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State v. Merritt

Decided: April 23, 1991.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DOUGLAS ARTHUR MERRITT, DEFENDANT-APPELLANT



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

Gaulkin, Havey and Skillman. The opinion of the court was delivered by Skillman, J.A.D.

Skillman

Defendant was convicted by a jury of armed burglary, in violation of N.J.S.A. 2C:18-2, theft, in violation of N.J.S.A. 2C:20-3, receiving stolen property, in violation of N.J.S.A. 2C:20-7, and unlawful possession of rifles, in violation of N.J.S.A. 2C:39-5c(1). In addition, a charge of possession of a firearm by a convicted felon, in violation of N.J.S.A. 2C:39-7, was severed before trial and subsequently dismissed. The court sentenced defendant to a ten year term of imprisonment, with four and a half years of parole ineligibility, for armed burglary, and concurrent five year terms for theft and unlawful possession of rifles. In addition, the court merged defendant's conviction for receiving stolen property into his conviction for theft. We affirm.

Defendant's convictions arose out of the burglary of a residence in South Harrison Township, Gloucester County, on the morning of October 7, 1985, in which the burglars stole seven guns, one of which was loaded, and a television set. Defendant was apprehended later that morning while a passenger in a car also occupied by the other alleged burglars. A search of the trunk of the car revealed the guns and television set taken in the burglary.

This appeal presents two significant issues. First, may a burglar who enters a residence without weapons but steals

weapons during the burglary be found guilty of "armed" burglary? Second, may the inference that the possessor of recently stolen property is the thief be drawn where an accused is found in joint possession of the stolen property together with the other alleged perpetrators?

I

Pursuant to N.J.S.A. 2C:18-2b(2), burglary is elevated from a third degree to a second degree offense if "in the course of committing the offense," the burglar "[i]s armed with or displays what appear to be explosives or a deadly weapon." The State charged defendant with second degree burglary on the theory that he was armed with the seven rifles and shotguns stolen during the burglary. Defendant moved for an acquittal on the second degree offense, arguing that the firearms were simply proceeds of the theft and that he was not "armed" because he did not use or intend to use firearms in connection with the offense. The trial court rejected this argument in a written opinion which concluded that a defendant may be found guilty of armed burglary based solely on the possession of a deadly weapon without establishing the "actual use" or an "intention to use" the weapon.

Although the term "armed" is not defined in the Code of Criminal Justice and does not appear to have been discussed in any reported New Jersey case, decisions in other jurisdictions reflect the common understanding that "a person is 'armed' if a weapon is 'easily accessible and readily available for use . . . for either offensive or defensive purposes.'" State v. Hall, 46 Wash.App. 689, 732 P. 2d 524, 527 (1987) (quoting State v. Sabala, 44 Wash.App. 444, 723 P. 2d 5, 7 (1986), review denied, 108 Wash. 2d 1004 (1987); accord State v. Romero, 135 Ariz. 102, 659 P. 2d 655, 658 (Ct.App.1982) ("[a] person is 'armed' with a deadly weapon when such weapon is within his immediate control and available for use in the crime"); People v. Tracey A., 97 Misc. 2d 1053, 413 N.Y.S. 2d 92, 95 (Cty.Ct.1979) ("[t]he

word 'armed' applies to any situation where a gun or deadly weapon is within the immediate control of a person and is available for his use").

However, the term "armed" is not synonymous with the term "in possession of a weapon." Thus, a person who stores firearms in his home would be considered to be in possession of the firearms when he is away from home, see State v. DiRienzo, 53 N.J. 360, 369-70, 251 A.2d 99 (1969), but he would not be armed. Therefore, the term "armed" connotes not only possession but also immediate access to a weapon.*fn1 The most obvious example is where a person has a weapon in his pocket or elsewhere on his person, although the term also ...


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