On appeal from the Superior Court, Law Division, Essex County.
Pressler, Bilder and Skillman. The opinion of the court was delivered by Pressler, P.J.A.D.
Following a bench trial, defendant Robert Blaine was convicted of the fourth degree offense of possession of a weapon under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d). He contends on appeal that the trial judge erred in denying his motion for acquittal at the close of the State's case. We agree and accordingly reverse.
The State's sole witness was East Orange police officer Hammond. Officer Hammond, whose transcribed testimony, both direct and cross, consumes less than four transcript pages, testified that at 5:30 p.m. on January 29, 1985, he was called to assist another officer who was making an arrest of defendant on a street in East Orange pursuant to an outstanding warrant. During the course of the arrest, the officers patted down defendant and found in a pocket a closed folding knife which had a blade approximately four inches long and approximately one inch wide and a black handle with a picture of a dragon on one side. The knife was introduced into evidence. The State
then rested, and defendant, relying on State v. Lee, 96 N.J. 156 (1984), moved for a judgment of acquittal pursuant to R. 3:18-1. We conclude that the trial judge erred in denying this motion.*fn1
In our view the trial judge erroneously relied on the standards of culpability expressed by N.J.S.A. 2C:39-3(e) instead of those prescribed by N.J.S.A. 2C:39-5(d), the statutory provision under which defendant was charged. As the Supreme Court made clear in State v. Lee, supra, N.J.S.A. 2C:39-3, -4, and -5 constitute an integrated scheme of graduated possessory offenses. N.J.S.A. 2C:39-3 defines various categories of prohibited weapons and devices whose bare possession constitutes a crime of the third or fourth degree. Five of these categories, namely destructive devices, sawed-off shotguns, silencers, defaced firearms, and dum-dum bullets (subsections a, b, c, d, and f, respectively), define weapons and devices the possession of which is per se criminal. Subsection e defines what may be termed a modified or qualified fourth degree per se possessory crime. That subsection provides in full as follows:
Any person who knowingly has in his possession any gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckle, sandclub, slingshot, cestus or similar leather band studded with metal filings or razor blades imbedded in wood, without any explainable lawful purpose, is guilty of a crime of the fourth degree.
As the Supreme Court noted in State v. Lee, supra, 96 N.J. at 160, possession of an object encompassed by N.J.S.A. 2C:39-3(e) is an offense "unless the defendant can come forward with an
explainable lawful purpose for possession of the weapon." The Supreme Court was further satisfied that "[t]his provision does not relieve the State of its burden of proof, but merely shifts to the defendant the burden of going forward on the issue of 'lawful purpose.'" Ibid. We are thus persuaded that if the implement which had been found in defendant's pocket had not been a folding knife but rather a gravity knife, switchblade knife, dagger, dirk or stiletto, the State's proofs would have been adequate to withstand a motion for acquittal had defendant been charged with the violation of N.J.S.A. 2C:39-3(e).
We believe, however, that the Legislature did not intend this shift of the burden of going forward in respect of implements which are not either within a per se or qualified per se category or specifically listed by N.J.S.A. 2C:39-1(r)*fn2 but whose character as a weapon is, rather, contextually defined. Such weapons are addressed by N.J.S.A. 2C:39-5(d), under which defendant was here charged, which provides as follows:
Any person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is ...