On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The Court considers whether a defendant must know that a weapon he or she possesses is defaced to be convicted of violating N.J.S.A. 2C:39-3(d), possession of a defaced weapon.
On October 6, 2002, Officers Rodriguez and Arroyo were on patrol in the City of Paterson when they witnessed what they believed to be a drug transaction between two men. During that transaction, an unidentified man handed paper currency to defendant Jama Smith, who handed the man an item in return. As the officers approached, Smith noticed them and began to walk away. He discarded a small plastic bag as he walked down the street. After retrieving the bag and finding in it what appeared to be crack cocaine, the officers ordered Smith to stop. Instead, Smith began to run. With the officers in pursuit, Smith reached into his waistband and pulled out a handgun. Knocking Smith to the ground, the officers struggled with him, causing his gun to fall to the ground and slide under a nearby van. Officer Arroyo retrieved the gun, which later was identified as a .380 caliber semi-automatic handgun.
Smith was charged with several crimes, one of which was fourth-degree possession of a defaced firearm, contrary to N.J.S.A. 2C:39-3(d). At his trial, a detective testified about the weapon's defacement, explaining that the serial number on the weapon had been "scratched out" and could not be read. At the conclusion of the trial testimony, the court instructed the jury on the charge of possessing a defaced firearm. The court explained that under N.J.S.A. 2C:39-3(d), "[a]ny person who knowingly has in his possession any firearm which has been defaced is guilty of a crime." The court explained also that the state had the burden to prove, beyond a reasonable doubt, that 1) "there was a firearm"; 2) "that the firearm was defaced"; and 3) "that the defendant knowingly possessed that firearm." Finally, the court explained that "[s]ince knowingly is a state of mind that cannot be seen and can only be determined by inference from conduct, words or acts it is rarely susceptible of direct proof. And, therefore, it's not necessary that witnesses be produced by the State to testify than an accused said that he knowingly possessed a firearm. His knowledge may be gathered from his acts and his conduct . . . and from all the surrounding circumstances. . . ." The jury returned a guilty verdict.
In an unpublished opinion, the Appellate Division panel affirmed Smith's conviction. The panel rejected Smith's argument that the trial court erred by omitting the element of knowledge of defacement in its jury instructions. The panel held that knowingly possessing a weapon that happens to be defaced is sufficient for conviction under N.J.S.A. 2C:39-3(d). Examining the language of other provisions of the same statute relating to weapons offenses, and noting that those provisions required the State to prove only that the defendant knew that he possessed a particular prohibited item, the panel reasoned that the Legislature intended that the State prove only the fact of possession of the defaced firearm to find a violation of N.J.S.A. 2C:39-3(d). The panel also rejected an argument by Smith that was based on a change to the Model Jury Charge that occurred after his conviction. That change required the State to prove the defendant possessed the weapon knowing it was defaced. Noting that there had not been any legislative changes to N.J.S.A. 2C:39-3(d) or to case law interpreting and applying the statute that would support a revised view of the proofs necessary to convict, the panel concluded that the change had been made in error.
The Supreme Court granted certification limited solely to reviewing Smith's claim that, to convict under N.J.S.A. 2C:39-3(d), the State must prove a defendant's knowledge of possession of the weapon and knowledge of the weapon's defacement. 193 N.J. 584 (2008).
HELD: The Court affirms defendant Jama Smith's conviction on charges of knowingly possessing a firearm that had been defaced, in violation ofN.J.S.A. 2C:39-3(d). Because the term "knowingly" modifies "possession" in this statutory provision, the State was required to prove that Smith knew he possessed the firearm. The State was not required to prove that Smith also knew that the firearm was defaced.
1. In construing a legislative enactment, the Court relies first on the plain language of the statute and ascribes to the words their ordinary meaning. It is not the function of the Court to rewrite a plainly-written enactment of the Legislature or to presume that the Legislature intended something other than that expressed by way of the plain language. Here, the Legislature placed the term "knowingly" immediately before the phrase, "has in his possession a firearm," and followed it with another, subordinate phrase, "which has been defaced," that describes further the nature of the proscribed item. Judging from the wording that the Legislature used to express itself in N.J.S.A. 2C:39-3(d), the Legislature intended that "knowingly" modify only "possession" of the proscribed item. (Pp. 10-12 ).
2. Assuming for the purposes of thoroughness that the language of N.J.S.A. 2C:39-3(d) contains some ambiguity, the Court turns to extrinsic evidence for aid in interpreting it. That evidence includes a comprehensive review of the Legislature's approach to criminalizing the possession of weapons issued by the Court twenty-five years ago in State v. Lee, a decision with which the Legislature has never indicated disagreement. In Lee, the Court concluded, in part, that subsection (b) of N.J.S.A. 2C:39-3 constituted a per se offense and made the mere knowing possession of a sawed-off shogun a crime. Here, the Court notes that subsections (a), (b), (c), and (d) of N.J.S.A. 2C:39-3, all contain parallel language, beginning with the words "[a]ny person who knowingly has in his possession [X]," and proscribing the possession of certain weapons. The only change between these subsections is the name of the object that gives rise to the offense. Recognizing that the Legislature grouped these subsections together in the same section of the Criminal Code using parallel language, the Court determines that the Legislature expected the language to be interpreted and applied in like fashion. As such, the term "knowingly" modifies only a defendant's "possession" of an illicit object, here a defaced firearm. (Pp. 12-18).
3. Examination of the legislative history of N.J.S.A. 2C:39-3(d) also demonstrates that the Legislature meant for subsection (d) to be a per se possessory offense. The Court rejects Smith's argument that N.J.S.A. 2C:39-3(d) should be construed consistent with New York's construction of its defaced-weapons offense, which included language that is not found in New Jersey's provision. (Pp. 18-20).
4. The Court holds that the term "knowingly" in N.J.S.A. 2C:39-3(d) modifies "possession" of a firearm which has been defaced. The State was not required to prove that, at the time he knowingly possessed the firearm, Smith also knew that it was defaced. The Court rejects Smith's assertion that the trial court's charge was in error, and affirms Smith's conviction for possession of a firearm that had been defaced. The Court further directs that the Model Jury Charge Committee correct its instruction for the offense of possession of a defaced firearm and re-examine the model charges for offenses under N.J.S.A. 2C:39-3's other subsections to ensure that the model charges are consistent with this opinion. (P. 20).
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE RABNER and JUSTICES LONG, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in JUSTICE LaVECCHIA's opinion.
The opinion of the court was delivered by: Justice LaVECCHIA
This appeal raises the question whether a defendant must know that a weapon is defaced to be convicted of the offense of possession of a defaced weapon, contrary to N.J.S.A. 2C:39-3(d).
In October 2002, defendant Jama Smith was observed in the City of Paterson participating in a drug transaction, which led ultimately to his conviction for possession of a defaced weapon. On appeal, defendant contended that he was denied a fair trial because the court's jury instruction on that offense failed to require a finding that defendant knew the firearm was defaced. The Appellate Division rejected that argument and affirmed defendant's conviction for possession of a defaced weapon. For the reasons that follow, we affirm.
The following facts were adduced from Sergeant Stanley Rodriguez's testimony at defendant's trial. On October 6, 2002, at approximately one o'clock in the morning, Rodriguez and Officer Felix Arroyo were on patrol in an unmarked car when Rodriguez saw defendant and another man standing in front of a building. Rodriguez observed what he believed to be a drug transaction taking place between the two. The unidentified man handed defendant paper currency and defendant gave him an item in return.
The officers parked the car and approached the men. When defendant noticed them approaching, he began to walk away. Rodriguez watched defendant discard a small plastic bag as he walked down the street. Rodriguez retrieved the bag, found inside it what he believed to be crack cocaine, and informed Arroyo of its contents. Arroyo immediately ordered defendant to stop. Instead, defendant began to run.
The officers pursued defendant and, as Rodriguez caught up to him, defendant reached into his waistband and pulled out a handgun. Rodriguez drew his gun, pointed it at defendant, and ordered him to drop the gun. Eventually Rodriguez tackled defendant, however, defendant struggled to avoid arrest. During their struggle, defendant's hand hit the corner of the sidewalk, causing his gun to fall to the ground and to slide under a nearby white van. Arroyo retrieved the gun, identified later as a .380 caliber semi-automatic handgun.
Defendant was arrested and charged with fourth-degree possession of a defaced firearm, N.J.S.A. 2C:39-3(d), and eleven other counts. At trial, Detective Antonio Urena testified about the weapon's defacement. When asked if he was able to discern the weapon's serial number, Urena answered in the negative because the serial number had been "scratched out." Pointing to a specific area of the gun's frame, the detective testified that "[there were] serial numbers right here on the frame right below the slide. But [they are now] indiscernible." Based on his experience, Urena labeled the weapon a "defaced" firearm.*fn1
At the conclusion of the trial testimony, the court instructed the jury as follows on the ...