State v. Gero

877 A.2d 201, 152 N.H. 379, 2005 N.H. LEXIS 104
CourtSupreme Court of New Hampshire
DecidedJune 23, 2005
DocketNo. 2004-331
StatusPublished
Cited by5 cases

This text of 877 A.2d 201 (State v. Gero) is published on Counsel Stack Legal Research, covering Supreme Court of New Hampshire primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Gero, 877 A.2d 201, 152 N.H. 379, 2005 N.H. LEXIS 104 (N.H. 2005).

Opinion

Broderick, C.J.

The defendant, Alfred J. Gero, pled guilty to one charge of criminal threatening, see RSA 631:4 (Supp. 2004). On appeal, he argues that the Superior Court (Sullivan, J.) erred in granting the State’s post-plea motion to destroy seized property. We vacate in part and remand.

The following facts are not in dispute. The defendant, who was a police officer at the time, was arrested for allegedly threatening his former girlfriend. In connection with his arrest, State Police seized from the defendant over twenty firearms, plus ammunition.

The State originally indicted the defendant on one count of felony criminal threatening, alleging that he:

did threaten to commit a crime against the person of another by means of a deadly weapon, with a purpose to terrorize [the victim] and/or her family members, to wit: [He] took a pistol out of his gun cabinet and said he would “blow them away____”

The threat was alleged to have occurred at the defendant’s residence in Winchester. Subsequently, the State amended the charge to a class A misdemeanor. The amended indictment alleged that the defendant:

did threaten to commit a crime against the person of another with a purpose to terrorize [the victim] and/or her family members, to wit: [He] said he would “blow them away____”

The defendant pled guilty to the amended charge. Thereafter, the State moved to destroy the seized property. Following a hearing on the State’s motion, the trial court issued a written order releasing four guns to the [381]*381defendant’s brother and two guns to the defendant’s son, and ordering the remaining items destroyed.

The trial court found that although two of the four guns released to the defendant’s brother were in the defendant’s possession at the time of his arrest, they belonged to his brother. The other two guns released to the defendant’s brother had belonged to the defendant’s father and grandfather. The court’s ruling as to those firearms was “based in part on the defendant’s representation that he [would] possess no guns in the future and his brother’s representations that if he [were] awarded the guns, he [would] keep [them] and not allow the defendant any access to [them].” The trial court found that two guns, although in the defendant’s possession at the time of his arrest, belonged to the defendant’s son. As for the remaining property, the trial court, with no discussion, ruled that “the public interest requires destruction of the remaining articles seized.” This appeal followed.

The defendant does not challenge the release of four firearms to his brother and two to his son. Instead, he argues that destruction of the remaining items was neither in the public interest nor consistent with due process because: (1) the items were not contraband and were not used in the commission of the crime; and (2) he did not seek return of the items, but rather their release to his brother. The State asserts that the trial court’s order should be upheld because: (1) the defendant can no longer legally possess any firearms, thus rendering any infringement upon his property rights minimal; (2) the hearing on the State’s motion afforded the defendant sufficient due process; and (3) the weapons were related to the defendant’s threat, and therefore the public has a strong interest in having them destroyed.

We review a trial court’s ruling on the disposition of property under RSA 595-A:6 for an unsustainable exercise of discretion. State v. Hebert, 122 N.H. 1089, 1090 (1982); cf. State v. Lambert 147 N.H. 295, 296 (2001) (explaining unsustainable exercise of discretion standard). “To show that the trial court’s decision is not sustainable, the defendant must demonstrate that the court’s ruling was clearly untenable or unreasonable to the prejudice of his case.” Lambert, 147 N.H. at 296 (quotation omitted).

RSA 595-A:6 (2001) provides, in relevant part:

If an officer in the execution of a search warrant, or by some other authorized method, finds property or articles he is empowered to take, he shall seize and safely keep them under the direction of the court or justice so long as necessary to permit them to be produced or used as evidence in any trial. Upon application by a prosecutor, defendant, or civil claimants, the [382]*382court, prior to trial or upon an appeal after trial, shall, upon notice to a defendant and hearing, and except for good cause shown, order returned to the rightful owners any stolen, embezzled or fraudulently obtained property, or any other property of evidential value, not constituting contraband____All other property seized in execution of a search warrant or otherwise coming into the hands of the police shall be returned to the owner of the property, or shall be disposed of as the court or justice orders, which may include forfeiture and either sale or destruction as the public interest requires, in the discretion of the court or justice, and in accordance with due process of law.

In this case, the trial court ruled that the public interest required destruction of the remaining property, and the parties’ arguments on appeal focus upon the application of the public interest requirement to the facts of this case. Because the parties do not contest the trial court’s treatment of this case under the “[a]ll other property” clause of the statute, we conduct our analysis accordingly.

The State titled its motion, “State’s Motion to Destroy Seized Property Pursuant to RSA 595-A:6,” and requested the trial court to “[o]rder that the firearms and ammunition seized, be destroyed by the New Hampshire State Police.” RSA 595-A:6 provides, however, that certain items seized by the police shall be disposed of “as the court or justice orders, which may include forfeiture and either sale or destruction as the public interest requires.” (Emphasis added.) A plain reading of this provision reveals that a court may order that property be sold or destroyed pursuant to RSA 595-A:6 only if it first orders that the property be forfeited. Forfeiture, which is not defined in RSA 595-A:6, is commonly defined as follows:

1 a : the divesting of the ownership of a particular property of a person on account of the breach of a legal duty and without any compensation to him: the loss of property or money on account of one’s breach of the terms of an agreement, bond, or other legal obligation b : loss of some right, privilege, estate, honor, office, or effects in consequence of a crime, offense, breach of condition, or other act.

Webster’s Third New International Dictionary 891 (unabridged ed. 2002); see RSA 21:1, :2 (2000) (in interpreting statute, words shall be construed according to common and approved usage). Thus, before a court orders that property be sold or destroyed pursuant to RSA 595-A:6, it [383]*383must first divest an individual of his or her ownership in the property by ordering forfeiture.

The defendant asserts that the trial court erred in ordering the property destroyed rather than releasing it to his brother. At the hearing on the State’s motion, the defendant, through counsel, stated:

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Cite This Page — Counsel Stack

Bluebook (online)
877 A.2d 201, 152 N.H. 379, 2005 N.H. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-gero-nh-2005.