On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment No. 92-09-1101.
Before Judges Skillman, Conley and Lesemann.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
The assault firearms statute, L. 1990, c. 32, requires the imposition of a ten year period of parole ineligibility upon any person convicted of possession of an "assault firearm with the intent to use it against the person of another." N.J.S.A. 2C:43- 6g. The statute defines "assault firearm" to include not only any one of thirty-six specifically enumerated firearms and types of firearms, N.J.S.A. 2C:39-1w(1), but also any other firearm that is "substantially identical" to one of the enumerated firearms, N.J.S.A. 2C:39-1w(2). Defendant argues that the inclusion within the definition of "assault firearm" of any firearm that is "substantially identical" to a specifically enumerated firearm or type of firearm is unconstitutionally vague. Alternatively, defendant argues that the determination of whether a firearm used in the commission of an offense is substantially identical to an enumerated firearm must be made by a jury beyond a reasonable doubt. We reject defendant's claim that the definition of "assault firearm" is unconstitutionally vague. However, we conclude that a factual determination as to whether a particular firearm is "substantially identical" to an enumerated firearm or type of firearm must be made by a jury under the beyond a reasonable doubt standard of proof. Accordingly, we vacate defendant's judgment of conviction and remand the case to the trial court.
Defendant was indicted for second degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1), unlawful possession of an assault firearm, in violation of N.J.S.A. 2C:39-5f, possession of a firearm with the purpose of using it unlawfully against the person of another, in violation of N.J.S.A. 2C:39-4a, possession of a firearm with the purpose of using it unlawfully against the property of another, in violation of N.J.S.A. 2C:39-4a, and criminal mischief, in violation of N.J.S.A. 2C:17-3a(1).
On the day of trial, defendant entered into a plea bargain under which he agreed to plead guilty to the weapons charges and the State agreed to dismiss the aggravated assault and criminal mischief charges. The plea bargain stipulated that defendant could "argue any issue relating to sentence."
At the plea hearing, defendant admitted that on the evening of May 20, 1992, while in an intoxicated condition, he drove to the home of his former girlfriend, with whom he was angry for throwing eggs on his new girlfriend's car, armed with a loaded rifle. After observing his former girlfriend inside the house watching television, he discharged seven to nine shots into the side of the house. Defendant testified that his purpose in shooting the gun was to scare his former girlfriend so she would stop harassing his new girlfriend. None of the shots struck anyone inside the house.
At the plea hearing, the parties agreed that evidence and legal argument could be presented prior to sentencing as to whether defendant's purpose in possessing the weapon was "to use it unlawfully against the person" and whether the weapon he used was an "assault firearm" within the intent of N.J.S.A. 2C:39-1w. The parties recognized that these determinations would be critical to sentencing, because N.J.S.A. 2C:43-6g mandates the imposition of a ten year period of parole ineligibility upon "[a]ny person who has been convicted under [N.J.S.A. 2C:39-4a] of possessing [an] . . . assault firearm with intent to use it against the person of another."
At the hearing on these issues, Detective Robert Cowan of the Mercer County Prosecutor's Office testified that the weapon defendant used, which is manufactured in China by "Norinco," is the same as a Russian-made "AKM," except that an AKM is "fully automatic" and the Norinco is "semi-automatic." Cowan also testified that the "AKM" is a model of the "Avtomat Kalashnikov," which is one of the types of firearms N.J.S.A. 2C:39-1w designates as an "assault rifle." In addition, the State introduced Detective Cowan's affidavit, which discusses the design specifications of the AKM and Norinco as well as various other similar weapons. The State also introduced an affidavit by Ron Sasileo, an investigator employed by the Division of Criminal Justice, who expressed the opinion that the Norinco used by defendant is "substantially identical to the Avtomat Kalashnikov type rifles," but noted that there are various differences between the rifles:
a. The Avtomats are all selector switch automatic/semi-automatic weapons. The NORINCO is semi-automatic only.
b. The Avtomats are produced by the Soviet government for military use. The NORINCO is produced by a private company in China for sale on the open market.
c. The Avtomats are 7.62 x 39, and in the AK-74, 5.45 in caliber. The subject NORINCO is 7.62 x 39.
d. In appearance, 5 of the Avtomats look similar except for such things as variants in the wood and the flash suppressor or compensator muzzle. The AKSU is distinctively different in appearance, however, that Avtomat is not very similar in appearance to the NORINCO. When ...