On appeal from Superior Court of New Jersey, Law Division, Camden County, 0462-02-02.
Before Judge Petrella, Collester and Fuentes.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2003
Pursuant to leave granted, the State appeals from an order granting defendant's appeal from the denial of his application for Pretrial Intervention (PTI). We reverse.
The facts are undisputed. In September 2002, the Attorney General Division of Criminal Justice initiated an investigation into a prostitution ring in southern New Jersey allegedly run by Anthony Kirkland, defendant's stepson. Investigators obtained information that illegal funds from this enterprise were being laundered by Kirkland with the assistance of his mother, defendant's wife. They obtained a search warrant for the residence occupied by defendant and his wife and executed it on the morning of August 30, 2001. The investigators asked the defendant whether there were any firearms in the residence. Defendant replied that he kept a carbine and an Uzi in the second level master bedroom and led police to the room. A Universal M1 carbine rifle was located under a loveseat in the master bedroom, and a 30-round M1 carbine magazine was found in the dresser drawer. An Uzi 9mm assault gun, a 25-round Uzi magazine, a sixteen inch Uzi barrel accessory and a sling for an Uzi assault gun were found in an unlocked box under the bed. Both weapons were unloaded. Defendant had no permit to purchase or possess these firearms in the State of New Jersey.
On June 23, 2002, an indictment was returned against defendant charging him with two counts of third-degree possession of an assault firearm, contrary to N.J.S.A. 2C:39-5f, and two counts of fourth-degree unlawful possession of a large capacity magazine, contrary to N.J.S.A. 2C:39-3j. Defendant's application for admission into PTI was rejected by the Camden County PTI program coordinator for the following reasons:
Please be advised that your client's application has been denied pursuant to Guideline 3(i)(3) which indicates that defendants charged with acts which constitute violence or threat of violence should ordinarily be denied admission into Pretrial Intervention Programs in the absence of compelling facts and materials, provided by the defendant, justifying admission into the program..... The possession of firearms particularly high capacity assault firearms in a residence clearly presents a threat of violence and injury to the occupants and others and falls within Guideline 3(i)(3).
N.J.S.A. 2C:43-12(e)1, 7 and 14 requires consideration of the nature of the offense, needs and interests of the victim and society and whether or not the crime is of such a nature that the value of supervisory treatment would be outweighed by the public need for prosecution.
N.J.S.A. 2C:43-12(e)(10) further demands consideration of whether or not the crime is of an assaultive or violent nature whether in the criminal act itself or in the possible injurious consequences of such behavior..... Mr. Motley had no permit to purchase or possess these firearms which were in the second floor master bedroom. This possession of high power illegal weapons is assaultive not in the criminal act but in the possible injurious consequences of such behavior. I have considered the material submitted by the defendant including his age (62), lack of prior of convictions, long term employment and family responsibilities. Despite these factors and in view of the lack of joint application, nature of these offense[s] and potential for violence and injury, it is my opinion that the public need for prosecution outweighs any benefit to be derived by the defendant through PTI. The application is denied.
Defendant appealed his PTI rejection to the Law Division. The Office of the Attorney General appeared in opposition at the hearing on the appeal. It was stipulated that defendant was sixty-two years old, had no prior criminal record and was employed as a long-distance truck driver. Defendant lawfully acquired the weapons while he lived in Pennsylvania. The Uzi and ammunition were purchased from a licensed gun dealer, and the carbine from a friend. Defendant took the weapons with him when he moved to New Jersey but did not register them. The record also indicates that the Uzi was stolen while held for defendant in his lawyer's office pending an unrelated court proceeding. The weapon was recovered in Wilmington, Delaware and returned to the defendant in New Jersey.
The State argued that the manner in which the weapons were stored presented a safety risk due to the accessibility of the weapons to defendant's grandchildren. The State also indicated that its objection to granting PTI was based on a general policy decision respecting the possession of assault weapons. The trial court rejected these arguments and found that defendant's rejection from PTI constituted an abuse of discretion:
There has been absolutely no demonstration that other than the mere position (sic) of [the weapons] by this gentleman that there was any other problem, that he either used them, meant to use them. They were there. He has no prior criminal conviction of any kind. He has steady employment. Married. Children. Grandchildren. And yes, he violated the law by having these in his possession.
Now, if that doesn't spell out the type of individual that PTI was meant to help, I don't know what does. To have to stretch beyond the facts that he broke the law, just the crime itself per se, had the gun, boom, well, he has grandchildren who are going in an out and that may have resulted in some kind of a problem where it never has to this date? I think that indicates a patent abuse of discretion and the rejection is denied. I think he should be placed in PTI. He's going to lose the gun, and [now] you have accomplished by that exactly what you want to do. You want to get rid of the guns. You want to impress upon somebody that hey, if you're going to do certain things, if you're going to have certain things, then it's your responsibility to check, to make sure that the possession of them, whatever that may be, ...