(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 28, 1994 -- Decided March 20, 1995
O'HERN, J., writing for a unanimous Court.
On September 18, 1992, Donald Petties went to the home of Alton Pearson to confront Pearson
about what Petties believed to be Pearson's affair with Petties' wife, Helen. Pearson was not at home but
Petties told Cassandra Edwards, a visiting relative, that Pearson was involved intimately with his wife and
that he wanted to "resolve the situation." Petties left Pearson's home, but returned later accompanied by his
wife. They sat in the car in front of the home and waited for Alton Pearson to arrive home.
When Pearson arrived home, Petties got out of his car and confronted Pearson regarding the
suspected affair between Pearson and Helen Petties. Catherine Pearson, Alton's mother, Cassandra
Edwards, and Cassandra's young child were able to witness the confrontation at a very close distance. There
was conflicting testimony from the witnesses in respect of what occurred during the confrontation. Catherine
and Cassandra testified that Petties threatened Pearson; however, Pearson testified that he did not recall
being threatened. The witnesses testified that Petties allegedly brandished a handgun and a rifle but there
were differing perceptions in respect of who Petties pointed the weapons at or whether he pointed either
weapon at anyone.
Petties was later stopped in his car by police and the vehicle was searched. The police found a
loaded handgun with the safety on and an empty rifle with the safety off.
Petties was indicted and tried on five counts of aggravated assault (pointing a firearm at the two
suspected lovers, the two adult relatives, and the child bystander), two counts of possession of a weapon for
an unlawful purpose (one count for each of the weapons), and one count of unlawful possession of a weapon
(the handgun) without a permit. In charging the aggravated-assault counts, the trial court instructed the jury
on the lesser-included offenses of simple assault and harassment. The court gave a sequential charge,
instructing the jury that it could not consider lesser-included offenses unless it first unanimously acquitted
Petties of the five counts of aggravated assault.
The jury convicted Petties of the weapons-possession offenses but acquitted him of the aggravated-assault charges. The jury was unable to reach a verdict on the lesser-included offenses of simple assault
against Catherine and Alton Pearson but did acquit Petties of all other lesser-included offenses.
Petties moved for judgments of acquittal notwithstanding the verdicts on the two counts of
possession of a weapon for an unlawful purpose. The trial court granted the motion and ordered that those
counts be dismissed. In doing so, it relied on State v. Jenkins, in which the court held that when a defendant
is acquitted of aggravated assault with a weapon and no evidence other than the account of the alleged
assault is adduced to prove a charge of possession of the weapon for an unlawful purpose, a jury cannot
convict on the possession charge because it is left to speculate on the unlawful purpose.
The Appellate Division denied the State's motion for leave to appeal. The Supreme Court granted
the State's motion for leave to appeal.
HELD: An acquittal of the commission of a crime with a gun does not establish that its prior possession had
always been for a lawful purpose.
1. Conviction for a second-degree offense of possession of a weapon for an unlawful purpose does not
require the state to obtain a conviction for underlying unlawful conduct. The unlawful purpose or state of
mind, which may be inferred from the circumstances, must exist at whatever time the State contends the
possessory offenses took place. (pp. 6-8)
2. As long as the jury could have found that possession for an unlawful purpose existed at or before the
confrontation at Pearson's house, then the jury was entitled to return a verdict of guilty for the possession for
an unlawful purpose offenses. The fact that the jury could not agree whether Petties had actually pointed
either gun at his wife, Pearson, or the bystanders does not mean that he brought the guns to the scene for a
lawful purpose. To conclude that every acquittal of the substantive charge involving the use of a gun requires
a dismissal of the charge of possession for an unlawful purpose would be an overreading of Jenkins.
Conversely, a conviction of the substantive charge does not establish that the possession was unlawful. In
each case, it is the subjective intent of the actor during the entire period of possession that determines guilt.
(pp. 8-11)
3. Inconsistent verdicts are normally permitted so long as the evidence was sufficient to establish guilt
on the substantive offenses beyond a reasonable doubt. Confronted with conflicting testimony, the jury could
rationally have acquitted Petties of pointing the guns or making other threats but yet conclude unanimously
and beyond a reasonable doubt that Petties had returned to the Pearson home armed with the weapons for
the unlawful purpose of threatening or intimidating Alton (aggravated assault) or placing his family members
in fear (simple assault), and yet have relented on that purpose. Thus, these verdicts are not inconsistent.
Moreover, circumstantial evidence can suffice to establish an unlawful purpose. Here, there is evidence that
Petties called Pearson a "marked" man and came to the scene "to resolve the situation;" therefore, the jury
could rationally conclude that Petties' purpose in bringing guns to Pearson's home was to intimidate Pearson
unlawfully. (pp. 11-13)
4. The jury is not qualified to determine, without guidance, which purposes for possessing a gun are
unlawful and which are not. Thus, a jury instruction on a charge of weapons possession for unlawful purpose
must include an identification of such unlawful purposes that may be suggested by the evidence and an
instruction that the jury may not convict based on their own notion of the unlawfulness. The charge in this
case failed to meet that standard. The trial judge should have explained to the jury that the criminal purpose
or state of mind may exist at whatever time the State claims that the possessory offense took place and relate
the specific unlawful purpose charged to the facts of the case. (pp. 13-15)
5. In the interest of judicial economy, the matter is remanded for retrial of the reinstated unlawful-purpose counts and the other counts of the indictment that were not resolved by the jury. (pp. 16)
The trial court's order setting aside the verdicts on the unlawful-purpose charges and dismissing
those counts is VACATED and the matter is REMANDED to the Law Division for further proceedings in
accordance with this opinion.
CHIEF JUSTICE WILENTZ and JUSTICES POLLOCK, GARIBALDI, and STEIN join in
JUSTICE O'HERN's opinion. JUSTICES HANDLER and COLEMAN did not participate.
SUPREME COURT OF NEW JERSEY
A-
29 September Term 1994
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONALD A. PETTIES,
Defendant-Respondent.
Argued November 28, 1994 -- Decided March 20, 1995
On appeal from the Superior Court, Appellate
Division.
Simon Louis Rosenbach, Assistant Prosecutor,
argued the cause for appellant (Robert W.
Gluck, Middlesex County Prosecutor,
attorney).
Mark H. Friedman, Assistant Deputy Public
Defender, argued the cause for respondent
(Susan L. Reisner, Public Defender,
attorney).
Lisa Sarnoff Gochman, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (Deborah T.
Poritz, Attorney General, attorney).
The opinion of the Court was delivered by
O'HERN, J.
This case presents the other side of the coin seen in State
v. Harmon,
104 N.J. 189 (1986). A jury acquitted Harmon of
aggravated assault for pointing a firearm at another but
convicted him of possession of the weapon for an unlawful
purpose. He appealed, claiming that he had been denied the right
to show the jury that he had brought the weapon, a BB gun, to the
scene for a lawful purpose. The trial court refused to permit
him to assert that he had possessed the gun only as a precaution
against a possible life-threatening attack. We held that the
unlawful use of a gun (Harmon admitted that he pointed the gun at
another) did not establish that its possession had at all prior
times been for that unlawful purpose. Id. at 217. In this case
we hold that an acquittal of the commission of a crime with a gun
does not establish that its prior possession had always been for
a lawful purpose. We therefore vacate the trial court's order
setting aside guilty verdicts on charges of possession of weapons
for an unlawful purpose after a jury acquitted defendant of the
substantive crimes involving misuse of the guns. However, we
remand those unlawful-possession charges for retrial because the
instructions given were inadequate to guide the jury in its
deliberations.
The case arises from the anger of a jealous husband. On September 18, 1992, defendant went to the home of Alton
Pearson on Lawrence Street in New Brunswick. Defendant suspected that Pearson was having an affair with his wife, Helen Petties. Cassandra Edwards, a visiting relative, answered the door of Pearson's home at about 5:30 p.m. She told defendant that Pearson was not at home. Defendant told her that Alton
Pearson was "messing around" with his wife and that he wanted to
"resolve the situation." Catherine Pearson, Alton's mother, was
also at the home and became involved in the discussion with
defendant. Defendant left after a few minutes but said that he
would be "back in an hour."
The versions given of the incident thereafter differ. All
agree that defendant returned to the Pearson home with his wife
and sat in the car in front of the home to wait for Alton
Pearson. When Alton Pearson arrived, defendant got out of his
car and approached him. The two men exchanged words about
Pearson's relationship with Helen Petties. Pearson said that
Helen Petties was "just a friend." Catherine Pearson, Cassandra
Edwards, and Cassandra's young child, Jasmine, were "inches" away
from the confrontation. The two women testified that defendant
threatened Pearson, whispering in his ear that he was a "marked"
man. Alton Pearson, a reluctant witness who attempted to have
the charges against defendant dropped, said he did not recall
such a threat.
Cassandra and Alton testified that defendant then retrieved
a handgun from his car and pointed it at Alton Pearson for a few
seconds while Pearson's family was standing still next to him.
Pearson's mother said that when defendant pointed the handgun at
Alton, she jumped between the two men and pleaded for her son's
life.
Defendant testified that he had gone to his car intending to
leave when Alton Pearson came at him from behind. He then
grabbed a handgun from the console by the passenger's seat in the
car. Defendant said a friend who had "heard about the situation"
had given him the handgun earlier that day and defendant had
placed it in the car. Defendant testified that he only "palmed
it," keeping the handgun at his side, and did not point it at
anyone. He said that he just wanted the crowd to back off and
that he had no intention of firing the weapon.
Cassandra testified that instead of leaving after the pistol
incident, defendant got out of the car again, opened the trunk,
and pulled out a rifle. He pointed the rifle at his wife and
threatened to kill her. Then he waved the rifle at everyone
present. Catherine Pearson testified that defendant did not
point the rifle at anyone in particular. Instead, he waved the
rifle in front of Helen, Alton, and the Pearson family. Alton
Pearson said that he left after defendant put the handgun back in
the car, and that he saw no rifle. Defendant's version was that
he felt his car was being trapped by a crowd and he briefly held
the rifle in the air without pointing it at anyone.
Defendant and his wife then got back into the car and drove
away. Cassandra called the police. Defendant and his wife were
almost at their home in Piscataway when the police stopped and
searched the car. The police found both weapons. The handgun
was loaded with the safety on, and the rifle was empty with the
safety off.
Defendant was indicted and tried on five counts of
aggravated assault (pointing a firearm at the two suspected
lovers, the two adult relatives, and the child bystander), two
counts of possession of a weapon for an unlawful purpose (one
count for each of the weapons), and one count of unlawful
possession of a weapon (the handgun) without a permit. In
charging the aggravated-assault counts, the court charged lesser
included offenses of simple assault (attempting by physical
menace to put another in fear of imminent serious bodily injury)
and harassment (engaging in conduct intended to alarm or
seriously annoy another person). The court gave a sequential
charge, instructing the jury that it could not consider lesser-included offenses unless it first unanimously acquitted defendant
of the five counts of aggravated assault. See State v. Coyle,
119 N.J. 194, 223-24 (1990) (cautioning about potential confusion
of "acquittal first" instructions). The jury convicted defendant
of all weapons-possession offenses but acquitted him of the
aggravated-assault charges. The jury was unable to reach a
verdict on the lesser-included offenses of simple assault against
Catherine Pearson and Alton Pearson. The jury acquitted
defendant of all other lesser-included offenses.
Defendant moved for judgments of acquittal notwithstanding
the verdicts on the charges of possession of a weapon for an
unlawful purpose. The trial court granted the motion and ordered
that those two counts be dismissed. In doing so, it relied on
State v. Jenkins,
234 N.J. Super. 311 (App. Div. 1989). The
Jenkins court held that when a defendant is acquitted of
aggravated assault with a weapon and no evidence other than the
account of the alleged assault is adduced to prove a charge of
possession of the weapon for an unlawful purpose, a jury cannot
convict on the possession charge because it is left to speculate
on the unlawful purpose. Id. at 315-16.
The Appellate Division denied without opinion the State's
motion for leave to appeal. We granted the State's motion for
leave to appeal to this Court.
136 N.J. 26 (1994).
This case involves regulatory offenses dealing with the possession of firearms. We have repeatedly emphasized the unique nature of such regulations. Chapter 39 of the 1979 Code of Criminal Justice, N.J.S.A. 2C:39-1 to -15, was derived mainly from pre-Code law. Chapter 39 represents a very carefully structured "grid" of gun controls. State v. Ingram, 98 N.J. 489, 495 n.1. (1985). (Chapter 39 also regulates the use of other deadly weapons, such as knives. State v. Lee, 96 N.J. 156 (1984). We, however, limit this discussion to gun controls.) The point of those regulatory offenses is to grade the weapons offenses by the threat that they pose to society. Possession of
a handgun without a permit is a third-degree offense. N.J.S.A.
2C:39-5b. Possession of a firearm with the intent to use it
against another is a second-degree offense, N.J.S.A. 2C:39-4a,
but most significantly such possession is a Graves Act offense
for which a period of parole ineligibility is mandatory.
N.J.S.A. 2C:43-6c. The theory of the Graves Act is that a person
who commits certain crimes with a firearm must go to jail. State
v. Des Marets,
92 N.J. 62, 73 (1983).
The jury convicted Petties of two violations of N.J.S.A.
2C:39-4a, which provides: "Any person who has in his possession
any firearm with a purpose to use it unlawfully against the
person or property of another is guilty of a crime of the second
degree."
The statute does not require the State to obtain a
conviction for underlying unlawful conduct. We said in Harmon,
supra, 104 N.J. at 212:
[T]o sustain a conviction under N.J.S.A.
2C:39-4(a), the State must prove beyond a
reasonable doubt the following four facts:
(1) the item possessed was a "firearm" within
the meaning of N.J.S.A. 2C:39-1(f); (2) the
defendant "possessed" it, which under
N.J.S.A. 2C:2-1(c) requires knowledge or
awareness of his control over the item; (3)
the defendant's purpose or conscious
objective was to use it against the person or
property of another; and (4) the defendant
intended to use it in a manner that was
proscribed by law.
The unlawful purpose or state of mind must exist at whatever time
the State claims the possessory offenses took place. Id. at 210.
Possession of a gun is not always and everywhere criminal.
One may possess an unlicensed handgun at home. N.J.S.A. 2C:39-6e. One may not, however, carry a handgun without a permit.
N.J.S.A. 2C:39-5b. Although we may legally possess a handgun at
home, we may not possess it for an unlawful purpose. 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. The unlawful purposes alleged by the State may be inferred
from the circumstances. In State v. Latimore,
197 N.J. Super. 197, 211 (App. Div. 1984), certif. denied,
101 N.J. 328 (1985),
the court sustained unlawful-purpose convictions when several
youths were found in possession of weapons at 3:00 a.m. in a
parked car with the engine running and the lights out.
The means of acquisition of a gun and its actual or ultimate
uses are, if not irrelevant, not determinative of whether a
regulatory offense has occurred. In this case, as long as the
jury could have found that possession for an unlawful purpose
existed at or before the confrontation at Alton Pearson's house
(and surely the jury could have so found), then the jury was
entitled to return a verdict of guilty for a violation of
N.J.S.A. 2C:39-4a.
The State's theory is that
the jury was entitled to conclude, based upon
all of the evidence adduced by the State,
that defendant took two firearms, placed them
in his car, and with the purpose to assault
Alton Pearson or other people drove with the
weapons to Pearson's house. The jury was
equally entitled to conclude that defendant
had abandoned this purpose by the time he
reached Pearson's house, or the jury was
equally entitled to conclude that
[defendant], although he continued to desire
to assault Pearson, simply did not assault
him. Either of these alternatives, however,
nevertheless permits the verdict that
defendant did at some time on [the day of the
incident] possess the two firearms with the
unlawful purpose of assaulting Pearson.
That the jury could not agree whether defendant had actually
pointed his guns at his wife, Alton Pearson, or the bystanders
does not mean that he brought the guns to the scene for a benign
purpose. The focus of the unlawful-purpose charges was on the
confrontation, the end point of defendant's possession. But that
was not the only time of his possession. See State v. Truglia,
97 N.J. 513, 521 (1984) (holding merger of unlawful-purpose
offense not required when possession offense and aggravated
assault-with-weapon offense could have occurred at different
times).
To conclude that every acquittal of the substantive charge
involving the use of a gun requires an erasure of the charge of
possession for an unlawful purpose would be an overreading of
Jenkins, supra,
234 N.J. Super. 311. Harmon, supra, 104 N.J. at
207 n.9, gives a few such examples. In State v. Lopez, 213 N.J.
Super. 324, 329-30 (App. Div. 1985), certif. denied,
103 N.J. 480
(1986), Lopez' conviction of possession for an unlawful purpose
was not inconsistent with his acquittal of murder because the
jury could have concluded that although he initially possessed
the gun for an assault, he ultimately killed in self-defense when
the victim fired first. In People v. Colon,
442 N.Y.S.2d 346,
348 (App. Term 1981), also cited in Harmon, Colon's conviction of
possession of a knife with wrongful intent was not irreconcilable
with her acquittal of assault with the knife. The jury was
entitled to conclude that Colon's possession was wrongful but
that she justifiably stabbed the complainant in self-defense when
complainant attacked her first. Conversely, a conviction of the
substantive charge does not establish that the possession was
unlawful. See State v. Mieles,
199 N.J. Super. 29, 40-41 (App.
Div.), certif. denied,
101 N.J. 265 (1985) (explaining that taxi
driver who committed aggravated assault with firearm could have
possessed weapon for only precautionary purpose). In each case
it is the subjective intent of the actor during the entire period
of possession that determines guilt.
Jenkins, supra,
234 N.J. Super. 311, may be idiosyncratic in
that it involved the bizarre circumstances of sounds in a parking
lot suspected to be the defendant firing a weapon at his wife.
At trial, Jenkins' wife and stepdaughter testified to hearing
"popping or firecracker-like sounds that could have been shots.
They saw no gun." Id. at 314. Jenkins said that his backfiring
car might have made the sounds. No weapons, cartridges, or
bullets were recovered. Acquittal of the substantive charges of
aggravated assault left no other plausible version of events to
sustain a charge of unlawful possession at any time prior to the
end point of possession. Either there was a gun or there was not
a gun. (Jenkins' simple-assault conviction was predicated on
evidence that he had earlier knocked his wife down).
In this case, there was plainly a gun. There were two guns.
Confronted with the conflicting testimony about whether defendant
had pointed the pistol at the Pearson family, or the rifle at his
wife and the Pearson family (recall that Alton said that he left
before defendant took out the rifle), the jury could rationally
have acquitted defendant of pointing the guns or making the other
threats (whispering to Alton that he was a "marked" man or
telling his wife and the Pearson family "I can kill you") but yet
conclude unanimously and beyond a reasonable doubt that defendant
had left the Pearson home at 5:30 p.m. and returned armed with
the weapons for the unlawful purpose of threatening or
intimidating Alton (aggravated assault) or placing his family
members in fear (simple assault), and yet have relented on that
purpose.
Hence, these verdicts are not inconsistent. Of course,
defendant had no duty to offer an explanation of a lawful purpose
(the presumption of innocence assures him of that), but there was
no suggestion that he was en route to target practice or that he
was going hunting with the weapons. See N.J.S.A. 2C:39-6f(1) and (2) (excepting such purposes from certain permit requirements). There is evidence that he picked up the firearms from someone in his neighborhood who had "heard about the situation," presumably the situation involving Alton and Helen. The State need not have a statement of intent from the possessor of the weapons, or a completed or specific offense to sustain the conviction. State v. Latimore, supra, 197 N.J. Super. at 211. Circumstantial evidence can suffice to establish an unlawful purpose. In Latimore, "[t]he circumstance that the vehicle was parked at an early hour of the morning with the engine running and the lights out is sufficient to support an inference that the weapons were possessed with a purpose to use them unlawfully at least against the property of another." Ibid. Of course, the court must guide the jury in its determination of the unlawful purposes alleged. Therefore, we need not decide whether we should accept the unlawful-possession verdicts if they were in fact inconsistent. Inconsistent verdicts are normally permitted "so long as the evidence was sufficient to establish guilt on the substantive offenses beyond a reasonable doubt." State v. Kamienski, 254 N.J. Super. 75, 95 (App. Div.), certif. denied, 130 N.J. 18 (1992). Review of the sufficiency of the evidence on the guilty verdict is independent of the jury's determination that evidence on another count was insufficient. United States v. Powell, 469 U.S. 57, 67, 105 S. Ct. 471, 478, 83 L. Ed.2d 461, 470 (1984).
Suppose the police had intervened just as defendant was going to
his car to get the pistol and the police lawfully recovered the
weapons. Because there is evidence that defendant called Pearson
a "marked" man and came to the scene "to resolve the situation,"
we would have no doubt that a jury could rationally conclude that
his purpose in bringing guns to Lawrence Street was to intimidate
Alton Pearson unlawfully.
It is perhaps regrettable that the jury may have thought
that it was doing defendant a favor by acquitting him of the
assault counts while convicting him of the unlawful-purpose
counts. The jury did not know the consequences of its verdict.
A prosecutor can now take account of any mitigating circumstances
that may warrant departure from the usual strictures of the
Graves Act. N.J.S.A. 2C:43-6.2.
A more troublesome issue is one not directly raised in this appeal: whether the instructions on the unlawful-purpose counts adequately guided the jury. We agree with so much of Jenkins, supra, that holds:
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. For that reason, because a conviction for a coupled active crime cannot be counted on to supply the unlawful purpose, a jury instruction on a charge of gun possession for unlawful purpose must include an identification of such unlawful purposes as may be suggested by the evidence and an
instruction that the jury may not convict
based on their own notion of the unlawfulness
of some other undescribed purpose.
The charge in this case did not meet that standard. The
Model Jury Charge (revised in 1993, after the trial in this case)
properly guides the jury:
[T]he State must prove beyond a reasonable
doubt * * * that the defendant had a purpose
to use the firearm in a manner that was
prohibited by law. * * * The mental element
of purpose to use a firearm unlawfully
requires that you find that the defendant
possessed a firearm with the 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
the firearm was _____________________________
_____________________________________________
(describe the [purpose of
defendant's possession] of
the weapon)
[If applicable] The defense on the other hand
contends that
_____________________________________________
_____________________________________________
You must not consider your own notions
of the unlawfulness of the defendant's
purpose, but must consider whether the State
has proven the specific unlawful purpose
charged.[See footnote 1]
To resolve issues of merger of weapons offenses with
substantive counts, a court may ask the jury to determine by
separate verdicts whether the possession was solely with the
unlawful purpose to use the weapon against the victim or victims
of the substantive offense, or with a broader unlawful purpose.
See State v. Williams,
213 N.J. Super. 30, 36-37 (App. Div. 1986)
(explaining that although defendant may have intended to use
firearm for broader unlawful purpose--threatening associates of
victim--jury instruction on charge of possession for unlawful
purpose was limited to unlawful use against victim, thus
requiring merger), certif. denied,
107 N.J. 104 (1987). State v.
McAllister,
211 N.J. Super. 355, 364-67 (App. Div. 1986) contains
a suggested form of a verdict sheet, which can be revised to fit
the needs of each case.
In a case such as this, the trial judge should explain to
the jury that the criminal purpose or state of mind may "exist at
whatever time the State claims that the possessory offense took
place," Harmon, supra, 104 N.J. at 210 (emphasis added), and
relate the specific unlawful purpose charged to the facts of the
case. See State v. Concepcion,
111 N.J. 373, 379 (1988)
(instructing trial judges to "mold the instruction in a manner
that explains the law to the jury in the context of the material
facts of the case").
As noted, this case is before us on the State's motion for
leave to appeal from the trial court's order setting aside the
verdicts on the counts of possession of weapons with an unlawful
purpose. Were we to reinstate those convictions, defendant would
be entitled to appeal therefrom after sentencing. The Appellate
Division would be constrained to recognize even as plain error
the trial court's failure to specify the unlawful purpose that
the State alleges defendant had at the time he possessed the
weapons. State v. Goode,
278 N.J. Super. 85, 88 (App. Div. 1994)
(reversing convictions for failure to specify in jury charge the
unlawful purpose that State alleged defendant had at time of
possession).
Rather than reinstate the convictions and await a probable
reversal, in the interests of judicial economy we direct a
retrial of the reinstated unlawful-purpose counts and the other
counts of the indictment that were not resolved by the jury.
We vacate the trial court's order setting aside the verdicts on the unlawful-purpose charges and dismissing those counts. We remand the matter to the Law Division for further proceedings in accordance with this opinion.
Chief Justice Wilentz and Justices Pollock, Garibaldi, and
Stein join in this opinion. Justices Handler and Coleman did not
participate.
NO. A-29 SEPTEMBER TERM 1994
ON APPEAL FROM Appellate Division, Superior Court
ON CERTIFICATION TO
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
DONALD A. PETTIES,
Defendant-Respondent.
DECIDED March 20, 1995
Chief Justice Wilentz PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1As currently formulated, the Model Charge suggests that the court "describe the use of the weapon" to illustrate the unlawful purpose alleged. We request that the Model Criminal Jury Charge Committee consider whether the instruction might better focus the jury's deliberations by describing the alleged purpose of the defendant's possession of the weapon.