State of New Jersey v. Damian S. Emanuel

• Court: New Jersey Superior Court Appellate Division
• Decided: October 17, 2024
• Docket: A-2274-23
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2274-23

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

DAMIAN S. EMANUEL,

Defendant-Respondent. __________________________

Submitted October 2, 2024 – Decided October 17, 2024

Before Judges Mayer and Rose.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 22-12-1421.

Esther Suarez, Hudson County Prosecutor, attorney for appellant (Colleen Kristan Signorelli, Assistant Prosecutor, on the brief).

Jennifer N. Sellitti, Public Defender, attorney for respondent (Ashley T. Brooks, Assistant Deputy Public Defender, of counsel and on the briefs).

Matthew J. Platkin, Attorney General, attorney for amicus curiae Attorney General of New Jersey (Angela Cai, Deputy Solicitor General, and Christopher J. Ioannou, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

By leave granted, the State appeals from a March 13, 2024 Law Division

order granting defendant Damian S. Emanuel's motion to dismiss count two of

a three-count Hudson County indictment, charging him with second-degree

unlawful possession of a handgun without having obtained a permit to carry

under N.J.S.A. 2C:58-4, N.J.S.A. 2C:39-5(b)(1). The remaining counts charged

defendant with fourth-degree unlawful possession of a defaced firearm, N.J.S.A.

2C:39-3(d), and fourth-degree unlawful possession of a large capacity

ammunition magazine, N.J.S.A. 2C:39-3(j).

The motion court found "N.J.S.A. 2C:58-4 was facially unconstitutional"

when defendant was charged with violating N.J.S.A. 2C:39-3(5)(b)(1) under the

United States Supreme Court's decision in N.Y. State Rifle and Pistol

Association v. Bruen, 597 U.S. 1 (2022). The court declined to follow our

decision in State v. Wade, 476 N.J. Super. 490 (App. Div.), leave to appeal

denied, 255 N.J. 492 (2023), where we recognized the unconstitutional

"justifiable need" provision was severable from the remaining portion of

N.J.S.A. 2C:58-4. Id. at 511. Instead, the motion court concluded defendant

A-2274-23 2 lacked fair notice that he engaged in wrongdoing and, as such, he was deprived

his right to due process. Because we conclude the court erroneously interpreted

the governing legal principles, we reverse the dismissal order, reinstate count

two of the indictment, and remand for further proceedings.

I.

A.

The facts underpinning defendant's charges are straightforward, and for

purposes of this appeal, undisputed. On June 21, 2022, Bayonne police stopped

defendant for recklessly operating his motorcycle. When asked where he

charged the motorcycle, defendant removed the driver's seat and electric battery.

While doing so, a shopping bag fell from the same compartment, which appeared

to contain a handgun. Police seized the bag and removed a 9mm semi-automatic

handgun, loaded with eleven bullets in a large capacity magazine. There was no

serial number on the weapon. Defendant neither had a permit to carry the

handgun, nor had he applied for a permit.

B.

We set forth the procedural posture in view of the statutory scheme and

the applicable law. Two days after defendant was arrested, the Court issued its

decision in Bruen. The Court addressed whether New York's firearms

A-2274-23 3 permitting scheme, which required applicants demonstrate a "special need" for

self-defense, violated the Second and Fourteenth Amendments. 597 U.S. at 11.

The Court struck down New York's special need requirement, id. at 71, and

explicitly noted New Jersey's "justifiable need" provision was analogous to New

York's unconstitutional standard, id. at 15.

More particularly, at the time of defendant's arrest, N.J.S.A. 2C:58-4(c)

(2018) included the following requirement:

Each application form shall be accompanied by a written certification of justifiable need to carry a handgun, which shall be under oath and, in the case of a private citizen, shall specify in detail the urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant's life that cannot be avoided by means other than by issuance of a permit to carry a handgun. Where possible, the applicant shall corroborate the existence of any specific threats or previous attacks by reference to reports of the incidents to the appropriate law enforcement agencies.

Then, as now, N.J.S.A. 2C:39-5(b)(1) provided: "Any person who knowingly

has in his possession any handgun, . . . without first having obtained a permit to

carry the same as provided in N.J.S.A. 2C:58-4, is guilty of a crime of the second

degree."

The day after Bruen was decided, the New Jersey Attorney General issued

a directive advising the justifiable need requirement for obtaining a handgun

A-2274-23 4 permit was no longer constitutional. See Off. of the Att'y Gen., Law Enf't

Directive No. 2022-07, Directive Clarifying Requirements for Carrying of

Firearms in Public (June 24, 2022). However, that same directive made clear

Bruen did "not eliminate our overall permitting requirements" or "change any

other aspect of New Jersey's public carry laws." Id. at 1.

Defendant was indicted on December 8, 2022. Later that month, on

December 22, 2022, the New Jersey Legislature revised the gun permitting

scheme under N.J.S.A. 2C:58-4 and -5, by eliminating the "justifiable need"

requirement, among other provisions. L. 2022, c. 131.

In June 2023, defendant moved to dismiss count two of the indictment. In

his motion brief, defendant argued prosecution under N.J.S.A. 2C:39-5(b)(1)

was unconstitutional because the statute required compliance with N.J.S.A.

2C:58-4, which was rendered unconstitutional by the Court in Bruen. The State

filed its responding brief on August 8, 2023.

Two days later, before the court held oral argument on defendant's motion,

we issued our decision in Wade and its companion case, State v. Stringer.

Strikingly similar to the facts in the present matter, the co-defendants in Wade

were indicted for violating N.J.S.A. 2C:39-5(b)(1), following their arrest for

possession of two loaded handguns in their car, which was stopped by police for

A-2274-23 5 a motor vehicle violation. 476 N.J. Super. at 496-97. Neither defendant had a

permit to carry a handgun and, unlike the petitioners in Bruen, had not applied

for one. See id. at 498.

The defendants in Wade moved to dismiss their charges arguing the

justifiable need provision of N.J.S.A. 2C:58-4 was unconstitutional under

Bruen, and therefore all provisions of N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-

5(b)(1) constituted a "facially invalid permitting scheme, which they were

entitled to disregard." Id. at 499. The trial court found the defendants could

challenge the statutes even though neither had applied for a permit, and

subsequently granted their motion. Id. at 498. The court concluded both statutes

violated the Second Amendment under Bruen. Ibid.

We reversed the court's dismissal, holding the defendants lacked standing

to challenge their indictment under N.J.S.A. 2C:39-5(b)(1) because neither

defendant had applied for a handgun permit. Id. at 505-08. We reasoned: "No

New Jersey decision or federal decision addressing New Jersey's gun-permit

statutes has held that a defendant has standing to challenge the permit statutes

without first having applied for a permit." Id. at 508. We also stated a motion

to dismiss charges was not the appropriate venue for establishing whether a

A-2274-23 6 defendant "would have been granted a gun-carry permit but for the justifiable

need requirement." Id. at 507.

We nonetheless considered "the merits of the constitutional challenge

because it [wa]s a significant issue that warrant[e]d consideration." Id. at 497.

We concluded the "justifiable need requirement in N.J.S.A. 2C:58-4(c) (2018)

was severable and the remaining provisions of N.J.S.A. 2C:58-4 (2018), as well

as N.J.S.A. 2C:39-5(b)(1), were constitutional and enforceable." Id. at 511.

Stated another way, the other provisions of N.J.S.A. 2C:58-4 were not dependent

upon the justifiable need requirement. Rather, a certification of "justifiable

need" was one of many requirements needed to obtain a permit. Id. at 509-10.

The following month, on September 29, 2023, the motion court in the

present matter held oral argument. Asserting our decision in Wade was

"wrongly decided," defense counsel essentially claimed the unconstitutional

justifiable need provision could not be retroactively excised from N.J.S.A.

2C:58-4(c). To support his position, defense counsel claimed, "the requirement

of a justifiable need goes to the heart of the statute" and, as such, it was a

"substantive requirement." Conversely, the other requirements under the same

statute, such as lack of prior medical conditions, were "procedural." Conceding

prosecutions under N.J.S.A. 2C:39-5(b)(1) after our decision in Wade are

A-2274-23 7 permissible, defense counsel maintained at the time defendant violated the

statute, "there was no ruling on severability."

The State countered the present matter was on all fours with Wade. The

State argued because defendant had not applied for a permit, he lacked standing

to challenge the statute. Nonetheless, when defendant was arrested and charged,

N.J.S.A. 2C:39-5(b)(1) was constitutional. The court granted the State's request

to file a supplemental brief addressing the retroactivity issued raised by the

court.

The motion court held additional argument on December 12, 2023.

Defense counsel clarified defendant "[wa]s not challenging the constitutionality

of th[e] former [permitting] scheme as it existed when it included the justifiable

need[] language." Nor was he challenging the statute "as it currently exists."

Instead, defendant argued he was denied his right to due process by prosecuting

him "for violating a facially unconstitutional statute" and this court in Wade

failed to address "any of these concerns."

The motion court thereafter issued a written decision and memorializing

order. Acknowledging the similarity of the material facts in the present matter

with those in Wade, the court nonetheless credited defendant's arguments. The

court therefore found because prosecution under "N.J.S.A. 2C:39-5(b)[(1)]

A-2274-23 8 required compliance with a statute that was void," defendant's right to due

process was violated.

On appeal, the State maintains our decision in Wade controls.

Accordingly, because defendant had not applied for a permit, he lacked standing

to challenge the unlawful possession of a weapon charge. Asserting our

severability decision in Wade was "not a pronouncement of a new law," the State

alternatively argues our holding applies retroactively. Because the elements of

N.J.S.A. 2C:39-5(b)(1) did not change after Bruen was issued, the State further

contends "defendant was provided fair notice that possessing a handgun without

a permit is a criminal offense." Accordingly, defendant was not denied his right

to due process.

During the course of briefing on appeal, we granted the New Jersey Office

of the Attorney General's motion to appear as amicus curiae. The Attorney General

joins the arguments advanced by the State, urging us to reverse the court's order.

II.

We review de novo a trial court's decision dismissing an indictment when

the decision "was based on the court's interpretation of the statutes pursuant to

which [the] defendant was charged." State v. Bernardi, 456 N.J. Super. 176, 186

(App. Div. 2018); see also State v. S.B., 230 N.J. 62, 67 (2017) (holding

A-2274-23 9 appellate courts "review a trial court's decision to dismiss an indictment de novo

[when] it [does] not involve 'a challenge to fact-finding on the part of the trial

court'" (quoting State v. Cagno, 211 N.J. 488, 505 (2012))). Accordingly, "[a]

trial court's 'interpretation of the law and the legal consequences that flow from

established facts are not entitled to any special deference.'" Bernardi, 456 N.J.

Super. at 186 (quoting State v. Pomianek, 221 N.J. 66, 80 (2015)).

We see no reason to stray from our holding in Wade. Indeed, as the

motion court correctly recognized, the material facts in the present matter are

nearly identical to those in Wade.

As a threshold matter, defendant did not apply for a permit to carry a

handgun. See Wade, 476 N.J. Super. at 506. Similar to the defendants in Wade,

defendant failed to establish he "would have qualified for a gun-carry permit

excluding the justifiable need requirement." See ibid. As in Wade, "the record"

in this case "does not reflect it would have been futile for [defendant] to have

applied for a permit even if the absence of the justifiable need provision." See

id. at 507. As we explained in Wade, "law-abiding citizens are not free to ignore

a statute and presume that they would have been granted a permit but for one

potentially invalid provision of a permit statute." Ibid.

A-2274-23 10 Nor are we convinced defendant was deprived of his right to due process

under the federal or state constitutions. See U.S. Const. amend. XIV; N.J. Const.

art. I, ¶ 1. "A fundamental element of due process is that a law 'must give fair

notice of conduct that is forbidden or required.'" Pomianek, 221 N.J. at 84

(quoting FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253 (2012)). Thus,

"[a] person should be on notice that he is engaged in wrongdoing before he [or

she] 'is brought to the bar of justice for condemnation in a criminal case.'" Id.

at 85 (quoting Lambert v. California, 355 U.S. 225, 228 (1957)). "[D]ue process

is satisfied when 'ordinary people can understand what conduct is prohibited.'"

State v. O'Donnell, 255 N.J. 60, 82 (2023) (quoting McDonnell v. U.S., 579 U.S.

550, 576 (2016)).

To support its decision that applying the severability holding in Wade

retroactively would violate defendant's right to fair notice and due warning, the

motion court cited State v. De Santis, 65 N.J. 462 (1974). In De Santis, our

Supreme Court reviewed the defendants' convictions for possession of obscene

publications following the United States Supreme Court's decision in Miller v.

California, 413 U.S. 15 (1973). Id. at 463. In Miller, the Court revised an

unconstitutionally vague test for determining "obscenity" and pronounced a new

test that provided more specificity than New Jersey's definition of obscenity.

A-2274-23 11 Miller, 413 U.S. at 31-37. The De Santis Court found applying the new standard

in Miller retroactively would violate the defendants' due process rights because

the defendants were not on notice of what constituted "obscenity" under the new

test at the time of the offense. De Santis, 65 N.J. at 471-73.

The motion court also cited Bouie v. Columbia, 378 U.S. 347 (1964), for

the same proposition. In Bouie, the petitioners appealed their convictions for

criminal trespass for failing to leave a store after being asked to do so, arguing

that applying the judicial construction of the criminal trespass statute

retroactively violated procedural due process. 378 U.S. at 348-49. The statute

at issue prohibited "entry upon the lands of another" after notice from the owner

prohibiting entry. Id. at 349. The South Carolina Supreme Court affirmed the

petitioners' convictions, reconstructing the trespass statute to also prohibit

remaining on the lands of another after being asked to leave. Id. at 350. The

United States Supreme Court reversed the petitioners' convictions, finding at the

time of their conduct, they did not violate the statute as it was written. Id. at

352-55. According to the Court, "a deprivation of the right of fair warning can

result not only from vague statutory language but also from an unforeseeable

and retroactive judicial expansion of narrow and precise statutory language."

Id. at 352.

A-2274-23 12 Here, unlike the litigants in De Santis and Bouie, defendant's actions

violated N.J.S.A. 2C:39-5(b)(1) as worded at the time of his offense.

Specifically, at the time of defendant's conduct, and at present, under N.J.S.A.

2C:39-5(b)(1): "Any person who knowingly has in his possession any handgun

. . . without first having obtained a permit to carry the same . . . is guilty of a

crime." Accordingly, the motion court's reliance on De Santis and Bouie is

misplaced.

Moreover, Bruen does not alter the elements of unlawful possession of a

handgun without a permit under N.J.S.A. 2C:39-5(b)(1). 597 U.S. at 80

(Kavanaugh, J., concurring) (recognizing that the six states "potentially

affected" by the decision, including New Jersey, could "continue to require

licenses for carrying handguns for self-defense"). The construction of N.J.S.A.

2C:39-5(b)(1) is not "unexpectedly broadened" as the statute was in Bouie. See

378 U.S. at 353. Indeed, we implicitly applied our severability holding in Wade

retroactively by concluding "N.J.S.A. 2C:39-5(b)(1) was constitutional and

enforceable at the time of [the] defendants' arrest." 476 N.J. Super. at 511.

Similarly, the severability holding in Wade does not pronounce a new rule

or test. See State v. Knight, 145 N.J. 233, 252 (1996) (finding further analysis

is needed when determining whether to apply a new rule retroactively).

A-2274-23 13 Eliminating the justifiable need requirement "did not change the requirement

that a person obtain a permit before lawfully carrying a gun in public." Wade,

476 N.J. Super. at 505; see also Law Enf't Directive No. 2022-07, at 1. A person

of ordinary intelligence would understand that N.J.S.A. 2C:39-5(b)(1) required

an individual to obtain a permit to lawfully possess a handgun outside the home.

Nor is there any issue of vagueness or uncertainty in the statute. N.J.S.A.

2C:39-5(b)(1) provided adequate notice that knowingly possessing a handgun

without a permit constituted a crime at the time of defendant's offense. The

elements of unlawful possession of a handgun without a gun-carry permit remain

the same, even though the requirements for obtaining a permit have been

revised. We therefore conclude there was no due process violation here.

Reversed and remanded for reinstatement of count two of the indictment.

We do not retain jurisdiction.

A-2274-23 14