State v. Ingram

Decision Date13 March 1985
Citation98 N.J. 489,488 A.2d 545
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. John Terra INGRAM, Defendant-Appellant.
CourtNew Jersey Supreme Court

Mark D. Sperber, Asst. Deputy Public Defender, for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Richard W. Berg, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Katherine Graham, Deputy Atty. Gen., of counsel; Katherine Graham and Catherine A. Foddai, Deputy Attys. Gen., on the brief).

The opinion of the Court was delivered by

O'HERN, J.

This appeal questions the constitutionality of the statutory presumption of N.J.S.A. 2C:39-2 that an accused weapons offender shall be presumed not to possess the requisite license or permit "until he establishes the contrary."

An officer of the Atlantic City Police Department on car patrol on December 23, 1981 received a dispatch over the radio that there was an assault taking place in the area of his patrol. Responding to the report, the officer soon observed an individual fitting the description of the assailant near the report site. The officer stopped his car, opened the door, and shouted to the individual whom he later identified as the defendant. The defendant fled. The officer then turned loose his police patrol dog to run down the defendant. The officer pursued the defendant on foot. After a short pursuit, defendant began to turn and raise his hand in the direction of the overtaking officer. The officer dove to the ground. The dog bit the defendant on the left arm and, in so doing, dislodged what appeared to be a gun from defendant's left hand. The struggle among dog, suspect, and arresting officer continued until the defendant surrendered. After assistance came and the defendant was handcuffed, the police recovered the weapon. It was a loaded .22 automatic revolver, in firing position with cocked hammer.

A jury found defendant guilty of possessing a handgun without a permit, contrary to N.J.S.A. 2C:39-5b; possessing the handgun for unlawful purposes, contrary to N.J.S.A. 2C:39-4a; and two counts of aggravated assault. He was sentenced to a custodial term of eight years, with three years of parole ineligibility, on the charge of possession of the weapon for unlawful purposes. He received concurrent terms on the three remaining counts. Defendant raised various points on appeal to the Appellate Division. We have limited our grant of certification to defendant's argument that the State failed to meet its burden of proof as to the possession of a handgun without a permit. The State offered no direct evidence on the permit issue, choosing to rely on the statutory presumption of N.J.S.A. 2C:39-2b. In an unreported opinion, the Appellate Division affirmed on that issue as well as the other issues. We granted defendant's petition for certification to consider the issue of the statutory presumption. 97 N.J. 605, 483 A.2d 142 (1984).

I.

The threshold question is whether the absence of a permit is an essential element of the offense of unlawful possession of a handgun under N.J.S.A. 2C:39-5b or rather is an affirmative defense that the defendant must establish. The Code defines the offense thus:

[a]ny person who knowingly has in his possession any handgun * * * without first having obtained a permit to carry the same as provided in section 2C:58-4, is guilty of a crime of the third degree. [ N.J.S.A. 2C:39-5b.]

The State contends that the possession of the required permit is not an element of the offense, but instead is an affirmative defense that the defendant has the burden of establishing. We disagree. The Code's definitions of "element of an offense" and "affirmative defenses" do not sustain the State's argument.

The Code states that "[n]o person may be convicted of an offense unless each element of such offense is proved beyond a reasonable doubt." N.J.S.A. 2C:1-13a. Each "[e]lement of an offense" is defined as "such conduct or * * * attendant circumstances * * * as [i]s included in the description of the forbidden conduct in the definition of the offense," N.J.S.A. 2C:1-14h(a), or "[n]egatives an excuse or justification for such conduct." N.J.S.A. 2C:1-14h(c). The circumstance of being without the necessary permit most closely fits the descriptions in subsections (a) and (c) in that the circumstance is included within the description of the offense and serves to negative a justification for the offense. Conversely, a defense is "affirmative" within the meaning of the Code when "(1) [i]t arises under a section of the code which so provides; or (2) [i]t relates to an offense defined by a statute other than the code and such statute so provides." N.J.S.A. 2C:1-13c. No section of the Code or other statute makes the issue of a weapons permit a matter of affirmative defense. See N.J.S.A. 2C:2-1 to -12, e.g., ignorance or mistake; intoxication; duress; consent; entrapment. Only "[w]hen the application of the code depends upon the finding of a fact which is not an element of an offense " does the Code allocate burdens in accordance with the interest to be furthered. N.J.S.A. 2C:1-13d (emphasis supplied).

This interpretation of the elements of the offense of carrying a handgun without a permit is consistent with prior law and would advance the desired "continuation of such laws." N.J.S.A. 2C:1-1e. Prior law prohibited the carrying of a revolver in an automobile without "first having obtained a permit." L. 1968, c. 307. In State v. Hock, 54 N.J. 526, 257 A.2d 699 (1969), cert. den., 399 U.S. 930, 90 S.Ct. 2254, 26 L.Ed.2d 797 (1970), the Court held that "[t]he clause which exempts from its penal provision those persons who have been licensed is so incorporated into and madE A part of the description of the offense that doubtless it should be considered necessary to allege in the indictment * * *." Id. at 536. Since the "allegation presents a negative which, under earlier cases, the prosecution was not called upon to prove in the first instance," id., the Court imposed upon the defendants "a duty of going forward with some evidence of the holding of a permit." Id. at 537, 257 A.2d 699. "However, this did not alter the basic rule that the ultimate burden of persuasion rested on the State." Id.

While there is some ambivalence in the Hock resolution, we believe that it is better to view the absence of a permit as an essential element of the offense. As noted, this would more closely conform to the Code's definitions of the elements of the offense and the Code's definition of the affirmative defenses imposed upon defendants. Jurisdictions have differed as to whether their gun codes impose upon the accused the duty to demonstrate possession of the necessary permit but generally, such decisions have been based upon the specific language in their criminal laws. See, e.g., State v. Tinsley, 181 Conn. 388, 435 A.2d 1002 (1980), cert. den., 449 U.S. 1086, 101 S.Ct. 874, 66 L.Ed.2d 811 (1981) (permit an element of offense); State v. Robarge, 450 So.2d 855 (Fla.1984) (permit an element of offense, thus burden of persuasion on prosecution); Commonwealth v. Jones, 372 Mass. 403, 361 N.E.2d 1308 (1977) (permit not an element of offense since other general law requires holder of required permit to demonstrate lawful authority for conduct); People v. Henderson, 391 Mich. 612, 218 N.W.2d 2 (1974) (permit not an element of the offense); Commonwealth v. Bigelow, 484 Pa. 476, 399 A.2d 392 (1979) (permit an element of offense everywhere in state except on public streets or public property in Philadelphia); State v. Neary, 122 R.I. 506, 409 A.2d 551 (1979) (permit an element of the offense but harmless error here to treat issue as matter of affirmative defense). Based upon the definition of the offense in our Code as well as the Code's definition of "elements of an offense" and "affirmative defense," we hold that the absence of a permit is an essential element of the offense, and thus, one to be determined by the jury. 1

II.

We turn next to the question whether the State may rely upon the statutory presumption of N.J.S.A. 2C:39-2 to establish the essential element of the absence of a required permit. Presumptions vary in form, and there is disagreement as to precisely how they operate. See Schmolesky, "County Court of Ulster County v. Allen and Sandstrom v. Montana: The Supreme Court Lends an Ear But Turns Its Face," 33 Rutgers L.Rev. 261 (1981); Ashford & Risinger, "Presumptions, Assumptions, and Due Process in Criminal Cases: A Theoretical Overview," 79 Yale L.J. 165 (1969); Note, "Tot v. United States: Constitutional Restrictions on Statutory Presumptions," 56 Harv.L.Rev. 1324 (1943). Generally speaking, a presumption is an evidentiary device that enables "the trier of fact to determine the existence of an element of the crime--that is, an 'ultimate' or 'elemental' fact--from the existence of one or more 'evidentiary' or 'basic' facts." Ulster County Court v. Allen, 442 U.S. 140, 156, 99 S.Ct. 2213, 2224, 60 L.Ed.2d 777, 791 (1979). The use of a presumption in a particular criminal case must conform to several requirements that have been established to ensure that the burden always remains upon the prosecution to prove every element of the crime charged beyond a reasonable doubt. Id.

The Code is cautious in directing the application of presumptions. It provides that "[w]hen the code or other statute defining an offense establishes a presumption with respect to any fact which is an element of an offense, it has the meaning accorded it by the law of evidence." N.J.S.A. 2C:1-13e. Evidence Rule 15, adopted September 15, 1981, effective July 1, 1982, specifically declined to state the meaning to be accorded statutory presumptions in criminal cases. The comment to the rule states that the resolution is "a temporary one, to remain effective only until a more comprehensive formulation can be drafted which 'would specifically and...

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