STATE OF NEW JERSEY VS. ERIC SHELTON (13-04-00935, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: March 17, 2017
• Docket: A-0944-15T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0944-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ERIC SHELTON,

Defendant-Appellant. ____________________________

Submitted February 7, 2017 – Decided March 17, 2017

Before Judges Fasciale and Gilson.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-04-00935.

Spencer & Associates, L.L.C., attorneys for appellant (Remi L. Spencer, of counsel and on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Maria I. Guerrero, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

PER CURIAM

Following the denial of his motion to dismiss one of the

charges against him, defendant Eric Shelton pled guilty to second- degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).

Defendant was sentenced to five years in prison with three years

of parole ineligibility. He now appeals the denial of his motion

to dismiss the count of the indictment charging him with unlawful

possession of a handgun. We affirm.

I.

Defendant was walking on a street when a police officer

stopped him believing that defendant matched the description of a

burglary suspect. As part of the investigatory stop, the officer

frisked defendant and felt a bulge in defendant's front pants

pocket. Defendant told the officer that he had an unloaded gun.

As the officer was removing the gun, the defendant struck the

officer and ran away. Ultimately, defendant was apprehended and

arrested.

A grand jury indicted defendant on three counts: count one,

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b); count two, fourth-degree aggravated assault, N.J.S.A. 2C:12-

1(b)(5)(a); and count three, fourth-degree resisting arrest,

N.J.S.A. 2C:29-2(a).

Defendant moved to dismiss count one of the indictment,

contending that the handgun was inoperable, that it had lost the

characteristics of its original design and, therefore, it was not

a handgun. At a hearing on the motion, the State called Lieutenant

2 A-0944-15T4 Peter Carbo, who is the commanding officer of the Essex County

Sheriff's Department's ballistic unit. It was stipulated that

Lieutenant Carbo was an expert in ballistics and firearms.

Lieutenant Carbo had prepared two reports on the handgun

found on defendant. Both reports concluded that the handgun was

inoperable in its current condition because "[a]pproximately one

third of the barrel is missing from the forcing cone area forward

rendering this firearm incapable of firing a projectile through

the barrel."

At the hearing, Lieutenant Carbo testified that the handgun

was a forehand model break-top .32 caliber revolver, manufactured

by Ira Johnson. He explained that the manufacturer had gone out

of business in 1916, and he opined that this particular revolver

was made "around 1907."

Lieutenant Carbo confirmed the conclusions of his written

reports that the handgun was not operable in its current condition.

He went on to testify, however, that the revolver "could be made

readily -- readily operable." While acknowledging that his lab

did not have a matching barrel, Lieutenant Carbo explained that

such barrels are available for purchase and the barrel could be

replaced. Lieutenant Carbo then opined that if the barrel were

replaced, the revolver would be able to fire a bullet. Thus, the

3 A-0944-15T4 Lieutenant opined that the revolver was not permanently inoperable

and it was capable of being made operable.

Based on the testimony of Lieutenant Carbo, the trial court

denied defendant's motion to dismiss the count of the indictment

that charged defendant with unlawful possession of a handgun.

Relying on our Supreme Court's decision in State v. Gantt, 101

N.J. 573 (1986), and our decision in State v. Orlando, 269 N.J.

Super. 116 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994),

the trial court held that the revolver needed to be originally

designed to fire a bullet, ball or projectile. The court also

held that the only exception to the original design requirement

was if the gun was so mutilated that it had lost its ability to

function as a gun. The trial court then found that Lieutenant

Carbo had testified that the revolver was originally designed to

fire a bullet and that it was still able to function as a gun if

the barrel was replaced.

As previously noted, defendant thereafter pled guilty to

count one, admitting that he possessed a handgun without a permit.

He now appeals the denial of his motion to dismiss count one of

the indictment.

II.

On appeal, defendant argues:

4 A-0944-15T4 I. THIS COURT SHOULD REVERSE THE TRIAL COURT'S DECISION AND DISMISS COUNT I OF THE INDICTMENT BECAUSE THE STATE'S EVIDENCE FAILED TO ESTABLISH THAT MR. SHELTON POSSESSED A WEAPON

A. The Applicable Legal Standard

B. A Handgun that is Not Operable and Not Capable of Being Made Operable Does Not Meet the Statute's Definition of a Firearm or a Weapon, and, Therefore, Precludes Prosecution of the Unlawful Possession of a Weapon Pursuant to N.J.S.A. 2C:39-5(b)

C. The Handgun Had Lost the Characteristics of its Original Design and Manufacture, and, Therefore, it is Not a Handgun

Our review of the trial judge's decision to dismiss an

indictment is guided by established legal principles. "[T]he

decision whether to dismiss an indictment lies within the

discretion of the trial court, and that exercise of discretionary

authority ordinarily will not be disturbed on appeal unless it has

been clearly abused." State v. Eldakroury, 439 N.J. Super. 304,

309 (App. Div.) (alteration in original) (quoting State v. Hogan,

144 N.J. 216, 229 (1996)), certif. denied, 222 N.J. 16 (2015).

Our review of a trial court's interpretation of the law, however,

is de novo. State v. Grate, 220 N.J. 317, 329-30 (2015).

A trial court should not dismiss an indictment except on the

clearest and plainest grounds where it is "manifestly deficient

5 A-0944-15T4 or palpably defective." State v. Saavedra, 433 N.J. Super. 501,

514 (App. Div. 2013) (quoting Hogan, supra, 144 N.J. at 228-29),

aff'd, 222 N.J. 39 (2015). When reviewing a motion to dismiss,

the court must construe the facts in the light most favorable to

the State. State v. Fleischman, 383 N.J. Super. 396, 398 (App.

Div. 2006), aff’d, 189 N.J. 539 (2007). "As long as an indictment

alleges all of the essential facts of the crime, the charge is

deemed sufficiently stated." State v. Schenkolewski, 301 N.J.

Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997).

We have explained that "[t]he quantum of this evidence . . . need

not be great." Ibid.

Here, defendant was charged with unlawful possession of a

handgun in violation of N.J.S.A. 2C:39-5(b). That statute states:

Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same . . . is guilty of a crime . . . .1

To convict defendant, the State must prove three elements: (1)

there was a handgun; (2) defendant knowingly possessed the handgun;

and (3) defendant did not have a permit to possess such a weapon.

1 Defendant was found to be in possession of the handgun in October 2012. N.J.S.A. 2C:39-5 was amended effective August 8, 2013. The language we quoted is from the statute in effect on October 12, 2012.

6 A-0944-15T4 Model Jury Charge (Criminal), "Unlawful Possession of a Handgun"

(2011).

On this appeal, we focus on the first element; that is,

whether the device found on defendant was a handgun. A handgun

is defined as "any pistol, revolver or other firearm originally

designed or manufactured to be fired by the use of a single hand."

N.J.S.A. 2C:39-1(k). Focusing on the plain language of that

definition, there is no requirement that the handgun be operable.

Instead, the definition focuses on the original design and that

the gun was capable of being fired by the use of a single hand.

Our Supreme Court and this court have reviewed statutory

provisions concerning handguns and firearms in the context of

imposing mandatory terms under the Graves Act, N.J.S.A. 2C:43-

6(c). See Gantt, supra, 101 N.J. 573; Orlando, supra, 269 N.J.

Super. 116; see also State v. Harmon, 203 N.J. Super. 216, 227

(App. Div. 1985), rev'd on other grounds, 104 N.J. 189 (1986). In

all of those cases, both the Supreme Court and our court have held

that there is no requirement that a weapon be operable to meet the

definition of a firearm or a handgun.

For example, in Gantt, the Supreme Court held that a firearm

is determined in terms of its original design. The Court went on

to identify one exception to the general design requirement. That

exception applies when a gun, originally designed to be lethal,

7 A-0944-15T4 is so mutilated or destroyed that it can no longer be called a

gun. Thus, the Court explained, "we prefer to state the issue not

in terms of inferring 'operability' from design, but in the more

straightforward terms of merely inquiring whether an object

designed to deliver deadly force has been so substantially altered

as no longer to qualify as such." Gantt, supra, 101 N.J. at 589.

The Court then went on to quote our decision in State v.

Morgan:

It may become a question of fact as to whether a particular device possesses or retains the characteristics of a firearm as thus defined. Conceivably, although having initially possessed such characteristics, it may have lost them through mutilation, destruction or disassembly. Where there appears to be a legitimate dispute as to whether any such device possesses or retains the essential characteristics . . . [t]hat question should be resolved as any other question of fact.

[Ibid. (alterations in original) (quoting State v. Morgan, 121 N.J. Super. 217, 219 (App. Div. 1972)).]

The issue of so-called "inoperability" should enter the case only if it bears on the question of design–only if and when substantial evidence is introduced, from whatever source it may come, tending to show either that the object is of innocuous design, or that it has undergone such substantial alteration or mutilation that the instrument has completely and permanently lost the characteristics of a real gun.

[Id. at 590.]

8 A-0944-15T4 Consistent with Gantt, we have held that a gun used by a

defendant to commit armed robbery was a firearm even when the gun

was inoperable because the barrel had been stuffed and the firing

pin had been removed. Orlando, supra, 269 N.J. Super. at 127-28.

We noted that the weapon need not be operable, but only be proven

to be a firearm based on the original design. Id. at 130-131.

In summary, both the plain language of the statutory

definition of a handgun and the cases interpreting firearms, which

includes handguns, define a handgun by its original design. Thus,

there is no requirement that the weapon be operable. The one

exception to the design requirement is that the gun still retains

the characteristics of a gun. Thus, a fact question can arise if

the gun is so mutilated, destroyed, or disassembled that it no

longer retains the essential characteristics of a gun.

Here, there was sufficient evidence for the motion judge to

find that the handgun found on defendant was originally designed

to be operable. Lieutenant Carbo, an expert in ballistics and

firearms, testified that the gun was originally designed to act

as a revolver. He also testified that while the gun was currently

inoperable, it could be made operable by replacing the barrel.

Those facts were sufficient to satisfy the State's burden at a

motion to dismiss.

9 A-0944-15T4 Defendant makes two related arguments. First, he contends

that a handgun that is not operable and not capable of being made

operable does not meet the statutory definition of a firearm or

weapon. First, it is important to note that defendant was indicted

and pled guilty to unlawful possession of a handgun. As already

pointed out, a handgun is simply defined as "any pistol, revolver

or other firearm originally designed or manufactured to be fired

by the use of a single hand." N.J.S.A. 2C:39-1(k). The

definitions of firearms and weapons are helpful in construing the

meaning of a handgun, but they do not control. In Gantt, the

Supreme Court explained that firearms included within its

definition a handgun. Gantt, supra, 101 N.J. at 584. The Court

went on to reject the argument that handgun was modified by the

language "or any gun . . . in the nature of a weapon from which

may be fired or ejected any . . . missile or bullet." Ibid.

(alterations in original) (quoting N.J.S.A. 2C:39-1(f)). The

Court then explained that the "operative word in the clause is the

disjunctive 'or,' and as such, it does not modify" handgun, which

is defined in terms of its original design. Ibid.

Defendant's arguments concerning whether the handgun was

capable of being made operable or whether it had lost the

characteristics of its original design, is a fact question that

was never reached in the context of this case. Lieutenant Carbo

10 A-0944-15T4 testified that the handgun found on defendant was capable of being

made operable and was not permanently inoperable. That testimony

was sufficient to satisfy the State's burden on a motion to

dismiss. If defendant had wanted to contest whether this

particular handgun was capable of being made operable or whether

it had lost the characteristics of its original design, defendant

would have had to present that case to a jury, who would have

acted as the fact finder on that issue. See Gantt, supra, 101

N.J. at 588. Defendant, however, elected to plead guilty after

the denial of his motion to dismiss.

Affirmed.

11 A-0944-15T4