.R.E. 608 arguments on procedural grounds as he did not include the letter to the Hillsborough Police Department in the record on appeal, frustrating an appropriate appellate review of the issue. For purposes of completeness, however, we address defendant's arguments on the merits. A-5410-18T1 26 that Ms. Sporman would have testified that defendant had an honest and truthful
character. As noted, however, defendant did not dispute at any stage of the
proceedings that he made the statements to the police, effectively admitting
constructive possession of the marijuana which, based on the circumstantial
evidence, he transported on a highway from his home to the Kohl's parking lot.
Under these circumstances and based on the record before us, we cannot
conclude that the court abused its discretion in precluding defendant from
belatedly calling Ms. Sporman from testifying.
Finally, even were we to assume that the Law Division abused its
discretion on these evidentiary issues, we conclude any error was harmless as
there is not a reasonable doubt that the error contributed to the verdict. See
Macon, 57 N.J. at 338; see also State v. Gillespie, 208 N.J. 59, 93 (2011) (finding
harmless error when "overwhelming proof" established guilt "independent of"
improperly admitted evidence). Defendant was witnessed on security camera
footage taking sunglasses and socks from Kohl's without payment, he was
wearing the stolen sunglasses when police approached him in the parking lot,
and the CDS was found in plain view when they searched his vehicle for the
remaining merchandise. Defendant also admitted to police officers that he both
stole the merchandise and that he received the marijuana from someone earlier
A-5410-18T1 27 that day and returned to Kohl's where he was seen attempting to start the vehicle.
Consequently, no "manifest denial of justice resulted" from precluding Ms.
Sporman's testimony as an error was not "clearly capable of producing an unjust
result." State v. Kuropchak, 221 N.J. 368, 385-86; R. 2:10-2.
We note that the Law Division's failure to sentence defendant affected the
finality of the July 29, 2019 order. See Grow Co. v. Chokshi, 403 N.J. Super.
443, 457-58 (App. Div. 2008) (stating generally, "only an order that finally
adjudicates all issues as to all parties is a final order and . . . an interlocutory
appeal is permitted only by leave of our appellate courts"). Because the matter
was fully briefed and is otherwise ready for disposition, we exercised our
discretion to rule on the appeal's merits. Caggiano v. Fontoura, 354 N.J. Super.
111, 125 (App. Div. 2002).
In sum, we affirm the Law Division's rulings with respect to defendant's
convictions. We are, nevertheless, compelled to remand the case for sentencing.
"The Law Division, if it finds a defendant guilty after a trial de novo from a
municipal court conviction, is required to impose a new sentence." State v.
Moran, 202 N.J. 311, 325 (2010); R. 3:23-8(e). The new sentence must be no
greater than that imposed by the municipal court. See State v. Loce, 267 N.J.
A-5410-18T1 28 Super. 10, 14 (App. Div. 1993) (citing State v. De Bonis, 58 N.J. 182, 188-89
(1971)). Here, the Law Division did not impose a new sentence and instead
remanded the matter to the municipal court for resentencing to consider, among
other issues, the aggravating and mitigating factors, and to state its reasons on
the record for sentencing defendant to a fifteen-day custodial term.
To the extent we have not addressed any of defendant's arguments, it is
because we have determined that they lack sufficient merit to warrant discussion
in a written opinion. See R. 2:11-3(e)(2).
Affirmed in part and remanded in part. We do not retain jurisdiction.
A-5410-18T1 29