On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-08-1508.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Fasciale and Maven.
Defendant appeals from his convictions for second-degree possessing, receiving, or transferring a community gun, N.J.S.A. 2C:39-4a(2); and second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5b.*fn1 The judge imposed an aggregate ten-year prison sentence.*fn2 We affirm.
We focus primarily on the mens rea needed to convict defendant of the community gun charge. The question presented is whether the State must prove that defendant knew the firearm was a community gun. We hold that defendant's knowledge of the communal character of the firearm is not an element of N.J.S.A. 2C:39-4a(2).
Several people participated in the murder of a victim following a dispute over drugs. One individual requested that defendant retrieve a handgun that had been stashed in an old mattress lying in a nearby alley. Defendant retrieved the gun from the mattress and handed it to another individual who shot and killed the victim. The rusty gun was known to the several participants, available for anyone to access, and had been stored in the mattress for approximately a year and a half.
On appeal, defendant raises the following points:
THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY REGARDING THE MENTAL STATE REQUIRED FOR DEFENDANT TO BE FOUND GUILTY OF POSSESSION OF A COMMUNITY GUN CONSTITUTES PLAIN ERROR. (Not Raised Below).
THE TRIAL COURT'S INADEQUATE ANSWER TO THE JURY'S FIRST TWO QUESTIONS, COMPOUNDED BY FALSE TESTIMONY BY A STATE'S WITNESS, REPEATED BY THE PROSECUTOR IN SUMMATION, PERMITTED THE JURY TO CONVICT DEFENDANT OF POSSESSORY CRIMES THAT WERE NOT CONSIDERED BY THE GRAND JURY AND FOR WHICH HE WAS NOT INDICTED. THIS VIOLATED HIS CONSTITUTIONAL RIGHTS TO INDICTMENT AND TO DUE PROCESS OF LAW. U.S. Const. amend. V; N.J. Const. art. I, ¶ 8. (Not Raised Below).
BECAUSE THE TRIAL COURT FAILED TO PROVIDE SUFFICIENTLY DETAILED REASONS FOR THE SENTENCES IMPOSED, AND BECAUSE THE COURT ABUSED ITS DISCRETION IN ADDRESSING SCOTT'S FAILURE TO AGREE TO TESTIFY AGAINST HIS BROTHER, IF EITHER OR BOTH OF HIS CONVICTIONS ARE AFFIRMED, THIS MATTER MUST BE REMANDED FOR RE-SENTENCING.
A. Fact-finding at sentencing was so entirely inadequate that it escapes appellate review.
B. The court abused its discretion in refusing to consider mitigating factor twelve and in holding that defendant's refusal to testify against his ...