On appeal from Superior Court of New Jersey, Law Division, Essex County.
Defendant Marcellino Lopez was indicted for first degree murder in violation of N.J.S.A. 2C:11-3 (count one); third degree unlawful possession of a handgun in violation of N.J.S.A. 2C:39-5b (count two), and second degree possession of a handgun for an unlawful purpose in violation of N.J.S.A. 2C:39-4a (count three). He was found not guilty of the murder indictment but guilty of the unlawful possession of a handgun and possession of a handgun for an unlawful purpose. On count three he was sentenced to a term of ten years with a five year parole ineligibility. Count two, possession of the handgun was merged with count three and dismissed. A $250 Violent Crimes Compensation Board penalty was imposed.
Apparently, some time prior to May 9, 1982 someone told Luis Matias that defendant, a long time acquaintance of Matias, was planning to steal or rob something from him. Since then the two periodically argued over this accusation. Their most recent argument was a few days prior to May 9, 1982. On this latter date, near the intersection of Mt. Prospect Avenue and Second Avenue in Newark, defendant was approached by Matias who began arguing with defendant. They exchanged harsh words and after the argument, defendant went home, got his revolver and returned to Mt. Prospect and Second Avenues.
In the meantime, Matias got into his car and picked up a friend, Bienvenido Rivera. At Matias' request, Rivera drove him back to Mt. Prospect and Second Avenue. Upon arriving
they saw defendant crossing the street in front of their car. Matias, who had a revolver in his possession, jumped out of the car and again began arguing with defendant. Rivera, who remained in the car, then heard shots and saw defendant fall to the ground after which he saw Matias fall while attempting to get away. Defendant, who was obviously wounded, got up and, as testified to by Rivera, walked up to Matias and from close range shot Matias twice, killing him. Defendant then sat on the ground and was subsequently arrested.
Defendant claimed self defense to the murder charge. At trial he testified that he obtained the gun solely for protection. He further stated that at the scene of the crime Matias walked up to him, told him that he was going to kill him, then Matias shot him twice knocking him to the ground. Defendant stated that Matias then backed away, saw that defendant was still alive and came back to him. Defendant, while still on the ground, then fired three shots, killing Matias.
On appeal, the defendant contends that:
POINT I (A) THE JURY VERDICT ON COUNT III OF THE INDICTMENT WAS LOGICALLY UNSOUND, INCONSISTENT AND UNSUPPORTED AS A MATTER OF LAW.
POINT I (B) THE JURY VERDICT WAS NOT SUPPORTED BY AND WAS OTHERWISE AGAINST THE WEIGHT OF THE SUFFICIENT CREDIBLE EVIDENCE IN THE RECORD.
POINT II THE TRIAL COURT IMPROPERLY INSTRUCTED THE JURY ON THE CHARGE OF POSSESSION OF A FIREARM WITH UNLAWFUL PURPOSE WHICH CONSTITUTES REVERSIBLE ERROR AND WHICH MANDATES A JUDGMENT OF ACQUITTAL ON SUCH COUNTS.
In defense to the murder count, defendant pled self defense pursuant to N.J.S.A. 2C:3-4a which provides: ". . . the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person ...