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State v. Elrose

Decided: December 6, 1994.

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL ELROSE, DEFENDANT-APPELLANT.



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

Before Judges Stern and Keefe.

Per Curiam

Defendant was convicted at a bench trial of unlawful possession of assault firearms - an Uzi (count one), an AR 15 rifle (count two) and a MAC 10 pistol (count three), all in violation of N.J.S.A. 2C:39-5f.*fn1 He was also convicted of unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j (count five).*fn2 The offenses were alleged to have occurred in September 1991. Although not contested on this appeal, the trial Judge merged counts one, two and three, and sentenced defendant to probation for three years conditioned on the performance of fifty hours of community service. A concurrent eighteen month probationary term was imposed on count five. The weapons were also forfeited.

On this appeal defendant argues:

POINT I THE COURT ERRED IN ADJUDICATING THE DEFENDANT GUILTY OF COUNTS 1, 2 AND 3 OF THE INDICTMENT WHERE NO VIOLATION OF N.J.S.A. 2C:39-5f EXISTED OR WAS PROVEN.

POINT II THE COURT ERRED IN FINDING THE DEFENDANT GUILTY OF COUNTS 1, 2, AND 3 OF THE INDICTMENT WHERE IT RULED THAT THE FAILURE TO FILE CERTIFICATES OF INOPERABILITY CONSTITUTED A VIOLATION OF N.J.S.A. 2C:39-5f.

POINT III THE COURT ERRED IN RULING THAT AN ASSAULT FIREARM NEED NOT BE OPERABLE IN ORDER TO SUPPORT A CONVICTION UNDER N.J.S.A. 2C:39-5f.

POINT IV THE COURT ERRED IN ITS RULING THAT THE DEFENDANT WAS GUILTY OF POSSESSION OF LARGE CAPACITY MAGAZINES IN VIOLATION OF N.J.S.A. 2C:39-3j WHERE THE STATE FAILED TO ADDRESS OR PROVE ALL ELEMENTS NECESSARY TO CONVICT.

POINT V THE COURT ERRED IN RENDERING VERDICTS OF GUILTY AS TO ALL COUNTS OF THE INDICTMENT WHERE THE STATE FAILED TO ESTABLISH BEYOND A REASONABLE DOUBT THAT THE DEFENDANT INTENDED TO VIOLATE N.J.S.A. 2C:39-3j and 2C:39-5f.

We affirm the conviction, and find only the need to discuss the following contentions of defendant. R. 2:11-3(e)(2).

Because the Judge merged the first three counts, which were all violations of N.J.S.A. 2C:39-5f, if any one of the convictions is sustainable, the merged conviction must stand. However, the parties do not make an argument uniquely addressed to any one particular weapon, nor do they distinguish between the specific weapons embodied in those counts.

It was stipulated at the bench trial that the weapons referred to in counts one, two and three were "assault firearms" as defined in N.J.S.A. 2C:39-1w; "that they were found in defendant's house on the date of this incident, which was September 12 of 1991, that on that date they were owned by the defendant," and that all three guns were "inoperable at the time."*fn3 Moreover, defendant, a firearms collector, testified without contest that the Piscataway Police had the weapons in their possession between October 31, 1990, and April 1, 1991, and that he "disabled" them by "destroy[ing them]," and "got rid of" the magazines a "few weeks after [he] got the guns back." There is no contest that this occurred before the end of May 1991. On the other hand, it was clearly established by the evidence that defendant possessed inoperable assault firearms more than a year after the May 30, 1990, effective date of N.J.S.A. 2C:39-5f.

There was a dispute as to defendant's efforts to comply with the ban on assault firearms which defendant admitted being aware of before he rendered the firearms inoperable. Detective Michael Razzano, the Identification and Property Officer of the Piscataway Police, explained that he received information and forms regarding the assault firearms legislation commencing around August 1990.

He recalled speaking to defendant about getting his guns back from the Police Department after prior charges against defendant were dismissed, apparently referring to the April 1991 return of the weapons. However, Razzano testified that he never spoke with defendant regarding a certificate of inoperability. ...


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