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NJ Weapon Possession Conviction Reversed on Appeal

18
Apr
2010

by in Criminal Defense

State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) – Conviction for possession of a firearm without a permit reversed. “The prosecution presented the disputed evidence [that two witnesses to defendant’s taking of the gun would not give police their addresses because they ‘were in fear for retaliation [because they] didn’t know if the individual was involved in a gang or a drug deal…’] in response to defense cross-examination of Officer Kelly about the absence of addresses or phone numbers in his police report for the two elderly men to whom he spoke immediately before apprehending defendant….

Defendant now argues on appeal that the redirect testimony of the officer contained prejudicial hearsay that attributed criminal conduct to him, namely, it implied that defendant was involved in gang or drug dealing activity and might retaliate against the two men…. The testimony objected to was neither hearsay nor evidence of other crimes that should have been excluded under N.J.R.E. 404(b)…. Nevertheless, reference to retaliation and gang or drug dealing activity should have been excluded because its probative value was substantially outweighed by the potential that it would unfairly prejudice defendant. N.J.R.E. 403….

Defendant was not accused of any criminal activity other than the alleged unlawful possession of the gun. Injecting the specter of possible retaliation and gang or drug dealing activity into the trial was highly prejudicial to defendant. At the same time, the probative value of the two men’s statements was limited to collateral issues regarding the Officer Kelly’s credibility and competency, but those issues were not particularly relevant to defendant’s guilt or innocence…. Here, the State’s need to explain the absence of addresses for the two men could have been satisfied by simply stating that the men would not give their addresses, without adding their reasons.

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