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State v. Mello

February 11, 1997

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JEFFREY J. MELLO, DEFENDANT-APPELLANT.



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

Approved for Publication February 12, 1997. As Amended February 24, 1997.

Before Judges 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

BAIME, J.A.D.

This appeal presents troublesome issues pertaining to N.J.S.A. 2C:39-4a. That statute provides that any person who possesses a firearm with the purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree. At issue is whether an indictment that recites the statutory language, but does not specify the unlawful purpose the accused allegedly harbored, violates either the federal or state constitution. Also in question is whether a trial court is obliged to define with precision the elements of the crime that the defendant is alleged to have intended to commit with the weapon.

We find no constitutional prescription requiring that the indictment identify with specificity the unlawful purpose allegedly harbored by the defendant in possessing the firearm. We also conclude that the trial court did not commit reversible error in failing to precisely define the elements of the crime the defendant allegedly intended to commit with the weapon. However, we remand the matter to the Law Division to afford defendant the opportunity to file a motion pursuant to N.J.S.A. 2C:43-6.2 to reduce the mandatory minimum term of imprisonment required under the Graves Act.

I.

Tried by a jury, defendant was found guilty of second degree possession of a firearm for an unlawful purpose (N.J.S.A. 2C:39-4a) and third degree possession of a handgun without a permit (N.J.S.A. 2C:39-5b), but was acquitted of fourth degree aggravated assault, defined as pointing a gun at another under circumstances manifesting extreme indifference to human life, (N.J.S.A. 2C:12-1b(4)). The jury determined that defendant's intent was to use the gun against the person of another. He was thus sentenced to a term of five years with a mandatory parole disqualifier of three years on the conviction for possession of a firearm for an unlawful purpose. N.J.S.A. 2C:43-6c; see also State v. Camacho, 295 N.J. Super. 585, 590, 685 A.2d 961 (App. Div. 1996); State v. Latimore, 197 N.J. Super. 197, 221, 484 A.2d 702 (App. Div. 1984), certif. denied, 101 N.J. 328 (1985). A concurrent four-year sentence was imposed on the conviction for possession of a handgun without a permit.

We need not recount the facts at length. On September 2, 1994, Brian and Allison Mourad, both members of the Federal Bureau of Investigation, were driving in the left lane of the New Jersey Turnpike when they observed defendant's van approaching the rear of their vehicle at a high rate of speed. Because the road was very congested, the Mourads were not immediately able to maneuver their automobile into the center lane to permit defendant to pass. After finding a clearing in the traffic, Mr. Mourad pulled his automobile into the center lane. According to the Mourads, when defendant's van pulled alongside their vehicle, they saw defendant shouting in an angry manner. Both Mourads testified that defendant suddenly pointed a handgun directly at them. Mr. Mourad immediately applied the brakes, causing defendant's van to pass their car. The Mourads were able to observe defendant's license plate number which they immediately reported to the State Police.

Trooper Matthew Finnegan stopped defendant's van shortly thereafter. Although defendant denied having a gun, a search of the vehicle revealed a Smith and Wesson 9mm semi-automatic pistol behind the spare tire compartment. Defendant and his passenger, Kristen Bove, were arrested and transported to the State Police barracks. After waiving his constitutional rights, defendant admitted that he had pointed the pistol at the Mourads' vehicle. Defendant characterized the incident as a "big mistake" prompted by his anger resulting from the Mourads' blocking of the passing lane.

At trial, defendant conceded that he brandished the handgun and pointed it toward the front window. However, defendant disavowed the portion of his statement in which he admitted pointing the weapon at the Mourads. Defendant testified that he and Bove were returning from a visit to a friend in Pennsylvania when the incident occurred. They had taken the gun, which was licensed in Rhode Island where they shared an apartment, in order to engage in target practice. According to defendant, he decided to display the gun after Mr. Mourad made an obscene gesture. Defendant denied that he "trained" the pistol on the Mourads' vehicle.

The trial court's instructions on the elements of the offenses closely traced the model jury charges. The trial court's instructions on possession of a firearm for an unlawful purpose encompassed the prosecutor's request to charge respecting the requisite mens rea. More specifically, the trial court apprised the jury of the State's contention that "the defendant's unlawful purpose in possessing the firearm was to threaten or to terrorize or to coerce" the Mourads on the date of the incident. In differentiating the charges, the trial court instructed the jury that it was obliged to "consider whether the State had proved the specific unlawful purpose charged and not the mere unlawful possession of the weapon as alleged in Count [two] without a permit." The trial court stressed that the jury was "not to invoke [its] own notions of unlawfulness regarding the defendant's purpose," but rather was to confine itself to the State's contention in that respect.

These principles were essentially repeated when, in the course of its deliberations, the jury requested clarification. The trial court responded:

And the fourth element is that the defendant's purpose was to use the firearm unlawfully. With respect to that I have already defined purpose for you. That element of purpose to use a firearm unlawfully requires that you find that the defendant possessed that firearm with a conscious objective, design or specific intent to use it against the person or property ...


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