STATE OF NEW JERSEY VS. KEVIN KELLY (18-06-0552, CUMBERLAND COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-2614-18T1
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
KEVIN KELLY, a/k/a
KEVIN PALLANTA and
KEVIN T. KELLYPALLANTA,
Defendant-Appellant.
_____________________________
Submitted September 23, 2020 – Decided November 6, 2020
Before Judges Accurso, Vernoia and Enright.
On appeal from the Superior Court of New Jersey, Law
Division, Cumberland County, Indictment No. 18-06-
0552.
Joseph E. Krakora, Public Defender, attorney for
appellant (Bryan A. Small, Designated Counsel, on the
briefs).
Jennifer Webb-McRae, Cumberland County
Prosecutor, attorney for respondent (Andre R. Araujo,
Assistant Prosecutor, of counsel and on the brief).
PER CURIAM
Defendant Kevin Kelly appeals from the denial of his suppression motion
and his conviction following a jury trial in October 2018. We affirm the
suppression ruling, substantially for the reasons outlined in the motion judge's
written opinion. We also affirm defendant's conviction.
At approximately 3:00 a.m. on September 5, 2017, police received an
anonymous tip that two white males were parked in a black Cadillac in a certain
section of Millville known to be a high-crime area, and that the passenger had a
handgun in his lap. The tipster reported that the suspect vehicle was parked
behind a silver minivan, the driver wore a black t-shirt, and the passenger wore
a white t-shirt.
When Officer Bryan Orndorf went to the area to follow up on the tip, he
found a black Cadillac parked behind a silver minivan, as described by the
tipster. Two additional officers joined Officer Orndorf on scene. The suspect
vehicle had heavily-tinted windows. Even after the officers shined spotlights on
the car, they could not determine whether it was occupied and if so, how many
occupants might be in the car. Officer Orndorf used his patrol car's loudspeaker
to instruct the driver (later identified as defendant) to roll down the window.
The officer received no response to his request. Twenty seconds later, he again
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asked the driver to roll his window down. Defendant only partially lowered his
window, so the officer instructed him to roll all the car windows down.
Defendant rolled just his window down. He never lowered the remaining
windows. When Officer Orndorf asked defendant if anyone else was in the car,
defendant avoided the question.
One of the officers at the scene expressed a concern that while the driver
displayed his left hand outside the vehicle, he did not "know what [the driver
was] doing with is right hand." Accordingly, defendant was ordered out of the
car. Even though defendant was directed to keep his hands raised, when he
exited the vehicle, he immediately shut the door behind him. Officer Orndorf
noted defendant was Caucasian and wore a black t-shirt, consistent with the tip.
Defendant was promptly patted down to ensure he did not have a weapon on his
person. Defendant referred to the vehicle as "my" car, and then told an officer
it belonged to his roommate, a female whose last name he did not know. He
again was asked if anyone else was in the car but evaded the question.
According to Officer Orndorf, defendant was handcuffed and placed in a patrol
car "until [the police] did [their] investigation."
Eventually, defendant told Officer Orndorf that another person,
Christopher Meyers, was in the car. The police ordered Meyers out of the
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vehicle and as he stepped out, they noted he was Caucasian and wore a white t-
shirt, consistent with the tipster's information. Meyers left his passenger door
open, with the window up. He was patted down for weapons, handcuffed, and
placed in a separate police car pending further investigation.
Although no weapon was recovered by this point, an unidentified officer
told defendant he spotted a "needle" in the car. While standing outside the
vehicle, Officer Orndorf also saw the orange cap of the syringe before it was
retrieved. Officer Orndorf confirmed the needle protruded between the center
console and the driver seat, and he "recognized what that was."
The unidentified officer told defendant a dog was going to perform an
exterior sniff of the vehicle, and if the dog alerted to the car, the police would
impound the vehicle and request a search warrant. Subsequently, the canine
dispatched to the scene positively alerted to the Cadillac. Officer Tyler Menz
then retrieved the syringe from the car, spoke to his sergeant, and went back to
the car to recover a BB gun he had spotted inside the vehicle while retrieving
the syringe. Defendant was placed under arrest once the syringe was found. As
the suppression judge noted, before the canine sniff occurred, one of the officers
briefly put his head inside the Cadillac through the open driver side window.
However, the judge was unable to discern from the motor vehicle recording
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(MVR) footage of the incident whether the officer placed his head inside the
Cadillac before or after the police discovered the syringe.
Defendant's car was impounded after the canine sniff. The police obtained
a search warrant for the Cadillac, and when it was executed, they recovered two
rifles, a dagger and a sawed-off shotgun.
Defendant moved to suppress the evidence from the stop. The suppression
judge denied the application, based on his review of the MVR footage and the
credited testimony of Officer Orndorf, as well as the testimony of another
officer. Defendant was convicted of third-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5b(2); fourth-degree possession of a prohibited
weapon, specifically, a blade larger than five inches, N.J.S.A. 2C:39-3(e); and
second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-
7.
Following defendant's conviction, the trial judge denied his motion for
judgment notwithstanding the verdict as to the second- and third-degree
offenses. At sentencing, defendant received an eight-year prison term with a
five-year parole disqualifier for second-degree possession of a weapon by a
convicted person; a four-year term for third-degree unlawful possession of a
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weapon; and an eighteen-month term for fourth-degree possession of a
prohibited weapon. The judge directed that the sentences run concurrently.
On appeal, defendant raises the following arguments:
POINT I
THE WEAPONS FOUND IN [DEFENDANT'S]
VEHICLE SHOULD HAVE BEEN SUPPRESSED,
OR ALTERNATIVELY, A NEW SUPPRESSION
HEARING SHOULD OCCUR, BECAUSE THE
PROSECUTOR FAILED TO PRESENT ANY
EVIDENCE THAT THE SEARCHING OFFICER -
WHO DID NOT TESTIFY - HAD ACTED
REASONABLY IN STOPPING AND SEARCHING
THE VEHICLE AND BREAKING THE
THRESHOLD TO LOOK INSIDE.
POINT II
THE WEAPONS FOUND IN [DEFENDANT'S]
VEHICLE SHOULD HAVE BEEN SUPPRESSED
BECAUSE THE STATE FAILED TO ESTABLISH
THE BONA FIDES OF THE CANINE WHO
PERFORMED THE SNIFF FOR [A CONTROLLED
DANGEROUS SUBSTANCE] TO SUPPORT
PROBABLE CAUSE TO SEARCH THE VEHICLE.
(NOT RAISED BELOW).
POINT III
[DEFENDANT'S] CONVICTION FOR UNLAWFUL
POSSESSION OF A FIREARM AND POSSESSION
OF A WEAPON BY A CONVICTED PERSON MUST
BE VACATED BECAUSE AIRSOFT GUNS ARE
NOT FIREARMS[.] (NOT RAISED BELOW).
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POINT IV
THE CONVICTION OF POSSESSION OF A
PROHIBITED WEAPON SHOULD BE VACATED
BECAUSE THE STATE FAILED TO PROVE THAT
[DEFENDANT] POSSESSED A WEAPON WITH AN
UNLAWFUL PURPOSE UNDER N.J.S.A. 2C:39-3
AND THE STATE'S PER SE BAN ON DAGGERS IS
UNCONSTITIONAL[.] (NOT RAISED BELOW).
A. The State Failed to Prove that
[Defendant] Possessed A Weapon
with An Unlawful Purpose Under
N.J.S.A. 2C:39-3.
B. The State’s Per Se Ban on Daggers Is
Unconstitutional.
POINT V
THE TRIAL COURT PREJUDICED [DEFENDANT]
BY FAILING TO PROPERLY INSTRUCT THE JURY
ON THE EFFECTS OF A PARTIAL VERDICT AND
BY FAILING TO REMIND [JURORS] OF THEIR
OBLIGATION NOT TO SURRENDER THEIR
HONEST CONVICTIONS MERELY TO RETURN A
VERDICT[.] (NOT RAISED BELOW).
POINT VI
THE TRIAL COURT FAILED TO TAKE
APPROPRIATE ACTION WITH RESPECT TO A
SLEEPING JUROR[.] (NOT RAISED BELOW).
POINT VII
THE STATE FAILED TO PROVIDE A
SUPPLEMENTAL POLICE REPORT RELATED TO
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[] CO-DEFENDANT MEYERS[,] CONTRARY TO
ITS OBLIGATIONS UNDER THE RULES OF
COURT.
Regarding Point I, we "must uphold a trial court's factual findings at a
[motion to suppress] hearing when they are supported by sufficient credible
evidence in the record." State v. Hathaway, 222 N.J. 453, 467 (2015) (citing
State v. Elders, 192 N.J. 224, 244 (2007)). This is especially true when the
findings of the trial court are "substantially influenced by [its] opportunity to
hear and see the witnesses and to have the 'feel' of the case." Elders, 192 N.J.
at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). By contrast, the trial
court's interpretation of the law and the legal "consequences that flow from the
established facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425
(2014).
No constitutional justification is required for a police officer to conduct a
field inquiry. State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div. 2002).
"[L]aw enforcement officers do not violate the Fourth Amendment by merely
approaching an individual on the street or in another public place, by asking him
if he is willing to answer some questions, [or] by putting questions to him if the
person is willing to listen . . . ." Florida v. Royer, 460 U.S. 491, 497 (1983);
Sirianni, 347 N.J. Super. at 388. If the person remains free to disregard the
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officer's questions and walk away, a seizure has not occurred, and Fourth
Amendment protections are not implicated. United States v. Mendenhall, 446
U.S. 544, 553 (1980). However, "'[i]f, during the course of'" an officer's
reasonable inquiries, "the circumstances 'give rise to [unrelated] suspicions . . .,
an officer may broaden [the] inquiry and satisfy those suspicions.'" State v.
Chapman, 332 N.J. Super. 452, 462 (App. Div. 2000) (quoting State v. Dickey,
152 N.J. 468, 479-80 (1998)).
An investigatory detention "occurs during a police encounter when 'an
objectively reasonable person' would feel 'that his or her right to move has been
restricted.'" State v. Rosario, 229 N.J. 263, 272 (2017) (quoting State v.
Rodriguez, 172 N.J. 117, 126 (2002)). The United States and New Jersey
Constitutions allow an investigatory stop "where a police officer observes
unusual conduct which leads him reasonably to conclude in light of his
experience that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30
(1968); State v. Davis, 104 N.J. 490, 504-05 (1986). "[A] group of innocent
circumstances in the aggregate can support a finding of reasonable suspicion."
State v. Stovall, 170 N.J. 346, 368 (2002).
"An anonymous tip, standing alone, is rarely sufficient to establish a
reasonable articulable suspicion of criminal activity." Rodriguez, 172 N.J. at
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127 (citations omitted). "When an anonymous tip is involved, additional factors
must be considered to generate the requisite level of reasonable and articulable
suspicion." State v. Privott, 203 N.J. 16, 26 (2010) (citations omitted). "[T]he
reliability of an informant's tip must be analyzed in light of the totality of the
circumstances." State v. Williams, 364 N.J. Super. 23, 31 (App. Div. 2003)
(citing Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Novembrino, 105
N.J. 95, 122 (1987)). "[T]here are situations in which an anonymous tip,
suitably corroborated, exhibits 'sufficient indicia of reliability to provide
reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S.
266, 270 (2000) (citation omitted).
"An informant's 'veracity' and 'basis of knowledge' are two highly relevant
factors under the totality of the circumstances." State v. Zutic, 155 N.J. 103,
110 (1998) (citing State v. Smith, 155 N.J. 83, 92 (1998)). However, "[a]
deficiency in one of those factors 'may be compensated for, in determining the
overall reliability of a tip, by a strong showing as to the other, or by some other
indicia of reliability.'" Id. at 110-11 (quoting Gates, 462 U.S. at 233).
Here, as the suppression judge observed, the police did not immediately
move to arrest defendant or his passenger when they saw the Cadillac parked in
the location matching the tipster's description. Additionally, they did not
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surround defendant's vehicle. Instead, the police shined spotlights into the car
to be able to see inside. The judge concluded that a critical fact in this "fluid
situation" was that officers could not tell if anyone was inside the car because
of the heavily tinted windows. As it "was almost 3[:00] a.m. and the location
[of the Cadillac] was a high crime area," the judge recognized "the potential for
danger" that prompted the police not to approach the Cadillac, but use a
loudspeaker to ask the driver to roll down his window.
We agree with the suppression judge that the act of shining the spotlights
was not intrusive. See State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.
2013) (holding that the use of a flashlight by an officer to observe the interior
of a car does not turn an observation into a search). Likewise, we agree with the
judge that communicating by loudspeaker was objectively reasonable and
"unobtrusive" under the circumstances, particularly since the police were
following up on an anonymous tip about a handgun on the lap of one of the
vehicle's occupants.
As their use of a loudspeaker did not result in any response, the police
waited less than a minute before they again asked defendant to lower his
window. Instead of complying, defendant "attempted to conceal himself behind
the tint by only lowering the window a couple of inches" and he never complied
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with the request to lower all his windows. "To be sure, a blatant attempt to hide
from the police can augment suspicion." State v. Alessi, 240 N.J. 501, 523
(2020) (citing State v. Valentine, 134 N.J. 536, 551 (1994)).
Regarding the request of the police to have defendant exit his vehicle, we
note that the United States Supreme Court long ago confirmed it is "objectively
reasonable for officers to order a driver out of a lawfully stopped vehicle" as
removal constitutes "only a minor intrusion into a driver's personal liberty ."
State v. Bacome, 228 N.J. 94, 104 (2017) (citing Pennsylvania v. Mimms, 434
U.S. 106, 111 (1977)). On the record before us, we are satisfied the police had
reasonable suspicion to not only ask defendant to exit the Cadillac, but to also
detain him to conduct a further investigation once he exited the Cadillac. See
State v. Matthews, 398 N.J. Super. 551, 559 (App. Div. 2008) (confirming the
existence of a tip, the lateness of the hour, and the confirmation of the type,
color, and location of the vehicle reported in the tip justified an investigatory
stop to permit the police to inquire what the occupants of the vehicle were
doing).
Additionally, an officer's "suspicions may be raised so as to enable him to
expand the scope of the stop and ask additional, more intrusive, questions" or
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even alight a passenger from the vehicle. United States v. Ramos, 42 F.3d 1160,
1163 (8th Cir. 1994); accord State v. Smith, 134 N.J. 599, 618 (1994).
[B]ecause of the need to protect police officers and
because of the minimal intrusion the requirement to exit
the car imposes on the passenger . . . . the officer need
point only to some fact or facts in the totality of the
circumstances that would create in a police officer a
heightened awareness of danger that would warrant an
objectively reasonable officer in securing the scene in
a more effective manner by ordering the passenger to
alight from the car.
[Smith, 134 N.J. at 618.]
Here, the police were warned by an anonymous tipster in the early
morning hours that a person parked in a Cadillac, in a high-crime area, had a
gun in his lap, and they observed defendant try to hide from them, and ignore
their requests to lower his windows and to keep his hands up. Thus, we are
satisfied the police were justified in asking him to exit his vehicle. Further, due
to their heightened suspicion, the police also had sufficient grounds to ask
Meyers to step out of the Cadillac.
Once defendant stepped out of the Cadillac, the police were able to verify
that his attire matched the description of the tipster. Since defendant's clothing
could not be seen at night through the heavily tinted windows of the vehicle, the
fact the tipster accurately described defendant's attire contributed to the officers'
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reasonable suspicion and supported the reliability of the tip. The same is true
for what occurred when Meyers exited the vehicle, as his attire and race also
matched the tipster's description. As we have stated, the "basis of knowledge"
for a tip is a highly relevant factor under the totality of the circumstances
analysis. Thus, we are persuaded the suppression judge properly found the
anonymous tip was sufficiently reliable to justify the investigatory stop that
occurred once defendant was ordered out of the vehicle. The judge aptly
reasoned:
A critical fact that cannot be ignored and was
immediately apparent to the officers is that the vehicle
had heavily tinted windows. The legality of such tinted
windows is not the issue. It is the fact that the tint
completely obscured the view of the interior even when
subjected to police spotlights. At the time the officers
arrived and even after [defendant] was removed from
the vehicle, officers were still unable to determine if
anyone else was inside the car . . . . The existence of the
tint not only increases the risk to the officers
responding to the anonymous report but also tells them
something about the person who made the report. The
detail in the tip as to the race and clothing worn by the
individuals inside the vehicle with the blacked[-]out
windows indicates that the reporting person had the
ability to see inside the vehicle, something the officers
could not do by looking at the vehicle. Confirmation
of those specific facts indicates that the reporting
person may have been inside the vehicle or had close
access in order to make those observations of the
interior, at night. This demonstrates that the tip is
reliable not because they confirmed the description
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offered in the tip, but because the location, time of day
and difficulty seeing inside the vehicle demonstrated
that the tipster had the ability to have close contact with
the individuals in the car. This provided confirmation
that "the tipster had knowledge of concealed criminal
actions." Gamble, 218 N.J. [at 428-29] (citing [J.L.],
529 U.S. [at 272]).
Lastly, the tip indicated that there was a handgun in this
vehicle on the lap of one of the occupants. "[T]he
greater the threat to public safety, []the greater the need
may be for prompt action, and thus allowances must be
made for the fact that perfect knowledge is often not
attainable at the moment the police must act."
Hathaway, 222 N.J. [at 472].
The suppression judge's reasoning is consistent with the analysis in State
v. Arthur, 149 N.J. 1, 11 (1997), where our Supreme Court confirmed that
"[p]olice officers should consider whether a defendant's actions are more
consistent with innocence than guilt; however, simply because a defendant's
actions might have some speculative innocent explanation does not mean that
they cannot support articulable suspicions if a reasonable person would find the
actions are consistent with guilt."
We also recognize that a police officer is permitted to pat down a citizen's
outer clothing incident to a Terry stop when the officer perceives a risk to his or
her safety and has reason to believe that the individual is armed and dangerous.
State v. Diloreto, 180 N.J. 264, 276 (2004). The officer need not be absolutely
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certain that the individual is armed; "the test under Terry 'is whether a
reasonably prudent man [or woman] in the circumstances would be warranted in
the belief that his [or her] safety or that of others was in danger.'" Ibid. (quoting
Terry, 392 U.S. at 27). "[T]he same conduct that justifies an investigatory stop
may also present the officer with a specific and particularized reason to believe
that the suspect is armed." Privott, 203 N.J. at 30. Such is the case here,
particularly since the conduct of defendant enhanced, rather than assuaged the
officers' concerns that he had access to a weapon in his vehicle. Indeed, the
police were properly concerned for their safety, at this point in their
investigation, to warrant the pat down given defendant's behavior, the late hour,
the high-crime area, the existence and reliability of the anonymous tip, and the
ongoing risk that one of the occupants of the vehicle possessed a gun. State v.
Robinson, 228 N.J. 529, 544 (2017).
Next, defendant contends his suppression motion should have been
granted because after the stop, an officer improperly "broke the threshold" of
the Cadillac by placing his head inside the driver's side window. Again, we are
not convinced.
Consistent with the Fourth Amendment to the United States Constitution
and Article I, ¶ 7 of the New Jersey Constitution, the police must "obtain a
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warrant 'before searching a person's property, unless the search falls within one
of the recognized exceptions to the warrant requirement.'" State v. Cassidy, 179
N.J. 150, 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626, 631 (2001)).
Because a warrantless search is presumed invalid, the State has the burden to
prove, by a preponderance of evidence, that it "'falls within one of the few well-
delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J.
13, 19-20 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).
One such exception is the protective sweep of a vehicle. It is permissible
for law enforcement to conduct a warrantless search of a vehicle's passenger
compartment when the totality of circumstances supports a reasonable suspicion
a driver or passenger is dangerous and may gain immediate access to weapon s.
Gamble, 218 N.J. at 431-32.
Here, the suppression judge concluded a valid protective sweep of the
Cadillac was appropriate due to: the reliability of the tip, which "indicated there
was a handgun in the car on the lap of one of the occupants"; defendant's failure
to obey Officer Orndorf's commands or answer the officer's questions about
whether there was anyone else in the vehicle; the heavily tinted windows on the
suspect car which prevented the police from seeing its interior; and the high -
crime location of the vehicle at three o'clock in the morning. Given the totality
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of these circumstances, we agree with the judge that the limited sweep was
reasonable, as "it was probable that the defendant [and his passenger] would
have been returned to their vehicle, thereby exposing the officers to the danger
that those individuals would then have immediate access to any firearms that
may be contained therein." As the judge correctly noted, "the fact that no
weapon was located on either [the] defendant [or his passenger] when searched
. . . did not eliminate the risk of their access to a weapon when returned to the
vehicle." The judge added that
the limited intrusion created by the officer, placing his
head through the open window and, given the nature of
the risk to officer safety, the likelihood that the
defendants would have been permitted to return to their
vehicle had the syringe not been seen . . . same was
reasonable in this specific situation.
It is evident, then, that the same reasonable suspicion that justified the
investigatory stop also justified the detention of defendant and his passenger for
a brief additional period while the police conducted a protective sweep for the
reported weapon, with which defendant and his passenger could have armed
themselves if released by the police. Gamble, 218 N.J. at 433. Certainly, the
police were "authorized to take such steps as were reasonably necessary to
protect their personal safety and to maintain the status quo during the course of
the stop." United States v. Hensley, 469 U.S. 221, 235 (1985). See also State
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v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999) (ruling that officers had the
right to draw their handguns where a caller reported a person with a gun).
We also see no basis to disturb the judge's finding that based on the
"inevitable discovery doctrine," the police were permitted to retrieve items from
the Cadillac after detaining defendant. The inevitable discovery exception to
the exclusionary rule applies where:
(1) proper, normal and specific investigatory
procedures would have been pursued in order to
complete the investigation of the case; (2) under all of
the surrounding relevant circumstances the pursuit of
those procedures would have inevitably resulted in the
discovery of the evidence; and (3) the discovery of the
evidence through the use of such procedures would
have occurred wholly independently of the discovery of
such evidence by unlawful means.
[State v. Sugar, 100 N.J. 214, 238 (1985).]
Here, the suppression judge found that the discovery of the items retrieved
by Officer Menz, i.e., the syringe and BB gun, was inevitable because defendant
"was informed he was under arrest for the 'needle,' the dog sniff had already
occurred and the decision to seek a warrant was already made." The judge's
factfinding in this regard is overwhelmingly supported by credible evidence in
the record. Accordingly, the motion judge's legal conclusions are unassailable.
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We need not address at length defendant's Point II. As defendant did not
challenge the canine's qualifications before the trial court, we review his claim
for plain error. R. 2:10-2.
While defendant contends the State did not adequately establish the
qualifications of the canine that performed the sniff, the State counters that
information about the canine's qualifications was provided in discovery. We are
convinced that even if the State neglected to provide the canine's qualifications
to defendant in discovery, he could and should have raised any challenge
regarding the canine's qualifications in an appropriate application to the trial
court. Having failed to do so, the current challenge is deemed waived. R. 3:5-
7(f). See also State v. Kim, 412 N.J. Super. 260, 268-71 (App. Div. 2010).
While we often review allegations of error not brought to a trial judge's attention,
we need not consider such an issue unless it goes to the jurisdiction of the trial
court or concerns matters of substantial public interest. State v. Robinson, 200
N.J. 1, 20-22 (2009). Accordingly, we are persuaded this issue is not properly
raised before us.
In Point III, defendant argues for the first time on appeal that his
conviction for unlawful possession of a firearm and possession of a weapon by
a convicted person cannot stand because airsoft guns are not firearms. Again,
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we review this argument under the plain error standard, consistent with Rule
2:10-2.
As the motion judge noted, during the investigatory stop, when the syringe
and gun were recovered from the Cadillac, defendant was heard on the MVR
telling an officer the gun was a BB gun. Also, at trial, Officer Menz confirmed
the gun he retrieved from the car during the stop was a "CO2 powered BB gun."
Defense counsel lodged no objection when the State sought to admit the
BB gun, as well as the MVR referencing the gun, into evidence at trial. Still,
defendant argues that "a person is not guilty of possession of a firearm for an
unlawful purpose if the gun was a toy," citing State v. Gantt, 101 N.J. 573
(1986). His reliance on this case is misplaced, however, as Gantt also favorably
cites to another case that classified BB guns as handguns. 1
N.J.S.A. 2C:39-5(b) provides:
(1) Any person who knowingly has in his possession
any handgun . . ., without first having obtained a permit
to carry the same . . ., is guilty of a crime of the second
degree. (2) If the handgun is in the nature of an air
gun, spring gun or pistol or other weapon of a similar
nature in which the propelling force is a spring, elastic
1
"[T]his latter class of less-familiar firearms 'can best, and perhaps only, be
described in terms of their operation.' [State v. Gantt,] 195 N.J. Super. [114,]
117 [(App. Div. 1984)]. See also State v. Mieles, 199 N.J. Super. 29 (App. Div.
1985) (holding that Code's definition is broad enough to include a BB gun as a
firearm)." Gantt, 101 N.J. at 584.
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band, carbon dioxide, compressed or other gas or vapor,
air or compressed air, or is ignited by compressed air,
and ejecting a bullet or missile smaller than three-
eighths of an inch in diameter, with sufficient force to
injure a person it is a crime of the third degree.
In order to be found guilty of the "certain persons" statute, N.J.S.A. 2C:39-
7(b)(1), the State must prove that: (1) there was a firearm; (2) defendant had
possessed or controlled that firearm; and (3) defendant had previously been
convicted of, among other things, a qualifying predicate offense. Model Jury
Charges (Criminal), "Certain Persons Not To Have Firearms (N.J.S.A. 2C:39-
7(b)(1))" (rev. Feb. 12, 2018).
Since BB guns commonly utilize air, carbon dioxide or some other
compressed gas to fire small projectiles, they clearly fall under the definition set
forth in N.J.S.A. 2C:39-5(b)(2). See Mieles, 199 N.J. Super. at 37-38. Given
that the BB gun found in defendant's possession qualified as a handgun and he
does not contest he was previously convicted of a qualifying predicate offense,
we find no basis to vacate defendant's conviction as a certain person for the
unlawful possession of a weapon.
In Point IV, defendant claims his conviction must be vacated because the
State failed to prove he possessed a dagger for an unlawful purpose, N.J.S.A.
2C:39-3(e). It is unclear whether defendant's argument regarding the State's
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proofs equates to a claim that his conviction for this weapons offense was
against the weight of the evidence. If so, it would appear he challenges the
denial of his motion for judgment notwithstanding the verdict. However, "the
trial court's ruling on such a motion shall not be reversed unless it clearly
appears that there was a miscarriage of justice under the law." R. 2:10-1.
As a threshold issue, we note the trial judge conducted the charge
conference required by Rule 1:8-7(b). Based on that charge conference, the
judge, without objection from defendant, instructed the jury:
In order to convict the defendant of [possession of a
knife with a blade larger than five inches], you must be
satisfied that the State has proved beyond a reasonable
doubt both of the following elements:
....
The first element that the State must prove beyond a
reasonable doubt is that Exhibit S-19 is a dagger. A
dagger has been defined as a knife with a very sharp
point and one or two sharp edges, typically designed or
capable of being used as a thrusting or a stabbing
weapon. Most daggers [also] feature a full cross guard
to keep the hand from riding [] forward [] onto the
sharpened blade edges. The second element that the
State must prove beyond a reasonable doubt is that the
defendant knowingly possessed Exhibit S-19 at the
time and place alleged.
....
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Under our law, possession can be actual or
constructive, sole or joint. And I also provided
information previously regarding the inference that you
may draw regarding possession when a weapon is found
within a vehicle . . . . Finally, in order to find the
defendant guilty, the State must prove beyond a
reasonable doubt that the defendant’s possession of the
dagger was without . . . any explainable, lawful
purpose.
N.J.S.A. 2C:39-1(r)(3) designates a dagger as a prohibited weapon but
does not define the term "dagger." Accordingly, pursuant to the Model Criminal
Jury Charges, a standard dictionary definition should be utilized to explain to a
jury what is meant by the term.2 Here, the trial judge followed the Model
Criminal Jury Charges and instructed the jury, without objection from defense
counsel, that a dagger is "a knife with a very sharp point and one or two sharp
edges, typically designed or capable of being used as a thrusting or a stabbing
weapon." We note this is the same definition the judge discussed with counsel
at the charging conference.
2
"The weapons statute provides specific definitions for three of the weapons
mentioned in N.J.S.A. 2C:39-3[(e)]. See N.J.S.A. 2C:39-1h for 'gravity knife,'
N.J.S.A. 2C:39-1p for 'switchblade knife,' and N.J.S.A. 2C:39-1u for 'ballistic knife.'
A standard dictionary definition should be used for instructional purposes whenever
an indictment alleges possession of another type of weapon (dagger, dirk, stiletto,
etc.) prohibited by N.J.S.A. 2C:39-3[(e)]." Model Jury Charges (Criminal),
"Possession of Certain Weapons (N.J.S.A. 2C:39-3[(e)])," n.3 (rev. Feb. 9, 2009).
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At trial, Officer Menz testified that he found the offending knife in the
Cadillac after defendant exited the car and was detained. The trial record is
devoid of any evidence defendant had an explainable lawful purpose for the
dagger. Thus, once the judge properly instructed the jury regarding the
definition of a dagger, and the elements the State needed to prove under N.J.S.A.
2C:39-3(e), we are satisfied the jury had a sufficient understanding of the
evidence before it to find defendant guilty of violating this statute.
The defendant further claims the State's per se ban on daggers is
unconstitutional. He contends the broad definition of a dagger under N.J.S.A.
2C:39-3(e) "has the effect of acting as a per se prohibition on the possession of
daggers . . . . [and] runs afoul of the Second Amendment to the United States
Constitution." Again, we are not convinced.
"'A legislative act will not be declared void unless its repugnancy to the
constitution is clear beyond reasonable doubt.'" State v. Buckner, 223 N.J. 1,
14 (2015) (quoting Gangemi v. Berry, 25 N.J. 1, 10 (1957)). "When reasonable
people 'might differ' about the constitutionality of a law, courts must 'defer[] to
the will of the lawmakers.'" Id. at 15 (quoting N.J. Ass'n on Corr. v. Lan, 80
N.J. 199, 220 (1979)).
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Here, the Legislature determined that a dagger is so dangerous that mere
possession is prohibited, unless there is evidence a defendant has an explainable
lawful use for the weapon. Stated differently, if there is evidence a defendant
has an explainable lawful purpose for a dagger, the State is unable to prove the
violation of N.J.S.A. 2C:39-3(e). Accordingly, defendant's contention that the
prohibition on daggers "must face the same constitutional fate as per se
prohibitions on other types of weapons" ignores the fact that the Legislature
included an "escape hatch" in the challenged statute, which allows for the
possession of daggers for an "explainable lawful purpose." Under these
circumstances, defendant has not met the heavy burden of establishing the
invalidity of N.J.S.A. 2C:39-3(e).
We also find defendant's novel argument in Point V unpersuasive.
Approximately three-and-a-half hours after jurors began their deliberations,
they sent a note to the trial judge which read: "We can only agree on one charge.
We cannot come to an agreement on remaining charges. What do we do?" The
judge and counsel discussed how to answer the note and the judge proposed his
response. The judge then asked defense counsel if he had "any other ideas," to
which counsel replied, "I don't." Thus, the judge instructed the jury as follows:
[M]y answer to you is as follows. You keep
deliberating. Okay? . . . . [Y]ou're going to need to
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keep deliberating and, you know, we look at the time
and the complexity of the case and the number of hours
of testimony, that type of thing. And although it seems
like a long day for you, in the grand scheme of things
it's been about three and half to . . . three hours and
forty-five minutes of deliberations, minus lunch and the
time that it took, the charge and everything else . . . .
[A]lthough it might seem like a long time to you, in the
grand scheme of things, it's not that long. I will tell you
this. If you need help on the definitions of whatever it
is that I gave you in the charge, if you need me to try
and explain something to you, maybe that's different
than the way it might be written in the charge I'll be
more than happy to assist. If you need to listen to
testimony, it will be played back to you and it will come
through a speaker. We can do that as well. But for
now, I'm going to ask you to continue to go back into
the deliberation room and continue deliberating. Okay?
. . . . [Y]ou guys can chat about it. If you want to listen
to something, if you needed a specific instruction on the
law in some fashion, you know, write a note. We're
here for you.
We are mindful the jury did not state in its note that it was hopelessly
deadlocked on the remaining charges after it reached agreement on one charge.
Instead, the jury asked for guidance on how to proceed. Given the brevity of
the jury's deliberations, the lack of objection by defense counsel to the judge's
proposed response to the jury's note, and the lack of coercion in the judge's
response to the jury, we are persuaded it was not plain error for the court to
require the jury to continue its deliberations, rather than instruct it about the
effects of a partial verdict. See State v. Figueroa, 190 N.J. 219, 240 (2007).
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Likewise, we are not convinced the judge committed plain error by not
repeating his earlier instruction to the jury not to "surrender [their] honest
conviction as to the weight or [effect of] evidence solely because of the opinion
of [their] fellow jurors or for the mere purpose of returning a verdict." Our
conclusion is bolstered by the fact that defense counsel did not ask for this
instruction to be repeated, nor does the record reflect the jury had difficulty
following the judge's initial instructions.
We readily dispense with defendant's claim in Point VI. Trial judges
should take corrective action when counsel bring a sleeping juror to the judge's
attention. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div. 1997). If the
judge takes corrective action after learning of a sleeping juror and defense
counsel does not request any further action, there is no reversible error. Ibid.
Here, the judge, on the record, addressed his observations of inattentive
Juror Number One. The judge noted this juror was not asleep the first time the
prosecutor brought it to his attention. But when the issue was raised a second
time, the judge found the juror was asleep during testimony and he expressed
his concern about this behavior. The judge advised counsel to discuss the matter
over lunch to decide how they would like to handle the matter. Defense counsel
responded, "[l]et's keep our eye on him in the afternoon session and see what
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develops." As the discussion about Juror Number One continued, defense
counsel reiterated, "I think we should keep our eyes on him in the afternoon
session and . . . see how he's doing in the afternoon session." The judge deferred
to defense counsel's wishes. It does not appear from the record that Juror
Number One, or any juror for that matter, was sleeping or inattentive that
afternoon.
The next day, the judge received a note from one of the jurors regarding
Juror Number One's inattentiveness. The judge promptly addressed the note
with counsel, and each attorney asked that the inattentive juror be dismissed.
Moreover, without objection from counsel, two of the three jurors who had
discussed Juror Number One's behavior were asked on the record if they could
proceed with the case and remain fair and impartial. Both jurors responded
affirmatively. Defense counsel declined to speak to the third juror about her
ability to continue in the case, stating, "well, frankly, I think I know the answer."
Under these circumstances, and mindful Juror Number One was dismissed prior
to the jury's deliberations, we discern no reversible error in the judge's handling
of Juror Number One.
Finally, in Point VII, defendant argues for the first time on appeal that the
State may have failed to provide a supplemental police report to the defense.
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This report was addressed at trial and the judge ordered the prosecutor to locate
and provide a copy of the report to defense counsel. He also advised he might
provide a Clawans3 charge to the jury if the report was not produced. Such an
adverse-inference charge is a permissible remedy for a discovery violation.
State v. Dabas, 215 N.J. 114, 140 (2013). It is unclear on this record if the report
was produced, but it is uncontroverted that defendant never requested an adverse
inference charge based on the lack of its production. Also, defense counsel did
not mention the supplemental report during the remainder of the trial. Under
these facts, we are satisfied no appellate remedy is warranted on this issue.
Any remaining claims raised by defendant lack merit and require no
further discussion. R. 2:11-3(e)(2).
Affirmed.
3
State v. Clawans, 38 N.J. 162 (1962). A Clawans charge allows a jury to draw
an adverse inference against a party when that party's failure to present evidence
"raises a natural inference that the party so failing fears exposure of those facts
would be unfavorable." Id. at 170 (citation omitted).
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