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State v. Keely

Decided: September 23, 1977.

THE STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
CHARLES KEELY, DEFENDANT-APPELLANT



Matthews, Bischoff and Horn.

Per Curiam

Tried to a jury, defendant was convicted of charges contained in two respective indictments: (1) feloniously attempting to use a dangerous weapon (a penknife) against one Mary Beth Shaefer (N.J.S.A. 2A: 151-56), and (2) unlawfully possessing a .22-caliber blank gun without first having obtained the requisite permit (N.J.S.A. 2A:151-41). After denying a motion for a new trial, the judge sentenced him to serve one to three years in State Prison on the dangerous weapon charge and a similar concurrent term on the possession of the gun charge.

Defendant asserts in this appeal: (A) the pistol was a "starter's pistol" and did not fall within the type of firearm proscribed by N.J.S.A. 2A:151-41; (B) the simultaneous trial on both charges was prejudicial and constituted plain error, and (C) the verdicts were against the weight of the evidence.

A

The trial judge erroneously denied defendant's motion to dismiss the unlawful possession of a weapon charge.

Defendant admitted to possession of the pistol. The State's firearms expert testified that, although the pistol was incapable of firing a projectile in the condition it was found in defendant's possession, it could be converted into a weapon capable of firing .22-caliber bullets with a "minor" modification consisting of enlarging the barrel by drilling same in a matter of five to ten minutes or by substituting a new cylinder for the one in the revolver.

N.J.S.A. 2A:151-1 defines the type of pistol or revolver for which a permit to carry is required as follows:

a. Firearm or firearms includes any pistol, revolver, rifle, shotgun, machine gun, automatic and semiautomatic rifle, or other firearm as the term is commonly used, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectile, ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances.

The State's expert agreed that the pistol as found in defendant's possession was a starter pistol and as such did not fall within the ambit of the statute. But the State contends that defendant was in violation of the statute because (a) it could be converted into a weapon capable of firing bullets with the minor conversion, and (b) it was capable of firing tear-gas cartridges which constituted "gas, vapor or other noxious thing." Cf. State v. Hepner , 136 N.J. Super. 509 (App. Div. 1975), involving a flare gun.

We cannot accept the State's argument as to (a) because the pistol as found had not been altered in any way. Moreover, there was not the slightest evidence that defendant intended to alter it or was capable of doing so. The mere fact that he possessed some tear-gas cartridges is without pertinent significance. He had no extra cylinder in his possession which could have been substituted and he had no tools in his possession which were required to perform the necessary operation to enlarge the barrel.

Were the State's theory valid, the most innocent of objects would come within the prohibition ...


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