On appeal from the Superior Court of New Jersey, Law Division, Passaic County.
Bischoff, J. H. Coleman and Gaulkin.
Defendant Rafael Santiago Colon was charged in a two-count indictment with murder, in violation of N.J.S.A. 2C:11-3 a(1) and N.J.S.A. 2C:11-3 a(2), and unlawful possession of a weapon in violation of N.J.S.A. 2C:39-5 d. The jury acquitted him of murder but convicted him of unlawful possession of a weapon.
On March 30, 1980 defendant, the victim and others were in an apartment building in Paterson. After someone suggested they cook potatoes, an argument occurred during which witnesses heard a click and saw a knife in defendant's hands. The
victim obtained a stick and engaged in a fight with defendant; the victim was stabbed 11 times by defendant, causing the victim's death. The knife was never clearly described by witnesses and it was not introduced into evidence at trial. There was some testimony that the knife used by defendant may have been on his person so that he could use it to peel potatoes for "the wine and potato party."
Defendant argues the verdict is against the weight of the evidence, contending that by its verdict the jury found him not guilty of murder because he acted in self-defense; that a weapon used in self-defense is lawfully used and if lawfully used it was lawfully possessed, and since the knife had uses other than illegal ones, he could not be convicted of a violation of N.J.S.A. 2C:39-5(d) which provides:
d. Other weapons. Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree.
The contention is without merit. A lawful use of a weapon does not necessarily legitimate its prior possession. The statute's proscription is against possession, not use. The issue is not whether a weapon could be lawfully used, but whether the circumstances surrounding the possession were manifestly appropriate for such lawful uses.
The knife was not described or produced, but from the testimony of a "click" the jury could have inferred the knife was of the switchblade type and not likely to be possessed to be used to peel potatoes.
The jury's verdict was well supported by the evidence and the trial judge's denial of defendant's motion for a new trial based on the contention the verdict was against the weight of the evidence was not error. R. 2:10-1; State v. Brown, 80 N.J. 587, 591 (1979).
Defendant next attacks N.J.S.A. 2C:39-5(d) as "unconstitutional because it shifts the burden of proof to the defendant." Defendant argues the ...