State v. Cuccio

• Decision Date: 17 April 2002
• Citation: 350 N.J. Super. 248,794 A.2d 880
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. John CUCCIO, Defendant-Appellant.
• Court: New Jersey Superior Court

794 A.2d 880

350 N.J. Super. 248

STATE of New Jersey, Plaintiff-Respondent, v. John CUCCIO, Defendant-Appellant.

Superior Court of New Jersey, Appellate Division.

Argued February 4, 2002.

Decided April 17, 2002.

Philip De Vencentes, Hackensack, argued the cause for appellant (Galantucci & Patuto, attorneys; Mr. De Vencentes, on the brief).

H. John Witman III, Deputy Attorney General, argued the cause for respondent (David Samson, Attorney General, attorney; Mr. Witman, of counsel and on the brief).

Before Judges PETRELLA, KESTIN and ALLEY.

The opinion of the court was delivered by KESTIN, J.A.D.

Defendant was charged with two first degree crimes: purposeful or knowing murder of one victim (N.J.S.A. 2C:11-3a(1) or (2)) and attempted murder of another (N.J.S.A. 2C:5-1 and:11-3); three second degree crimes: two counts of possession of a handgun with purpose to use it unlawfully against others (N.J.S.A. 2C:39-4a) and a single count of endangering the welfare of a child (N.J.S.A. 2C:24-4a); and ten counts of fourth degree receipt, purchase or acquisition of a handgun without a permit (N.J.S.A. 2C:39-10a and:58-3a). The endangering count was dismissed on the State's motion, and the remaining charges were tried to a jury. Acquitting defendant of purposeful and knowing murder, the jury found him guilty of lesser-included aggravated manslaughter (N.J.S.A. 2C:11-4a) and of the remaining charges.

At sentencing, the court merged the possession of weapons convictions with the related convictions for aggravated manslaughter and attempted murder and imposed consecutive prison terms for the latter convictions, respectively, of twenty-one years and sixteen years both subject to the eighty-five percent and five-year parole supervision requirements of the No Early Release Act, N.J.S.A. 2C:43-7.2. Ten one-year terms of imprisonment were imposed for the weapons-permit offenses to be served concurrently with each other and with the longer terms. Appropriate statutory assessments and penalties were ordered.

Defendant appeals from the convictions and sentences, raising the following issues:

POINT I THE TRIAL COURT'S UNEXPLAINED CLOSURE OF THE COURTROOM, AND EJECTION OF DEFENDANT'S FAMILY, DURING JURY SELECTION VIOLATED DEFENDANT'S RIGHT UNDER THE SIXTH AMENDMENT AND ARTICLE I, PARA. 10 OF THE NEW JERSEY CONSTITUTION, AND REQUIRES A REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT II THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A JUDGMENT OF ACQUITTAL ON COUNTS 5 THROUGH 14 FOR A LACK OF ANY EVIDENCE OF THE MATERIAL ELEMENT OF UNLAWFUL "PURCHASE" OR "ACQUISITION".

POINT III THE TRIAL COURT ERRED IN ADMITTING EVIDENCE PURSUANT TO N.J.R.E. 404(b) RESULTING IN SUBSTANTIAL PREJUDICE TO DEFENDANT'S RIGHT TO A FAIR AND IMPARTIAL VERDICT.

POINT IV MULTIPLE ACTS OF PROSECUTORIAL MISCONDUCT, UNCORRECTED BY THE TRIAL COURT, DEPRIVED DEFENDANT OF HIS RIGHT TO A FAIR AND IMPARTIAL VERDICT.

a. DESPITE JUDICIAL INSTRUCTION, THE PROSECUTOR ELICITED TESTIMONY TO SHOW THAT DEFENDANT INVOKED HIS RIGHT TO "SILENCE" AND TO AN ATTORNEY DURING POST-ARREST QUESTIONING.

b. THE PROSECUTOR'S COMMENTS BOTH IN HIS OPENING AND CLOSING STATEMENTS

WERE BOTH OUTSIDE THE EVIDENCE AND HIGHLY PREJUDICIAL (PARTIALLY RAISED BELOW).

c. THE PROSECUTOR COMMITTED SERIOUS DISCOVERY VIOLATIONS PREJUDICIAL TO THE DEFENSE, AND THE TRIAL COURT ERRED IN FAILING TO GRANT DEFENDANT'S MOTION FOR A MISTRIAL.

POINT V THE SENTENCE IN THIS CASE WAS EXCESSIVE, AND WAS IMPOSED WITHOUT PROPER APPLICATION OF THE SENTENCING GUIDELINES, THE RULES OF MERGER, OR THE MANDATES OF STATE v. YARBOUGH ON THE IMPOSITION OF CONSECUTIVE SENTENCES.

a. THE TRIAL COURT ERRED IN FAILING TO "MERGE" FOR SENTENCING PURPOSES THE CONVICTIONS FOR ATTEMPTED MURDER AND AGGRAVATED MANSLAUGHTER.

b. THE IMPOSITION OF CONSECUTIVE SENTENCES IN THE CIRCUMSTANCES OF THIS CASE WAS BOTH EXCESSIVE AND IN VIOLATION OF THE SENTENCING ANALYSIS MANDATED BY STATE v. YARBOUGH.

POINT VI THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS.

We reverse, dismissing the weapons-permit charges and remanding for a new trial on the remaining counts as modified.

The charges arose from an incident outside defendant's home at about 1:30 a.m. on June 18, 1998. According to his own testimony, defendant was dozing in an easy chair when he was awakened by the sound of a car exhaust in front of his house. The sound faded away. The same sound recurred and faded away a second time. On hearing the car a third time, defendant looked out the window. He saw a male leave a black car stopped in the street with its engine running. That person carried an object in his hand and crossed the street walking toward the homes of defendant and his neighbor. Defendant retrieved a handgun and returned to the window to see the intruder attempting to break the driver's side window of the neighbor's parked car. Defendant then went out the front door of his home onto the porch, yelled at the individual, and simultaneously fired a shot. Defendant contended that he aimed at a wall across the street because he only wanted to scare the person and chase him away, not hit him.

After the shot was fired, the intruder ran across the street to the idling car, jumped in, closed the door, and drove backwards up the street. Defendant walked down one or two steps and fired another shot just as the vehicle began to back up. He claimed that he pointed his gun toward the neighbor's parked car, not at the moving car, and that he had no intent to injure anyone. He said he was unaware that the moving car had any occupants other than the driver. After the second shot was fired, the black car continued to back up and disappeared from view.

One of the shots penetrated the windshield of the black car. The front seat passenger was shot through the head. The driver testified that the second shot was fired several seconds following the first after he had been traveling in reverse for about five seconds. Defendant testified that the entire time he had been outside was no more than five seconds.

After moving a bag containing his collection of handguns and related equipment from a gun safe on the first floor of the house to his bedroom upstairs, defendant telephoned the police, falsely reporting that some children had been shooting off firecrackers and trying to break into his neighbor's car. He adhered to varying versions of that account in a series of conversations with police personnel until, confronted with the results of their investigation later that morning, he admitted he had fired the shots in a version similar to that which he recounted at trial. With a search warrant for defendant's home, the police, shortly thereafter, secured the handguns and a cache of other firearms, ammunition and related equipment, including the weapon which defendant had discharged earlier.

The State produced no evidence that defendant had "purchased, acquired or received" in New Jersey the handguns charged as predicates for the ten fourth-degree weapon permit counts. Defendant testified in a hearing outside the jury's presence that he had obtained the weapons in private purchases in Florida, and he produced evidence that he possessed a Florida Class "W" concealed weapon or firearm license. While acknowledging that one can lawfully acquire a handgun in another state and transport it to one's home in New Jersey without being required to obtain a New Jersey permit to purchase, acquire or receive a handgun, the trial judge denied defendant's motion to dismiss the weapons-permit charges on the basis of the presumption contained in N.J.S.A. 2C:39-2b. The statute provides that when the legality of a person's conduct under chapter 39 depends on his possession of a permit, it shall be presumed that he does not possess such a permit until he establishes the contrary. The judge ruled that the State had produced evidence from which a jury could find beyond a reasonable doubt that defendant possessed the handguns named in the indictment and that he had not obtained a New Jersey permit to purchase, acquire or receive these handguns, thus rendering the statutory presumption applicable.

The weapons-permit charges must be dismissed for a lack of any proof by the State of an essential element: that the handguns specified were purchased, acquired or received by defendant in this State. As defense counsel argued to the trial judge, as the judge acknowledged, and as the State concedes in its brief on appeal, New Jersey may not regulate the acquisition of handguns in other states. To the extent New Jersey law may forbid the importation of such weapons into the State or require that they be registered upon entry, see e.g., N.J.S.A. 2C:39-5b; State v. Hatch, 64 N.J. 179, 313 A.2d 797 (1973),¹ the indictment did not charge any such violations, only that defendant "did knowingly receive, purchase or otherwise acquire [the specified handguns] without first securing a permit to purchase" them.

The statutory presumption applied by the court has no bearing in this matter. As we have noted, it provides that where defendant has not established he possesses a permit "it shall be presumed that he does not possess" one. N.J.S.A. 2C:39-2b. Yet, there was no question in this case whether defendant possessed a New Jersey permit. He conceded he did not. The ultimate question before the jury, therefore, was whether defendant had received the ten handguns in New Jersey so as to be subject to the purchase permit requirement of N.J.S.A. 2C:58-3a. As explained in 33A New Jersey Practice, Criminal Law § 30.12, at 214 (Gerald D. Miller) (3d ed.2001), for the fourth degree crimes of violating the regulatory provisions relating to firearms, the State must prove that 1) "the instrument is the type of firearm ... which is being regulated"; 2) "the defendant is subject to the regulation"; 3) the "defendant's conduct violated [the] regulatory provision"; and 4) the "defendant acted knowingly." Here, the State...