Petition for Writ of Certiorari — Oraine D. Brown, Petitioner v. New Jersey

APPENDIX-A

*

■*

'

■ NOT FOR PUBLICATION WITHOUT THE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-4524-19

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ORAINE D. BROWN,

Defendant-Appellant.

Submitted September 28, 2021 - Decided October 12, 2021

Before Judges Currier and Smith.

On appeal from the Superior Court of New Jersey, Law

Division, Essex County, IndictmentNo. 19-06-1656.

Law Offices of Jef Henninger, attorneys for appellant

(Jef Henninger, on the briefs).

Theodore N. Stephens, II, Acting Essex County

Prosecutor, attorney for respondent (Stephen A.

Pogany, Special Deputy Attorney General/Acting

Assistant Prosecutor, on the brief).

•

PER CURIAM

Defendant Oraine Brown appeals his conviction and sentence to five

isonment with a forty-two-month term ofparole ineligibility pursuant

years' impnso_

to the Graves Act, N.J.S.A. 2C:43-6. He argues the trial court erred in denying

his motion for ju

verdict voir dire of a juror. We disagree as to both points, and we affirm for the

reasons set forth'below.

After a trial, defendant was convicted of second-degree weapons charges,

N.J.S.A. 2C:39-5(b).

Subsequent to

sentencing, defendant filed a

trial but before the July 31, 2020

timely motion for judgment of acquittal pursuant

to Rule 3:18-2. Just days before sentencing, on July 22, a court employee

received a

number twelve from

short email from a source purporting to be juror

defendant's trial. The email stated that-the writer wished to "communicate to

[the trial cou:

[their] verdict."

At sentencing, tie trial court denied tie motion for acquittal . The court

also noted that it had reviewed the Inly 22 email and found its content

insufficient to justify further inquiry. After disposing of these matters, die court

sentenced defendant.

Defendant appeals, making the following arguments:

A-4524-19

2

I. THE TRIAL COURT ERRED WHEN DENYING

MR. BROWN'S MOTION FOR JUDGMENT OF

ACQUITTAL BECAUSE DISCOVERY WAS

IMPROPERLY EXTENDED IN THIS CASE

CAUSING A DELAY IN PROSECUTION WHICH

PROVIDED THE STATE WITH AN UNFAIR

ADVANTAGE AT TRIAL.

II. MR. BROWN'S SENTENCE SHOULD BE

REVERSED DUE TO THE LACK OF A JUDICIAL

INQUIRY REGARDING THE EMAIL SENT PRIOR

TO SENTENCING FROM JUROR NUMER 12 TO A

NJ COURT EMPLOYEE EXPRESSING JUROR

NUMBER 12'S REGRET OF THE VERDICT IN THIS

CASE (Not Raised Below).

In his first point, defendant argues that his right to a speedy trial was

violated when the trial court adjourned, over defendant's initial objection, the

January 6,2020 trial date to February 10 at the request of the State . We disagree.

It is well-settled that

"[t]he right to a speedy trial is guaranteed by the

Sixth Amendment to the United States Constitution and imposed

by the Due Process Clause of the Fourteenth Amendment

411 N.J. Super. 1, 8 (App. Div. 2009) (citing Klopfer

U.S. 213, 222-23 (1967)).

defendant's arrest.

on the states

State v/Tsetsekas,

North Carolina, 386

"The constitutional right . . - attaches upon

" ibid, (alteration in the original) (quoting State v. Fulford,

349 N.J. Super. 183, 190 (App. Div. 2002)). Since it is the State's duty to

promptly bring a case

to trial, "[a]s a matter of fundamental fairness,” the State

A-4524-19

3

must avoid "excessive delay in completing a prosecution[,]" or risk violating

"defendant's constitutional right to speedy trial." IMi

The four-part test to determine if a defendant’s speedy-trial right has been

violated was announced in Barker v. Wings. 407 U.S. 514, 530-33 (1972) and

adopted by our

Supreme Court in State v. Szima, 70 N.J. 196, 200-01 (1976).

The test requires "[c]ourts [to] consider and balance the ’[l]engtk of delay, the

reason for the delay, the

defendant.”' Tsetsekas,

defendant's assertion of his right, and prejudice to the

411 N.J. Super, at 8 (quoting Barker, 407 U.S. at 530).

"No single factor is a necessary or sufficient condition to the finding of a

deprivation of the right to a speedy trial." IcL at 10 (citing Barker, 407 U.S. at

533). Courts are

required to analyze each interrelated factor "in light of the

relevant circumstances of each particular case. " Ibid. We will not overturn a

trial judge's decision whether a defendant was deprived of due process on

speedy-trial grounds unless the judge's ruling was clearly erroneous. State v.

Merlino, 153 N.J. Super. 12, 17 (App. Div. 1977).

The trial court reviewed the procedural history of the case under the four

Barker factors. The court found that a trial postponement of thirty-four days

was not undue delay where the

State sought the adjournment to provide

defendant new discovery, including a

fingerprint analysis of the subject

A-4524-19

4

handgun. The court next found no prejudice in the short delay, as defendant

"was not subject to pre-trial incarcerationf,] and he was free to handle his

personal affairs."1 Finally, the judge noted that the new discovery contained

evidence beneficial to defendant, as it showed no fingerprints were recovered

on the handgun.

We turn to defendant's second point, that the email purportedly sent from

juror number twelve warranted a "reversal of [his] sentence, " We treat this

argument, not raised below, as a motion to seek leave for a post-verdict

interrogation of the juror pursuant to Rule 1:16-1.

Appellate courts will not consider questions or issues not properly

presented to the trial court, unless the question raised on appeal goes to the

Jurisdiction of the trial court or concerns matters of great public concern. State

v. Robinson, 200 N.J. 1, 20 (2009) (citing Nieder v. Royal Indem. Ins. Co, 62

N.J. 229, 234 (1973)). Here, the email was sent after defendant's motion for

judgment of acquittal had been filed and nine days before the motion hearing

was scheduled.

Although defendant did not file the appropriate motion for

1 Although not addressed by the trial court in its July 31 decision before

sentencing the record shows defendant asserted his speedy tnal light m a tirn y

Sion by objecting to the State's adjournment request on January 6 before a

different judge.

A-4524-I9

5

consideration, the trial court nevertheless reviewed the email and found that its

statement was insufficient to "investigate the thought processes which induced

a particular juror to join in a verdict." State v. Athorn, 46 N.J. 247, 253 (1966).

Calling back a jury for questioning following discharge is an

"extraordinary procedure," to be utilized "only upon a strong showing that a

litigant may have been harmed by jnry misconduct

270,

Davis v. Husain, 220 N.J.

279 (2014) (citations omitted). No such strong showing exists here. The

email, at best, represents an unspecified expression of regret, assuming the

author of the email is actually juror number twelve. Its contents allege no "event

or occurrence injected into the deliberation in which the capacity for prejudice

inheres.

>• State v. Loftin, 146 N.J. 295, 381 (1996) (citation omitted). The trial

court found the email was

"insufficient" to order a post-verdict interrogation of

juror number twelve, or any juror from the panel We discern no basis in the

record to disturb the trial court’s conclusion.

Affirmed.

1 hereby certify that the foregoing

is a true copy of the original on

file in my office.

A®^

CLERK Or THE: APp^ajATEDMSON

A-4524-19

6

APPENDIX - B

ORDER PREPARED BY THE COURT

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION - ESSEX COUNTY

INDICTMENT NO.: 19-06-01656-1

STATE OF NEW JERSEY,

Plaintiff,

CRIMINAL ACTION

v.

ORDER

ORAINE BROWN,

Defendant.

3:11 pm, Jul 31, 2020

THIS MATTER having come before the Court by way of motion to set aside the verdict

and enter an acquittal pursuant to R. 3:18-2, filed by Defendant Oraine Brown, pro se; and in the

presence of Portia Downing, Esq., Assistant Prosecutor, on behalf of the State of New Jersey;

and the Court having reviewed the written submissions; and the Court having heard the

arguments of counsel and the Defendant on July 31, 2020; and for good cause shown:

IT IS oh this 31st day of July 2020,

ORDERED that the motion is DENIED in its entirety for the reasons set forth on the

record on July 31,2020.

MAYRA V. TARANTINO, J.S.C.

Da015

APPENDIX -C

FILED, Clerk of the Supreme Court, 28 Mar 2022, 086574

SUPREME COURT OF NEW JERSEY

C-462 September Term 2021

086574

State of New Jersey,

Plaintiff-Respondent,

v.

ORDER

Oraine D. Brown,

Defendant-Petitioner.

A petition for certification of the judgment in A-004524-19

haying been submitted to this Court, and the Court having considered the

same;

It is ORDERED that the petition for certification is denied.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this

22nd day of March, 2022.

PREME COURT

FILED, Clerk of the Supreme Court, 28 Mar 2022, 086574

SUPREME COURT OF NEW JERSEY

M-821/822 September Term 2021

086574

State of New Jersey,

Plaintiff,

v.

ORDER

Oraine D. Brown,

Defendant-Movant.

It is ORDERED that the motion for leave to proceed as indigent (M-821)

is dismissed as moot, the Court having considered the petition on the merits;

and it is further

ORDERED that the motion for bail (M-822) is dismissed as moot.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this

22nd day of March, 2022.

PREME COURT

APPENDIX - D

FILED, Clerk of the Supreme Court, 16 Jun 2022, 08657

SUPREME COURT OF NEW JERSEY

M-l 150 September Term 2021

086574

State of New Jersey,

Plaintiff,

v.

ORDER

Oraine D. Brown,

Defendant-Movant.

It is ORDERED that the motion for reconsideration of the Court’s orders

denying certification and dismissing the motion for bail as moot is denied.

WITNESS, the Honorable Stuart Rabner, Chief Justice, at Trenton, this

14th day of June, 2022.

PREME COURT

J

APPENDIX -E

*,

FILED, Clerk of the Appellate Division, November 24; 2021, A-004524-19, M-001235-21

.ORDER ON MOTION

STATE OF NEW JERSEY

V

ORAINE D. BROWN

MOTION FILED:

10/25/2021

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-004524-19T4

MOTION NO. M-001235-21

PART F

BEFORE

HEIDI W. CURRIER

JUDGE{S):

MORRIS G. SMITH

BY:

ORAINE D BROWN

ANSWER(S)

FILED:

SUBMITTED TO COURT: November 22, 2021

ORDER

THIS MATTER HAVING BEEN DULY PRESENTED TO THE COURT, IT IS, ON THIS

24th day of November, 2021, HEREBY ORDERED AS FOLLOWS:

MOTION BY APPELLANT

MOTION FOR RECONSIDERATION OF

JUDGMENT OF ACQUITTAL OR NEW TRIAL DENIED

SUPPLEMENTAL:

FOR THE COURT:

HEIDI W. CURRIER, J.A.D.

19-06-01656-1

ORDER - REGULAR MOTION

LE

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APPENDIX -G

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Wed 7/22/2020 3:30 PM

To: Zeyad Assaf <zeyad.assaf@njcourts.gov>

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that llmsfie come to regret my verdict. ■

Da020

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TWbKim j»wncau«ihKA\A/ i;i T™..7nAw7nnT7/:u»ynAn/in«nnci i»fmDrt»i»rD

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APPENDIX - H

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: CRIMINAL

ESSEX COUNTY

INDICTMENT NC . : 19-06-1656

A.D. #

;

STATE OF NEW JERSEY,

vs.

ORAINE BROWN,

Defendant.

}

TRANSCRIPT

OF

HEARING

)

)

)

)

)

)

)

Place:

Veterans Conrt Bcuse

50 West Market Street

Newark, New Jersey 07102

Date:

January 6, 2020

BEFORE:

HONORABLE SIOBHAN A. TEARE,

-r

. s. c.

TRANSCRIPT ORDERED BY:

ORAINE BROWN _

Maplewood, NJ 07040

APPEARANCES:

ALLISON KORODAN, ESQ., {Assistant Prosecutor)

Attorney for the State of New Jersey

ORAINE BROWN, PRO $E

.For Defendant

Deborah Hashimoco

KING TRANSCRIPTION SERVICES, LLC

3 South Corporate Drive Suite 203

Riverdale, New Jersey 07457

Audio Recorded

!r

3

1

2

THE COURT:

May I have your appearances please.

3

4

Indictment number 13-6-1656.

MS. KORODAN:

Allison Korodan on behalf of

The State.

5

MR. BROWN:

Oraine Brown, pro se.

6

THiii COURT:

Okay.

7

MS. KORODAN:

Ms. Korodan.

Yes, Judge.

I realize the

8

trial is scheduled for today.

9

here this morning, however, I recently came to learn

10

that the handgun at issue here was fingerprinted.

11

Your Honor may know, this is not always the case when

12

we have handguns, so I'm trying to get a copy of that

13

crime scene unit report, involving the processing of

14

the handgun and any prints that may have been on that

15

gun.

trial.

20

As Your Honor's also

THE COURT:

18

19

- .

Thank you.

I'm sorry, can we,ask them to -

Ms. Korodan.

MS. KORODAN:

Yes, Judge.

As Your Honor is

21

also aware of the court rules, say that I have an

22

obligation to turn this information and let defense

23

aware of this information 30 days prior to trial.

24

25

As

I would like to present that evidence at

16

17

I did have witnesses

So I'm asking to carry this for 30 days so

I can provide that information to Mr. Brown.

He can

4

%

1

be aware of the witness who would be called in

2

association with that processing of the handgun, and

3

then The State can proceed to introduce that evidence

4

at trial.

5

MR. BROWN:

I

6

THE COURT:

Thank you.

7

MR. BROWN:

8

opportunities to get this done.

9

it done prior — prior to the grand jury.

10

this date

11

12

THE COURT:

Mr. Brown.

she had several

She could have got

Prior to

I think she's looking for a

report on the gun.

13

MR. BROWN:

Yeah, but she said discovery

14

final last time we were here.

15

THE COURT:

Right.

And she's discovered

The case is less than a year old.

16

that it's not.

17

And she's going to give you — it's my understanding

18

she wants to produce the report so that she can give

1.9

it 30 days before trial.

20

That's nothing unusual, Sir.

21

MR. BROWN:

Okay.

22

THE COURT:

So I'm gonna ask if you can --

23

I'm gonna put this on for February 10th.

24

adjourning it very far out.

25

February 10th.

I'm not

I'm just putting on for

If you can sign for a notice for that

5

1

date, but. if you can just wait — do you have the

2

report with you Ms. Korodan?

X don't have it in hand.

MS. KORODAN:

3

4

Mr. Brown wants to give rae an email address,

5

email him directly -THE COURT:

6

Okay.

T

If

can

Do you have an email

7

address you can share with her, and she can email the

8

report to you today.

9

MS. KORODAN:

Or I can email Ms. Owens

10

.THE COURT:

Or do you want to wait, that's

12

MR. BROWN:

How long is the wait?

13

MS . KORODAN.:

14

THE COURT:

11

15

up to you.

I'm -- I'm not sure, Judge.

She's

it could be

I mean,

you could wait for as long as you want —

Can they — can they —

16

MR. BROWN:

17

THE COURT:

18

MR. BROWN:

-- can they mail it?

19

•THE COURT:

— or do you want to have an

and

20

email address for Ms. Owens, and have her send it to

21

you?

I — whatever you prefer, Sir.

22

wait.

That's up to you.

Or you can

23

MR. BROWN:

Ms. Owens can send it to me.

24

THE COURT:

Okay.

25

MR. BROWN:

Another thing, are we gonna

6

«

1

have trial on the 10cn, or there's gonna be another

2

conference?

3

THE COURT:

No, I would think it's probably

4

going to be trial on the 10th, or the 11th or whenever

5

when ~~ like you see on Mondays, we call the case

6

to find out where we are.

7

start until Tuesday.

S

MR, BROWN:

Okay.

q

THE COURT:

But you still have to be here

So usually trial doesn't

10

Monday to see where everything goes

11

know, you are out of custody.

12

are those that are in custody, but it's more than

13

likely it's going to start on — on the 10 fch or IIth.

14

15

MS. KORODAN:

I mean, you

So the priority cases

I'll have witnesses ready for

the 10th,

16

MR. BROWN:

Can I have a witness list.

17

never received a witness list.

18

THE COURT:

Right.

I

You usually get them

'Cause remember it's gonna take

19

the day of trial.

20

several days to pick a jury.

21

MR. BROWN:

Uh-huh.

22

THE COURT:

So you still have to go over —

23

MS. KORODAN;

24

THE COURT:

25

I can also

— if you have the witness list

now, you can send it --

APPENDIX -1

J1

FILED, Clerk of the Appellate Division, September 21,2020, A-004524-'i9

1

SUPERIOR COURT OF NEW JERSEY

CRIMINAL PART

LAW DIVISION

ESSEX COUNTY

DOCKET NO.: 19-06-01656-1

A.D. # A-004524-19-T2

2

3

4

THE STATE OF NEW JERSEY,

5

TRANSCRIPT

OF

TRIAL

6

vs .

7

ORAINE D. BROWN,

8

Defendant.

)

9

Place: Essex County Veterans

Courthouse

50 West Market Street

Newark, NJ 07102

10

11

Date: February 20, 2020

12

BEFORE:

13

HONORABLE MAYRA V. TARANTINO, J.S.C.

14

TRANSCRIPT ORDERED BY:

15

JEF HENNINGER, ESQ.,

(Law Office of Jef Henninger)

16

APPEARANCES:

17

18

ALLISON MARIE KORODAN, ESQ.,

Prosecutor)

Attorney for the State

(Assistant

19

20

21

ORAINE D. BROWN,

Pro se defendant

THERESA OWENS, ESQ.,

Standby Counsel for Defendant

22

23

24

25

Andrea Semanovich

KING TRANSCRIPTION SERVICES

3 South Corporate Drive, Suite 203

Riverdale, NJ 07457

Audio Recorded

Recording Opr: Frank Fleming

22

IS.’

After conducting that entire process, that

Q

1

2

method were you able to conclude whether or not there

3

were any fingerprints on that firearm?

4

A

5

firearm, the ammunition, or the magazine.

Yes, X did not see any fingerprints on this

You testified that — I believe you said you

Q

6

7

examined hundreds or a hundred of firearms before?

8

A

11

recovered fingerprints?

A

On the firearm I have not recovered a fingerprint.

Zero out of one hundred?

Q

12

13

Of those hundred on how many have you

Q

9

' 10

Yes, correct.

A

Correct.

Can you describe what it is about a firearm

Q

14

17

that makes it difficult to leave a fingerprint?

difficult

Yes, there's multiple reasons why it's

A

One of

especially on firearms to recover fingerprints.

18

those reasons, if you remember me talking about

19

porous/non-porous surfaces, a firearm mostly made out

20

of metal, it's a non-porous surface, meaning the metal

21

is not going absorb any moisture.

22

I said —

15

16

23

24

25

A fingerprint, like

I know I'm repeating myself, but ninety-eight

percent water, that's mostly you know moisture, the

oils

it's only two percent oils.

So, if a surface

can not — absorb the — the moisture, there's -

it's

Da027

23

very difficult to obtain a print from that surface,

1

cause metal isn't going to capture that moisture.

2

Another reason why is if you think about it,

3

4

firearms they're — they're meant to be gripped by the

5

hands, you don't want a firearm slipping out of your

6

hand.

7

the purpose of that is so it doesn't fall out of

8

anybody's hand.

9

smooth, clean

obtain a fingerprint, because you need a

10

surface to get that print.

11

Most of times the grip is — is rough.

It's

A rough surface you won't be able to

Another reason why is that

firearm manufacturers, many of them, they put on the

12

surface — they coat their firearms, because they want

13

them to be durable.

14

That coating on top of a firearm makes it also

15

They coat them so they don't rust.

difficult for a fingerprint to — to be deposited on

Then again there are other environmental

16

that surface,

17

factors why it would be difficult to obtain a

18

fingerprint from a firearm*

19

20

manipulated all the time, it's a difficult surface to

obtain a print from.

21

Q

22

firearms?

23

A

24

They're handled, they're

Now, you were answering generally as to all

Yes.

Q

If you wouldn't mind, can you take the item

Da028

25

in S-14 out?

24

%

A

1

2

Yes.

It's safe.

Q

And with respect to that particular firearm,

3

can you indicate anything about the handle that would

4

prevent it from having fingerprints?

•V

Yes, as I was mentioning before this surface right

5

A

6

here f the handle where you're going to grip a firearm,

7

it's rough.

8

The purpose of that is again so the

firearm doesn't slip out of somebody's_hand.

As you

±f — if you could see this surface here, it is

9

can

10

smooth, but like I said, again, many firearm companies,

11

they put a coating on the outside, because they want.

12

their firearms to be durable.

13

rust, which makes it difficult to obtain a print.

14

Also, back here — a firearm — you're going to

15

manipulate with your hands a lot, so — fingerprints

16

are very fragile.

17

They don't want them to

So, if you're moving this back, this

motion in itself if there's a perfect print on there,

18

it's going to smudge and that print's not going to be

19

there.

20

which also makes it difficult to obtain a fingerprint.

21

The trigger right here is very small, you wouldn't be

22

able to get a full fingerprint from that little piece

23

of metal right there, as well.

24

25

Q

This firearm specifically is rather small,

Detective Marotta, do you have any

association or affiliation with the Irvington Police

Da029

r

APPENDIX-

FILED, Clerk of the Appellate Division, January 11,2021, A-004:5^4-19

SUPERIOR COURT OF NEW JERSEY

LAW DIVISION: CRIMINAL

ESSEX COUNTY

INDICTMENT NO.: I 9-06-01656-1

A.D. # A-004524-19-T2

i

STATE OF NEW JERSEY,

vs.

ORAINE D. BROWN,

Defendant

)

)

)

)

)

)

)

)

)

TRANSCRIPT

OF

SENTENCE/SENTENCE

HEARING

Place:

Veterans Court House

(HEARD VIA ZOOM)

Date':

July 31, 2020

BEFORE:

HONORABLE MAYRA V. TARANTINO, J.S.C.

TRANSCRIPT ORDERED BY:

JEF HENNINGER, ESQ.,

Henninger, Esq.)

(Law Offices of Jef

APPEARANCES:

PORTIA DOWNING, ESQ., (Assistant Prosecutor)

Attorney for the State of New Jersey

ORAINE BROWN, DEFENDANT, PRO SE

THERESA OWENS, ESQ., (Office of the Public

Defender - Standby counsel)

Attorney for Defendant

Deborah Hashimoto

KING TRANSCRIPTION SERVICES, LLC

3 South Corporate Drive Suite 203

Riverdale, New Jersey 07457

Audio Recorded

p.

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

4

1

THE COURT:

2

MS. DOWNING:

3

THE COURT:

Okay.

The State?

No — no problem, Judge.

All right.

So Mr. Brown, you

4

filed a motion to set aside the verdict and enter an

5

acquittal.

6

Given COVID-19, there has been a delay in addressing

7

your motion, you know, for obvious reasons, since we

8

were all sheltering in place.

This is back in February 27th, 2020.

9

In any event, I have read your papers.

10

read The State's letter brief and response, but I

11

will hear you, Mr. Brown.

12

MR. BROWN:

You want to hear me first?

13

THE COURT:

It's your motion, yes.

14

MR. BROWN:

Okay.

I

Prior to our trial in

15

February we had a trial scheduled for January 6th with

16

Judge Teare.

1.7

requested an adjournment to get additional discovery

18

which was already privy to them well before that,

19

privy to them because it was produced on April 22nd of

20

2019, while I was still in custody,

21

well aware of these — these ballistics reports,,and

22

all the criminal reports -- the ballistic report and

23

the fingerprinting report.

24

that prior to that.

25

On that date of trial they -- The State

So they were

They were all aware of

Prior to our January 6 court trial date,

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

5

October 2 9th I

1

discovery was final in October

2

believe, of 2019.

3

all said discovery was final, and we were going to

4

trial on the discovery that was final.

5

they did some — and they said they needed some extra

6

discovery which wasn't fair to me because I didn't

7

have a fair trial because it allowed additional

8

discovery even more than what they asked for to be

9

presented during my trial, in February.

10

pretty much it.

THE COURT:

11

12

They said discovery was final.

Is that it?

And on the 6th

That's

Okay.

All right.

Ms. Downing.

MS. DOWNING:

13

Your Honor, I'm gonna rely

14

primarily on the brief submitted by Ms. Cordon who

15

tried the case.

That issue that the defendant

16

brought up was

she laid out in point two of her

17

brief.

18

the gun that was recovered in this case.

19

We

It actually was an additional examination of

\

An additional examination was done by a

They came to her attention in

20

different agency.

21

early January so she had that report produced for the

22

defendant, got an adjournment to allow him to review

23

that report, so he wasn't prejudiced in any way by

24

not having the discovery before his trial.

25

month, and is consistent with the other reports that

He had a

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

6

1

he previously had.

Go ahead, Mr. Brown.

2

THE COURT:

Okay.

3

MR. BROWN:

The date — all the dates of

4

those reports were in April.

5

any additional re-examination.

6

nothing to say that was additionally examined m

7

January or prior to — prior to that.

I don't see anybody —

There's no

Also, it allowed them to just automatically

8

9

transfer the tickets from Irvington Township to

10

Irvington Township to this court, to the Superior

11

Court.

Also, her second point — well, her second

12

13

point she said, examination, there's no additional

14

examination.

15

anywhere.

16

examination.

17

examination had occurred,

18

in my discovery,

19

seen anything in the discovery that would say that.

20

21

22

I don't see any additional examination

Can she provide that additional

Where they — this additional

I have all my discovery, I haven't

THE COURT:

We're not doing that now.

Would you like to respond?

MS. DOWNING:

23

supervised her.

24

this matter.

25

'cause X don't see anything

I spoke to Ms. Cordon, I

She turned over all discovery in

THE COURT:

All right.

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

MR. BROWN:

1

7

I know you say you don't want

2

to look at that now, but if she doesn't — if they

3

have that then, it's proven that they're — they're

4

either lying or they're — they're doing something.

THE COURT:

5

6

Anything else, Mr. Brown?

On

your motion?

MR. BROWN:

7

Yeah.

She said — she said

8

something in her -- in her reply to my motion, she

9

said

10

pursuant to rule 3

she said the reasoning for the delay was in

3:13-3.

11

THE COURT:

(F).

12

MR. BROWN:

I am the part — the parties

It

13

there's two parties, the defendant and The State.

14

says within this rule that it could be delayed if the

15

party - - if the party fails — if a party fails to

16

fails to comply with any of the rules.

17

to comply with any of the rules if — if somebody —

18

a member that works for the state, the police,

19

anybody that works in forensic failed to hand the

20

discovery over in due time, that has nothing to do

21

with me.

22

all the rules.

23

that's on their behalf, that's not on my behalf.

24

my own party, they're their own party.

25

team, that's also the state.

I'm my own party.

I didn't fail

I didn't — I followed

If they didn't follow the rules,

I'm

The forensic

I'm my own party, my

\

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

8

1

own person, I didn't fail to -- it said that if you

2

fail to comply with any of the rules

3

fails to comply with any of the rules, I didn t fail

4

to comply with any of the rules.

5

any discovery.

6

THE COURT:

7

MS. DOWNING:

8

9

if a party

I didn't ask for

Okay.

Nothing further on that -

on

that issue, Judge.

THE COURT:

On June 17th, 2019, an Essex

10

County grand jury returned indictment number 19-06-

11

1656-1 charging Oraine Brown with one count of second

12

degree unlawful possession of a handgun without a

13

permit, namely a 22 caliber Astra Cub

14

automatic pistol, in violation of NJSA 2:39-5 (b), and

15

one count of third degree receiving stolen property,

16

in violation of NJSA 2C:2Q-7().

17

- Cub semi

On February 11th, 2020, the matter proceeded

18

to trial, solely on the unlawful possession of a

19

handgun count.

20

jury found Mr. Brown guilty of second degree unlawful

21

possession of a handgun.

22

Brown filed the instant motion and The Court is

23

hearing oral argument on this day.

24

25

On February 20, 2020 an Essex County

On February 27th, 2020 Mr.

The Court notes from the outset that rule

4:24-l(c) is inapplicable to criminal proceedings,

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

9

1

therefore any aspect of the motion relying on that

2

rule as a basis of relief is denied.

3

With respect to defendant's argument where

4

he seems to argue a speedy trial violation, the U.S.

5

Supreme Court established four — four factors for

6

courts to consider in determining whether defendant's

7

rights to a speedy trial has been violated.

8

The criteria include the length of delay,

9

the reason for delay, the defendant's assertion of

10

his right and prejudice to the defendant,

11

versus Gaikwad, 349 NJ Super 62 at 88, App. Div.,

12

2002.

State

13

In applying the four — no single factor is

14

a necessary or sufficient condition to the finding of

15

a depravation of the right to a speedy trial,

16

versus Tsetsekas, 411 New Jersey Super 1 at 10, App.

17

Div., 2009.

State

18

Regarding the first and second factors, the

19

length and reason for the delay, The Court notes this

20

case involved laboratory analysis by two agencies as

21

part of The State's investigation,

22

arrested in late April of 2019.

23

returned on June 17 th , 2019.

24

any undue delay in bringing this matter to trial

25

under the circumstances, especially in light of the

Mr. Brown was

The indictment was

The Court does not

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

10

1

typical Essex County trial calendar.

2

There is also no indication in the record

3

that The State used adjournments to gam a tactical

4

advantage.

5

Regarding the third factor, the degree to

6

which Mr. Brown asserted his right to a speedy trial

7

is not in the record before it.

8

notes timing of this motion as subsequent to the

9

verdict as

10

factor.

11

However, The Court

anytime before as undermining this

Finally, as to the fourth factor, the lack

12

of significant prejudice suffered by Mr. Brown

13

militates against dismissal of this case,

14

a six day period in 2019 following his arrest Brown

15

was not subject to pre-trial incarceration and he was

16

free to handle his personal affairs,

17

only month — in fact, the one month delay in

18

commencing the trial was beneficial to him as new

19

discovery showed that non fingerprints were recovered

20

on the handgun.

Except for

In fact, the

21

Accordingly measured against the four

22

factors in the myriad above, The Court concludes

23

there was no violation of Brown's constitutional

24

speedy trial right.

25

Brown's request for an evidentiary hearing

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

16

Finally, with respect to the third element,

1

2

The State moved into evidence without objection,

3

exhibit S-13, an affidavit by Detective James Hearn

4

of the New Jersey State Police Firearms Investigation

5

Unit.

6

search firearms investigation unit records failed to

7

reveal Oraine Brown making application for being

8

issued a permit to carry a handgun, permit to

9

purchase a handgun or firearm purchaser

10

identification card, or a permit for an assault

11

weapon.

12

13

14

The affidavit — the affidavit stated that a

In addition, the affidavit indicated the

handgun seized was never registered with the office.

So given the substan — the substantial

15

evidence admitted at trial, and given The State the

16

benefit of all it's favorable testimony as well, as

17

all of the favorable inferences which re

18

reasonably could be drawm therefrom, a reasonable

19

jury could have found

20

could have found Mr. Brown guilty of the charge of

21

second degree unlawful possession of a handgun

22

without a permit.

23

could have found guilty

Accordingly, the motion of the defendant

24

for judgment of acquittal

25

in it's entirety.

- of acquittal is denied

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

17

1

MR. BROWN:

Can I

2

THE COURT:

One second.

3

MR. BROWN:

Can I address something said?

4

THE COURT:

You have my decision, but go

MR. BROWN:

Okay.

5

That's the

ahead.

6

You said, Officer Durble

7

said he smelled marijuana, have you — have you run

8

back the tape or you get the transcript it's gonna

9

say he never said he smelt marijuana in my car.

THE COURT:

10

In any event, Mr. Brown, given

11

the substantial evidence presented to the jury, one,

12

that

13

presented that you possessed the handgun and three,

14

the evidence that you didn't have a permit, there was

15

more than substantial evidence for the jury to find

16

you guilty of unlawful possession of a handgun, so

17

again, your motion is denied.

one, the handgun, two, the testimony

I want to move

18

Now, I want to move onto

19

onto an email correspondence that my law clerk

20

received from a Rick Mullen who purports to have been

21

juror number 12 at Mr. Brown's trial.

22

which was received on July 22nd, 2020 reads; Dear Mr.

23

I received a call from Judge Tarantino's office

24

today informing that a hearing is schedule for Oraine

25

Brown on July 31st.

And that email

The call was in response to one I

FILED, Clerk of the Appellate Division, January 11,2021, A-004524-19

18

'

1

made the Judge's chambers earlier this week

2

requesting information.

I was jury 12 at Mr. Brown's trial and

3

4

would like to communicate to Judge Tarantino prior to

5

the hearing, that I have come to regret my verdict.

Now, this email was forwarded to all

6

7

counsel and to Mr. Brown and in response to that

8

email, no motion was filed with respect to same.

9

In any event, absent any outside change of

10

heart is insufficient for a court to investigate the

11

"though processes which induce a particular to join

12

in a verdict."

13

247 at 253, 1966 decision.

.State versus Athorn, 46 New Jersey

So now we're gonna move onto sentencing,

14

15

but before I do that, I'm gonna take a — a break, so

16

that Mr. Brown you can confer with your standby

17

counsel who, I'm gonna ask her to explain your appeal

18

rights.

Okay, Mr. Brown?

19

MR. BROWN:

Okay.

20

THE COURT:

Okay.

21

All right.

Off the

record.

(Break taken)

22

THE COURT:

23

So now we're gonna turn to the

24

sentencing portion of today's calendar for you, Mr.

25

Brown.

So Mr. Brown, you received a copy of your