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State v. Dunlap

Decided: July 22, 1981.

STATE OF NEW JERSEY, PLAINTIFF,
v.
GREGORY DUNLAP, DEFENDANT, AND STATE OF NEW JERSEY, PLAINTIFF, V. GUY TROY WILCOX, DEFENDANT, AND STATE OF NEW JERSEY, PLAINTIFF, V. KEVIN M. GEE, DEFENDANT



Deegan, J.s.c.

Deegan

This matter presents the court with an issue of first impression. Defendants in the above captioned cases have each brought a motion challenging the constitutionality of N.J.S.A. 2C:39-3(e), under which they were indicted. The cases have been consolidated for purposes of these motions.

The court, having now reviewed the briefs and oral arguments of the respective parties, makes the following findings of fact and conclusions of law.

On April 30, 1981, Gregory Dunlap was arraigned on Indictment 1196-80. The indictment alleged unlawful possession of heroin, unlawful possession of heroin with intent to distribute,

and unlawful possession of a gravity knife, in violation of N.J.S.A. 2C:39-3(e).

Guy Wilcox was arraigned on Indictment 1084-80 on April 16, 1981. The indictment alleged unlawful possession of a gravity knife, in violation of N.J.S.A. 2C:39-3(e), and unlawful possession of a gravity knife with the purpose of using it against another, in violation of N.J.S.A. 2C:39-4(d).

Kevin Gee, on April 30, 1981, was arraigned on Indictment 1088-80. The indictment alleged unlawful possession of a knife, in violation of N.J.S.A. 2C:39-5(d), and unlawful possession of a blackjack, in violation of N.J.S.A. 2C:39-3(e).

All the defendants submitted identical briefs attacking the constitutionality of N.J.S.A. 2C:39-3(e). Wilcox's brief did not challenge his indictment under N.J.S.A. 2C:39-4(d), nor did Gee's brief seek dismissal of his indictment under N.J.S.A. 2C:39-5(d). Likewise, their oral arguments addressed only N.J.S.A. 2C:39-3(e). A fourth defendant, Gregory Mustakas, was to have been consolidated under this motion. His motion questioned the constitutionality of both N.J.S.A. 2C:39-3(e) and N.J.S.A. 2C:39-5(d). However, prior to the return date of this motion Mustakas was acquitted. The court permitted his attorney to submit a brief and present oral argument as an amicus curiae , limited to the issue presented, the constitutionality of N.J.S.A. 2C:39-3(e).

Defendants attack the statute on the grounds that it unconstitutionally shifts the burden to the defendant; it raises an unlawful presumption in violation of due process; it permits a jury to decide issues of law and it is unconstitutionally vague. The court will address the arguments in that order.

At the outset, it is noted that "[l]egislative enactments are presumed to be valid and the burden on the proponent of invalidity is a heavy one." Velmohos v. Maren Engineering Corp. , 83 N.J. 282, 295 (1980); Smith v. Penta , 81 N.J. 65 (1979),

app. dism., 444 U.S. 986, 100 S. Ct. 515, 62 L. Ed. 2d 416 (1979); Grand Union Co. v. ...


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