On certification to the Superior Court, Appellate Division, whose opinion is reported at 188 N.J. Super. 432 (1982).
For modification and affirmance -- Chief Justice Wilentz and Justices Schreiber, Handler, Pollock, O'Hern and Garibaldi. For reversal and remandment -- Justice Clifford. The opinion of the Court was delivered by Pollock, J. Clifford, J., dissenting.
In this case, we must determine the constitutionality of N.J.S.A. 2C:39-5 d, which states that a person who knowingly possesses a weapon other than certain firearms "under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree."
A majority in the Appellate Division found an explicit charge on defendant's intent unnecessary "as long as the crime was defined in terms of the circumstances surrounding the possession of the weapon." 188 N.J. Super. 432, 435 (1982). The court described the standard of "circumstances not manifestly appropriate" for lawful uses, however, as the functional equivalent of an unlawful intent to use. Id. at 436.
Furthermore, the court rejected defendant's contentions that the statute was vague, overbroad, and effected an unconstitutional shift of the burden of proof to defendant. Finding that the trial court's charge adequately instructed the jury on the essential elements of the crime, including the intent to use the weapon unlawfully, the court sustained defendant's conviction. Id. at 435-36.
One judge dissented, asserting that the jury was not adequately instructed that an unlawful intent to use the weapon in question, a pair of scissors taped into a makeshift stiletto, was an element of the crime. Id. at 436, 439 (Antell, J.A.D., dissenting). The defendant, who appealed as of right because of the dissent, petitioned for certification on the constitutional issues.
We granted the petition, 94 N.J. 592 (1983), and now affirm the judgment of the Appellate Division. We hold, however, that an "intent to use for an unlawful purpose" is not an element of the offense, and that the statute is constitutional.
The Appellate Division summarized the facts:
The incident giving rise to the charges herein commenced at about 1:25 p.m. on December 8, 1979. James Whitney, an off-duty police officer, entered the kitchen from the living room of his home, at which time he heard a noise on his screen porch. Through a window of the kitchen door the officer saw defendant with his upper torso inside the screen of the porch. Whitney pursued defendant and being unable to apprehend him returned home and telephoned a central dispatch station, reporting the incident, together with a description and direction of flight of the intruder. Lee was eventually apprehended. At the time of his arrest Lee was patted down, as a result of which a pair of scissors taped at the ends, a spool of string, surgical tape and black leather gloves were recovered. Whitney subsequently recognized and identified Lee as the intruder in his home.
At the trial Sgt. Michael O'Donovan was qualified as an expert on weapons and gave his opinion that the taped scissors were useless for their traditional purpose and in the taped condition became a "stiletto." Defendant rested
without calling witnesses or testifying. Nor did the defendant present any objection to the judge's charge.
[188 N.J. Super. at 434].
The jury found defendant guilty of burglary, N.J.S.A. 2C:18-2, of possession of burglar's tools, N.J.S.A. 2C:5-5, and of the offense that forms the basis for this appeal, possession of a weapon "under circumstances not manifestly appropriate for such lawful use as it may have * * *." N.J.S.A. 2C:39-5 d. Defendant, who had a prior criminal record, received a sentence of five years imprisonment on the burglary conviction and a concurrent sentence of eighteen months on the conviction for unlawful possession of a weapon.
In evaluating defendant's challenge to the constitutionality of 2C:39-5 d, we begin with an analysis of the relevant sections of the New Jersey Code of Criminal Justice (Criminal Code). Those sections reveal a carefully constructed scheme for the criminalization of possession of weapons in various situations, depending on the nature of the weapon, the intent of the possessor, and the surrounding circumstances. Broadly speaking, chapter 39, of which 2C:39-5 d is a part, contains three classes of possessory weapons offenses.
In the first class, the mere possession of certain weapons, such as sawed-off shotguns, constitutes a per se offense. See 2C:39-3 b. A subdivision of this category, which concerns implements such as dirks, daggers, and stilettos, makes the possession of those objects an offense unless the defendant can come forward with an explainable lawful purpose for possession of the weapon. See 2C:39-3 e. This provision does not relieve the State of its burden of proof, but merely shifts to the defendant the burden of going forward on the issue of "lawful purpose." See State v. Dunlap, 181 N.J. Super. 71, 76 (Law Div.1981).
A second class of offenses prohibits the possession of a weapon with the intent to use it against the person or property of another. See 2C:39-4 a to ...