State v. MielesState v. Mieles
This matter comes on before this court on appeal from a judgment of conviction in a criminal case. The case involves significant statutory construction questions concerning the definition of “handgun” and “firearm” under the New Jersey Code of Criminal Justice,
A four-count indictment was returned in Middlesex County charging defendant with armed robbery of Francis J. Casagrande with a deadly weapon, a handgun,
Defendant‘s absence caused a considerable delay in his sentencing. Further it resulted in his bail being forfeited. The case was reactivated, however, after April 29, 1984 when defendant was arrested at the border while attempting to enter the United States from Mexico. Defendant was subsequently sentenced to a term of ten years in prison on the armed robbery count one-third of which was to be served before he was to be eligible for parole. He was sentenced to a concurrent term of three years on the count of possession of a handgun without a permit. The conviction for aggravated assault was merged into the armed robbery count. Two penalties of $25 were imposed
The events leading to defendant‘s indictment and conviction began on December 15, 1981. The victim, Francis Casagrande, testified that at approximately 6:00 p.m. on that day he left his office in New York City to go to the Harley Hotel for a dinner meeting with some clients. Prior to the dinner Casagrande probably had a few drinks. The meeting ended at about 10:30 or 11:00 p.m. Casagrande then went to another meeting at Figaro‘s where he had approximately three beers. He left Figaro‘s at around 3:00 a.m. on December 16, 1981 and at that time hailed a taxicab being operated by defendant. Defendant agreed to take Casagrande to defendant‘s home in Edison for $50.
Unfortunately all did not go well during the ride. Defendant at one time drove in the wrong direction, an action which angered Casagrande. Eventually, however, the cab reached Casagrande‘s home and Casagrande then paid defendant with a $50 bill, left the cab and walked almost 100 feet to his house. Defendant also left the cab. He came up to Casagrande, grabbed him by the back of the collar and demanded an additional payment. Casagrande suggested that defendant come into the house and call the taxi company or the police, a suggestion defendant did not accept. Instead defendant took more immediate steps to enforce his demands. He drew a handgun causing Casagrande to raise his hands above his head. Defendant then asked Casagrande where he kept his money. When Casagrande indicated that it was in his right-hand pants pocket defendant put the gun to Casagrande‘s head and robbed him of the money in the pocket, between $20 and $60. Not surprisingly these events frightened Casagrande.
During the cross-examination of Casagrande defendant‘s attorney attempted to develop facts concerning how frequently Casagrande returned to New Jersey by cab from New York. He also sought specific information concerning the persons with him in New York. The prosecutions’ objection to this testimony on the grounds of relevancy was sustained.
Lieutenant Joseph N. Shirley of the Edison Township Police Department, an expert in the test firing of firearms, testified at the trial. He described the weapon as a pellet gun or BB gun operated by spring action. Shirley said it fired a small projectile called a “BB.” Shirley had test-fired the gun and found it to be operable. The prosecutor asked Shirley whether the gun was a firearm under New Jersey law. While Shirley answered that it was, the court then sustained defendant‘s objection to the question saying it was a question for the judge. The prosecutor did not attempt to pursue this line of questioning further.
Inasmuch as the gun did not fire conventional bullets the case raised issues concerning whether the gun was a “handgun,” “firearm” and “deadly weapon” within the contemplation of the New Jersey Code of Criminal Justice. It is evident that Shirley was called because of these issues. The judge in conformity with his ruling during Shirley‘s testimony charged the jury without objection from defendant that the weapon recovered was a firearm within the definition of firearm in
(1) The conviction for unlawful possession of a handgun without having obtained a permit (Count Two) must be reversed because a spring-loaded BB gun is not a `Handgun’ within the Contemplation of
N.J.S.A. 2C:39-5b .(2) The conviction for aggravated assault (Count Four) must be reversed because defendant did not point a `firearm’ at the victim, as contemplated in
N.J.S.A. 2C:12-1b(4) .(3) The conviction for first degree robbery (Count 1) must be reversed because the State adduced no evidence to support a finding that defendant used or threatened the immediate use of a `Deadly Weapon.’
(4) The acquittal for possession of a weapon for an unlawful purpose (Count Three) logically negates an essential element required for the conviction on counts one and four of the indictment and those convictions must therefore be reversed.
(5) The trial judge erred in not permitting full cross examination of the alleged victim, the complainant, and the defendant is therefore entitled to a new trial.
(6) Bail should be reinstated.
As we have indicated the principal issues raised on this appeal involve determination of whether the instrument defendant used was a handgun and firearm and whether it could be considered a deadly weapon. These issues though dependent for their resolution on the facts concerning defendant‘s gun are largely a matter of statutory construction.
The second count of the indictment charged that defendant was in unlawful possession of a handgun contrary to
Any person who knowingly has in his possession any handgun, including any antique handgun without first having obtained a permit to carry the same as provided in section 2C:58-4, is guilty of a crime of the third degree.
A handgun includes a pistol, revolver or other firearm designed or manufactured to be fired by the use of a single hand.
Knowingly under circumstances manifesting extreme indifference to the value of human life points a firearm, as defined in section 2C:39-1f., at or in the direction of another, whether or not the actor believes it to be loaded.
Accordingly unless the gun was a “firearm” defendant could not be convicted under either the second or fourth counts of the indictment.1 Firearm is defined in
“Firearm” means any hand gun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.
It is evident that
Because the judge indicated that he would decide whether the weapon was a firearm the evidence describing the gun is not extensive. It is however undisputed that the gun operated by spring action, a method of propulsion enumerated in the second sentence of
While we find no direct precedent supporting our result that an instrument of the type involved in this case is a firearm within
We are aware that under our construction certain licensing and other regulatory provisions of Chapter 58 of the New Jersey Code of Criminal Justice are applicable to BB guns. One example is that a person under 18 years of age will not be permitted to acquire such a weapon.
We do not know whether persons owning such instruments have sought permits to carry them. The record is silent on the point. But we do know that
Defendant contends that he was not armed with a deadly weapon and thus the evidence does not support his conviction for armed robbery, a first degree offense. Under
The question of whether the gun was a deadly weapon was given by the judge to the jury for resolution. The judge‘s charge included a comprehensive definition of deadly weapon and instructed the jury that unless defendant was armed with a deadly weapon then if he was guilty of robbery the offense was of the second degree. Inasmuch as the jury found defendant guilty of the first degree offense it determined the weapon was deadly.
The evidence supported this finding. The gun was loaded, operable and ejected BB‘s. Casagrande testified that defendant put the gun close to his head. Further we are satisfied that the jury could find the instrument could produce serious bodily injury. “Serious bodily injury” means “bodily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.”
We reject defendant‘s contention that his acquittal for possession of a weapon for the unlawful purpose of using it against Casagrande negates an essential element required for his convictions for armed robbery and aggravated assault thus
We see no error in the limitation of the cross-examination of Casagrande. Inasmuch as the scope of cross-examination rests within the discretion of the trial court we will not disturb the trial judge‘s ruling absent a clear abuse of discretion that creates prejudicial error. State v. Petillo, 61 N.J. 165, 169 (1972), cert. den. 410 U.S. 945, 93 S.Ct. 1393, 35 L.Ed.2d 611 (1973). It is certainly questionable as to whether Casagrande‘s transportation habits were germane here for there is no doubt that he went home in defendant‘s taxi and his habits on other nights were not directly related to this case. Further the identity of Casagrande‘s companions was not material. None was present during the robbery.
There is an unclear issue concerning bail. In defendant‘s brief he asserts that a $10,000 cash bail was posted. But on the motion to set aside the forfeiture he asserted that the bail was $20,000 with $2,000 cash forfeited. We cannot account for this discrepancy and the State does not address it in its brief. In fact the judge thought that only $2,000 was involved. On the assumption that only $2,000 was involved we see no error in the ruling of the trial court refusing to set aside the forfeiture of bail. Defendant deliberately absented himself
Affirmed.