State v. Reynolds
| Decision Date | 25 January 2021 |
| Docket Number | DOCKET NO. A-5551-18T1 |
| Parties | STATE OF NEW JERSEY, Plaintiff-Respondent, v. LAVAR REYNOLDS, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 15-08-0671.
Joseph E. Krakora, Public Defender, attorney for appellant (Cody T. Mason, Assistant Deputy Public Defender, of counsel and on the briefs).
Gurbir S. Grewal, Attorney General, attorney for respondent (William P. Cooper-Daub, Deputy Attorney General, of counsel and on the brief).
Defendant Lavar Reynolds appeals from a June 24, 2019 judgment of conviction after pleading guilty to fourth-degree violation of a firearms regulations, N.J.S.A. 2C:39-10(a). Defendant's guilty plea preserved the right to appeal denial of his motions to dismiss the charges and reconsideration. We affirm the conviction but remand for resentencing.
On October 11, 2014, defendant worked as a private security guard for an after-hours party at a nightclub in Passaic County. Defendant had a nine-millimeter handgun during the event. While the gun was registered and defendant had a permit to own the weapon, he lacked a permit to carry the handgun.1
While working security for the event, defendant and another individual were arrested for failing to have the requisite carry permits for their guns. At the time of his arrest, defendant was a constable, having been appointed by the City of Paterson Municipal Council. His term as a constable ran from July 1, 2013, to June 30, 2016.
On August 10, 2015, defendant was indicted on one count of second-degree misconduct, N.J.S.A. 2C:30-2(a), and one count of second-degreeunlawful possession of a weapon, N.J.S.A. 2C:39-5(b).2 Defendant filed a motion to dismiss the charges, which was heard on July 25, 2016. As a constable, defendant claimed he was permitted to carry a firearm without a permit in accordance with exceptions under state and federal statutes. The judge denied the motion, stating
In April 2019, defendant moved for reconsideration regarding dismissal of the charges. A different judge heard the reconsideration motion. After considering defendant's arguments anew, the judge denied defendant's motion dismiss.
The judge first reconsidered whether the exceptions in the State statute, N.J.S.A. 2C:39-6, allowed him to carry a firearm without a permit. The judge determined the statute's exception applied if the person had a contract with a governmental agency for the supervision or transportation of persons charged with or convicted of an offense. Defendant conceded he did not supervise ortransport persons charged with offenses. Nor did defendant produce a contract or other agreement with any governmental agency to perform such tasks.
Further, in rejecting defendant's argument under the New Jersey statute, the judge also noted the State adopted strict gun control laws. According to the judge, if the State sought to include constables as persons allowed to carry a weapon without a permit, the Legislature would have said so.
Defendant also argued federal law, specifically the Law Enforcement Officers Safety Act of 2004 ("LEOSA" or "Act"), 18 U.S.C. § 926B, allowed him to carry a weapon without a permit. The judge found defendant did not qualify for an exemption under LEOSA because he was not paid by the County, municipality, or any other government agency as an employee for his work as a constable. He further determined defendant was not a "qualified law enforcement officer" consistent with the Act, and lacked the necessary identification card to qualify for an exemption under LEOSA.
Based on denial of defendant's motions to dismiss the charges, the matter was scheduled for trial. On May 6, 2019, after jury selection, defendant requested renewal of plea discussions. The judge agreed, and defendant entered into a conditional plea to an amended charge of fourth-degree violation of a firearms regulation, N.J.S.A. 2C:39-10(a)(1). In exchange, the State agreed todismiss the misconduct charge and recommend probation with 364 days in the county jail.
Defendant was sentenced on June 14, 2019. The judge had "some serious misgivings" regarding the recommended sentence. He noted the State argued defendant "had the temerity to challenge the constitutionality" of the statutory exemptions related to right to carry a firearm without a permit and thus sought imposition of a "punitive" sanction against defendant. The judge acknowledged his ability to "undercut this plea," but stated "the ramifications would be such that it would have a spill over effect on many other cases" and "would negatively impact many other people."
The judge then reviewed the aggravating and mitigating factors. He found aggravating factor one, the need to deter future violations of the law, based on defendant's status as a constable. In reviewing the mitigating factors, the judge found mitigating factor ten applicable because defendant would make "a good probationer." He also determined defendant's leading a law-abiding life for a substantial period of time rendered mitigating factor seven applicable. The judge also considered a non-statutory factor, defendant's work history, in finding the "mitigating factors substantially outweighed the aggravating factors . . . ." Notwithstanding this finding, the judge explained defendant had "prior contactswith the criminal justice system" which would "vitiate . . . the presumption against incarceration." The judge sentenced defendant in accordance with the prosecutor's recommendation. Because the State agreed, the judge stayed the sentence pending defendant's appeal from the denial of the motions to dismiss the charges.
On appeal, defendant raises the following arguments:
Dismissal of an indictment is left to the sound discretion of the trial judge and will be reversed only for abuse of discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994). An indictment should only be dismissed on the clearest and plainest ground, where it is manifestly deficient and palpably defective. State v. Hogan, 144 N.J. 216, 228-29 (1996). Generally, "[d]ismissal is the last resort because the public interest, the rights of victims and the integrity of the criminal justice system are at stake." State v. Williams, 441 N.J. Super. 266, 272 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 (App. Div. 2004)).
We defer to a trial court's findings of fact, which "should not be disturbed simply because an appellate court 'might have reached a different conclusion were it the trial tribunal.'" State v. Handy, 206 N.J. 39, 44-45 (2011) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)). However, legal conclusions by a trial court are reviewed de novo. State v. Reece, 222 N.J. 154, 167 (2015).
We first consider whether defendant, as a constable, was exempt pursuant to State law from the requirement that he have a permit to carry a firearm. Defendant argued he qualified for an exemption under N.J.S.A. 2C:39-6(c).Specifically, defendant claimed the judge erred in rejecting his exemption under subsection (15) and subsection (1) of the statute.3 We disagree.
The judge found the exemptions set forth in N.J.S.A. 2C:39-6 did not apply to defendant. The judge explained he was "not satisfied that constable [wa]s a law enforcement office[r]" or that constables were covered by the statute. The judge rejected the contention that defendant was essentially a policeofficer, invoking the maxim "expressio unius est exclusio alterius,"4 and concluded if the Legislature intended constables to be exempt from N.J.S.A. 2C:39-5, it would have specifically referenced constables in N.J.S.A. 2C:39-6.
The statute's legislative history also supports the judge's determination. Previously, constables were authorized to carry a firearm without a permit. See State v. Nicol, 120 N.J. Super. 503, 506 (Law Div. 1972) (). However, the constable exemption to the carry permit...
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