STATE OF NEW JERSEY VS. VERE E. CANNONIER (14-02-0418, ATLANTIC COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 27, 2017
• Docket: A-4364-14T4
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-4364-14T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

VERE D. CANNONIER,

Defendant-Appellant.

________________________________

Argued November 28, 2016 – Decided December 20, 2016 Remanded by Supreme Court June 15, 2017 Resubmitted June 15, 2017 – Decided June 27, 2017

Before Judges Nugent and Haas.

On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 14-02-0418.

Joseph E. Krakora, Public Defender, attorney for appellant (Solmaz F. Firoz, Assistant Deputy Public Defender, of counsel and on the brief).

Damon G. Tyner, Atlantic County Prosecutor, attorney for respondent (Brett Yore, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM Following his guilty plea to second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b), and imposition of his

sentence, a five-year custodial term with three and one-half years

of parole ineligibility, defendant Vere D. Cannonier appealed from

the resulting judgment of conviction. Defendant argued:

POINT I

MR. CANNONIER WAS CONVICTED OF CONDUCT THAT DID NOT CONSTITUTE A CRIME AT THAT TIME, THUS HIS CONVICTION IS ILLEGAL AND SHOULD BE VACATED.

A. The Plain Language of the Amnesty Law Establishes that Defendant Committed No Crime on January 13, 2014.

B. Defendant Need Not Establish that He Possessed the Firearm on August 8, 2013.

C. Mr. Cannonier was Precluded from Complying with the Terms of the Amnesty Law Following his Unlawful Arrest on January 13, 2014.

[State v. Cannonier, No. A-4364-14 (App. Div. Dec. 20, 2016).]

The "Amnesty Law" referenced in defendant's arguments was L.

2013, c. 117, "An Act Concerning the Possession of Certain Firearms

(the Act)." The Act became effective August 8, 2013, and expired

on February 5, 2014.

The Act was in effect when defendant was arrested and charged

with second-degree unlawful possession of a weapon, N.J.S.A.

2 A-4364-14T4 2C:39-5(b). Section one (the amnesty provision) of the Act

provided:

1. Any person who has in his possession a handgun in violation of [N.J.S.A. 2C:39-5(b)] or a rifle or shotgun in violation of [N.J.S.A. 2C:39-5(c)] on the effective date of this act may retain possession of that handgun, rifle, or shotgun for a period of not more than 180 days after the effective date of this act. During that time period, the possessor of that handgun, rifle, or shotgun shall:

(1) transfer that firearm to any person lawfully entitled to own or possess it; or

(2) voluntarily surrender that firearm pursuant to the provisions of N.J.S.A. 2C:39- 12.

[L. 2013, c. 117, § 1.]

Defendant did not mention the Act or the amnesty provision

when he pleaded guilty. For that reason, we remanded the matter

to permit defendant to file a motion to withdraw his guilty plea.

Cannonier, supra, No. A-1364-14 (slip op. at 3-4). We explained

that, in the event defendant chose to file the motion, the trial

court would have "the opportunity to evaluate the motion under the

appropriate standard of review and consider, among all other

relevant factors, defendant's argument concerning the Act." Ibid.

The State filed a petition for certification. On June 15,

2017, the Supreme Court granted the petition and "summarily

3 A-4364-14T4 remanded to the Superior Court, Appellate Division for

reconsideration in light of State v. Harper, ___ N.J. ___ (2017)."

State v. Cannonier, ___ N.J. ____ (2017). We have reconsidered

the matter.

In Harper, the Supreme Court held that

[a[ defendant charged under [N.J.S.A. 2C:39- 5(b)] for possession during the amnesty period may raise the [Act] as an affirmative defense. To do so, a defendant must show two things: (1) that he possessed a handgun in violation of N.J.S.A. 2C:39-4(b) or (c) 'on the effective date of this act' — in other words that he unlawfully possessed a handgun on August 8, 2013; and (2) that he took steps to transfer the firearm or voluntarily surrender it during the 180-day period beginning on August 8, 2013, consistent with N.J.S.A. 2C:39-12 – that is, before authorities brought any charges or began to investigate his unlawful possession.

[Supra, ___ N.J. at ___ .]

The Court went on to explain that "[t]o invoke the amnesty

defense, a defendant must abide by the same settled procedures

that apply to other defenses." Ibid. Significantly, the Court

explained that "[a]s with other affirmative defenses, a defendant

must timely assert that defense or it is waived." Id. at ___.

"Generally, a guilty plea constitutes a waiver of all issues

which were or could have been addressed by the trial judge before

the guilty plea." State v. Robinson, 224 N.J. Super. 495, 498

4 A-4364-14T4 (App. Div. 1988). There are exceptions, but none is applicable

here.

In addition, if the suggestion of a defense is raised during

a plea colloquy, then a trial judge must inquire whether the

defendant is factually asserting the defense. See State v. Urbina,

221 N.J. 509, 528 (2015). Here, defendant did not raise the

amnesty defense before pleading guilty, and nothing anyone said

during the plea colloquy suggested the amnesty defense. Defendant

thus waived the defense when he pleaded guilty. For that reason,

we affirm his judgment of conviction.

Affirmed.

5 A-4364-14T4