State v. Lee

• Decision Date: 07 May 1984
• Citation: 475 A.2d 31,96 N.J. 156
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Ronald LEE, a/k/a John Davis, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 156

96 N.J. 156

475 A.2d 31

STATE of New Jersey, Plaintiff-Respondent, v. Ronald LEE, a/k/a John Davis, Defendant-Appellant.

Supreme Court of New Jersey.

Argued Nov. 29, 1983.

Decided May 7, 1984.

Judith L. Borman, Asst. Deputy Public Defender, for defendant-appellant (Joseph H. Rodriguez, Public Defender, attorney).

Mark Paul Cronin, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Mark Paul Cronin, Victoria Curtis Bramson and Catherine A. Foddai, Deputy Attys. Gen., of counsel; Victoria Curtis Bramson and Catherine A. Foddai, on the brief).

The opinion of the Court was delivered by

POLLOCK, J.

In this case, we must determine the constitutionality of N.J.S.A. 2C:39-5 d, which states that a person who knowingly possesses a weapon other than certain firearms "under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree."

A majority in the Appellate Division found an explicit charge on defendant's intent unnecessary "as long as the crime was defined in terms of the circumstances surrounding the possession of the weapon." 188 N.J.Super. 432, 435, 457 A.2d 1184 (1982). The court described the standard of "circumstances not manifestly appropriate" for lawful uses, however, as the functional equivalent of an unlawful intent to use. Id. at 436, 457 A.2d 1184.

Furthermore, the court rejected defendant's contentions that the statute was vague, overbroad, and effected an unconstitutional shift of the burden of proof to defendant. Finding that the trial court's charge adequately instructed the jury on the essential elements of the crime, including the intent to use the weapon unlawfully, the court sustained defendant's conviction. Id. at 435-36, 457 A.2d 1184.

One judge dissented, asserting that the jury was not adequately instructed that an unlawful intent to use the weapon in question, a pair of scissors taped into a makeshift stiletto, was an element of the crime. Id. at 436, 439, 457 A.2d 1184 (Antell, J.A.D., dissenting). The defendant, who appealed as of right because of the dissent, petitioned for certification on the constitutional issues.

We granted the petition, 94 N.J. 592, 468 A.2d 228 (1983), and now affirm the judgment of the Appellate Division. We hold, however, that an "intent to use for an unlawful purpose" is not an element of the offense, and that the statute is constitutional.

I

The Appellate Division summarized the facts:

The incident giving rise to the charges herein commenced at about 1:25 p.m. on December 8, 1979. James Whitney, an off-duty police officer, entered the kitchen from the living room of his home, at which time he heard a noise on his screen porch. Through a window of the kitchen door the officer saw defendant with his upper torso inside the screen of the porch. Whitney pursued defendant and being unable to apprehend him returned home and telephoned a central dispatch station, reporting the incident, together with a description and direction of flight of the intruder. Lee was eventually apprehended. At the time of his arrest Lee was patted down, as a result of which a pair of scissors taped at the ends, a spool of string, surgical tape and black leather gloves were recovered. Whitney subsequently recognized and identified Lee as the intruder in his home.

At the trial Sgt. Michael O'Donovan was qualified as an expert on weapons and gave his opinion that the taped scissors were useless for their traditional purpose and in the taped condition became a "stiletto." Defendant rested without calling witnesses or testifying. Nor did the defendant present any objection to the judge's charge.

[188 N.J.Super. at 434, 457 A.2d 1184].

The jury found defendant guilty of burglary, N.J.S.A. 2C:18-2, of possession of burglar's tools, N.J.S.A. 2C:5-5, and of the offense that forms the basis for this appeal, possession of a weapon "under circumstances not manifestly appropriate for such lawful use as it may have * * *." N.J.S.A. 2C:39-5 d. Defendant, who had a prior criminal record, received a sentence of five years imprisonment on the burglary conviction and a concurrent sentence of eighteen months on the conviction for unlawful possession of a weapon.

In evaluating defendant's challenge to the constitutionality of 2C:39-5 d, we begin with an analysis of the relevant sections of the New Jersey Code of Criminal Justice (Criminal Code). Those sections reveal a carefully constructed scheme for the criminalization of possession of weapons in various situations, depending on the nature of the weapon, the intent of the possessor, and the surrounding circumstances. Broadly speaking, chapter 39, of which 2C:39-5 d is a part, contains three classes of possessory weapons offenses.

In the first class, the mere possession of certain weapons, such as sawed-off shotguns, constitutes a per se offense. See 2C:39-3 b. A subdivision of this category, which concerns implements such as dirks, daggers, and stilettos, makes the possession of those objects an offense unless the defendant can come forward with an explainable lawful purpose for possession of the weapon. See 2C:39-3 e. This provision does not relieve the State of its burden of proof, but merely shifts to the defendant the burden of going forward on the issue of "lawful purpose." See State v. Dunlap, 181 N.J.Super. 71, 76, 436 N.E.2d 569 (Law Div.1981).

A second class of offenses prohibits the possession of a weapon with the intent to use it against the person or property of another. See 2C:39-4 a to -4 d. The final category, described in the subject statute, 2C:39-5 d, prohibits the possession of any weapon other than certain unlicensed firearms "under circumstances not manifestly appropriate for such lawful uses as it may have." The excepted firearms are machine guns, handguns, rifles, and shotguns, the unlicensed possession of which is, regardless of the intent of the possessor or circumstances surrounding the possession, a crime of the third degree. 2C:39-5 a to -5 c. As crimes of the third or fourth degree, violations of 2C:39-5 a to -5 d carry a presumption against incarceration for a first offender. 2C:44-1 e.

The preceding categories are useful for understanding the legislative intent, but should not be considered as mutually exclusive. The possession of a particular weapon can be prohibited under one or more of the categories, depending upon the intent of the possessor or the circumstances surrounding the possession. Quite logically, the Legislature made the possession of a given weapon a more serious crime if that possession was accompanied by an intent to use it unlawfully against another. Compare 2C:39-3 a (possession of a "destructive device" is a crime of the third degree) with 2C:39-4 c (possession of such a device with an accompanying intent to use unlawfully is a second degree crime).

In 2C:39-5 d, the Legislature addressed the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The obvious intent of the Legislature was to address a serious societal problem, the threat of harm to others from the possession of objects that can be used as weapons under circumstances not manifestly appropriate for such lawful uses as those objects may have. Some objects that may be used as weapons also have more innocent purposes. For example, a machete can be a lethal weapon or a useful device for deep sea fishing. See State v. Hay, 153 N.J.Super. 346, 349, 379 A.2d 858 (App.Div.1977). A steak knife is appropriate at the dinner table, but sinister when concealed in a car with a BB gun. See In re T.E.T., 184 N.J.Super. 324, 446 A.2d 177 (App.Div.1982).

The underlying problem is protecting citizens from the threat of harm while permitting the use of objects such as knives in a manner consistent with a free and civilized society. The statute addresses the problem by outlawing the possession of various weapons in circumstances where they pose a likely threat of harm to others. In striking a balance, the Legislature recognized that an otherwise innocent object can become such a threat. See Robinson, Imputed Criminal Liability, 93 Yale L.J. 609, 626 (1984) ("[p]ossession offenses seek to prohibit and punish not possession itself, but harmful conduct, past or future, that is evidenced by the possession.").

The former criminal statutes contained two sections that are predecessors of 2C:39-5 d. One section criminalized the possession of a weapon "with intent to use it unlawfully against another." N.J.S.A. 2A:151-56. Another section, N.J.S.A. 2A:151-41, proscribed the possession of certain enumerated objects, including a "dangerous knife." Although this section did not expressly require an unlawful intent to use the weapon, this Court interpreted the statutory prohibition against dangerous knives to include the requirement of such an intent. State v. Green, 62 N.J. 547, 560, 303 A.2d 312 (1973).

We find that many of the circumstances formerly found by this Court to indicate possession of a knife with an unlawful purpose under 2A:151-41 also demonstrate possession that is not manifestly appropriate under 2C:39-5 d. As the Court stated in State v. Green, supra, 62 N.J. at 560, 303 A.2d 312: "surrounding circumstances--such as the size, shape and condition of the knife, the nature of its concealment, the time, place and actions of the carrier when found in his possession" indicate that the purpose of carrying the knife is its use as a weapon. Those same circumstances indicate that possession of a knife may be "not manifestly appropriate" for its lawful use.

The criminalization of the possession of a weapon with the intent to use it unlawfully against another is carried forward in 2C:39-4 d. Hence, reading a requirement of an unlawful intent into 2C:39-5 d would render that section superfluous. Cf. State v. Brown, 185 N.J.Super....