On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-00066.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
We granted the State leave to appeal from an order of the Law Division dismissing count four of an indictment charging defendant, Steven Kaczur, with second-degree possession of a firearm while engaged in drug distribution-related activity, N.J.S.A. 2C:39-4.1. We now affirm.
On November 6, 2010, Woodbridge police officers executed a search warrant for defendant and his Iselin residence. Defendant was located outside his home and arrested without incident. On his person, police found twenty-nine grams of marijuana in a sandwich bag and $335 in cash. Police then searched defendant's residence where they recovered a .45 caliber handgun with a full magazine of hollow point rounds and a second loaded magazine from under defendant's bed in a small lock box. The handgun was legally registered to defendant and he has a firearms identification for that handgun. In defendant's nightstand, in the same bedroom as the gun, police found an additional thirty grams of marijuana, nine oxycodone tablets, a digital scale and two sheets of paper that appeared to be "owe sheets," a means by which drug dealers keep track of who they sell drugs to and who owes them money.
The grand jury heard testimony as to the same, with a notable exception. The officer who authored the incident report detailing the correct location of the gun did not testify. Instead, another officer who had been present at the scene testified and misstated that the handgun and bullets were found in defendant's nightstand, where the additional drugs, paraphernalia and "owe sheets" were also located. The grand jury returned a five-count indictment charging defendant with, among other crimes, third-degree possession of a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three); second-degree possession of a firearm while engaged in CDS distribution-related activity, N.J.S.A. 2C:39-4.1 (count four); and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count five).
Defendant moved to dismiss counts four and five. Following argument, the court granted defendant's motion.*fn1 Although mentioning that the "misrepresentation thus allowed the grand jury to accept an improper inference that the gun was 'accessible for use' during the commission of the alleged intent to distribute[,]" the court based its dismissal decision on a construction of N.J.S.A. 2C:39-4.1, which we reject. In its March 2, 2012 letter opinion, the court held that to sustain a conviction of possession of a firearm while in the course of committing a drug offense, the State must prove that defendant illegally possessed the firearm or actually used the weapon in an unlawful manner. Finding evidence of neither in the grand jury record, the court dismissed count four, reasoning:
[I]t is axiomatic to the court the Legislature intended to punish people using unlicensed or illegal weapons in the course of CDS activity. However, when the gun is legally possessed this court is not convinced it was the Legislature's intent to punish a defendant who also allegedly was perpetrating one of the enumerated CDS offenses while owning a licensed firearm without some proof of the weapons unlawful use. Therefore, this court believes it is fundamentally unfair to allow the indictment to survive where any individual has a legally possessed firearm, and there is no evidence of the firearm's use in the CDS activity.
While we affirm the dismissal on other grounds, we reject the court's narrow construction of N.J.S.A. 2C:39-4.1.
N.J.S.A. 2C:39-4.1a provides that "[a]ny person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit" the drug offenses specified in the statute, such as possessing with intent to distribute a CDS within 1000 feet of a school in violation of N.J.S.A. 2C:35-7, is guilty of a crime of the second-degree.
N.J.S.A. 2C:39-4.1a.*fn2 Thus, the question implicated by defendant's motion to dismiss is whether the evidence was legally sufficient to support the grand jury's determination that the State had established a prima facie case of a violation of N.J.S.A. 2C:39-4.1. See State v. Francis, 191 N.J. 571, 586 (2007); State v. Hogan, 144 N.J. 216, 227 (1996).
We find nothing in the statutory language or its legislative history to suggest N.J.S.A. 2C:39-4.1 requires that defendant either illegally possess the firearm, or actually use a firearm, during the commission of an enumerated drug offense. As to the former, the statute does not distinguish between legally and illegally held firearms, and a court should not presume that the Legislature intended something other than what it clearly expressed by way of its plain language. State v. Wright, 107 N.J. 488, 495 (1987). As to the latter, had the statute read "armed with a firearm while in the course of committing" a specified crime, the outcome might be different. See State v. Merritt, 247 N.J. Super. 425, 430 (App. Div.) (noting difference between "armed" with a weapon and "in possession of a weapon," and that "'armed' connotes not only possession but also immediate access to a weapon"), certif. denied, 126 N.J. 336 (1991).
The statutory phrase "while in the course of committing" does require, however, "a temporal and spatial link between the possession of the firearm and the drugs that defendant intended to distribute." State v. ...