State v. Lee
| Decision Date | 16 December 1982 |
| Citation | 457 A.2d 1184,188 N.J.Super. 432 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Ronald LEE, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Joseph H. Rodriquez, Public Defender, for defendant-appellant (Robert N. Abramowitz, Newark, designated counsel, on the brief).
Irwin I. Kimmelman, Atty. Gen., attorney for plaintiff-respondent (Mark Paul Cronin, Deputy Atty. Gen., on the brief).
Before Judges MATTHEWS, ANTELL and FRANCIS.
Tried to a jury, defendant Ronald Lee was found guilty of burglary ( N.J.S.A. 2C:18-2(a)(1)), count one; and possession of a weapon, scissors with the blades taped together, under circumstances manifestly inappropriate for lawful use ( N.J.S.A. 2C:39-5(d)), count two.
Defendant was sentenced to five years imprisonment on count one and to a concurrent 18-month term on count two. A penalty of $25 payable to the Violent Crimes Compensation Board was assessed on each count.
On this appeal defendant's contentions, as set forth in the brief submitted on his behalf, are the following:
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.
We find no merit in the first point raised by defendant. The judge's charge to the jury properly informed them of the elements necessary for a conviction under N.J.S.A. 2C:39-5(d). That statute prohibits the possession of a weapon under circumstances not manifestly appropriate for such lawful uses as an instrument may have. The judge charged the jury that they had to find that the taped scissors was a weapon. He clearly defined the term "weapon." The judge then went on to instruct the jury as to the requirement under the statute that defendant knowingly possessed such a weapon. Finally, he advised the jury that the possession of the weapon had to be knowingly "under circumstances not manifestly appropriate for a lawful use." Thus, the judge clearly charged the jury as to the required statutory elements making up an offense under N.J.S.A. 2C:39-5(d).
There was no necessity to instruct the jury that the defendant "possessed the scissors with the purpose, intent or knowledge to use it as a weapon," as long as the crime was defined in terms of the circumstances surrounding the possession of the weapon.
This court, in State in the Interest of T.E.T., 184 N.J.Super. 324, 446 A.2d 177 (App.Div.1982), held the statute interdicted the possession of an object which has a normal lawful use when the State proves that the object was possessed for use as a weapon, "rebutting the innocent inference suggested by the fact that the object is designed for a lawful use by proof of circumstances suggesting a purpose inconsistent with such lawful use." Id. at 329-330, 446 A.2d 177. The court noted:
We find little difference between the standard of criminality established by State v. Green [62 N.J. 547, 560, 303 A.2d 312 (1973) ] and State v. Best, 70 N.J. 56, 63-64 (1976), which followed the rule established in State v. Green, and the standard under the Code with respect to the use of knives as weapons. The Code's definition of the crime is more precise than that contained in N.J.S.A. 2A:151-41(c). The imprecise articulation in the former statute was upheld against a contention that the statute was unduly vague, State v. Ebron, supra, 122 N.J.Super. at 556-557 based upon a requirement of proof--possession for an unlawful purpose--engrafted upon the statute by court interpretation. Id. at 557 . Possession for an unlawful purpose--"possession [of] any other weapon ... not ... for such lawful uses as it may have"--is a sufficient standard for defining criminal conduct. See State v. Zito, 54 N.J. 206, 215 (1969), where the court said, Thus, we reject the contention that the present statute is unduly vague. [184 N.J.Super. at 330, 446 A.2d 177]
It is evident from the above that the standard of "circumstances not manifestly appropriate for lawful use" is the functional equivalent of the intent to use standard articulated in State v. Green, above. We are also in accord with the last two sentences in T.E.T., above, which holds that the statute is not unduly vague, and we thus dispose of the defendant's challenge in that regard as raised in his second point.
In his third point, defendant claims that N.J.S.A. 2C:39-5(d) unconstitutionally shifts the burden of proof to him. He argues that the statute creates a "presumption of an implied use as a weapon merely by proving possession under inappropriate circumstances ... [which] requires the defendant to come forth and prove that his possession is not manifestly inappropriate." Brief for appellant at 18. This contention is based on the erroneous belief that there is a significant difference between proof of intent to use an object as a weapon and proof of possession of an object which may be a weapon under circumstances not manifestly appropriate for lawful use. The burden of proof is always on the State to prove the latter beyond a reasonable doubt. State v. Colon, 186 N.J.Super. 355, 356, 452 A.2d 700 (App.Div.1982). The jury in the present case was so instructed quite explicitly.
Affirmed.
ANTELL, J.A.D. (dissenting).
A "weapon" is defined by N.J.S.A. 2C:39-1 r as "anything readily capable of lethal use or of inflicting serious bodily injury." It is evident that the definition encompasses a range of objects, ordinarily inoffensive and lawful, which is practically without limit. N.J.S.A. 2C:39-5 d criminalizes possession of any weapon other than firearms "under circumstances not manifestly appropriate for such lawful uses as it may have...." Criminal responsibility is avoided only when it is "manifestly" clear that possession is appropriate. Without belaboring the...
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State v. Lee
...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 eq......
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Wright v. New Jersey, 84-5060
...a fork is manifestly appropriate only at the dinner table, of a bat on the athletic field, of a shovel in the garden." 188 N.J.Super. 432, 437, 457 A.2d 1184, 1187 (1982). 4 The Court has long emphasized the importance of providing minimal guidance. See, e.g., United States v. Reese, 92 U.S......