On certification to the Superior Court, Appellate Division, whose opinion is reported at 311 N.J. Super. 70 (1998).
The opinion of the court was delivered by: O'hern, J.
"Once again, we must reconcile anomalies and ambiguities that inhere in the Code of Criminal Justice . . . occasioned by the Legislature's selective inclusion and omission of provisions of its conceptual source, the Model Penal Code (MPC)." Richardson v. Nickolopoulos, 110 N.J. 241, 242 (1988).
The "anomalies and ambiguities" presented in this appeal concern the meaning of N.J.S.A. 2C:2-4, governing the so-called mistake-of-fact defense to a criminal charge. Specifically, the question is how to explain to the jury the effect of a mistake of fact on a charge of reckless conduct. The context is that of an accusation of aggravated or reckless manslaughter, after a gun went off, killing the seventeen-year- old victim, Alquadir Matthews. From the evidence, a jury could have found that the then fifteen-year-old defendant had pointed a gun at another and pulled the trigger. Defendant claims that he mistakenly believed the gun was not loaded.
The facts of the case are more fully set forth in the opinion below. 311 N.J. Super. 70 (App. Div. 1998). We repeat those facts essential to our ruling.
On May 10, 1993, Shakirah Jones, a seventeen-year-old friend of defendant and decedent, overheard the two young men having what she described as a "typical argument." The two young men walked from a sidewalk into a vacant lot. Jones saw defendant with a gun in his hand, but she did not see defendant shoot Matthews.
Jones heard Matthews tell defendant, "there are no bullets in that gun," and then walk away. Defendant called Matthews back and said, "you think there are no bullets in this gun?" Matthews replied, "yeah." Jones heard the gun go off. A single bullet killed Matthews.
Acting on information received from Jones, police recovered a small caliber automatic pistol near the crime scene. The police did not trace the ownership of the gun, which may have been owned by Matthews's grandmother.
A ballistics expert testified that there was a spring missing from the gun's magazine, which prevented the other bullets from going into the chamber after the first bullet was discharged. In this condition, the gun would have to be loaded manually by feeding the live cartridge into the chamber prior to firing.
The expert later clarified that, if the magazine had been removed after one round had been inserted into the chamber, it would be impossible to see whether the gun was loaded without pulling the slide that covered the chamber to the rear. The expert agreed that, for someone unfamiliar with guns, once the magazine was removed, it was "probably a possible assumption" that the gun was unloaded.
Defendant's version was that when the two young men were in the lot, Matthews showed defendant a gun and "told me the gun was empty." Defendant "asked him was he sure," and "he said yes." When Matthews asked if defendant would like to see the gun, defendant said "yes." Defendant "took the gun and was looking at it, and "it just went off." He never unloaded the gun or checked to see if there were any bullets in the gun. He had never before owned or shot a gun.
A grand jury indicted defendant for purposeful or knowing murder, possession of a handgun without a permit, and possession of a handgun for an unlawful purpose. At the close of the State's case, defendant moved to dismiss the murder charge because the victim had told him that the gun was not loaded. The court denied the motion.
The court charged murder and the lesser-included offenses of aggravated manslaughter and reckless manslaughter. Concerning defendant's version of the facts, the court said:
Defense contends this was a tragic accident. That Alquadir [Matthews], says the defense, handed the gun to Ronald [defendant]. Alquadir told Ronald, you know, the gun was not loaded. Ronald believed the gun was not loaded. Ronald did not think the gun was pointed at Alquadir when it went off. But the gun went off accidentally and, says the defense, that is a very tragic and sad accident but it is not a crime.
If, after considering all the evidence in this case, including the evidence presented by the defense as well as the evidence presented by the State, if you have a reasonable doubt in your mind as to whether the State has proven all the elements of any of these crimes: murder, aggravated manslaughter, or reckless manslaughter, you must find the defendant not guilty of those crimes.The jury found defendant not guilty of murder, aggravated manslaughter, or possession of a handgun for an unlawful purpose, but guilty of reckless manslaughter and unlawful possession of a handgun without a permit."
On the charge of reckless manslaughter, the court sentenced defendant to the presumptive term of seven years, three of which were parole ineligible. For possession of a handgun without a permit, the court sentenced defendant to a concurrent four-year term with no period of parole ineligibility. The court ...