January 10, 2011
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
MICHAEL D. ANTRUM, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 08-03-0123.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 17, 2010 - Decided Before Judges Gilroy and Ashrafi.
Defendant Michael Antrum appeals from a judgment of conviction for possession of a handgun without a New Jersey permit. The issue presented is whether the trial court correctly suppressed defendant's affirmative defense of ignorance of the law under N.J.S.A. 2C:2-4c(3). We affirm the trial court's ruling and defendant's conviction.
At 2:22 a.m. on November 17, 2007, a police officer in the Town of Clinton encountered defendant attempting to pump his own gas at a closed gas station. Defendant was not aware that New Jersey does not have self-service gasoline stations. He explained to the officer that he was on his way from Connecticut to Pennsylvania for a funeral, and his car needed gas. When questioned as to whether he was in possession of any weapons, defendant answered honestly that he was armed with a handgun. The officer took a loaded .40 caliber handgun from a holster that defendant was wearing.
Defendant showed the officer that he had permits for the gun from Connecticut and Florida. He also told the officer that the Florida license was valid in New Jersey. Uncertain of that claim, the officer checked the status of the New Jersey gun laws and learned that the Florida license is not valid in New Jersey. He arrested defendant for unlawful possession of a handgun, and also charged him with driving while his driver's license was suspended.
A Hunterdon County grand jury indicted defendant on charges of third-degree unlawful possession of a handgun in New Jersey without a valid permit, N.J.S.A. 2C:39-5b and 2C:58-4, and fourth-degree possession of prohibited hollow-nose bullets, N.J.S.A. 2C:39-3f.
Before trial, the State moved in limine to bar testimony that defendant had permits for the handgun from Connecticut and Florida and that he worked as a security guard and carried the weapon while on duty. After hearing argument, the trial court ruled that evidence of the out-of-state permits and defendant's employment could not disprove any element of the offenses charged, as was the case in State v. Sexton, 160 N.J. 93, 104-05 (1999), and State v. Wickliff, 378 N.J. Super. 328, 334 (App. Div. 2005). The court also ruled that it would hold an evidentiary hearing to determine whether defendant could use the challenged evidence to support an affirmative defense of ignorance of the law under N.J.S.A. 2C:2-4c(3).
That statute provides:
A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when: (3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.
The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence. [N.J.S.A. 2C:2-4.]
At the evidentiary hearing, defendant testified that he lived in New Haven, Connecticut, and worked as a security guard. He had obtained a Connecticut license to carry a handgun in January 2006. Because he believed the Connecticut license did not permit him to carry the gun in other states, he also obtained a Florida license, which he understood to be valid under reciprocity provisions of gun laws in twenty-nine states. He thought that New Jersey was one of those states, but he had not looked at the list of states provided with his Florida license since he obtained it about a year earlier.
Defendant testified further that, at the time of his arrest, a close relative had died suddenly, and he left Connecticut shortly after midnight for the funeral in Pennsylvania. He stopped to pick up his fianceee in New York, but did not plan to stop in New Jersey. He was driving on an interstate highway when he noticed that his car was very low on gas. He pulled off the highway and was attempting to find gas when the officer encountered him.
On cross-examination, defendant testified he did not check the list of states with reciprocity before leaving Connecticut and did not conduct any other research on the subject. He made no attempt to contact New Jersey authorities to determine if his Florida license was valid in New Jersey. He knew that his permits were not valid in New York State. He had driven through New York because he had heard from a Connecticut police officer that as long as he did not leave his car, he could carry the gun through other states.
The trial court concluded that defendant's evidence was insufficient to meet his burden of proof under N.J.S.A. 2C:2-4c(3), quoted previously.
After the court's ruling, defendant entered into a plea agreement with the State and pleaded guilty to the third-degree charge of unlawful possession of a handgun without a valid permit. However, he also reserved a right to appeal the trial court's ruling. See Rule 3:9-3(f); State v. Knight, 183 N.J. 449, 471 (2005). In accordance with the plea agreement, defendant was sentenced to two years' probation, and he forfeited the handgun and ammunition confiscated by the police.
On appeal, defendant argues:
THE TRIAL COURT ERRED IN DISALLOWING THE DEFENDANT FROM PRESENTING THE AFFIRMATIVE DEFENSE OF MISTAKE OR IGNORANCE IN VIOLATION OF DEFENDANT'S RIGHT TO A FAIR TRIAL AND DUE PROCESS OF LAW.
We reject this argument and affirm the trial court's rulings essentially for the reasons stated by the trial judge in his oral opinions of January 21, 2009, and March 4, 2009. We add the following.
We disagree with the State's contention that the abuse of discretion standard applies because defendant is appealing from an evidentiary ruling of the trial court. Cf. State v. Coder, 198 N.J. 451, 468 (2009) (abuse of discretion standard applicable to admission of sexual abuse evidence under N.J.R.E. 803(c)(27)); State v. Kemp, 195 N.J. 136, 149 (2008) (abuse of discretion standard applicable to admission of evidence under N.J.R.E. 404(b)). Although the State had moved in limine to bar irrelevant evidence under N.J.R.E. 401 to 403, the court's ruling pertained to a legal determination that defendant's evidence did not meet the statutory requirements for an affirmative defense under N.J.S.A. 2C:2-4c(3). That issue is a question of law, and we owe no deference to the trial court's conclusions. See, e.g., State v. Mann, 203 N.J. 328, 337 (2010) ("When a question of law is at stake, the appellate court must apply the law as it understands it."); State v. Harris, 181 N.J. 391, 415 (2004), (although an appellate court defers to the trial court's findings of fact that are supported by adequate, substantial, and credible evidence, issues of law are subject to de novo review), cert. denied, 545 U.S. 1145, 125 S. Ct. 2973, 162 L. Ed. 2d 898 (2005). Our standard of review of the trial court's ruling is plenary.
We agree, however, that defendant's testimony was not sufficient to prove the statutory defense by clear and convincing evidence. In particular, defendant presented no evidence that he had "diligently pursue[d] all means available to ascertain the meaning and application of the offense to his conduct" or that "a law-abiding and prudent person would . . . conclude" as he did that he was permitted to carry the handgun through New Jersey. See N.J.S.A. 2C:2-4c(3).
Defendant admitted he had not reviewed the list of states that had reciprocity with Florida's gun permit law, and he simply thought that New Jersey was included in that list. At the hearing, the State presented information readily available through the internet showing which states honored the Connecticut and Florida gun permits through reciprocity laws. Although defendant was not "computer savvy," he had made no effort to learn the law, such as with the help of a librarian, or made any inquiries otherwise about New Jersey gun laws.
Also, defendant unreasonably believed a Connecticut officer's opinion that he would not be violating other states' gun laws if he remained in his car. As it happened, defendant had not remained in his car in New Jersey because he needed gas.
When confronted by the police officer, defendant was outside in a public place in the middle of the night wearing a holster with a loaded handgun. A law-abiding and prudent person would not conclude that he was free to drive across this State with an unlicensed handgun because he did not plan to leave his car.
As in State v. Pelleteri, 294 N.J. Super. 330, 333-34 (App. Div. 1996), certif. denied, 148 N.J. 461 (1997), defendant failed to present sufficient evidence for a jury to consider a mistake-of-law defense in accordance with the stringent requirements of N.J.S.A. 2C:2-4c(3).
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