                        NOT FOR PUBLICATION WITHOUT THE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.

                                      2                            A-4678-15T2
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


                                   3                            A-4678-15T2
            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


                                    4                               A-4678-15T2
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.

                                   5                            A-4678-15T2
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

                                    6                             A-4678-15T2
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.


                                  7                               A-4678-15T2
          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


                                8                            A-4678-15T2
          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



                                 9                         A-4678-15T2
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).

                                   10                             A-4678-15T2
     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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