State v. Mello

CourtNew Jersey Superior Court – Appellate Division
Citation297 N.J.Super. 452,688 A.2d 622
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Jeffrey J. MELLO, Defendant-Appellant.
Decision Date11 February 1997

Robert T. Norton, Westfield, for defendant-appellant.

Robert W. Gluck, Middlesex County Prosecutor, for plaintiff-respondent (Simon Louis Rosenbach, Assistant Prosecutor, of counsel, Gerard C. Vince, III, Legal Assistant, on the brief).

Before Judges BAIME and BRAITHWAITE.

The opinion of the court was delivered by


This appeal presents troublesome issues pertaining to N.J.S.A. 2C:39-4(a). That statute provides that any person who possesses a firearm with the purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree. At issue is whether an indictment that recites the statutory language, but does not specify the unlawful purpose the accused allegedly harbored, violates either the federal or state constitution. Also in question is whether a trial court is obliged to define with precision the elements of the crime that the defendant is alleged to have intended to commit with the weapon.

We find no constitutional prescription requiring that the indictment identify with specificity the unlawful purpose allegedly harbored by the defendant in possessing the firearm. We also conclude that the trial court did not commit reversible error in failing to precisely define the elements of the crime the defendant allegedly intended to commit with the weapon. However, we remand the matter to the Law Division to afford defendant the opportunity to file a motion pursuant to N.J.S.A. 2C:43-6.2 to reduce the mandatory minimum term of imprisonment required under the Graves Act.


Tried by a jury, defendant was found guilty of second degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4(a)) and third degree possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)), but was acquitted of fourth degree aggravated assault, defined as pointing a gun at another under circumstances manifesting extreme indifference to human life, (N.J.S.A. 2C:12-1(b)(4)). The jury determined that defendant's intent was to use the gun against the person of another. He was thus sentenced to a term of five years with a mandatory parole disqualifier of three years on the conviction for possession of a firearm for an unlawful purpose. N.J.S.A. 2C:43-6(c); see also State v. Camacho, 295 N.J.Super. 585, 590, 685 A.2d 961 (App.Div.1996); State v. Latimore, 197 N.J.Super. 197, 221, 484 A.2d 702 (App.Div.1984), certif. denied, 101 N.J. 328, 501 A.2d 978 (1985). A concurrent four-year sentence was imposed on the conviction for possession of a handgun without a permit.

We need not recount the facts at length. On September 2, 1994, Brian and Allison Mourad, both members of the Federal Bureau of Investigation, were driving in the left lane of the New Jersey Turnpike when they observed defendant's van approaching the rear of their vehicle at a high rate of speed. Because the road was very congested, the Mourads were not immediately able to maneuver their automobile into the center lane to permit defendant to pass. After finding a clearing in the traffic, Mr. Mourad pulled his automobile into the center lane. According to the Mourads, when defendant's van pulled alongside their vehicle, they saw defendant shouting in an angry manner. Both Mourads testified that defendant suddenly pointed a handgun directly at them. Mr. Mourad immediately applied the brakes, causing defendant's van to pass their car. The Mourads were able to observe defendant's license plate number which they immediately reported to the State Police.

Trooper Matthew Finnegan stopped defendant's van shortly thereafter. Although defendant denied having a gun, a search of the vehicle revealed a Smith and Wesson 9mm semi-automatic pistol behind the spare tire compartment. Defendant and his passenger, Kristen Bove, were arrested and transported to the State Police barracks. After waiving his constitutional rights, defendant admitted that he had pointed the pistol at the Mourads' vehicle. Defendant characterized the incident as a "big mistake" prompted by his anger resulting from the Mourads' blocking of the passing lane.

At trial, defendant conceded that he brandished the handgun and pointed it toward the front window. However, defendant disavowed the portion of his statement in which he admitted pointing the weapon at the Mourads. Defendant testified that he and Bove were returning from a visit to a friend in Pennsylvania when the incident occurred. They had taken the gun, which was licensed in Rhode Island where they shared an apartment, in order to engage in target practice. According to defendant, he decided to display the gun after Mr. Mourad made an obscene gesture. Defendant denied that he "trained" the pistol on the Mourads' vehicle.

The trial court's instructions on the elements of the offenses closely traced the model jury charges. The trial court's instructions on possession of a firearm for an unlawful purpose encompassed the prosecutor's request to charge respecting the requisite mens rea. More specifically, the trial court apprised the jury of the State's contention that "the defendant's unlawful purpose in possessing the firearm was to threaten or to terrorize or to coerce" the Mourads on the date of the incident. In differentiating the charges, the trial court instructed the jury that it was obliged to "consider whether the State ha[d] proved the specific unlawful purpose charged and not the mere unlawful possession of the weapon as alleged in Count [two] without a permit." The trial court stressed that the jury was "not to invoke [its] own notions of unlawfulness regarding the defendant's purpose," but rather was to confine itself to the State's contention in that respect.

These principles were essentially repeated when, in the course of its deliberations, the jury requested clarification. The trial court responded:

And the fourth element is that the defendant's purpose was to use the firearm unlawfully. With respect to that I have already defined purpose for you. That element of purpose to use a firearm unlawfully requires that you find that the defendant possessed that firearm with a conscious objective, design or specific intent to use it against the person or property of another in an unlawful manner as charged in the indictment and not for some other purpose.

In this case the State contends that the defendant's unlawful purpose in possessing this firearm was to threaten or to terrorize or to coerce the occupants of the red Volks with that Smith & Wesson 9mm handgun on September 2, 1994 on the New Jersey Turnpike in Cranbury Township in New Jersey to threaten or to terrorize or to coerce would be an unlawful purpose. The defense contends on the other hand that the possession if you find it exists was at all times lawful and that the brandishing or displaying openly as I am using brandishing in this situation, the brandishing of the gun without more is a lawful act and that the defendant possessed the weapon for target practice. Any lawful purpose would be a defense to the charge of possession of a firearm or weapon with a purpose to use it unlawfully against a person or property of another.

As you evaluate, ladies and gentlemen, the unlawful purpose we ask you to focus on the specific unlawful purposes alleged by the State and not to consider your own notions of the unlawfulness of the defendant's purpose, but to restrict yourself to the unlawful purpose as defined by the State and the prosecution here.

The jury returned its verdict finding defendant guilty of possession of a firearm for an unlawful purpose and possession of a handgun without a permit and not guilty of aggravated assault.

It is against this factual backdrop that we examine defendant's arguments. Defendant argues (1) the indictment was defective because it did not identify the "unlawful purpose" with which he possessed the firearm, (2) the trial court erred by denying his motion for a judgment of acquittal, (3) the trial court failed to provide sufficient guidance in its jury instructions on possession of a firearm for an unlawful purpose, and (4) the trial court improperly instructed the jury respecting the distinction between intent to use a firearm against the person or property of another.

There is clearly no merit in defendant's claim that a motion for a judgment of acquittal should have been granted or that the distinction between use of a firearm against persons or property in the jury charge was unclear. R. 2:11-3(e)(2). As our brief recitation of the facts discloses, the State's evidence was substantial and the charges were properly submitted to the jury for its consideration. R. 3:18-1; see also State v. Reyes, 50 N.J. 454, 458-59, 236 A.2d 385 (1967). The trial court provided special interrogatories which expressed in clear and emphatic language the distinction between the unlawful purpose to use a firearm against persons as opposed to the unlawful purpose to use a firearm against property. We address defendant's remaining points seriatim.


Tracking the statutory language, the first count of the indictment charged defendant with possessing a firearm "with a purpose to use it unlawfully against the person or property of another." N.J.S.A. 2C:39-4(a). The indictment did not specify the "unlawful purpose" with which defendant allegedly possessed the weapon. Defendant asserts that the indictment violated Article I, paragraphs 8 and 10 of the New Jersey Constitution which provide in part:

No person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury....

[N.J. Const. of 1947, art. I, para. 8.]

In all criminal prosecutions the accused shall have the right ... to be informed of the nature and cause of the accusation....


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    • United States
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    • 25 Enero 2021
    ...this one is ‘deserving of some leniency,’ " Andrews, 464 N.J. Super. at 124, 234 A.3d 323 (quoting 245 A.3d 630 State v. Mello, 297 N.J. Super. 452, 468, 688 A.2d 622 (App. Div. 1997) ). While we might have reached a different conclusion than the prosecutor if it was our decision to make in......
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    • 23 Febrero 2018
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