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State v. Lopez

October 1, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BIENVENIDO LOPEZ, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-05-1028.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 22, 2008

Before Judges Lisa, Reisner and Sapp-Peterson.

Tried to a jury, defendant was convicted on three counts of the indictment against him: (1) third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b; (2) second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4a; and (3) fourth-degree possession of a prohibited weapon or device (hollow point bullets), N.J.S.A. 2C:39-3f.*fn1 With respect to the possession of a handgun for an unlawful purpose count, defendant moved for a judgment of acquittal notwithstanding the verdict, see R. 3:18-2, or for a new trial, see R. 3:20-1. On July 27, 2007, Judge Cleary denied the motions and sentenced defendant for unlawful possession of a handgun to five years imprisonment with a three-year mandatory Graves Act parole disqualifier. See N.J.S.A. 2C:43-6c. She imposed concurrent sentences of three years imprisonment for unlawful possession of a weapon and nine months imprisonment for possession of a prohibited weapon or device. Defendant's motion for bail pending appeal was denied by the trial court and by this court.

Defendant appeals solely with respect to his conviction for possession of a handgun for an unlawful purpose. He argues that the trial judge erred in denying his motions for a judgment notwithstanding the verdict or a new trial with respect to that charge. More particularly, he argues:

APPELLANT'S CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE VACATED AS THE STATE DID NOT PRESENT EVIDENCE TO SATISFY THE ELEMENTS OF THE UNDERLYING SUBSTANTIVE OFFENSES.

We reject this argument and affirm.

At about 1:00 a.m. on January 27, 2006, defendant was a patron at Scooter's Restaurant and Bar in Howell Township. He engaged in unwanted communications with a woman patron, who asked her friend, Jeffrey Berger, to intervene. Berger asked defendant to leave the woman alone. Defendant became boisterous and threatening toward Berger, calling him a "f'ing punk." The bartender asked defendant to leave.

Standing by the door, defendant continued to berate Berger, continuing to call him a punk and gesturing in a manner suggesting that Berger should follow him outside. An off-duty corrections officer, Christopher Puccio, was a patron in the bar. He was out of uniform and unarmed. Anticipating possible trouble, Puccio left the bar through a different doorway than the one in which defendant was standing. His intention was to call the local police if a physical altercation ensued.

From his vantage point outside of the bar, Puccio observed defendant, who was straddling the doorway. The left portion of defendant's body was inside the door, and visible to Berger and others inside, while the right side of defendant's body was outside the door. Puccio observed defendant holding a handgun in his right hand, in a low and ready position, "right along by his leg, like you normally would if, you . . . drew a gun out or if you are going to, you know, shoot a gun." He described that defendant held the gun "by his side, hidden behind his leg, so nobody at the bar inside could see this." While holding the gun in this manner, defendant continued challenging Berger, gesturing for him to come outside, and calling him derogatory names.

Defendant then stepped back inside the bar, continuing to hold the gun in the same position. He stood next to a half wall, about four to four-and-one-half feet high, which blocked his lower body from the view of Berger and others in the bar. He continued attempting to induce Berger to come outside. The bartender again directed defendant to leave. As he did, Puccio approached him. As defendant came out of the doorway, he turned toward Puccio, and the muzzle of the gun pointed toward Puccio's midsection. Defendant saw Puccio and acknowledged his presence, after which he quickly put the gun behind his back to obscure Puccio's view of it and then put it in his pocket. Defendant then walked back into the bar.

Puccio followed defendant in and immediately went to Berger, warning him not to go outside because defendant was armed with a gun. Puccio also informed Berger he was going to call the local police, which he then did.

During the 911 call, Puccio maintained visual contact with defendant from outside the bar, except for a short period of time when defendant went back into the bar. The police arrived within several minutes. Puccio identified defendant as the armed individual. While the police were attempting to arrest defendant, he struggled with them. They removed from his pocket a Glock 45 caliber ...


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