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State v. Pleva

Decided: July 16, 1985.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DAVID PLEVA, DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

Michels and Pressler. The opinion of the court was delivered by Michels, P.J.A.D.

Michels

Following plea negotiations defendant David Pleva conditionally pleaded guilty to two counts of an indictment charging him with giving false information in completing the certificate required by law in purchasing or otherwise acquiring delivery of a .22 caliber Marlin rifle (First Count) and a 20 gauge Stevens shotgun (Second Count). The State, for its part of the plea agreement, recommended the dismissal of certain unrelated drug offenses charged in another indictment. The trial court merged the two convictions and placed defendant on probation for two years conditioned on his serving 60 days in the Morris County Jail. Defendant was permitted to serve the 60 days at any time during the two year probationary period provided that he gave the court at least two weeks notice and the court consented to the same. In addition, defendant was assessed a penalty of $25, payable to the Violent Crimes Compensation Board. Defendant appeals.

A brief review of the factual background and the procedural history giving rise to this appeal is helpful to understanding its resolution. On June 6, 1981, defendant purchased a .22 caliber Marlin rifle, Model 39A, and a 20 gauge Stevens shotgun, Model 311, from the Denville Sports Center on Route 46 in

Denville, New Jersey. In accordance with New Jersey and federal law defendant completed a Firearms Transaction Record (Form 4473) for the Department of the Treasury's Bureau of Alcohol, Tobacco and Firearms and a New Jersey Certificate of Eligibility before making each purchase.

On each of the state certification forms defendant certified that he had not become subject to any of the disabilities set forth in N.J.S.A. 2C:58-3 since obtaining his firearms purchaser identification card, including that he had not become a "drug dependent person." See N.J.A.C. 13:54-5.8. In like manner defendant answered "no" to the question on the federal form which asked whether he was "an unlawful user of, or addicted to, marijuana, or a depressant, stimulant, or narcotic drug."

An investigator for the Morris County Prosecutor's Office learned of defendant's purchases about a year later during the course of an investigation in connection with a separate indictment filed against defendant by the Morris County Grand Jury charging him with a variety of drug-related offenses. The investigator also had in his possession a handwritten statement defendant had given to the police following his arrest on February 18, 1981, in Warren County for possession of quaaludes. In that statement defendant admitted that he "did smoke a small amount of hash and then took some valium."

The investigator apparently obtained the state and federal forms defendant had completed when he purchased the rifle and shotgun and while examining those instruments noted that defendant had denied using drugs. The investigator concluded that defendant had falsely responded to the questions related to drug use on the federal and state forms and had thereby violated N.J.S.A. 2C:39-10c. To confirm that defendant had purchased his weapons at the Denville Sports Center the investigator arranged for the shop's owner to view a photo line-up. The owner could not positively identify defendant from the photos because "he sells many weapons in a year's time." However, he confirmed that defendant had purchased the weapons

in the shop because the number on defendant's New Jersey Firearms I.D. card, a copy of which the investigator showed the shop owner, matched the identification numbers on the state and federal forms defendant had completed at the time of his purchases.

The Morris County Grand Jury subsequently indicted defendant and charged him with two counts of violating N.J.S.A. 2C:39-10c when he purchased the weapons on June 6, 1981. At the plea hearing below defendant agreed to enter pleas of guilty to both counts of the indictment but conditioned his pleas on the resolution of a question of law concerning the interpretation of N.J.S.A. 2C:39-10c. That provision proscribes the giving of "false information . . . in completing the certificate or any instrument required by law in purchasing or otherwise acquiring delivery of any rifle, shotgun, handgun, machine gun, or any other firearm. . . ." [Emphasis supplied]. Defendant contends that the underlined portion of the statute refers only to falsifying answers on state instruments but not on federal instruments.

For purposes of his plea defendant conceded at the plea hearing that he had engaged in "the occasional use of marijuana, depressant[s] and stimulants." However, he denied being a "drug dependent person" within the meaning of N.J.S.A. 24:21-2 and accordingly argued that he had not falsified his response to New Jersey's Certificate of Eligibility. Assuming that N.J.S.A. 2C:39-10c refers only to state instruments and not federal, defendant argued that even though he had falsely responded to the question concerning drug use on the federal Form 4473 he had committed no offense under New Jersey law and that his guilty pleas lacked a sufficient factual basis.

At the sentencing hearing the trial court ruled against defendant, holding "that the federal form . . . is in fact required in connection with the purchasing or otherwise acquiring delivery of the kind of guns that were involved in the . . . indictment." The trial court accordingly accepted defendant's pleas

of guilty to the two counts of N.J.S.A. 2C:39-10c, conditioned upon the defendant's appeal of the trial court's ruling to the Appellate Division. See R. 3:9-3(f).

Defendant now seeks a reversal of his convictions and the vacation of his guilty pleas, mainly contending that his conditional guilty pleas to the two counts of violating N.J.S.A. 2C:39-10c lacked an adequate factual basis, thereby warranting the reversal of his convictions. Although defendant continues to deny that he falsely completed the New Jersey Certificates of Eligibility, he concedes that he falsified his response to the drug-related questions on the federal Firearms Transaction Record. The pivotal issue, therefore, is whether the proscription in N.J.S.A. 2C:39-10c against persons giving "any false information . . . in completing the certificate or any other instrument required by law in purchasing or otherwise acquiring delivery of any rifle, shotgun, handgun, machine gun, or any other firearm" applies to the giving of false information on federal instruments completed in conjunction with the purchase of a weapon.

In New Jersey an individual desiring to purchase a rifle or shotgun must first obtain a "firearms purchaser identification card" from the "chief of police of an organized full-time police department of the municipality where the applicant resides" or from the Superintendent of the State Police. See N.J.S.A. 2C:58-3d. To obtain a firearms purchaser identification card an individual must be a "person of good character and good repute in the community in which he lives" and must not be "subject to any of the disabilities set forth in [ N.J.S.A. 2C:58-3c] or other sections of this chapter." N.J.S.A. 2C:58-3c provides:

c. Who may obtain. No person of good character and good repute in the community in which he lives, and who is not subject to any of the disabilities set forth in this section or other sections of this chapter, shall be denied a permit to purchase a handgun or a firearms purchaser identification card, except as hereinafter set forth. ...


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