State v. D'Orsi

• Decision Date: 03 March 1971
• Citation: 274 A.2d 586,113 N.J.Super. 527
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Joseph D'ORSI, Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 527

113 N.J.Super. 527

274 A.2d 586

STATE of New Jersey, Plaintiff-Respondent, v. Joseph D'ORSI, Defendant-Appellant.

Superior Court of New Jersey,

Appellate Division.

Argued Feb. 9, 1971.

Decided March 3, 1971.

Avrom J. Gold, Newark, for appellant (Mandelbaum, Mandelbaum & Gold, Newark, attorneys; Barry R. Mandelbaum, Newark, on the brief).

Edward R. Rosen, Asst. Prosecutor, for respondent (Vincent P. Keuper, Monmouth County Prosecutor, attorney).

Before Judges KILKENNY, HALPERN and LANE.

PER CURIAM.

Defendant was found guilty by a jury of unlawfully carrying a firearm--a 6-mm. Browning Automatic pistol--on his person without first having obtained the requisite permit to cary the same, contrary to the provisions of N.J.S.A. 2A:151--41. On March 20, 1970 he was sentenced to the New Jersey Reformatory to serve an indeterminate term. Defendant appeals from the judgment of conviction.

I

Defendant's first contention is that the trial court mistakenly denied his pretrial motion to suppress the weapon unlawfully possessed by him because this evidence was obtained through an unlawful search and seizure.

On March 6, 1968 Detective Walter Monahan of the Middletown Police Department received a telephone call at police headquarters from an informant from whom the detective had previously received reliable information. Monahan was told that 'three men were leaving Hazlet in a 1963 Buick, registration MWC 309, were heading sough on Highway 35 through Middletown to pull an armed robbery in Long Branch.' The informant said 'they were armed.' The information was passed on to other members of the police force.

Monahan and Detective Halliday took a position in the headquarters driveway which abuts Highway 35. There were other police vehicles in the vicinity, in the other driveway on the other side of the garage. Detective Olsen was dispatched to the boundary line of Middletown to see if the car in question did in fact come into Middletown. After a short while Olsen sent a radio messsage that the car in question was now proceeding south on Highway 35 with three occupants. When this vehicle was directly in front of police headquarters it was stopped by the combined efforts of Olsen and the waiting police.

Monahan proceeded to the driver's side of the Buick; Halliday, to the passenger side. Defendant was the driver and was so identified by Monahan at the hearing on the motion to suppress and at the trial. Defendant was told to step outside the car and place his hands on the hood. Monahan could tell from observation 'there was a weighted object in his pocket * * * right front coat pocket.' As Monahan testified, 'I patted the coat down and put my hands inside and pulled out a Browning .25 automatic loaded with the clip and reamed for a silencer.' Thereupon, defendant was arrested and advised of his rights. The detective identified the gun which he took from defendant that night from the marking of his initials on it.

The patting down or 'frisking' of defendant was not, under the circumstances, an 'unreasonable search.' The police had reasonable cause to believe the occupants of the car were armed, not only by reason of the information furnished to them but also on the basis of Monahan's personal observation and his police expertise. The police action was legally justified. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); State v. Dilley, 49 N.J. 460, 231 A.2d 353 (1967), utilizing the rationale later expounded in Terry v. Ohio, Supra. See, too, McCary v. Illinois, 386 U.S. 300, 87 S.Ct. 1056, 18 L.Ed.2d 62 (1967) and Draper v. United States, 358 U.S. 307, 79 S.Ct. 329, 3 L.Ed.2d 327 (1958), upholding the validity of the police action under somewhat analogous circumstances.

II

We find no substantial merit in defendant's argument that N.J.S.A. 2A: 151--41 is unconstitutional in its application to this defendant in that it compels him to incriminate himself contrary to his rights under the Fifth Amendment to the United States Constitution.

Defendant's rationale is that one needs a permit to purchase a gun under N.J.S.A. 2A:151--32 and also needs a permit to carry a concealed weapon under N.J.S.A. 2A:151--41. If he applied for the latter permit, he would have been required to incriminate himself by admitting that he had obtained the gun without first having been granted a permit to purchase it. Thus, he would equate the instant situation with Marchetti v. United States, 390 U.S. 39, 88 S.Ct. 697, 19 L.Ed.2d 889 (1968), and Haynes v. United States, 390 U.S. 85, 88 S.Ct. 722, 19 L.Ed.2d 923 (1968), each of which involved disclosure of a violation of the law in order to meet the requirement of another law.

We find this case distinguishable. In Marchetti, for example, one needed a federal tax stamp, to carry on the business of a gambler. But here, one might apply for a permit to carry a concealed weapon Lawfully obtained without disclosing his possession of a weapon Unlawfully obtained. He may not justify a distinct and separate unlawful act by a mere potential of self-incrimination when avoidance lay readily in his own hands, namely, first lawfully obtain a gun and then apply for a permit to carry it lawfully.

III

Defendant's next point is that his admission that he did not have a permit was inadmissible by reason of the failure of the police officers to give him the appropriate Miranda warnings. Cf. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). See, too, State v. Barnes, 54 N.J. 1, 252 A.2d 398 (1969), in explanation of Miranda.

The police officer, Monahan, testified that he had advised defendant of his constitutional rights prior to any statement by defendant. Monahan testified that he 'told him that he was being placed under arrest. He had a right to remain silent and anything he did say would be held against him. That if he didn't have an...