SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
A-3706-95T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JEFFREY J. MELLO,
Defendant-Appellant.
_________________________________________
Argued January 23, 1997 -- Decided February
11, 1997
Before Judges Baime and Braithwaite.
On appeal from the Superior Court of New
Jersey, Law Division, Middlesex County.
Robert T. Norton, argued the cause for
appellant.
Robert W. Gluck, Middlesex County Prosecutor,
attorney for respondent (Simon Louis
Rosenbach, Assistant Prosecutor, of counsel,
Gerard C. Vince, III, Legal Assistant, on the
brief).
The opinion of the court was delivered by
BAIME, J.A.D.
This appeal presents troublesome issues pertaining to
N.J.S.A. 2C:39-4a. That statute provides that any person who
possesses a firearm with the purpose to use it unlawfully against
the person or property of another is guilty of a crime of the
second degree. At issue is whether an indictment that recites
the statutory language, but does not specify the unlawful purpose
the accused allegedly harbored, violates either the federal or
state constitution. Also in question is whether a trial court is
obliged to define with precision the elements of the crime that
the defendant is alleged to have intended to commit with the
weapon.
We find no constitutional prescription requiring that the
indictment identify with specificity the unlawful purpose
allegedly harbored by the defendant in possessing the firearm.
We also conclude that the trial court did not commit reversible
error in failing to precisely define the elements of the crime
the defendant allegedly intended to commit with the weapon.
However, we remand the matter to the Law Division to afford
defendant the opportunity to file a motion pursuant to N.J.S.A.
2C:43-6.2 to reduce the mandatory minimum term of imprisonment
required under the Graves Act.
Tried by a jury, defendant was found guilty of second degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a) and third degree possession of a handgun without a permit (N.J.S.A. 2C:39-5b), but was acquitted of fourth degree aggravated assault, defined as pointing a gun at another under circumstances manifesting extreme indifference to human life, (N.J.S.A. 2C:12-1b(4)). The jury determined that defendant's intent was to use the gun against the person of another. He was thus sentenced to a term of five years with a mandatory parole disqualifier of three years on the conviction for possession of a
firearm for an unlawful purpose. N.J.S.A. 2C:43-6c; see also
State v. Camacho,
295 N.J. Super. 585, 590 (App. Div. 1996);
State v. Latimore,
197 N.J. Super. 197, 221 (App. Div. 1984),
certif. denied,
101 N.J. 328 (1985). A concurrent four-year
sentence was imposed on the conviction for possession of a
handgun without a permit.
We need not recount the facts at length. On September 2,
1994, Brian and Allison Mourad, both members of the Federal
Bureau of Investigation, were driving in the left lane of the New
Jersey Turnpike when they observed defendant's van approaching
the rear of their vehicle at a high rate of speed. Because the
road was very congested, the Mourads were not immediately able to
maneuver their automobile into the center lane to permit
defendant to pass. After finding a clearing in the traffic, Mr.
Mourad pulled his automobile into the center lane. According to
the Mourads, when defendant's van pulled alongside their vehicle,
they saw defendant shouting in an angry manner. Both Mourads
testified that defendant suddenly pointed a handgun directly at
them. Mr. Mourad immediately applied the brakes, causing
defendant's van to pass their car. The Mourads were able to
observe defendant's license plate number which they immediately
reported to the State Police.
Trooper Matthew Finnegan stopped defendant's van shortly
thereafter. Although defendant denied having a gun, a search of
the vehicle revealed a Smith and Wesson 9mm semi-automatic pistol
behind the spare tire compartment. Defendant and his passenger,
Kristen Bove, were arrested and transported to the State Police
barracks. After waiving his constitutional rights, defendant
admitted that he had pointed the pistol at the Mourads' vehicle.
Defendant characterized the incident as a "big mistake" prompted
by his anger resulting from the Mourads' blocking of the passing
lane.
At trial, defendant conceded that he brandished the handgun
and pointed it toward the front window. However, defendant
disavowed the portion of his statement in which he admitted
pointing the weapon at the Mourads. Defendant testified that he
and Bove were returning from a visit to a friend in Pennsylvania
when the incident occurred. They had taken the gun, which was
licensed in Rhode Island where they shared an apartment, in order
to engage in target practice. According to defendant, he decided
to display the gun after Mr. Mourad made an obscene gesture.
Defendant denied that he "trained" the pistol on the Mourads'
vehicle.
The trial court's instructions on the elements of the
offenses closely traced the model jury charges. The trial
court's instructions on possession of a firearm for an unlawful
purpose encompassed the prosecutor's request to charge respecting
the requisite mens rea. More specifically, the trial court
apprised the jury of the State's contention that "the defendant's
unlawful purpose in possessing the firearm was to threaten or to
terrorize or to coerce" the Mourads on the date of the incident.
In differentiating the charges, the trial court instructed the
jury that it was obliged to "consider whether the State ha[d]
proved the specific unlawful purpose charged and not the mere
unlawful possession of the weapon as alleged in Count [two]
without a permit." The trial court stressed that the jury was
"not to invoke [its] own notions of unlawfulness regarding the
defendant's purpose," but rather was to confine itself to the
State's contention in that respect.
These principles were essentially repeated when, in the
course of its deliberations, the jury requested clarification.
The trial court responded:
And the fourth element is that the
defendant's purpose was to use the firearm
unlawfully. With respect to that I have
already defined purpose for you. That
element of purpose to use a firearm
unlawfully requires that you find that the
defendant possessed that firearm with a
conscious objective, design or specific
intent to use it against the person or
property of another in an unlawful manner as
charged in the indictment and not for some
other purpose.
In this case the State contends that the defendant's unlawful purpose in possessing this firearm was to threaten or to terrorize or to coerce the occupants of the red Volks with that Smith & Wesson 9mm handgun on September 2, 1994 on the New Jersey Turnpike in Cranbury Township in New Jersey to threaten or to terrorize or to coerce would be an unlawful purpose. The defense contends on the other hand that the possession if you find it exists was at all times lawful and that the brandishing or displaying openly as I am using brandishing in this situation, the brandishing of the gun without more is a lawful act and that the defendant possessed the weapon for target practice. Any lawful purpose would be a defense to the charge of possession of a firearm or weapon with a purpose to use it unlawfully against a person
or property of another.
As you evaluate, ladies and gentlemen, the
unlawful purpose we ask you to focus on the
specific unlawful purposes alleged by the
State and not to consider your own notions of
the unlawfulness of the defendant's purpose,
but to restrict yourself to the unlawful
purpose as defined by the State and the
prosecution here.
The jury returned its verdict finding defendant guilty of
possession of a firearm for an unlawful purpose and possession of
a handgun without a permit and not guilty of aggravated assault.
It is against this factual backdrop that we examine
defendant's arguments. Defendant argues (1) the indictment was
defective because it did not identify the "unlawful purpose" with
which he possessed the firearm, (2) the trial court erred by
denying his motion for a judgment of acquittal, (3) the trial
court failed to provide sufficient guidance in its jury
instructions on possession of a firearm for an unlawful purpose,
and (4) the trial court improperly instructed the jury respecting
the distinction between intent to use a firearm against the
person or property of another.
There is clearly no merit in defendant's claim that a motion
for a judgment of acquittal should have been granted or that the
distinction between use of a firearm against persons or property
in the jury charge was unclear. R. 2:11-3(e)(2). As our brief
recitation of the facts discloses, the State's evidence was
substantial and the charges were properly submitted to the jury
for its consideration. R. 3:18-1; see also State v. Reyes,
50 N.J. 454, 458-59 (1967). The trial court provided special
interrogatories which expressed in clear and emphatic language
the distinction between the unlawful purpose to use a firearm
against persons as opposed to the unlawful purpose to use a
firearm against property. We address defendant's remaining
points seriatim.
Tracking the statutory language, the first count of the
indictment charged defendant with possessing a firearm "with a
purpose to use it unlawfully against the person or property of
another." N.J.S.A. 2C:39-4a. The indictment did not specify the
"unlawful purpose" with which defendant allegedly possessed the
weapon. Defendant asserts that the indictment violated Article
I, paragraphs 8 and 10 of the New Jersey Constitution which
provide in part:
No person shall be held to answer for a
criminal offense, unless on the presentment
or indictment of a grand jury . . . .
[N.J. Const. of 1947, art. I, para. 8.]
In all criminal prosecutions the accused
shall have the right . . . to be informed of
the nature and cause of the accusation . . . .
[N.J. Const. of 1947, art. I, para. 10.]
Defendant also contends that the indictment infringed upon his
rights under the federal constitution.
Although the United States Constitution does not impose on
the states the requirement of indictment by grand jury, see
Paterno v. Lyons,
334 U.S. 314, 322,
68 S.Ct. 1044, 1048,
92 L.Ed. 1409, 1446 (1948) (Frankfurter, J., concurring), the Sixth
Amendment guarantees the right "to be informed of the nature and
cause of the accusation" and the due process clause requires
"reasonable notice and information of the specific charge." Id.
at 320, 68 S.Ct. at 1047, 92 L.Ed. at 1415. Because the New
Jersey Constitution embraces all of the protections granted by
its federal counterpart and additionally requires indictment by
grand jury, our discussion of the issue raised is confined to
this State's organic law.
Preliminarily, we harbor reservations concerning whether
defendant's claim is cognizable. R. 3:10-2 provides that any
objections based on defects in the institution of the prosecution
or in the indictment must be raised by motion before trial and
that failure to do so constitutes a waiver, absent a showing of
good cause. We have applied this rule with firmness. See, e.g.,
State v. M.L.,
253 N.J. Super. 13, 19 (App. Div. 1991), certif.
denied,
127 N.J. 560 (1992); State v. R.W.,
200 N.J. Super. 560,
572 (App. Div. 1985), modified,
104 N.J. 14 (1986); State v.
Spano,
128 N.J. Super. 90, 92 (App. Div. 1973), aff'd,
64 N.J. 566 (1974). Pressler, Current N.J. Court Rules, comment 4 on R.
3:10-2 (1997). Although the truncated record submitted to us
does not indicate that defendant moved to dismiss the indictment,
the State does not assert that defendant is precluded from
advancing the contention under the rule. Moreover, the record
before us does not include transcripts of all pretrial
proceedings. We thus address defendant's argument.
Many strands are interwoven to make up the composite
guaranty which constitutes the right to indictment by grand jury.
First, an indictment must "inform the defendant of the offense
charged against him, so that he may adequately prepare his
defense." State v. LeFurge,
101 N.J. 404, 415 (1986) (quoting
State v. Lefante,
12 N.J. 505, 509 (1953)); see also State v. New
Jersey Trade Waste Ass'n,
96 N.J. 8, 19 (1984); State v. Wein,
80 N.J. 491, 497 (1979); State v. Boratto,
80 N.J. 506, 518 (1979);
State v. Silverstein,
41 N.J. 203, 207 (1963); State v. La Fera,
35 N.J. 75, 81 (1961). Second, the indictment must be
sufficiently specific to enable the defendant to avoid a
subsequent prosecution for the same offense. State v. LeFurge,
101 N.J. at 415; State v. Wein, 80 N.J. at 497; State v. Le Fera,
35 N.J. at 81; State v. Lefante, 12 N.J. at 509. Third, the
indictment must be sufficiently precise "to preclude the
possibility of a substitution by the petit jury in the criminal
trial of an offense different from the crime which the grand jury
in fact considered and charged." State v. Wein, 80 N.J. at 497;
see also State v. LeFurge, 101 N.J. at 415; State v. DiPaolo,
34 N.J. 279, 285, cert. denied,
368 U.S. 880,
82 S.Ct. 130,
7 L.Ed.2d 80 (1961). Within this analytical framework, we find no
constitutional infringement.
We are satisfied that the indictment adequately informed
defendant of the charge against him. Specifically, the
indictment sufficiently identified and explained the criminal
offense to enable defendant to prepare a defense. Perhaps the
preferable practice would be to specify in the indictment the
precise unlawful purpose the defendant is alleged to have
harbored when he possessed the firearm. However, our experience
discloses that indictments charging this offense have
traditionally employed the statutory language.See footnote 1 New Jersey's
policy of affording a defendant almost complete discovery of the
prosecutor's file, including the right to move for a bill of
particulars under R. 3:7-5, obviates the potential for prejudice.
We are equally convinced that the language of the charge was
sufficiently detailed to avoid the risk of double jeopardy.
Defendant contends that had he been acquitted, he nonetheless
could have been again indicted and tried for essentially the same
offense with the State alleging a different "unlawful purpose" in
possessing the firearm. We view defendant's fear as entirely
ephemeral. Had defendant been acquitted, the Code's provisions
barring reprosecution for the same offense would have prohibited
an attempted retrial. See N.J.S.A. 2C:1-9a. Wholly apart from
this prohibition, the Code's mandatory joinder rule, which
imposes greater restrictions on multiple prosecutions than are
afforded by constitutional double jeopardy provisions, would have
barred any further criminal proceeding. See N.J.S.A. 2C:1-8b;
see also State v. Gregory,
66 N.J. 510, 522 (1975).
We reject the contention that the indictment was not
sufficiently specific to preclude the substitution by a trial
jury of an offense which the grand jury did not in fact consider
or charge. "The ancient function of the grand jury in the Anglo-American system of justice has traditionally been to sort
accusations of criminal conduct, to advance the public interest
through the discovery and indictment of persons chargeable with
certain crimes, and to safeguard citizens against arbitrary,
oppressive, and unwarranted criminal accusations." State v.
LeFurge, 101 N.J. at 418. In order to preserve this
constitutional value, our Supreme Court has insisted that "the
indictment must allege all the essential facts of the crime, lest
an accused be brought to trial for an offense the grand jury did
not find." State v. Le Fera, 35 N.J. at 81. However, the Court
has also expressed the view that "an indictment is merely a
pleading device and never an end in itself." State v. LeFurge,
101 N.J. at 419. Considering the interrelated counts of the
indictment as a whole, we are satisfied that the criminal episode
charged by the grand jury was the same as that presented to the
petit jury.
We next address defendant's contention that the trial court
erred in its instructions on possession of a firearm for an
unlawful purpose. Although ambiguously phrased, defendant's
argument rests on the thesis that a trial court must in its
instructions on unlawful purpose specifically define the elements
of the crime the accused is alleged to have intended to commit.
We reject this thesis.
In State v. Petties,
139 N.J. 310 (1995), our Supreme Court
held that a trial court must include in its instructions on the
elements of N.J.S.A. 2C:39-4a an identification of the unlawful
purpose the accused allegedly harbored in possessing the firearm.
Id. at 320-21. In reaching this conclusion, the Court reasoned
that "[a] jury is not qualified to say without guidance which
purposes for possessing a gun are unlawful under N.J.S.A. 2C:39-4a and which are not." Id. at 320 (quoting State v. Jenkins,
234 N.J. Super. 311, 316 (App. Div. 1989)). Noting that Chapter 39
of the Code represents a very carefully structured grid of gun
controls, id. at 314-15 (quoting State v. Ingram,
98 N.J. 489,
495 n.1 (1985)), the Court was concerned that, without guidance,
the jury might consider its own notions of the unlawfulness of
the defendant's purpose in possessing the firearm. Id. at 320.
We do not read Petties as mandating that in every case it is
incumbent upon the trial court to define with precision the exact
elements of the crime the defendant is alleged to have intended
to commit with the firearm. As the Court was careful to note,
"[t]he statute does not require the State to obtain a conviction
for [the] underlying unlawful conduct," id. at 315, and thus the
prosecutor need not "show specifically which completed crime the
actor intended [to commit] with the gun[]." Id. at 316.See footnote 2
We do not suggest that it is improper for a trial court to
specifically define the elements of the crime the defendant
allegedly intended to commit with the firearm. In many, if not
most cases, that might well be the better course. However,
possession of a firearm for an unlawful purpose is a preparatory
crime and the unlawful purpose of the actor "may be independent
of the commission of [a] substantive offense." State v. Diaz,
144 N.J. at 636-37. It may be impossible in some cases to define
with precision the exact crime or crimes the defendant intended
to commit with the firearm. An example of such a scenario was
described in Petties. The Court observed:
If a search were to disclose large quantities
of drugs and cash in a home, one might infer
that any handguns found in the home were
possessed for the unlawful purpose of aiding
drug trafficking. Does that mean that a
prosecutor would have to show specifically
which completed crime the actor intended with
the guns? We think not.
[State v. Petties, 139 N.J. at 316.]
In a similar vein, we have sustained unlawful purpose convictions
where several youths were found in possession of weapons at 3:00
a.m. in a parked car with the engine running and the headlights
off. State v. Latimore,
197 N.J. Super. 197. We doubt the need
in such a case for the trial court to define with exactitude the
precise elements of each crime that the defendants in that
situation may have intended to commit. Instead, a reference to
the generic offenses of robbery, theft or burglary, without
specific recital of the precise elements of those offenses, would
seem to suffice.
We need not dwell upon the subject. The facts of this case
are simple and should yield simple results. The trial court's
references to the State's contention that defendant brandished
the firearm in order to terrorize, threaten or coerce the victims
constituted a sufficient description of the prescribed purpose
required for a conviction. The trial court "relate[d] the
specific unlawful purpose charged to the facts of the case,"
State v. Petties, 139 N.J. at 321, and "mold[ed] the instruction
in a manner that explain[ed] the law to the jury in the context
of the material facts." State v. Concepcion,
111 N.J. 373, 379
(1988). We find no error capable of producing an unjust result.
R. 2:10-2.
Defendant's remaining arguments respecting the jury
instructions do not require extended discussion. Defendant
contends that the trial court failed to differentiate the
possessory weapon offenses in its jury instructions. He also
contends that the trial court erred by failing to charge self-defense as a justification for possession of a firearm for an
unlawful purpose.
The trial court's charge properly distinguished the crimes
of possession of a firearm for an unlawful purpose and possession
of a handgun without a permit. At the conclusion of the
instructions, the jury was told that it was obliged to consider
whether the State had proven the "specific unlawful purpose
charged" and not "the mere unlawful possession of the weapon
. . . without a permit."
We are also unpersuaded by defendant's claim that the trial
court should have instructed the jury on the justification of
self-defense. There is no evidence in the case that defendant
"anticipatorily arm[ed] [him]self on the apprehension of future
danger." State v. Harmon, 104 N.J. at 208. Moreover,
defendant's attorney specifically asked the trial court not to
charge the jury on the subject. See State v. Corsaro,
107 N.J. 339, 345-46 (1987). No error was committed.
Although defendant argued at sentencing that the Graves Act was not applicable, he did not request that the sentence be reviewed under N.J.S.A. 2C:43-6.2, which allows the assignment judge to reduce the mandatory parole ineligibility term with consent of the prosecutor. See State v. Alvarez, 246 N.J. Super. 137, 140 (App. Div. 1991). We note that prior to this incident defendant led a law abiding life. At oral argument, the prosecutor observed that this was defendant's first brush with the law and, the crimes committed, while very serious, appeared aberrational. Under these circumstances, the interests of justice militate in favor of remanding the matter to the Law Division to afford defendant the opportunity to seek the prosecutor's consent and move for leniency under N.J.S.A. 2C:43-6.2. Like the prosecutor, we do not deprecate the seriousness of the crimes committed by the defendant. But it is fair to say that, within the constellation of Graves Act cases, this may be one deserving of some leniency.
The judgment of convictions is affirmed, but the matter is remanded to the Law Division for further proceedings consistent with this opinion.
Remanded.
Footnote: 1In most cases where the defendant is charged with
possession of a firearm for an unlawful purpose in one count and
a substantive crime in another, it is plain that the State
contends possession of a gun was for the purpose of committing
the substantive crime. As this case illustrates, this is not
always the case. Here, for example, the prosecutor contended
that defendant's purpose was to commit a criminal act differing
from the substantive crime with which defendant was charged.
As noted previously, defendant is charged in Count III with
fourth degree aggravated assault under N.J.S.A. 2C:12-1b(4).
That statute provides: "a person is guilty of aggravated assault
if he: (4) [k]nowingly under circumstances manifesting extreme
indifference to the value of human life points a firearm . . .
at or in the direction of another . . . ." At trial, the
prosecutor contended that defendant's purpose in possessing the
gun was to threaten, terrorize, or coerce the victims. Under
N.J.S.A. 2C:12-3a, a person is guilty of a crime of the third
degree "if he threatens to commit any crime of violence with
purpose to terrorize another." Criminal coercion is defined in
N.J.S.A. 2C:13-5a(1) as threatening to "[i]nflict bodily injury
on anyone or commit any other offense" "with purpose unlawfully
to restrict another's freedom of action to engage or refrain from
engaging in conduct." Although the act of threatening,
terrorizing, or coercing another may not in a technical sense be
a lesser included offense of fourth degree aggravated assault,
see State v. Hammond,
231 N.J. Super. 535, 545 (App. Div.),
certif. denied,
117 N.J. 636 (1989), a violation of each statute
may be based on essentially the same conduct.
We thus reiterate our conclusion that defendant was fully informed of the nature of the charges against him by reason of broad discovery provided by the prosecutor. We also observe that the defendant's acquittal of aggravated assault did not impact upon his conviction for possession of a firearm for an unlawful purpose. See State v. Petties, 139 N.J. 310, 317-18 (1995); cf. State v. Diaz, 144 N.J. 628, 636 (1996). Footnote: 2In State v. Butler, 27 N.J. 593-94 (1958), the Supreme Court held that a trial judge must instruct the jury as to the elements of the underlying felony in a felony murder case. However, the question presented here is distinguishable. Under felony muder, the commission of the underlying felony constitutes an essential element of the crime. Here, the commission of a completed crime is not a predicate to a conviction for an unlawful purpose. See State v. Diaz, 144 N.J. 628, 636 (1996); State v. Petties, 139 N.J. at 315.