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State v. Castelluccio

August 7, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
ANTHONY CASTELLUCCIO, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 07-077.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 28, 2008

Before Judges Graves and Yannotti.

Defendant Anthony Castelluccio appeals from an order entered on October 26, 2007 by Judge Anthony J. Mellaci, Jr., finding him guilty of possession of a loaded firearm, for the purpose of hunting, within 450 feet of an occupied building, contrary to N.J.S.A. 23:4-16(d). We affirm.

On February 10, 2007, Shannon Martiak, an officer employed by the Division of Fish and Wildlife in the Department of Environmental Protection, issued a summons to defendant, charging him with violating N.J.S.A. 23:4-16(d). A trial on the charge was held in the Freehold Township Municipal Court on July 25, 2007.

At the trial, Martiak testified that, at approximately 8:30 a.m., on February 10, 2007, he was driving down Route 33 in the Township. Martiak observed a group of hunters in a field behind the Church of Jesus Christ of Latter Day Saints on Wemrock Road. Because he believed that the hunters were "pretty close to the church," Martiak thought he should "inspect them."

Martiak parked his vehicle on the highway and entered the wooded area. He observed about fifteen individuals who appeared to be part of "a deer drive." Martiak testified that he thought the individuals might be in violation of N.J.S.A. 23:4-16(d), the so-called "safety zone" statute. Martiak identified himself to the hunters. Martiak approached an individual, who he identified as David Zduniak. Martiak said that Zduniak was standing facing the church, with his back towards Route 33.

Zduniak's gun was loaded. Martiak secured the weapon and marked the spot where Zduniak had been standing.

Martiak then proceeded toward defendant, who was about one hundred yards from Zduniak. Martiak saw that defendant's gun was loaded. Martiak identified himself and told defendant to keep his gun where it was and not to move. Martiak approached defendant. Martiak did not recall whether he unloaded the firearm or whether he had defendant unload the weapon.

Martiak brought all of the hunters back to his vehicle. He noted that defendant was not properly attired in the orange clothing required for hunting. Martiak said that defendant was wearing an orange hat but it was covered by a hood. Another conservation officer and a park police ranger arrived to assist Martiak. Martiak used his laser range finder to measure the distances between Zduniak and defendant and the buildings. He did not use his steel tape measure to confirm the distances because of the dense foliage and the terrain in the area.

Martiak testified that, pursuant to the "safety zone" statute, a hunter cannot possess a loaded weapon within 450 feet of a building that "you would reasonably believe . . . somebody could be in." He stated that the church and a nearby shed qualified as buildings for purposes of a "safety zone infraction[.]"

Martiak further testified that in 2004, the Division of Consumer Affairs, Office of Weights and Measures, had certified that his laser range finder was "accurate within one yard between 10 yards and 150 yards." Martiak added that at the "beginning of the season" he "shoots [the range finder] off of a building" and measures the distance with his steel tape "just to make sure that everything [is] functioning properly." Martiak stated that based on his measurements, defendant was 405 feet from the church and 300 feet from the storage shed.

Defendant objected to the introduction of the certificate regarding the accuracy of the range finder. The judge overruled the objection, finding that the certificate reflected the accuracy of the device as of the time the certificate was issued. The judge also found that, although the law provided a process for renewing the certificate, the availability of ...


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