On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 05-06-1397.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 19, 2008
Before Judges Parrillo and Lihotz.
Defendant Michael Sapienza appeals from his conviction for second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a), and third-degree unlawful possession of a weapon without a permit, N.J.S.A. 2C:39-5(b). The court sentenced defendant to two concurrent five-year terms of incarceration with a stipulated three-year period of parole ineligibility. At the close of the State's case, the trial court granted defendant's acquittal dismissing the counts of the motion for indictment charging first-degree attempted murder, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3, fourth-degree aggravated assault by pointing a firearm, N.J.S.A. 2C:12-1(b)(4), and third-degree terroristic threats, N.J.S.A. 2C:12-3(a) and (b). Defendant's post-conviction motion for acquittal or, alternatively, for a new trial, was denied.
On appeal, defendant presents the following issues for our review:
BECAUSE ADMISSION OF THE RECORDING OF THE 911 CALL VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT OF CONFRONTATION, HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE REVERSED.
BECAUSE THE COURT FAILED TO INSTRUCT THE JURY THAT DEFENDANT'S UNLAWFUL POSSESSION OF THE WEAPON COULD NOT SATISFY THE "UNLAWFUL PURPOSE" ELEMENT BY WHICH DEFENDANT COULD BE CONVICTED OF POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE, DEFENDANT'S CONVICTION FOR THE LATTER OFFENSE MUST BE REVERSED.
BECAUSE THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO PROVE DEFENDANT'S "UNLAWFUL PURPOSE" BEYOND A REASONABLE DOUBT, HIS CONVICTION FOR POSSESSION OF A WEAPON FOR AN UNLAWFUL PURPOSE MUST BE REVERSED.
We have considered each argument, in light of the record and applicable law, along with the arguments of counsel. We find defendant's arguments unpersuasive and affirm.
Defendant's conviction arose from a domestic violence dispute with his wife. On March 19, 2005, at 12:45 a.m., Margaret Sapienza reported an emergency to a 911 operator. Margaret stated she told her husband, defendant, she desired a divorce. Defendant had been drinking and he threatened Margaret with a gun. During the call, Margaret told the operator defendant left the house to look for her. She grabbed the kitchen phone, exited the residence and hid on the side of her neighbor's house. ...