NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5429-03T15429-03T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

SHAUN C. REAVES,

Defendant-Appellant.

__________________________________

Submitted October 25, 2006 - Decided

Before Judges Cuff and Fuentes.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment Nos. 01-12-1370 and 01-12-1404.

Ferro & Ferro, attorneys for appellant

(Nancy C. Ferro, on the brief).

Stuart Rabner, Attorney General, attorney

for respondent (Steven A. Yomtov, Deputy

Attorney General, of counsel and on the

brief).

PER CURIAM

Defendant Shaun C. Reaves was tried before a jury and convicted of third-degree unlawful possession of a handgun. N.J.S.A. 2C:39-5b. In a separate trial conducted before the same jury immediately following the initial verdict, defendant was convicted of second-degree possession of a firearm by a convicted felon. N.J.S.A. 2C:39-7b. On the second-degree offense, the court sentenced defendant to a term of five years, with a mandatory five-year period of parole ineligibility, and to a concurrent three-year term on the third-degree conviction. The court also imposed the statutorily required fines and penalties.

We gather the following facts from the evidence presented at trial. In the early evening hours of September 4, 2001, as he was walking home, Mark Parker came upon two African American men at the corner of West Third Street and Poplar Street in the Township of Piscataway. He described the men by contrast; one man was dark-skinned and heavyset (subsequently identified as co-defendant Kyle Carroll); the other was light-skinned and not as heavy (subsequently identified as defendant). The two men were riding in a Ford Expedition SUV.

Defendant (whom Parker knew as "Naheem") and co-defendant Carroll began to argue with Parker over an incident that had occurred the day before involving Parker's nephew. The matter escalated quickly, resulting in Parker asking defendant and his cohort for "a fair fight." According to Parker, defendant threatened to kill him by taking out a handgun from his waistband, pointing it at him, and saying "you're going to get it like Frank;" referring to a previous incident in which defendant had allegedly killed a man named "Frank."

At this point, Parker's sister, who lived nearby, came out of her house and began yelling that she was going to call the police. In response, Parker called his older brother Robert on his cellular telephone. Robert Parker arrived at the scene shortly thereafter. According to this witness, defendant was waiving a handgun as he argued. Robert Parker thus warned his brother not to approach him.

By this time, the situation was deteriorating rapidly. Approximately fifteen to twenty members of Mark Parker's family had gathered in the street and began chasing defendant and co-defendant Carroll. The group eventually caught up with defendant at the corner of Second Street. In an attempt to resolve the conflict amicably, Robert Parker began to talk to defendant to determine what had led to the verbal dispute. As the two men argued, Carroll ran to a nearby alleyway and then quickly returned to the scene.

Robert Parker's attempts at mediating the dispute proved fruitless. At one point, defendant ran into the rear of a building, while being pursued by a group of Parker's family members and friends. When defendant eventually re-emerged from the building, he was immediately tackled to the ground by some of the younger members of the group. Defendant was also struck several times as he lay on the ground. At this point, Robert Parker intervened, pushing the attackers out of the way. He then told defendant to leave the area and not come back. Defendant complied.

As defendant walked away, Robert Parker saw a young woman (subsequently identified as defendant's sister) hand defendant a bat. Defendant immediately swung the bat, striking a number of the members of the Parker group. This incident triggered a resumption of the violence between the group and defendant. At this point, Piscataway Police Detective Phillip Zmuda responded to the scene. Zmuda was in civilian clothes, but wore his police badge around his neck. He described the scene as a group of about twenty people actively fighting in the street.

Piscataway Police Officer Mark Portnoy arrived at the scene shortly after Zmuda. He immediately assisted Zmuda in his attempts to restore order. Their efforts proved to be marginally successful. Although the crowd began to dissipate, co-defendant Carroll attempted to strike Mark Parker's sister. This led to an altercation between Carroll and Robert Parker. After a brief scuffle, Carroll was arrested, handcuffed, and transported to the back of a police car.

Officers Zmuda and Portnoy were soon joined by Sergeant Victor Adamec. As the ranking officer at the scene, Adamec's primary objective was to regain control of the crowd. All of the warring factions were separated, including defendant. A search of the Ford Expedition did not reveal any weapons or contraband.

Adamec then decided to search defendant's sister's apartment, located nearby at 1744 South Second Street. Because both defendant and his sister resided in the apartment, the police asked and received consent to search the apartment from both of them. Adamec advised defendant that he had received reports that a gun had been used in the course of the various altercations. He asked defendant whether he owned or possessed a gun. Defendant responded "no." Adamec then asked defendant whether he could search his nearby apartment. Defendant, whom Adamec described as being cooperative, readily consented to the search.

The apartment was locked. In order to avoid forcibly entering the dwelling, the police recruited a small child to enter the apartment through an open window. The child was able to open the door within seconds of climbing through the window. Three officers fanned out through the apartment, looking in the kitchen, a small family room, and a bedroom. Once in the bedroom, the police discovered a blue steel .357 revolver on the bed, underneath a blanket. The search took only a few minutes. The weapon was taken into custody, and subsequently determined to be fully operable.

Defendant's proofs were primarily directed to refute the charges involving aggravated assault, which were part of the original indictment against him. It was made clear, however, that defendant's sister had called 911 to request assistance.

Against these facts, defendant now appeals, raising the following arguments:

POINT ONE

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPRESS THE WEAPON CONFISCATED AS A RESULT OF AN ILLEGAL SEARCH OF DEFENDANT'S HOME.

POINT TWO

THE TRIAL COURT FAILED TO TAILOR THE JURY CHARGE ON POSSESSION TO THE PARTICULAR FACTS OF THIS CASE.

We reject these arguments and affirm. As recently noted by the Supreme Court in State v. Domicz, 188 N.J. 285, 305 (2006), "[a] search conducted pursuant to consent is a well-established exception to the constitutional requirement that police first secure a warrant based on probable cause before executing a search of a home." Here, the record clearly supported the trial court's ruling that the police obtained from both defendant and his sister a valid consent to search the apartment where the weapon was found. Although the better practice is for the police to make it clear to defendant that he had a right to refuse to consent, State v. Johnson, 68 N.J. 349, 353-54 (1975), the absence of such a statement does not necessarily impugn the validity of the consent. State v. Farmer, 366 N.J. Super. 307, 314 (App. Div.), certif. denied, 180 N.J. 456 (2004). In these cases, the State is required to prove that the consent was the product of defendant's independent will, unfettered by any force or compulsion. Based on this record, the trial court correctly concluded that the State met this burden.

Finally, we come to defendant's argument in Point II, that the trial court should have tailored the jury charge to the facts of this case. We start our discussion of this issue by noting that defendant did not object to the jury charges at the time of trial. As such, we must consider any alleged error in this respect under the plain error standard of review. R. 2:10-2. "Under that standard, we disregard an error unless it is 'clearly capable of producing an unjust result.'" State v. Daniels, 182 N.J. 80, 95 (2004).

Here, we are satisfied that the court's instructions to the jury adequately explained the concepts of actual and constructive possession. Although it would have been preferable for the court to have given a concrete example of how these legal principles apply to the facts of this case, when viewed as a whole, the absence of these explanatory comments do not rise to the level of plain error. State v. Martini, 187 N.J. 469, 477 (2006).

Affirmed.

The jury was unable to reach a unanimous verdict on the charges of second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a, and fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1b(4). The jury also acquitted defendant of a number of other related charges.

In a statement obtained by the police, Parker indicated that defendant refused his offer for a fair fight, and took out a gun and pointed it at him. At trial, Parker, who testified as a hostile witness for the State, recanted this statement.

Because we uphold the validity of the search based on defendant's consent, we do not reach the State's alternative argument for the admissibility of the firearm evidence.

(continued)

(continued)

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A-5429-03T1

February 1, 2007