On appeal from Superior Court of New Jersey, Law Division, Atlantic County.
Michels, Petrella and Baime. The opinion of the court was delivered by Baime, J.A.D.
This appeal presents difficult questions pertaining to the constitutional validity of N.J.S.A. 2C:39-7.*fn1 That statute prohibits any person previously convicted of certain designated offenses from possessing a weapon. The term "weapon" is defined in N.J.S.A. 2C:39-1r as including "anything readily capable of lethal use or of inflicting serious bodily injury."*fn2
The judge dismissed the charges prior to trial upon the ground that the statutory prohibition was overly broad and unduly vague. More specifically, he found that the statute was facially defective because it swept indiscriminately across various types of lawful activities. He further concluded that the statutory language was not sufficiently precise to apprise potential offenders of the nature of the conduct proscribed. These infirmities were said to deprive defendant of substantive and procedural due process. We disagree and reverse.
The facts are not in dispute. The sparse record discloses that defendant was arrested by several members of the Atlantic City Police Department. At the time of his arrest, defendant was carrying what appeared to be a gym bag. No weapons were found upon defendant's person. In a cursory search of the bag, however, the police discovered a 12 inch non-folding kitchen knife. While being transported to police headquarters, defendant stated that he "was going to cut Angelo up like a chicken." The Atlantic County Grand Jury subsequently returned a multi-count indictment. The first count charged defendant with possession of a weapon under circumstances not manifestly appropriate for such lawful uses as it may have, contrary to the provisions of N.J.S.A. 2C:39-5d. This appeal pertains solely to the second count which charged defendant with possession of a weapon having previously been convicted of a crime in violation of N.J.S.A. 2C:39-7. Prior to trial, defendant moved to dismiss the latter charge contending that the statutory proscription "suffered from overbreadth" and claiming that the definitional language was "void for vagueness."
Relying upon his previously rendered decision in State v. Williams, 194 N.J. Super. 590 (Law Div.1984), the trial judge granted defendant's motion. In his opinion, the judge noted that the statute had been authoritatively construed in State v. Brown, 185 N.J. Super. 489, 493 (App.Div.1982) as not requiring proof of an unlawful purpose to use the weapon. Stated somewhat differently, the statute was said to proscribe the mere possession of any implement falling within the purview of N.J.S.A. 2C:39-1r without regard to the offender's purpose or intent. So construed, the trial court determined that the statute ran afoul of the Fourteenth Amendment's due process clause. In prohibiting possession of a weapon without consideration of possible exculpatory circumstances, the statute was said to be overly broad and unduly vague. Although count two was dismissed, defendant proceeded to trial with respect to the other charge and was subsequently acquitted. As noted, this appeal pertains solely to the trial judge's pretrial order granting defendant's motion and dismissing the second count of the indictment.
Preliminarily, we entertain serious doubts that defendant had standing to challenge the constitutionality of N.J.S.A. 2C:39-7 upon the grounds of overbreadth and vagueness. We emphasize that the statute was held to be facially defective because it encompassed within its proscription hypothetically innocent uses of a weapon by a convicted person. Our examination of the record does not disclose any factual contention by defendant that his possession of the knife was in pursuit of a lawful purpose. In point of fact, the totality of the evidence presented at the subsequent trial supports a contrary conclusion. In any event, it is an unassailable tenet of our judicial system that courts will not render judgments on federal constitutional questions unless presented in the form of an actual factual or legal dispute. To be sure, unlike its federal counterpart, "there is no express language in New Jersey's Constitution [198 NJSuper Page 559] which confines the exercise of our judicial power to actual cases and controversies." Crescent Pk. Tenants Assoc. v. Realty Eq. Corp. of N.Y., 58 N.J. 98, 107 (1971). Further, our decisions have historically taken a much more liberal approach on the issue of standing than have the federal cases. Id. at 101. See also Walker, Inc. v. Stanhope, 23 N.J. 657, 660-661 (1957); New Jersey Bankers Assoc. v. Van Riper, 1 N.J. 193, 196-197 (1948). This much conceded, our Supreme Court recently had occasion to note that "any determination of who has standing to assert federal constitutional rights must be made in keeping with federal law." State v. Alston, 88 N.J. 211, 229 n. 12 (1981). We need not dwell upon the issue, however, because both the federal and State systems have traditionally refused to "render advisory opinions or function in the abstract." Crescent Pk. Tenants Assoc. v. Realty Eq. Corp. of N.Y., supra 58 N.J. at 107. See also State v. Saunders, 75 N.J. 200, 208 (1977); In re Quinlan, 70 N.J. 10, 34 (1976), cert. den. sub nom. Garger v. New Jersey, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). In other words, "[s]tatutes are not examined in the abstract without reference to conduct in assessing their constitutionality." State v. Colon, 186 N.J. Super. 355, 358 (App.Div.1982). Deeply embedded in our jurisprudence is the settled principle against resolving disputes in advance of constitutional necessity. The doctrine was established as early as 1793, see H. Johnson, Correspondence and Public Papers of John Jay, pp. 486-489 (1891), and has been applied without significant deviation. Flast v. Cohen, 392 U.S. 83, 96 n. 14, 88 S. Ct. 1942, 1950 n. 14, 20 L. Ed. 2d 947, 959 (1968). See also United States v. Freuhauf, 365 U.S. 146, 157, 81 S. Ct. 547, 553, 5 L. Ed. 2d 476, 483 (1961); Federation of Labor v. McAdory, 325 U.S. 450, 461, 65 S. Ct. 1384, 1389, 89 L. Ed. 1725, 1734 (1944); Muskrat v. United States, 219 U.S. 346, 348, 31 S. Ct. 250, 55 L. Ed. 246, 247 (1911). In short, our authority is confined to deciding questions presented in an adversary context and in a form capable of resolution through the judicial
process. Flast v. Cohen, 392 U.S. at 95, 88 S. Ct. at 1949, 20 L. Ed. 2d at 958. Whether grounded in constitutional principle or viewed as a mere policy limitation, our courts have long avoided passing prematurely on constitutional questions. Judicial authority should be invoked only when the interests of the litigants require protection against actual governmental interference. Thus, the related doctrines of standing, ripeness and mootness that have evolved over the years are incidents of the "primary conception that . . . judicial power is to be exercised to strike down legislation . . . only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action." Poe v. Ullman, 367 U.S. 497, 504, 81 S. Ct. 1752, 1756, 6 L. Ed. 2d 989, 996 (1961). See also Boyle v. Landry, 401 U.S. 77, 91 S. Ct. 758, 27 L. Ed. 2d 696 (1971). Cf. United States v. SCRAP, 412 U.S. 669, 93 S. Ct. 2405, 37 L. Ed. 2d 254 (1973). The party who seeks to "annul legislation on grounds of its unconstitutionality must be able to show not only that the statute is invalid, but that he has sustained or is immediately in danger of sustaining some direct injury as a result of its enforcement." Poe v. Ullman, 367 U.S. at 505, 81 S. Ct. at 1756, 6 L. Ed. 2d at 997. See also New York v. Ferber, 458 U.S. 747, 767, 102 S. Ct. 3348, 3360, 73 L. Ed. 2d 1113, 1129 (1982); Broadrick v. Oklahoma, 413 U.S. 601, 610, 93 S. Ct. 2908, 2914, 37 L. Ed. 2d 830, 839 (1973); United States v. Raines, 362 U.S. 17, 21, 80 S. Ct. 519, 522, 4 L. Ed. 2d 524, 529 (1960).
These well settled principles have particular validity when considered within the context of constitutional challenges based upon alleged facial overbreadth and vagueness. It has been recognized that these doctrines constitute "strong medicine" and are to be applied sparingly and "only as a last resort." Broadrick v. Oklahoma, 413 U.S. at 613, 93 S. Ct. at 2916, 37 L. Ed. 2d at 841. One ...