On appeal from the Superior Court of New Jersey, Law Division, Union County.
Michels and Baime. The opinion of the court was delivered by Baime, J.A.D.
[203 NJSuper Page 218] This appeal presents difficult questions of first impression pertaining to the construction of N.J.S.A. 2C:39-4 a. At issue is whether the justification of self-defense may serve to exonerate a person charged with possession of a firearm for an unlawful purpose. We hold that the defense is applicable under appropriate circumstances where the accused reasonably perceives himself to be in imminent danger of bodily harm and the display or use of the weapon is immediately necessary for self-protection. We stress, however, that the danger of impending attack must be both immediate and imminent. One
may not arm himself with a weapon based upon his anticipation of a future need to use it in self-protection. Based upon these principles, we conclude that the trial judge did not commit plain error in failing to charge the jury with respect to the principles of self-defense.
Defendant was charged in a multi-count indictment with possession of a handgun without a permit (N.J.S.A. 2C:39-5 b), possession of a firearm with a purpose to use it unlawfully against the person of another (N.J.S.A. 2C:39-4 a) and aggravated assault (N.J.S.A. 2C:12-1 b(4)). Following a jury trial, defendant was convicted of both weapons offenses. However, the jury found defendant not guilty of aggravated assault. After a hearing, the trial judge concluded that defendant fell within the purview of the Graves Act (N.J.S.A. 2C:43-6 c). Defendant was sentenced to a custodial term of five years with respect to the conviction for possession of a firearm for an unlawful purpose. The court ordered that defendant be disqualified from parole eligibility for a period of three years. A concurrent term of three years was imposed with respect to defendant's conviction for possession of a handgun without a permit. The trial judge recommended that both sentences be served at the Youth Correctional Institution. Additionally, defendant was assessed penalties totaling $50 payable to the Violent Crimes Compensation Board.
A brief recitation of the facts is necessary for a complete understanding of the questions presented. It is undisputed that defendant pointed an "air-powered BB pistol" at Mario Monticello. The principal issue at trial pertained to the circumstances surrounding the incident. Monticello testified that he was working at the boat rental concession in Echo Lake Park when he observed defendant attempting to enter an area prohibited to the public. According to Monticello, he asked defendant to leave at which point an argument ensued. It is uncontradicted that defendant left the scene only to return approximately one-half hour later with three male friends. Monticello testified that defendant resumed taunting him. As the two
approached each other, Monticello took off his ring because he expected that a physical altercation would develop. When Monticello and defendant were approximately two feet apart, the latter "reached behind him" and obtained a pistol. Monticello testified that defendant pointed the weapon directly at him and at one point pressed the gun barrel against his head. According to Monticello, defendant threatened to "blow [his] head off." Shortly thereafter, the argument abruptly concluded and Monticello contacted the police.
Defendant's version of the incident differed in certain material respects. According to his testimony, he had arranged to visit several of his friends who were apparently employees at the boat concession. Defendant had been employed at the concession during the past three summers, but was not working there at the time. When defendant arrived, he asked Monticello, whom he had never met before, where his friends were. Monticello replied that they were not scheduled to work that day. Defendant then walked to the side of the boat house and began reading a newspaper. According to defendant, Monticello directed him to leave. Defendant objected because that portion of the boat house area was accessible to the public. Monticello made several menacing comments at which point defendant voluntarily departed.
Defendant testified that he was both "insulted" and "upset" when he reached his automobile which was in the adjacent parking area. Although defendant conceded that he could have left the park or called the police he instead chose to arm himself with a BB gun which he kept in his automobile. Defendant placed the weapon in his rear pocket and then returned to the boat house. Approximately one-half hour had elapsed. According to defendant, he did not intend to fire the gun. Rather, his purpose in arming himself was to frighten Monticello in the event of a further argument. He testified that he carried the gun for self-protection.
In any event, defendant met three of his companions at the boat concession. As they sat on a nearby bench, Monticello approached. Defendant testified that Monticello "pulled a ring off his finger" and threatened to "break every bone in [his] body." At that point, defendant attempted to reach for his gun. As he did so, a broken hinge on the gun's pumping mechanism caught on his pocket. Defendant quickly "put the gun together" and pointed it at Monticello. He denied pressing the barrel of the weapon against Monticello's head. According to defendant, he had never fired the weapon and, thus, did not know whether it was operable. In a statement given to the police after his arrest, however, defendant related that he had used the gun several weeks before the incident. The weapon was never recovered. In that regard, defendant testified that he discarded the gun in the nearby woods when he heard police sirens immediately after the incident.
Prior to instructing the jury, the trial judge asked counsel whether they wished to submit any specific requests. When defense counsel responded in the negative, the court observed that it "did not intend to charge self-defense." Defense counsel agreed. In his instructions, the trial judge advised the jury that a violation of N.J.S.A. 2C:39-4 a required as an essential element proof beyond a reasonable doubt of possession of a firearm "for the purpose of using it unlawfully" against the person of another. No objection was interposed with respect to the court's charge in this regard. During its deliberations, the jury requested clarification as to whether "pointing a gun constitute[s] an unlawful act." After reading the jury's note to counsel, the trial judge stated that it was his intention to repeat his instructions pertaining to the elements of the offense. In the colloquy which followed, both counsel acceded to the court's suggestion that the pointing of a gun constitutes a violation ...