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State v. Rovito

Decided: July 3, 1985.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT AND CROSS-RESPONDENT,
v.
THOMAS F. ROVITO, DEFENDANT-RESPONDENT AND CROSS-APPELLANT



On certification to the Superior Court, Appellate Division.

For reversal and reinstatement -- Chief Justice Wilentz, Justices Clifford, Handler, Pollock, O'Hern and Garibaldi. For affirmance -- None. The opinion of the Court was delivered by Pollock, J.

Pollock

[99 NJ Page 582] The primary issue on this appeal is whether an offer or transfer of a firearm that is made "knowingly," but not "purposely,"

as those terms are defined in N.J.S.A. 2C:2-2b, constitutes an unlawful disposition of the firearm under N.J.S.A. 2C:39-9d. The trial court charged the jury that a knowing disposition was sufficient, and the jury convicted the defendant of a violation of N.J.S.A. 2C:39-9d. In an unreported decision, the Appellate Division determined that the disposition must be intentional to be unlawful. Accordingly, the Appellate Division reversed the conviction and remanded the matter for retrial. We conclude that a knowing transfer is sufficient to constitute an unlawful disposition of a firearm. Therefore, we reverse the judgment of the Appellate Division and reinstate the conviction.

I

Defendant, Thomas Rovito, was a police officer for the City of Weehawken. On March 11, 1981, he attended a meeting of his fraternity at his alma mater, Bloomfield College. After the meeting, Rovito and five of his fraternity brothers, including Jose Gonzalez, went to another brother's room to drink beer and watch television. While there, Rovito removed his service revolver, placed it on the floor, and asked if anyone wanted to play Russian Roulette. In response, Gonzalez picked up the gun, pulled the trigger, and killed himself.

Rovito was indicted for manslaughter, N.J.S.A. 2C:11-4b, and for unlawful disposition of a weapon, N.J.S.A. 2C:39-9d. The jury acquitted the defendant of manslaughter, but convicted him on the weapons charge. The trial court sentenced him to one-year probation and imposed a $500 fine and a $25 Violent Crimes Compensation Board penalty.

With regard to the unlawful disposition of the weapon, the trial court instructed the jury that it must find that the defendant "knowingly" disposed of his firearm. The court defined "knowingly" in accordance with N.J.S.A. 2C:2-2b(2):

A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that his conduct is of that nature, or that such circumstances exist, or he is aware of a high probability of their existence.

A person acts knowingly with respect to a result of his conduct if he is aware

that it is practically certain that his conduct will cause such a result. 'Knowing,' 'with knowledge' or equivalent terms have the same meaning.

The Appellate Division concluded that the trial court erred in not instructing the jury that the defendant must have intended to dispose of the weapon to be guilty of ...


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