On appeal from Superior Court of New Jersey, Law Division, Sussex County.
Approved for Publication October 21, 1996.
Before Judges Shebell, *fn1 Baime, and Braithwaite. The opinion of the court was delivered by Baime, J.A.D.
The opinion of the court was delivered by: Baime
The opinion of the court was delivered by
On May 30, 1990, our Legislature proscribed the "knowing" possession of "assault firearms." N.J.S.A. 2C:39-5f. Persons legally in possession of such firearms prior to the effective date of the statute could retain these weapons by obtaining the appropriate registration. N.J.S.A. 2C:58-12. Included in the definition of "assault firearm" is "[a] semi-automatic rifle with a fixed magazine capacity exceeding [fifteen] rounds." N.J.S.A. 2C:39-1w(4). Defendant was convicted of "knowingly" having in his possession an assault firearm, a semi-automatic rifle with a magazine capacity of seventeen cartridges. He appeals, contending that the trial Judge erred by rejecting his claims of mistake of law and mistake of fact, and by instructing the jury it could convict if it found he knowingly possessed the weapon even if he did not know its fixed capacity exceeded fifteen rounds. We affirm.
We need not recount the facts at length. Defendant, an expert marksman who at one point was employed as a firearms instructor, won a Marlin semi-automatic rifle in the late 1980's by placing first in a police combat match. An avid gun collector, defendant placed the weapon in his safe. Defendant claimed that he neither inspected nor used the firearm. When the police recovered the gun from defendant's residence in December 1993, it still had the manufacturer's tags and the owner's manual attached to the trigger guard. The owner's manual indicated that the rifle could hold at least seventeen cartridges. Defendant claimed that he never read the manual. While conceding that he knew the rifle was a semi-automatic weapon, defendant contended that he was unaware that the firearm had a magazine capacity exceeding fifteen rounds.
At trial, defendant advanced the defenses of mistake of law and mistake of fact. He asserted that he made diligent inquiry respecting whether the guns in his collection constituted "assault firearms" when the 1990 legislation was enacted and obtained the requisite registration for some of his weapons. Defendant testified that he did not register the Marlin rifle because he did not know its fixed capacity exceeded fifteen rounds. The trial Judge barred the defenses of mistake of law and mistake of fact on the grounds that the statutory prohibition was clearly written and published, and that knowledge of the specific character of the weapon did not constitute an element of the offense. In response to a question propounded by the jury during its deliberations, the Judge charged that defendant could be found guilty if he knowingly possessed the firearm but was unaware that its fixed capacity exceeded fifteen rounds. Defendant was convicted and placed on probation.
Defendant couches his argument in terms of whether the trial Judge erred by barring the defenses of mistake of law and mistake of fact. We find no merit in these arguments. R. 2:11-3(e)(2). As to the defense of mistake of law, defendant did not prove by "clear and convincing evidence" that he "diligently pursued all means available to ascertain the meaning and application" of the statutory proscription. N.J.S.A. 2C:2-4c(3). By its very terms, N.J.S.A. 2C:39-1w(4) defines an "assault firearm" as a "semi-automatic rifle with a fixed magazine capacity exceeding [fifteen] rounds." The statutory language is "neither vague nor unclear," and was not an issue for the jury's consideration. State v. Elrose, 277 N.J. Super. 548, 556, 649 A.2d 1351 (App. Div. 1994).
The defense of mistake of fact suffered from much the same infirmity. The common law defense required not only that the defendant subjectively misperceive a fact critical to establishing the offense but also that the error be reasonable. See State v. Bess, 53 N.J. 10, 16, 247 A.2d 669 (1968); State v. Fair, 45 N.J. 77, 91, 211 A.2d 359 (1965). The Criminal Law Revision Commission recommended that the objective test be abrogated and that any "honest" error suffice to exonerate the defendant. Final Report of the New Jersey Criminal Law Revision Commission, comment to 2C:2-4 at 52-53 (1971). Our Legislature rejected that proposal by requiring that the defendant "reasonably arrive at the Conclusion underlying the mistake." N.J.S.A. 2C:2-4a. Defendant's failure to inspect the weapon or read the owner's manual to determine whether it fell within the statutory definition was unreasonable as a matter of law. We find no error in the trial Judge's refusal to submit the issue to the jury.
The prosecutor candidly points out that the trial Judge instructed the jury that defendant could be found guilty if he knowingly possessed the firearm but was unaware its fixed capacity exceeded fifteen rounds. The question squarely presented is whether the State was required to prove that the defendant knew the gun in his possession was an assault ...