On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For reversal -- None. The opinion of the Court was delivered by O'Hern, J.
This appeal questions the constitutionality of the statutory presumption of N.J.S.A. 2C:39-2 that an accused weapons offender shall be presumed not to possess the requisite license or permit "until he establishes the contrary."
An officer of the Atlantic City Police Department on car patrol on December 23, 1981 received a dispatch over the radio that there was an assault taking place in the area of his patrol. Responding to the report, the officer soon observed an individual fitting the description of the assailant near the report site. The officer stopped his car, opened the door, and shouted to the individual whom he later identified as the defendant. The defendant fled. The officer then turned loose his police patrol dog to run down the defendant. The officer pursued the defendant on foot. After a short pursuit, defendant began to turn and raise his hand in the direction of the overtaking officer. The officer dove to the ground. The dog bit the
defendant on the left arm and, in so doing, dislodged what appeared to be a gun from defendant's left hand. The struggle among dog, suspect, and arresting officer continued until the defendant surrendered. After assistance came and the defendant was handcuffed, the police recovered the weapon. It was a loaded .22 automatic revolver, in firing position with cocked hammer.
A jury found defendant guilty of possessing a handgun without a permit, contrary to N.J.S.A. 2C:39-5b; possessing the handgun for unlawful purposes, contrary to N.J.S.A. 2C:39-4a; and two counts of aggravated assault. He was sentenced to a custodial term of eight years, with three years of parole ineligibility, on the charge of possession of the weapon for unlawful purposes. He received concurrent terms on the three remaining counts. Defendant raised various points on appeal to the Appellate Division. We have limited our grant of certification to defendant's argument that the State failed to meet its burden of proof as to the possession of a handgun without a permit. The State offered no direct evidence on the permit issue, choosing to rely on the statutory presumption of N.J.S.A. 2C:39-2b. In an unreported opinion, the Appellate Division affirmed on that issue as well as the other issues. We granted defendant's petition for certification to consider the issue of the statutory presumption. 97 N.J. 605 (1984).
The threshold question is whether the absence of a permit is an essential element of the offense of unlawful possession of a handgun under N.J.S.A. 2C:39-5b or rather is an affirmative defense that the defendant must establish. The Code defines the offense thus:
[a]ny person who knowingly has in his possession any handgun * * * without first having obtained a permit to carry the same as provided in section 2C:58-4, is guilty of a crime of the third degree. [ N.J.S.A. 2C:39-5b.]
The State contends that the possession of the required permit is not an element of the offense, but instead is an affirmative
defense that the defendant has the burden of establishing. We disagree. The Code's definitions of "element of an offense" and "affirmative ...