July 20, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
ESTENSON CLERVIL, DEFENDANT-APPELLANT.
On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment Nos. 09-03-00134 and 09-05-00185.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 29, 2012
Before Judges Graves and Harris.
A jury found defendant guilty of fourth-degree possession of a weapon (a knife) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d) (Indictment No. 09-03-00134). In a second trial, the same jury convicted defendant of fourth-degree possession of a weapon (the same knife) by a prohibited person, N.J.S.A. 2C:39-7(a) (Indictment No. 09-05-00185).*fn1 On April 30, 2010, the court merged the unlawful possession offense with the prohibited person offense and sentenced defendant to an eighteen-month term of imprisonment with an eighteen-month period of parole ineligibility under the Graves Act. N.J.S.A. 2C:43-6(c). We affirm.
Three witnesses testified at defendant's trial. New Jersey State Trooper Craig Kempinski was the sole witness for the State. Venus Lee, defendant's girlfriend, testified for the defense, and defendant testified on his own behalf.
Lee testified that on January 29, 2009, she and defendant were traveling in her car from her home in Allentown, Pennsylvania, to her mother's home in New Jersey. Lee said she was driving and defendant was riding in the front passenger's seat. At approximately 12:30 p.m. that afternoon, Kempinski was monitoring traffic on Interstate 78 in Union Township, when he observed Lee's vehicle traveling in excess of the posted speed limit. Kempinski pursued the vehicle and conducted a motor vehicle stop.
As Kempinski approached Lee's vehicle from the passenger's side, he observed defendant was not wearing a seatbelt. The trooper then asked Lee and defendant for identification, but defendant stated he didn't "have any" on him. Kempinski testified he asked defendant to write his name and date of birth on a piece of paper. When Kempinski "ran a check" of the information he received from Lee and defendant, Kempinski learned that Lee's driver's license had been suspended and there was no driver's license on record for defendant.
Since neither Lee nor defendant possessed a valid driver's license, Kempinski decided to have the vehicle towed and impounded and to take Lee and defendant to a local diner where they could arrange for transportation. Kempinski testified it is standard State Police procedure to frisk anyone for weapons before they are permitted to ride in a patrol vehicle. Prior to the frisk, Kempinski asked defendant if he had any weapons on him. Kempinski testified that defendant responded, "Yes, I have a knife," and "pointed to the right side of his waistband." At that point, Kempinski "pulled [defendant's] jacket away and lifted his shirt up," and Kempinski took possession of the ten-inch knife with a four-inch fixed blade that was sheathed and tucked in defendant's pants. According to Kempinski, defendant stated "he had the knife on him for protection."*fn2
At the close of the State's case, defendant argued the proofs were insufficient to warrant a conviction, and he asked the trial court to enter a judgment of acquittal under Rule 3:18-1. The court ruled there was sufficient evidence to support defendant's conviction if the jury believed Kempinski because individuals "may not arm themselves prior to danger becoming imminent," and there was no immediate threat to defendant while he was "riding in a vehicle as a passenger along Route 78." Accordingly, defendant's motion for a judgment of acquittal was denied.
Lee testified she had recently purchased the car, and she discovered the knife in the console as she was "getting [her] registration and insurance." She believed the knife was left there by the previous owner, who she identified as "Craig." Lee testified she "handed" the knife to defendant after Kempinski told them to remove any items from the car that they wanted to take with them.
Defendant denied telling the trooper that he had the knife to protect himself. According to defendant, he just took the knife from Lee, "as a concerned boyfriend," when she handed it to him. Defendant acknowledged he had two prior criminal convictions and admitted he failed to give Kempinski his correct name, date of birth, and Social Security number.
On appeal, defendant submits the following arguments:
THE STATE FAILED TO MEET ITS BURDEN OF PROOF BEYOND A REASONABLE DOUBT IN THAT THE GUILTY VERDICT FOR UNLAWFUL POSSESSION OF A WEAPON WAS AGAINST THE WEIGHT OF THE EVIDENCE AND MUST BE REVERSED.
THE SENTENCE IMPOSED IS EXCESSIVE AND NOT SUPPORTED BY THE PROPER ASSESSMENT OF AGGRAVATING AND MITIGATING FACTORS.
Based on our examination of the record, we conclude these arguments are clearly without merit, Rule 2:11-3(e)(2), and require only the following discussion.
Under N.J.S.A. 2C:39-5(d), any person who knowingly possesses a "weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree." As the Court has explained:
In [N.J.S.A.] 2C:39-5(d), the Legislature addressed the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The obvious intent of the Legislature was to address a serious societal problem, the threat of harm to others from the possession of objects that can be used as weapons under circumstances not manifestly appropriate for such lawful uses as those objects may have. Some objects that may be used as weapons also have more innocent purposes. For example, a machete can be a lethal weapon or a useful device for deep sea fishing. [State v. Lee, 96 N.J. 156, 161 (1984).]
Thus, "where the implement is of an equivocal character, susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting its possessor to criminal liability is entirely dependent on the circumstances attending the possession." State v. Blaine, 221 N.J. Super. 66, 70 (App. Div. 1987). However, as the trial court correctly noted when it denied defendant's motion for a judgment of acquittal, anticipatory self-defense is not a valid reason for possession of a weapon except in cases of immediate and imminent danger. See State v. Kelly, 118 N.J. 370, 386 (1990) ("[P]recautionary arming during a non-emergency situation is the type of conduct that the Legislature sought to interdict under Section 5d. Persons who feel threatened should communicate with the police and not take the law into their own hands.").
In the present matter, the State's case rested upon the credibility of Trooper Kempinski. The jury had the right to accept all, some, or none of his testimony, and the jury obviously determined he was a credible witness. Moreover, Kempinski's testimony provided a sufficient basis for the jury to conclude that defendant possessed the knife under circumstances not manifestly appropriate for lawful use.
Defendant also challenges his sentence. However, he does not dispute that pursuant to the Graves Act, N.J.S.A. 2C:43-6(c), the court was required to impose an eighteen-month period of parole ineligibility. Thus, the court correctly applied the sentencing guidelines, and defendant's sentence is not excessive or unduly punitive.