STATE OF NEW JERSEY VS. VERE E. CANNONIERÂ (14-02-0418, ATLANTIC COUNTY AND STATEWIDE) ( 2017 )

NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4364-14T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
VERE D. CANNONIER,
Defendant-Appellant.
________________________________
Argued November 28, 2016 – Decided December 20, 2016
Remanded by Supreme Court June 15, 2017
Resubmitted June 15, 2017 – Decided June 27, 2017
Before Judges Nugent and Haas.
On appeal from Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
14-02-0418.
Joseph E. Krakora, Public Defender, attorney
for appellant (Solmaz F. Firoz, Assistant
Deputy Public Defender, of counsel and on the
brief).
Damon G. Tyner, Atlantic County Prosecutor,
attorney for respondent (Brett Yore,
Assistant Prosecutor, of counsel and on the
brief).
PER CURIAM
Following his guilty plea to second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b), and imposition of his
sentence, a five-year custodial term with three and one-half years
of parole ineligibility, defendant Vere D. Cannonier appealed from
the resulting judgment of conviction. Defendant argued:
POINT I
MR. CANNONIER WAS CONVICTED OF CONDUCT THAT
DID NOT CONSTITUTE A CRIME AT THAT TIME, THUS
HIS CONVICTION IS ILLEGAL AND SHOULD BE
VACATED.
A. The Plain Language of the Amnesty Law
Establishes that Defendant Committed No Crime
on January 13, 2014.
B. Defendant Need Not Establish that He
Possessed the Firearm on August 8, 2013.
C. Mr. Cannonier was Precluded from
Complying with the Terms of the Amnesty Law
Following his Unlawful Arrest on January 13,
2014.
[State v. Cannonier, No. A-4364-14 (App. Div.
Dec. 20, 2016).]
The "Amnesty Law" referenced in defendant's arguments was L.
2013, c. 117, "An Act Concerning the Possession of Certain Firearms
(the Act)." The Act became effective August 8, 2013, and expired
on February 5, 2014.
The Act was in effect when defendant was arrested and charged
with second-degree unlawful possession of a weapon, N.J.S.A.
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2C:39-5(b). Section one (the amnesty provision) of the Act
provided:
1. Any person who has in his possession a
handgun in violation of [N.J.S.A. 2C:39-5(b)]
or a rifle or shotgun in violation of
[N.J.S.A. 2C:39-5(c)] on the effective date
of this act may retain possession of that
handgun, rifle, or shotgun for a period of not
more than 180 days after the effective date
of this act. During that time period, the
possessor of that handgun, rifle, or shotgun
shall:
(1) transfer that firearm to any person
lawfully entitled to own or possess it; or
(2) voluntarily surrender that firearm
pursuant to the provisions of N.J.S.A. 2C:39-
12.
[L. 2013, c. 117, § 1.]
Defendant did not mention the Act or the amnesty provision
when he pleaded guilty. For that reason, we remanded the matter
to permit defendant to file a motion to withdraw his guilty plea.
Cannonier, supra, No. A-1364-14 (slip op. at 3-4). We explained
that, in the event defendant chose to file the motion, the trial
court would have "the opportunity to evaluate the motion under the
appropriate standard of review and consider, among all other
relevant factors, defendant's argument concerning the Act." Ibid.
The State filed a petition for certification. On June 15,
2017, the Supreme Court granted the petition and "summarily
3 A-4364-14T4
remanded to the Superior Court, Appellate Division for
reconsideration in light of State v. Harper, ___ N.J. ___ (2017)."
State v. Cannonier, ___ N.J. ____ (2017). We have reconsidered
the matter.
In Harper, the Supreme Court held that
[a[ defendant charged under [N.J.S.A. 2C:39-
5(b)] for possession during the amnesty period
may raise the [Act] as an affirmative defense.
To do so, a defendant must show two things:
(1) that he possessed a handgun in violation
of N.J.S.A. 2C:39-4(b) or (c) 'on the
effective date of this act' — in other words
that he unlawfully possessed a handgun on
August 8, 2013; and (2) that he took steps to
transfer the firearm or voluntarily surrender
it during the 180-day period beginning on
August 8, 2013, consistent with N.J.S.A.
2C:39-12 – that is, before authorities brought
any charges or began to investigate his
unlawful possession.
[Supra, ___ N.J. at ___ .]
The Court went on to explain that "[t]o invoke the amnesty
defense, a defendant must abide by the same settled procedures
that apply to other defenses." Ibid. Significantly, the Court
explained that "[a]s with other affirmative defenses, a defendant
must timely assert that defense or it is waived." Id. at ___.
"Generally, a guilty plea constitutes a waiver of all issues
which were or could have been addressed by the trial judge before
the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498
4 A-4364-14T4
(App. Div. 1988). There are exceptions, but none is applicable
here.
In addition, if the suggestion of a defense is raised during
a plea colloquy, then a trial judge must inquire whether the
defendant is factually asserting the defense. See State v. Urbina,
221 N.J. 509, 528 (2015). Here, defendant did not raise the
amnesty defense before pleading guilty, and nothing anyone said
during the plea colloquy suggested the amnesty defense. Defendant
thus waived the defense when he pleaded guilty. For that reason,
we affirm his judgment of conviction.
Affirmed.
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