On appeal from the Superior Court, Law Division, Middlesex County.
Morton I. Greenberg, O'Brien and Gaynor. The opinion of the court was delivered by Morton I. Greenberg, P.J.A.D.
[199 NJSuper Page 31] This matter comes on before this court on appeal from a judgment of conviction in a criminal case. The case involves significant statutory construction questions concerning the definition of "handgun" and "firearm" under the New Jersey Code of Criminal Justice, N.J.S.A. 2C:1-1 et seq. Specifically we must decide whether the instrument used by defendant, a spring action BB pistol, was a handgun as defined in N.J.S.A.
2C:39-5(b) and whether it was a firearm within N.J.S.A. 2C:39-1(f). We must further determine whether a finding by a jury that the instrument was a deadly weapon as defined by N.J.S.A. 2C:11-1(c) prior to the amendment of that section by L. 1981, c. 384 may be sustained.
A four-count indictment was returned in Middlesex County charging defendant with armed robbery of Francis J. Casagrande with a deadly weapon, a handgun, N.J.S.A. 2C:15-1 (count 1); unlawfully possessing a handgun without a permit, N.J.S.A. 2C:39-5(b) (count 2); possession of a weapon, the handgun, for the unlawful purpose of using it against Casagrande, N.J.S.A. 2C:39-4(a) (count 3); and aggravated assault on Casagrande by pointing a firearm at him under circumstances manifesting extreme indifference to the value of human life, N.J.S.A. 2C:12-1(b)(4) (count 4). Defendant pleaded not guilty to all charges and a jury trial ensued. The trial started in defendant's presence on December 6, 1982 and continued on December 7 and 8, 1982. On December 7, 1982 defendant who had been free on bail did not appear in court and his attorney could give no explanation for his absence. Accordingly the trial was completed without defendant being present. See R. 3:16. Defendant was convicted on the armed robbery, possession of the handgun without a permit and aggravated assault counts but he was acquitted of possessing the weapon with the unlawful purpose of using it against Casagrande.
Defendant's absence caused a considerable delay in his sentencing. Further it resulted in his bail being forfeited. The case was reactivated, however, after April 29, 1984 when defendant was arrested at the border while attempting to enter the United States from Mexico. Defendant was subsequently sentenced to a term of ten years in prison on the armed robbery count one-third of which was to be served before he was to be eligible for parole. He was sentenced to a concurrent term of three years on the count of possession of a handgun without a permit. The conviction for aggravated assault was merged into the armed robbery count. Two penalties of $25 were imposed
for the use of the Violent Crimes Compensation Board. Following defendant's sentencing and incarceration he moved for a new trial and a return of the forfeited bail but these motions were denied. Defendant has appealed from the conviction, the denial of a new trial and the denial of the return of the forfeited bail.
The events leading to defendant's indictment and conviction began on December 15, 1981. The victim, Francis Casagrande, testified that at approximately 6:00 p.m. on that day he left his office in New York City to go to the Harley Hotel for a dinner meeting with some clients. Prior to the dinner Casagrande probably had a few drinks. The meeting ended at about 10:30 or 11:00 p.m. Casagrande then went to another meeting at Figaro's where he had approximately three beers. He left Figaro's at around 3:00 a.m. on December 16, 1981 and at that time hailed a taxicab being operated by defendant. Defendant agreed to take Casagrande to defendant's home in Edison for $50.
Unfortunately all did not go well during the ride. Defendant at one time drove in the wrong direction, an action which angered Casagrande. Eventually, however, the cab reached Casagrande's home and Casagrande then paid defendant with a $50 bill, left the cab and walked almost 100 feet to his house. Defendant also left the cab. He came up to Casagrande, grabbed him by the back of the collar and demanded an additional payment. Casagrande suggested that defendant come into the house and call the taxi company or the police, a suggestion defendant did not accept. Instead defendant took more immediate steps to enforce his demands. He drew a handgun causing Casagrande to raise his hands above his head. Defendant then asked Casagrande where he kept his money. When Casagrande indicated that it was in his right-hand pants pocket defendant put the gun to Casagrande's head and robbed him of the money in the pocket, between $20 and $60. Not surprisingly these events frightened Casagrande.
Following the robbery defendant left the scene. Casagrande then went into his house and called the Edison police to report the robbery. Casagrande's call triggered prompt action. Two Edison policemen almost immediately spotted the cab and arrested defendant. They took a loaded handgun from his inside belt. At that time defendant had $209.33 which included a $50 bill in his possession. Later that morning Casagrande identified the gun as the one defendant had during the robbery.
During the cross-examination of Casagrande defendant's attorney attempted to develop facts concerning how frequently Casagrande returned to New Jersey by cab from New York. He also sought specific information concerning the persons with him in New York. The prosecutions' objection to this testimony on the grounds of relevancy was sustained.
Lieutenant Joseph N. Shirley of the Edison Township Police Department, an expert in the test firing of firearms, testified at the trial. He described the weapon as a pellet gun or BB gun operated by spring action. Shirley said it fired a small projectile called a "BB." Shirley had test-fired the gun and found it to be operable. The prosecutor asked Shirley whether the gun was a firearm under New Jersey law. While Shirley answered that it was, the court then sustained defendant's objection to the question saying it was a question for the judge. The prosecutor did not attempt to pursue this line of questioning further.
Inasmuch as the gun did not fire conventional bullets the case raised issues concerning whether the gun was a "handgun," "firearm" and "deadly weapon" within the contemplation of the New Jersey Code of Criminal Justice. It is evident that Shirley was called because of these issues. The judge in conformity with his ruling during Shirley's testimony charged the jury without objection from defendant that the weapon recovered was a firearm within the definition of firearm in ...