Collester, Lynch and Mehler. The opinion of the court was delivered by Mehler, J.A.D. Collester, P.J.A.D., (Dissenting, in part).
[125 NJSuper Page 346] Defendant appeals from his convictions on a two-count indictment. Count 1 charged him with the possession of heroin. Count 2 charged him with possession of a revolver, contrary to N.J.S.A. 2A:151-41. He urges a number of grounds for reversal and also contends that his sentence was excessive. The main thrust of his appeal is directed against his conviction on the gun charge.
The jury was justified in finding from the evidence as follows:
Two Newark detectives accompanied one Meyers to his third-floor apartment so he could produce his driver's license and registration. Before defendant opened the door from the inside of the apartment, a detective on the street saw him push out a window screen, extend his hand holding a gun and place it and a package on the ledge. Upon investigation, the package was found to contain 74 small glassene envelopes and three tin foils of a loose white powder. Analysis of the contents of one of the glassene envelopes and of one of the tin foils showed they contained heroin.
Defendant contends that his motion for judgment of acquittal on the gun charge should have been granted because the State failed to prove that the weapon was in a public place. This contention is without merit. Possession in a public place is not required to establish a violation of that portion of the statute which prohibits one from possessing a revolver without first having obtained a permit. N.J.S.A. 2A:151-41 provides, in pertinent part, as follows:
Except as hereinafter provided, any person who carries, holds or possesses in any automobile, carriage, motorcycle or other vehicle, or on or about his clothes or person, or otherwise in his possession, or in his possession or under his control in any public place or public area:
a. A pistol or revolver without first having obtained a permit to carry the same in accordance with the provisions of this chapter; * * * is guilty of a high misdemeanor.
The position of a comma in the phrase "or otherwise in his possession, or in his possession or under his control in any public place or public area" makes it plain that, subject to the exemptions enumerated in N.J.S.A. 2A:151-42, a violation is committed by the carrying of a firearm without a permit in any place, private or public. This construction is borne out by section 2C-39-3(g) of the proposed New Jersey Penal Code, which provides that any person who, unless licensed to do so, knowingly has in his possession any firearm or weapon,
is guilty of a crime. The Commission's commentary to this section states that this provision carries forward the policy of N.J.S.A. 2A:151-41 and 62.
A legislative history of the statute also supports our view. Section 41 was enacted in its present form in 1966 (L. 1966, c. 60, § 32) eliminating the requirement that proscribed weapons need to be concealed. Prior thereto section 41, as it was amended in 1960 (L. 1960, c. 26, § 1) did not restrict the unlawful possession of firearms to public places. It provided, in pertinent part, that "any person who carries in any automobile, carriage, motor cycle or other vehicle, or concealed on or about his clothes or person, or otherwise concealed in his possession: a. a pistol, revolver or other firearm * * * is guilty of a misdemeanor."
In light of the proliferation of guns and the crimes that have followed in their wake in recent years, the Legislature could not have intended by the 1966 amendment to have restricted the area in which it is unlawful to possess a firearm. It is likely that the addition of the phrase "public place or public area" was intended to make it clear that possession was prohibited there as well as in private.
Since it was not necessary that the State prove that defendant possessed the gun in a public place, the court did not err in denying the motion for ...