On appeal from Superior Court, Law Division, Hudson County.
Conford, Pressler and King. The opinion of the court was delivered by Conford, P.J.A.D., Retired (temporarily assigned).
[165 NJSuper Page 524] This appeal involves the construction of N.J.S.A. 2A:151-32 ("Section 32") which makes it a crime to give, sell, receive or purchase a pistol or revolver unless the receiver or purchaser has first secured a permit to purchase. If the weapon is a rifle or shotgun, the receiver or purchaser must have first obtained and exhibited a firearms purchaser identification card ("identification card"). To be carefully distinguished
is N.J.S.A. 2A:151-41 ("Section 41") which prohibits the carrying or possession in any public place or public area of a pistol or revolver without having obtained a permit to carry it or a rifle or shotgun without having first obtained an identification card. There are other detailed statutory provisions regulating the issuance of permits to receive or purchase, of permits to carry, and of identification cards. For a comprehensive discussion of these statutes see State v. Riley , 69 N.J. 217 (1976).
These appellants and two others were indicted for violations of Sections 32 and 41 and also of N.J.S.A. 2A:151-56 ("Section 56") which prohibits the carrying of a firearm with intent to use it unlawfully against another. There were numerous counts corresponding to the different firearms found in defendants' possession.
These prosecutions arose out of the following facts. Shortly after midnight, on the morning of December 30, 1974, defendants Aldo, Sergio and Jose Battle along with Michael Dopaso were arrested by members of the Union City Police Department for possession of a variety of firearms contrary to the aforecited statutes. A citizen walking his dog had seen several men late at night tucking guns inside their clothing as they ran out of the Ice House housing project. One of the individuals, a heavyset man in a brown leather coat, was seen carrying a shotgun which he was wrapping in a green blanket.
The citizen, one Anderson, known to the police as a former special police officer, described the incident to foot patrolman Pisani who summoned help with his "walkie-talkie." The police shortly thereafter stopped a car, one of whose occupants was a large man wearing a brown leather coat. Officer Messina approached the car from the driver's side while Officers Shelton and Mella approached from the other side. As Messina drew near he recognized the broad-backed occupant as Jose Battle ("Jose"), whom he knew, and said, "Oh, they're okay." Within seconds, however, Officer Shelton had opened the door on the other side, seen a shotgun and
yelled. At the hearing on a motion by defendants to suppress, Shelton testified that as he approached the car, the window was rolled down. Inside, he could see a green blanket or cloth lying across the lap of the occupant in the front passenger seat. He started to open the front door and as he did so the blanket started dropping down. Shelton reached through the window to grab the blanket and, as it slipped off, the barrel of a shotgun came into view.
After Shelton saw the shotgun and yelled, the officers arrested the occupants and searched them and the car. A number of firearms were found in addition to the shotgun. Defendant Sergio Battle ("Sergio") was unarmed but police found a 9-mm. automatic pistol on the floor of the car where he had been sitting. Aldo Battle ("Aldo") was found in possession of a .38-caliber revolver, 12-gauge shotgun shells and 38-caliber shells. The other defendants also held weapons. Because Aldo was shown to possess the necessary identification card required to carry a rifle or shotgun, two counts of possessing the shotgun initially filed against him were dismissed.
Sergio took the stand. He admitted the presence of the weapons but alleged that they belonged to other persons who had murdered another brother the week before and who had threatened Jose. He said that there was no green blanket and that all the weapons except the shotgun, which belonged to Aldo, had been abandoned on the sidewalk by the other persons. He and his companions, he testified, were bringing the guns to the police and a Mr. Diaz was to have called police headquarters to say they were coming. Instead the police stopped them, and before Jose, who knew one of the policemen, could explain their actions, the shotgun was seen, the parties arrested and the other weapons discovered.
Defendants were found guilty of most of the charges by the jury but at sentencing the judge merged their findings and entered judgments of conviction, as to the present appellants, for violation of Sections 41, 32 and 56 in relation ...