On appeal from the Superior Court, Law Division, Atlantic County.
Michels, Pressler and Trautwein. The opinion of the court was delivered by Pressler, J.A.D.
Co-defendants, Thomas McCandless and Patrick Hartey, tried together by a jury, were each convicted of three counts of possession of a stolen credit card in violation of N.J.S.A. 2C:21-6 c(2) and one count of unlawful possession of a so-called B.B. automatic pistol in violation of N.J.S.A. 2C:39-5 b. The three credit card crimes were merged for sentencing purposes and McCandless was sentenced thereon to an 18-month prison term while Hartey was sentenced thereon to a 13-month term. On the weapon possession conviction, McCandless was treated as a persistent offender and sentenced to a consecutive ten-year term subject to a five-year period of parole ineligibility. Hartey was sentenced on the weapon conviction to a consecutive four-year term.
Each of the defendants filed a separate notice of appeal and has separately prosecuted his respective appeal. We have consolidated the appeals on our own motion because both defendants primarily rely on the same contention, namely, the asserted unconstitutionality of N.J.S.A. 2C:39-5 b and 2C:39-2 b.
N.J.S.A. 2C:39-5 b provides that any person who knowingly possesses a handgun without first having obtained a permit to carry it is guilty of a third-degree crime. N.J.S.A. 2C:39-2 b provides in full as follows:
When the legality of a person's conduct under this chapter depends on his possession of a license or permit or on his having registered with or given notice to a particular person or agency, it shall be presumed that he does not possess such a license or permit or has not registered or given the required notice, until he establishes the contrary.
Both defendants argue that the effect of these two provisions, taken together, is to relieve the State of its constitutionally-imposed obligation to prove each element of the offense beyond a reasonable doubt, thereby impermissibly shifting the burden of proof to the defendant. We disagree.
We consider first N.J.S.A. 2C:39-5 b, which replaced former N.J.S.A. 2A:151-41(a). The former provision made it a crime to possess "a pistol or revolver without first having obtained a permit to carry the same." Former N.J.S.A. 2A:151-41(b), to which N.J.S.A. 2C:39-5 c is congruent, similarly provided by requiring registration of rifles and shotguns in order to make their possession legal. Thus, the verbiage, import and elements of the Code crimes and the Title 2A crimes are in all substantial respects identical. The scheme of the former legislation, adopted by the Code, was to require the State to allege the lack of a permit or registration as an element of the crime but to cast upon the defendant the burden of coming forward with proof that the permit or registration requirement had been complied with. In other words, proof of the possession alone constituted a sufficient evidential basis upon which the jury could conclude that the possession was illegal if the defendant failed to come forward with proof of a permit or registration. This scheme was moreover expressly approved by the New Jersey Supreme Court in State v. Hock, 54 N.J. 526 (1969), cert. den. 399 U.S. 930, 90 S. Ct. 2254, 26 L. Ed. 2d 797 (1970), a case involving N.J.S.A. 2A:151-41(b). The court in Hock upheld the allocation to the defendant of the burden of production on the simple and practical ground that, since he is the one with immediate knowledge
of whether a permit has been issued, "there is no hardship or injustice in placing upon him the slight intermediate obligation of presenting such evidence." 54 N.J. at 536-537. The court further regarded this obligation as not shifting the ultimate burden of persuasion from the State but rather as only imposing upon the defendant the burden of coming forward with evidence where the weapon in question, as here, is one which is incapable of being possessed legally without a permit. Ibid. We are aware that the United States Court of Appeals for the Third Circuit reached a contrary result in United States ex rel. Hickey v. Jeffes, 571 F.2d 762 (3 Cir.1978), in respect of a similar Pennsylvania statute. We are, however, bound in such circumstances by the pronouncements of our State Supreme Court. See State v. Coleman, 46 N.J. 16, 36-37 (1965), cert. den. 383 U.S. 950, 86 S. Ct. 1210, 16 L. Ed. 2d 212 (1966). We are in any event of the view that Hock, supra, represents the sounder view.
The question then before us is whether the presumption created by N.J.S.A. 2C:39-2 b, which we regard as codifying the holding in Hock, is in any way constitutionally objectionable. We answer this question in the negative as well.
The effect and constitutionality of a presumption in respect of an element of a criminal offense are matters which have been carefully considered by both the United States Supreme Court and the Supreme Court of this State. The validity of such a presumption rests upon two basic criteria. The first is simply that there must be a rational connection in terms of logical probability between the proved fact and the presumed fact. The second is that the presumption may not be accorded mandatory effect. As to the first of these criteria, the presumption will be sustained if, as a matter of common experience, it is more likely than not that the fact to be presumed follows from the facts giving ...