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State v. Sima

Decided: May 28, 1976.


Fritz, Seidman and Milmed. The opinion of the court was delivered by Seidman, J.A.D.


[142 NJSuper Page 190] Defendant was charged in a two-count indictment with (1) committing an assault with an offensive weapon (an automatic pistol), contrary to N.J.S.A. 2A:90-3, and (2) possessing a pistol without having a permit therefor, in violation of N.J.S.A. 2A:151-41 (a). Tried to a jury, he was found not guilty of the offense contained in the first count and guilty of the illegal possession of a weapon. A sentence to a term of 364 days in the Passaic County Jail was suspended, defendant placed on probation for two years, and a fine of $100 imposed.

The single ground of this appeal is that the trial judge erred in denying defendant's motion to dismiss the second count of the indictment. The pertinent facts are not in substantial dispute.

It is not denied that on the day in question defendant had in his possession a .25-caliber Colt semi-automatic pistol. Also uncontroverted is that on February 2, 1973 defendant had been granted a permit to carry a pistol or revolver. On the face of the permit was typed "Limited to job use only."

The proofs at the trial established that on Saturday, August 11, 1973, defendant, accompanied by his wife, drove to the Great Bear Auto Center in Clifton to have his car serviced. While there, he became involved in an altercation with a group of young men, allegedly as the result of a near collision between a truck operated by one of them and defendant's vehicle. Defendant's testimony was that he drew the pistol from the glove compartment of his car and fired a shot into a bush when one of the young men reached in his pocket and asked defendant if he wanted to see a gun. The police arrived shortly thereafter and confiscated the pistol as well as the permit which defendant produced.

The issue presented, as the State accurately sets forth in its brief, is "whether a court in issuing a permit to carry a handgun may impose limitations on the scope of the permit in order to conform the right to carry the weapon to the demonstrated need of the applicant." The State contends that such limitations may be imposed. Defendant, on the other hand argues that he applied for and received a permit to carry a weapon; that the permit gave him authority under N.J.S.A. 2A:151-45 to carry the weapon "in all parts of the State," and that there was no statutory provision for the issuance of a limited permit. He claims that since he was authorized to carry his pistol pursuant to a valid permit, he could not legally be guilty of the offense charged. We do not find defendant's arguments persuasive.

To the extent pertinent here, N.J.S.A. 2A:151-41 provides that any person who carries, holds or possesses in an automobile or about his person "a pistol or revolver without first having obtained a permit to carry the same," is guilty of a high misdemeanor.

The procedure for obtaining a permit is set forth in N.J.S.A. 2A:151-44. Application is first made to the chief police officer of the municipality in which the applicant resides (or to the Superintendent of State Police if there is none). The applicant's finger prints are taken and checked. Reasonable proof may be required of sufficient maturity and skill and knowledge in the handling of firearms. A complete description is given of the kind and type of revolver or pistol intended to be carried. If the application is approved, it is then presented to a judge of the County Court of the county in which the applicant resides, who, if satisfied of the sufficiency of the application, of the applicant's good character and absence of disabilities as set forth in N.J.S.A. 2A:151-33, and of the need of the applicant to carry a pistol or revolver, shall issue a permit therefor. One permit suffices for "such revolvers, pistols or other firearms as the applicant may possess."

It is true that the statute does not spell out any specific authority for placing conditions on a permit to carry a weapon. But neither is there any provision which prohibits the imposition of limitations or restrictions.

The public purpose of the Gun Control Law (N.J.S.A. 2A:151-1 et seq.) is "to prevent criminals and other unfit element from acquiring firearms," and to that end the Legislature has set up permit and identification requirements and has provided for disqualifications along with suitable inquiry into qualifications and fitness. Burton v. Sills , 53 N.J. 86, 93 (1968). It is the "overriding philosophy of our Legislature * * * to limit the use of guns as much as possible." State v. Valentine , 124 N.J. Super. 425, 427 (App. Div. 1973). "Need" is the touchstone for the issuance of a

permit to carry a handgun. See Siccardi v. State , 59 N.J. 545, 554 (1971). In Siccardi a clear policy was laid down to be followed by county court ...

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