NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1508-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
AL J. DELBRIDGE, JR., a/k/a AL J. DELBRIDGE, and AL J. DELBRIDE, JR.,
Defendant-Appellant. _________________________
Argued September 21, 2020 – Decided July 21, 2021
Before Judges Suter and Smith.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 15-03-0372.
David A. Gies, Designated Counsel, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; David A. Gies, on the briefs).
Ednin D. Martinez, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Ednin D. Martinez, on the brief).
PER CURIAM Defendant Al J. Delbridge, Jr. is a person who, based on a prior
conviction, is prohibited by N.J.S.A. 2C:39-7(b)(1) from possessing a handgun.
He appeals his August 1, 2018 judgment of conviction and sentence for violating
this statute. Defendant contends the trial court committed reversible error and
deprived him of a fair trial by not instructing the jury to consider his purpose in
possessing a handgun and the defense of mistake. He claims he intended to turn
the handgun into the police as part of a local buyback program. Defendant also
appeals his sentence, arguing the trial court failed to consider the real-time
consequences of the sentence. We affirm defendant's conviction and sentence.
I.
On November 12, 2014, defendant was arrested in Jersey City for
possession of a handgun. He was charged with second-degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5(b) (count one); second-degree certain
person not to have a weapon due to prior conviction, N.J.S.A 2C:39-7(b) (count
two); fourth-degree possessing a defaced firearm, N.J.S.A. 2C:39-3(d) (count
three); fourth-degree resisting arrest purposefully, N.J.S.A. 2C:29-2(a) (count
four); and fourth-degree obstructing a criminal investigation, N.J.S.A 2C:29-1
(count five). The State dismissed all counts against defendant except for count
2 A-1508-18 two, certain persons not to have weapons, N.J.S.A. 2C:39-7(b)(1), and he was
tried before a jury on this single count.
We glean the relevant facts from the trial. Officer Matthew Scalcione of
the Jersey City Police Department testified that on November 12, 2014, he saw
a man, later identified as defendant, walking westbound on Bostwick Avenue in
the direction of MLK Drive. Defendant made a left onto MLK Drive and then
an abrupt turn in the opposite direction. When defendant saw Officer Scalcione
and his partner, "his facial expression change[d] and his hands went towards his
waistband," which drew the officer's attention, and he saw a bulge. Officer
Scalcione ordered defendant to show his hands and he raised them saying "I ain't
got nothing," but defendant's motion lifted his sweatshirt and Officer Scalcione
saw the butt of a gun. Defendant ran as Officer Scalcione ordered him to stop.
When defendant was tackled, Officer Scalcione heard a "metal clunk" on the
ground. A silver .38 caliber Lorcin handgun with a black grip handle was
recovered. It was defaced but loaded with one round in the chamber and three
rounds in the magazine. Tests on the gun found it to be operable.
Defendant testified he was returning home at about 8:30 p.m. after
drinking "a little bit" with friends at the barber shop where he worked. There
was trash laying outside a garbage can in front of his apartment house. He
3 A-1508-18 picked it up but it was "much heavier than [he] anticipated," and he realized it
was a handgun. Defendant contacted his friend Mike, who told him about a gun
buyback program. He took the handgun inside because there were children
outside.
Defendant's fiancée also told him about a gun buyback program,
suggesting he take it to the police station. Defendant ate dinner, took about a
"half-an-hour" to sober up so he would not "look[ ] crazy," tucked the gun in his
"left pocket" and left his apartment at about 10:20 p.m.
The police station was a few blocks away on Bergen Street. Before
defendant reached it, he saw police cars pull up for what he thought was a raid
on "the guys that's on the corner hustling." To avoid "mess[ing] up [the police]
investigation," he "did an about-face" away from the police and people on the
corner. Two police officers "rush[ed]" him. He claimed he raised his hands and
said he had a gun in his pocket, but the police started to hit him. He "panicked"
and ran, but the police tackled him to the ground. He said he told the police he
found the handgun and did not intend to keep it.
At the conclusion of the trial, defendant's counsel requested jury
instructions on two issues: the defense of mistake and defendant's purpose in
possessing the handgun. He argued defendant did not have the mens rea to
4 A-1508-18 violate N.J.S.A. 2C:39-7(b) "because he believed that there was some sort of a
buyback program or that . . . he was able to give that gun to the police station
without incident . . . ." Counsel also argued the jury should consider defendant's
purpose in possessing the weapon and asked the court to read a hypothetical to
the jury from the commentaries to N.J.S.A. 2C:2-1(c), which read as follows:
A hypothetical situation involving this principle would be where the actor took narcotics from his minor child and was arrested en route to the police station, where the actor intended to turn in the narcotics. In such a hypothetical, there would have been knowing possession, but there would not have been sufficient time to allow the actor to have terminated possession because he was engaged in an endeavor to terminate possession at the time that he was arrested.
The State opposed the proposed instructions. In denying defendant's
requests, the trial court reasoned "the subjective intent" did not have to do with
turning in the weapon. "The mens rea is about possessing a weapon or not
possessing a weapon." The court noted "[t]he question [was] whether
[defendant] had the specific intent, [or] knowledge, that he possessed a weapon."
The court found this case did not involve a mistake of fact because defendant
knew the handgun was not a toy, and it also did not involve a mistake of law
because the law was clear. The trial court added that it would provide a
clarification to the jury if it had a question about possession.
5 A-1508-18 Relying on the model criminal charge for certain persons not to have
weapons, the court instructed the jury that the State was required to prove the
three elements of the offense beyond a reasonable doubt. The second element
was whether defendant "knowingly purchased, owned, possessed or controlled
the firearm on November 12, 2014." The court instructed the jury on issues of
knowledge, possession and actual possession. In relevant part, the jury was
instructed that
[p]ossession cannot merely be . . . passing control, fleeting, or uncertain in its nature. In other words, to "possess" within the meaning of the law, the defendant must knowingly procure or receive the item possessed or be aware of his control thereof for a sufficient period of time to have been able to relinquish his control if he chose to do so.
During deliberations, the jury sent a note asking questions. They
requested the "definition of possession and intent." In response, the court reread
the "certain persons offense" portion of the charge.
The jury also asked "[d]oes intent have any relevance to possession?"
Outside the presence of the jury, defense counsel argued that defendant's intent
to surrender the handgun meant he did not possess it under the statute. The State
argued "possession and intent are two different things." All that the State needed
6 A-1508-18 to show was defendant knew this was a handgun and he possessed or had control
over it.
The court rejected defense counsel's arguments. It resolved the jury's
question by rereading a portion of the certain persons charge that included the
passage: "[t]o 'possess' an item under the law, one must have a knowing,
intentional control of that item accompanied by a knowledge of its character."
The court added that "[i]ntent is in that very definition . . . ." Therefore, in
answering "does intent have any relevance to possession," the court said that "it
does . . . in that context." Shortly after this, the jury returned a verdict of guilty
on the charge of certain persons not to possess a firearm.
Defendant's motion for a new trial was denied. The trial court explained
it declined to read the hypothetical to the jury because the instructions gave "a
complete and adequate definition of possession." The hypothetical was
"misleading," was "not sufficient[ly] analogous" and would not help the jury.
The trial court did not agree that the jury should have been instructed to consider
defendant's purpose in possessing the handgun or the defense of mistake. The
State did not have to prove defendant possessed the handgun for an unlawful
purpose — just that "he possessed the firearm for a sufficient period of time to
have been able to relinquish its control." In a certain persons case,
7 A-1508-18 "[d]efendant's intent with the weapon is not an element of the crime." The trial
court also rejected defendant's argument about mistake. "[I]t would not matter
if the defendant believed he could surrender the firearm. That mistake has no
bearing on his knowledge of possession."
Defendant's requested waiver of the five-year mandatory minimum
sentence requirement under N.J.S.A. 2C:43-6.2, was denied. The court found
that a conviction under N.J.S.A. 2C:39-7(b)(1) for a certain persons offense is
not subject to the "escape valve" provision of N.J.S.A. 2C:43-6.2.
Defendant was sentenced to a five-year term of imprisonment subject to a
five-year period of parole ineligibility. In sentencing defendant, the judge found
aggravating factors three (risk of committing another offense), six (prior
criminal record and seriousness of offense) and nine (need to deter) were in
"equipoise" to mitigating factors seven (defendant has led a law-abiding life for
a substantial period of time) and eleven (imprisonment would entail excessive
hardship). See N.J.S.A. 2C:44-1. The court denied defendant's request to apply
mitigating factors one, two, four, eight and ten. See ibid.
On appeal, defendant raises the following arguments:
POINT ONE
WHERE AN ACCUSED OFFERS AS A DEFENSE A CONCEIVABLY INNOCENT SITUATION TO AN
8 A-1508-18 ALLEGED VIOLATION OF N.J.S.A. 2C:39-7, THE TRIAL JUDGE SHOULD INSTRUCT THE JURY THAT DEFENDANT'S PURPOSE OF POSSESSION MAY BE CONSIDERED AS RELEVANT.
POINT TWO
THE TRIAL JUDGE'S FAILURE TO CHARGE THE JURY WITH DEFENDANT'S "PURPOSE OF POSSESSION" DEFENSE DENIED DEFENDANT A FAIR TRIAL.
A. The trial judge's failure to tailor its jury instruction on "possession" to the unique facts of the case deprived defendant of a fair trial.
B. The repetition of abstract legal principles in response to the jury's question about "possession" and "intent" exacerbated the jury's misunderstanding.
POINT THREE
THE TRIAL JUDGE ERRED WHERE IT DID NOT EXPLAIN TO THE JURY THE EFFECT OF DEFENDANT'S MISTAKEN UNDERSTANDING, IF BELIEVED, ON THE SPECIFIC KNOWLEDGE REQUIRED TO CONVICT.
POINT FOUR
THE TRIAL JUDGE'S REFUSAL TO CONSIDER THE REAL-TIME CONSEQUENCES OF THE PAROLE DISQUALIFIER PERIOD OF N.J.S.A. 2C:39-7 IN LIGHT OF THE AGGRAVATING AND MITIGATING FACTORS WAS A MANIFEST DENIAL OF JUSTICE.
9 A-1508-18 II.
A.
Defendant contends the trial court erred because the jury was not
instructed about his purpose for possessing a handgun; it did not instruct the jury
that his purpose for possessing the handgun was relevant to the charge against
him and did not include the requested hypothetical. By not tailoring the charge
to fit the facts of this case, defendant argues he was denied a fair trial. He claims
the trial court confused the jury by simply repeating its prior instructions when
it answered the jury's question about whether intent has any relevance to
possession.
"Appropriate and proper charges to a jury are essential for a fair trial."
State v. Green, 86 N.J. 281, 287 (1981). "A reviewing court 'must evaluate a
challenged jury instruction in the context of the entire charge to determine
whether the challenged language was misleading or ambiguous . . . .'" State v.
Lora, 465 N.J. Super. 477, 498 (App. Div. 2020) (quoting State v. Nelson, 173
N.J. 417, 447 (2002)). "Because proper jury instructions are essential to a fair
trial, 'erroneous instructions on material points are presumed to' possess the
capacity to unfairly prejudice the defendant." State v. Baum, 224 N.J. 147, 159
(2016) (quoting State v. Bunch, 180 N.J. 534, 541-42 (2004)).
10 A-1508-18 A jury charge is presumed to be proper when it tracks the model jury
charge verbatim because the process to adopt model jury charges is
"comprehensive and thorough." State v. R.B., 183 N.J. 308, 325 (2005). Here,
the trial judge's instruction on certain persons not to have weapons tracked the
model criminal jury charges verbatim.
Defendant argues the judge should have molded the charges to better fit
the facts of this case. "Ordinarily, the better practice is to mold the instruction
in a manner that explains the law to the jury in the context of the material facts
of the case." State v. Concepcion, 111 N.J. 373, 379 (1988). However, the facts
of this case were not confusing or complex and did not "require an intricate
discussion in the charge." State v. Morton, 155 N.J. 383, 422 (1998).
Defendant's objection is that the court did not incorporate the purpose of
possession concept into the charge; he does not contend that it failed to explain
the material facts to the jury. There was no reason to further mold the charge.
Defendant was convicted in 1995 of possession of a controlled dangerous
substance with intent to distribute within 1000 feet of a school, N.J.S.A. 2C:35-
7(a). This statute is one of the offenses listed in N.J.S.A. 2C:39-7(b)(1), which
prohibits a person with such a conviction from "purchas[ing], own[ing],
possess[ing] or control[ling] a firearm . . . ." Defendant acknowledges he could
11 A-1508-18 not possess a weapon. He argues his intent in possessing it — to turn it into the
police — negated any mens rea within the statute because he did not have an
intent to have possession of the handgun for "a sufficient period to have been
able to terminate his possession."
We agree with the trial judge in rejecting the purpose of possession
instruction. To prove a violation of the certain persons statute, the State was
required to prove beyond a reasonable doubt that there was a firearm, that
defendant "purchased, owned, possessed or controlled the firearm," and that
defendant "is a person who previously has been convicted of [a certain
enumerated crime named in the statute] . . . ." Model Jury Charges (Criminal),
"Certain Person Not to Have Any Firearms, (N.J.S.A. 2C:39-7(b)(1))" (rev. Feb.
12, 2018). The court instructed the jury directly from the model charge that "to
possess an item under the law, one must have a knowing intentional control of
that item accompanied by a knowledge of its character." Ibid. (footnote
omitted). The court read this to the jury twice.
The trial court did answer the jury's questions. It advised the jury that
intent had relevance in the context of the "knowing intentional control" of a
weapon. However, the purpose of defendant's possession was not part of the
statute. Therefore, the court was correct not to include "purpose of possession"
12 A-1508-18 as an additional requirement. The trial court was not required to tailor the jury
charge in this manner. There was nothing confusing about the instructions given
by the court.
The trial court did not err in excluding the requested hypothetical.
Factually, it had nothing to do with this case, nor was there any indication it
applied to a conviction under N.J.S.A. 2C:39-7(b)(1).
The trial court's instructions to the jury were consistent with prior cases.
In State v. Brown, the defendant was arrested for shoplifting with a boning knife
in his possession. 185 N.J. Super. 489, 492 (App. Div. 1982). On appeal from
his conviction under N.J.S.A. 2C:39-7, the defendant argued the trial court
should have instructed the jury to consider whether his purpose for possessing
the knife was to use it as a weapon. We affirmed the defendant's conviction
holding that his construction of N.J.S.A. 2C:39-7 would render it "meaningless"
because it then would not be any different than N.J.S.A. 2C:39-4(d), which
makes it a criminal offense for a person to have in his possession a weapon "with
a purpose to use it unlawfully against the person or property of another . . . ."
We concluded there was no need to prove "purpose of possession" under
N.J.S.A. 2C:39-7. Brown, 185 N.J. Super. at 493. All that was needed for a
conviction was "proof, beyond a reasonable doubt, of mere possession by the
13 A-1508-18 convicted felon of one of the weapons enumerated in N.J.S.A. 2C:39-1r . . . ."
Ibid.
In State v. Jones, the defendant was arrested carrying a gym bag that, when
it was searched, contained a twelve-inch knife. 198 N.J. Super. 553, 557 (App.
Div. 1985). We rejected arguments that N.J.S.A. 2C:39-7 was overly broad and
void for vagueness. The "clear statutory purpose is to 'deter those previously
convicted of serious crimes from possessing dangerous weapons.'" Id. at 563
(quoting State v. Harper, 153 N.J. Super. 86, 89 (App. Div.1977)). We
expressed concern that some objects could be used as weapons and also have
innocent uses. In that situation, "the circumstances attending . . . possession
may be considered." Id. at 565.
That was not the situation here. There was no question the object
defendant possessed was a handgun and he knew it at the time. There also was
no question that given his prior conviction, he was proscribed from possessing
a handgun. Jones does not suggest that "circumstances attending possession"
must be considered when the nature of the weapon is clear.
The authority cited by defendant does not require a different result. In
State v. Martin, the defendant was charged with murder in the arson death of the
victim. 119 N.J. 2, 5 (1990). The jury charge followed the prosecution's theory
14 A-1508-18 of the case that the defendant deliberately set a fire by using an accelerant but
did not include facts suggested by the defendant that the fire was accidental.
The Court determined the defendant's version of the facts should have been
included.
That was not the situation here. There was no disagreement about the
facts; the issue was whether defendant's purpose of possession negated an
element of the offense. The case has no application here. We are satisfied the
trial court did not err in its instruction to the jury, its denial of defendant's
request to read the requested hypothetical or in its response to the jury's
questions.
B.
Defendant argues the trial court should have instructed the jury about the
defense of mistake because he thought he could carry the handgun to the police
station to turn it in. He also did not know the gun buyback program had stopped.
Defendant argues these mistakes negated his intent to possess the firearm.
We find no error by the trial court in rejecting these arguments. The State
was required to prove beyond a reasonable doubt that defendant "acted
knowingly in possessing the item." To find defendant guilty, he must have
knowingly purchased, owned, possessed or controlled the weapon. N.J.S.A.
15 A-1508-18 2C:39-7(b); see Model Jury Charges (Criminal), "Certain Persons Not to Have
Any Firearms, (N.J.S.A. 2C:39-7(b)(1))" n.9 (rev. Feb. 12, 2018) (stating
"N.J.S.A. 2C:2-2(c)(3) applies the culpable state of knowingly pursuant to
N.J.S.A. 2C:2-2(b)(2) to this statutory crime."). "For a person to act knowingly
with respect to the nature of his conduct or the attendant circumstances, he must
be aware of the nature of his conduct or the presence of such circumstances or
of a high probability they are present." State v. Overton, 357 N.J. Super. 387,
393 (App. Div. 2003) (citing N.J.S.A. 2C:2-2(b)(2)).
None of defendant's arguments negate his knowledge. The certain persons
offense required knowing possession. There was no mistake by defendant that
he knew this was a handgun. By convicting defendant, the jury determined the
handgun was within his control "for a sufficient period of time to have been able
to relinquish his control, if he chose to do so." His alleged mistaken
understanding about the buyback program or his ability to carry the handgun to
the police station to turn it in did not negate his knowing intentional control.
In State v. Wickliff, a bail collection agent entered a home in search of a
fugitive without consent and later was convicted of fourth-degree criminal
trespass. 378 N.J. Super. 328, 331 (App. Div. 2005). He argued he was
mistaken about his legal authority to enter the home. In rejecting his argument,
16 A-1508-18 we held that "[t]he mistakes of law covered by subsection (a) [N.J.S.A. 2C:2-
4(a)] do not involve errors over whether actions are criminal; they are mistakes
concerning legal issues that are relevant to proof of the elements of an offense."
Id. at 335.
None of the alleged mistakes here related to the elements of the certain
persons not to possess weapons offense. Defendant knew about the gun and
decided to take control of it while determining what to do with it.
In State v. Sexton, the defendant was handed a gun that he was told was
not loaded and while handling it, the gun discharged, killing the victim. 160
N.J. 93, 95 (1999). Although the Court held that this factual mistake was
relevant to negate the required mental state for the charge of murder, which is a
specific intent crime, it did not negate the mental state for reckless manslaughter.
Id. at 102-05.
Here, defendant's mistake about the buyback program did not negate his
knowing possession of the handgun. We are satisfied the trial court did not err
by rejecting defendant's request to charge the jury with the defense of mistake.
C.
We review a judge's sentencing decision under an abuse of discretion
standard. State v. Fuentes, 217 N.J. 57, 70 (2014). We must determine whether:
17 A-1508-18 (1) the sentencing guidelines were violated; (2) the aggravating and mitigating factors found by the sentencing court were not based upon competent and credible evidence in the record; or (3) "the application of the guidelines to the facts of [the] case makes the sentence clearly unreasonable so as to shock the judicial conscience."
[Ibid. (alteration in original) (quoting State v. Roth, 95 N.J. 334, 364-65 (1984)).]
Defendant contends the trial court erred by not considering the real time
consequences of the five-year period of parole disqualification based on its
conclusion the "escape valve" provision of N.J.S.A. 2C:43-6.2 did not apply to
a conviction under N.J.S.A. 2C:39-7(b)(1).
A conviction under N.J.S.A. 2C:39-7(b)(1) carries a minimum term of
imprisonment "which shall be fixed at five years, during which the defendant
shall be ineligible for parole." Defendant was sentenced in accord with this
statute.
The Graves Act escape valve provision in N.J.S.A 2C:43-6.2 does not
apply to a conviction under N.J.S.A. 2C:39-7(b)(1). The escape valve statute
applies to sections N.J.S.A. 2C:39-7(b)(2) and (b)(3), but not subsection (b)(1).
See N.J.S.A. 2C:43-6(c); see also State v. Nance, 228 N.J. 378, 390 n.1 (2017)
(explaining which offenses fall under The Graves Act).
18 A-1508-18 We are not to "'rewrite a plainly-written enactment of the Legislature [or]
presume that the Legislature intended something other than that expressed by
way of the plain language.'" State v. Rivastineo, 447 N.J. Super. 526, 529-30
(App. Div. 2016) (alteration in original) (quoting Marino v. Marino, 200 N.J.
315, 329 (2009)). Although N.J.S.A. 2C:39-6.2 provides for exceptions to
mandatory minimum sentences, the only section relevant here is subsection (a),
and that subsection only applies to defendants under the escape valve provision
of N.J.S.A. 2C:39-6(c). Because defendant is not within section 6(c), he cannot
be within section 6.2(a). Therefore, we agree with the trial court that the Graves
Act escape value does not apply here.
We are satisfied the trial court did not abuse its discretion in sentencing
defendant. "A judge's sentencing analysis is a fact-sensitive inquiry, which must
be based on consideration of all the competent and credible evidence raised by
the parties at sentencing." State v. Jaffe, 220 N.J. 114, 116 (2014).
In this case, the court carefully considered all the relevant aggravating and
mitigating factors, explaining why it found and rejected certain factors and the
weight given to each. As the court noted, defendant walked on the streets of
Jersey City with a loaded gun, ran from the police, and then struggled with them
when he was apprehended. Plainly, the jury rejected his arguments. There was
19 A-1508-18 nothing shocking about the sentence given his conviction under N.J.S.A. 2C:39-
7(b)(1).
Affirmed.
20 A-1508-18