On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-1486.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 17, 2012
Before Judges Simonelli and Koblitz.
Defendant Steven M. Toth appeals from his September 9, 2011 judgment of conviction as well as the March 24, 2011 order denying his pretrial motions. Defendant was charged in Middlesex County Indictment No. 10-10-1486*fn1 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count one). Defendant moved pretrial for the judge to charge the jury that the State must prove mens rea with regard to his prior conviction. He claimed that he was entitled to the defense of mistake-of-fact because he thought his prior conviction was vacated through the pretrial intervention (PTI) program*fn2 and he was twice granted permits to possess firearms. Defendant was also charged in count five of Middlesex County Indictment No. 09-10-1704 with second-degree unlawful possession of a machine gun, N.J.S.A. 2C:58-5 and 39-5(a). He filed a motion to dismiss this count due to the State's failure to inform the grand jury that the machine gun was inoperable. Defendant appeals the denial of these two pretrial motions and also claims that his aggregate sentence of seven years with a five-year period of parole ineligibility is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant's October 19, 1992 judgment of conviction reflects that when he was twenty years old he pled guilty to third-degree aiding and abetting arson, N.J.S.A. 2C:17-1(b). He was sentenced to a three-year term of probation with a special condition of 364 days of incarceration, which was to be deferred for three years. If defendant successfully completed probation, the period of incarceration would be commuted to the one day of incarceration he had served.
In April 2009, defendant's employer, the owner of Johnstone Supply
Company, reported to the South Plainfield Police Department that
defendant had stolen a boiler valued at more than $1700.*fn3
The police investigated and discovered that defendant had
installed the boiler, charged the homeowner $5400, and personally
pocketed the proceeds. Defendant was terminated for this offense and
ultimately indicted in Middlesex County Indictment No. 09-10-1861 for
third-degree theft, N.J.S.A. 2C:20-3(a).
On May 6, 2009, defendant sought employment at Pride Retail Contractors (Pride), which is located behind the home where he lived with his wife and two children. After he was turned away, defendant returned to the Pride office wearing a camouflage jacket and carrying a black AR-15 assault rifle on his shoulder. Defendant was ultimately persuaded to leave. Once outside the office, he made vague threats while moving the gun around. He also took the safety off the weapon. Later, Pride employees heard seven to nine gunshots coming from the direction of defendant's home.
Defendant's wife gave the police consent to search the home. Ten to twelve spent shell casings were found on the back patio. In the basement, the police found a loaded AR-15 assault rifle, two or three other long guns and two or three handguns in an unsecured cabinet area. The detached garage contained approximately twenty weapons, thousands of rounds of ammunition and approximately thirty-five large-capacity magazines. A silver .22 caliber Ruger rifle that had been converted into an assault rifle and a .30 caliber Browning machine gun were found among the weapons.
In addition to the fifth count charging unlawful possession of a machine gun, defendant was also charged in Indictment No. 09-10-1704 with third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of an assault weapon, an AR-15, N.J.S.A. 2C:39-5(f) (count three); third-degree possession of an assault firearm, "a [R]uger 22 caliber rifle with pistol grip and folding stock[,]" N.J.S.A. 2C:39-5(f) (count four); fourth-degree possession of a large-capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count six); and second-degree endangering the welfare of a child "by keeping loaded weapons unsecured in the [home,]" N.J.S.A. 2C:24-4(a) (count seven).
After his pretrial motions were denied, defendant pled guilty to count one of Indictment No. 09-10-1861 charging third-degree theft, count two of Indictment No. 09-10-1704 charging second-degree possession of a weapon for an unlawful purpose, and count one of Indictment No. 10-10-1486 charging second-degree certain persons not to have weapons. Defendant reserved the right to appeal the pretrial rulings. R. 3:9-3(f). The remaining counts were dismissed by the State.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT, IN DENYING DEFENDANT'S MOTIONS, VIOLATED HIS CONSTITUTIONAL RIGHTS, WARRANTING REVERSAL.
A. THE TRIAL COURT VIOLATED DEFENDANT'S SECOND AND SIXTH AMENDMENT RIGHTS IN DENYING HIS MOTION TO COMPEL THE STATE TO PROVE SCIENTER AS TO HIS STATUS AS A CONVICTED FELON AND FOR A SCIENTER JURY INSTRUCTION.
B. THE TRIAL COURT VIOLATED DEFENDANT'S SECOND AND SIXTH AMENDMENT RIGHTS IN DENYING HIS MOTION TO BE PERMITTED TO ASSERT ...