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State v. Holsten

Decided: March 18, 1988.

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
JAMES D. HOLSTEN, DEFENDANT-RESPONDENT



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

J. H. Coleman, O'Brien and Stern. The opinion of the court was delivered by Stern, J.A.D.

Stern

Pursuant to leave granted, the prosecutor of Union County appeals from an order of the Assignment Judge dismissing an indictment charging defendant with possession of a firearm without a permit, N.J.S.A. 2C:39-5b; possession of a firearm with purpose to use it unlawfully against the person or property of another, N.J.S.A. 2C:39-4a; purposely or knowingly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(2), and recklessly causing bodily injury with a deadly weapon, N.J.S.A. 2C:12-1b(3). We are constrained to reverse.

In order to understand the issues before us, a complete recital of the grand jury testimony is required. After the prosecutor introduced the case and indicated the charges for consideration, the victim testified. His entire testimony is as follows:

Q. Good morning, Mr. Dutton. If you would state for the record your full name and spell your last name.

A. Eric Dutton, D-u-t-t-o-n.

Q. Where do you live, Mr. Dutton?

A. 840 O Donald Road in Scotch Plains.

Q. Directing your attention to the afternoon of June 22, 1987 while you were walking on North Avenue in Fanwood, were you hit by a BB that was shot at you from a passing car?

A. Yes, sir.

Q. Did you run after the car and catch up to it after you were hit?

A. Yes, sir.

Q. Did you see the driver of the car with a handgun in his hand?

A. Yes, sir.

Q. And did the driver put the gun down as you approached?

A. Yes, he did.

Q. Did you ask the driver why he shot at you?

A. Yes, I did.

Q. He said he didn't do it and that if he had, he would have known it?

A. Yes, sir.

Q. Now, did you tell him that you were going to call the police?

A. Yes, I did.

Q. Did he take off?

A. Yes, he did.

Q. Now, after the police were called, did you later see this same individual with the police?

A. Yes, sir.

Q. Now, the BB I gather hit you somewhere ...


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