On October 21, 1996 the Superior Court of New Jersey, Appellate Division upheld Joseph Pelleteri's conviction for possessing an "assault firearm", specifically, a Marlin Model 60 .22 caliber rifle.
This is why, IMHO, residents of New Jersey should possess nothing that even approaches the definition of an "Assault Firearm". So, if you have a semi-auto with a pistol grip, do not have a compensator that might be confused with a flash suppressor. Do not have a 15 round magazine because someone might be able to cram a 16th round in. If you have a semi-suto shotgun do not have a magazine extension anywhere in your possession which could extend the capacity above six shells. If you want to cut the barrel of your shotgun down to riot gun length have it done by a professional gunsmith, put it in writing that you want the barrel to be at least 18.25 inches, and measure it three times on the inside to a closed bolt with a dowel or rod before you bring it home. New Jersey does allow its residents to have some fine firearms that are well suited to home defense and preserving the security of a free State (such as the Model 12 and post-ban semi-autos) but the police, the prosecutors and the Courts take the lines they have drawn in the sand very seriously.
Complete opinion in Pelleteri follows:
Cite as State v. Pelleteri, 294 N.J.Super. 330 (1996)
STATE of New Jersey, Plaintiff-Respondent,
v.
Joseph PELLETERI, Defendant-Appellant.
Superior Court of New Jersey, Appellate Division.
Argued Oct. 2, 1996.
Decided Oct. 21, 1996.
Joseph T. Afflitto, Sr., Wayne, for defendant-appellant
(Afflitto, Raimondi & Afflitto, attorneys; Joseph T. Afflitto, Sr.,
of counsel and on the brief).
Thomas E. Bracken, Assistant Sussex County Prosecutor, for
plaintiff-respondent (Dennis O'Leary, Prosecutor, attorney; Mr.
Bracken, on the letter-brief).
Before Judges SHEBELL, [footnote 1] BAIME, and BRAITHWAITE.
The opinion of the court was delivered by BAIME, J.AD.
On May 30, 1990, our Legislature proscribed the "knowing"
possession of "assault firearms." N.J.S.A. 2C:39-5f. Persons
legally in possession of such firearms prior to the effective date
of the statute could retain these weapons by obtaining the
appropriate registration. N.J.S.A. 2C:58-12. Included in the
definition of "assault firearm" is "[a] semi-automatic rifle with
a fixed magazine capacity exceeding [fifteen] rounds." N.J.S.R
2C:39-1w(4). Defendant was convicted of "knowingly" having in his
possession an assault firearm, a semi-automatic rifle with a
magazine capacity of seventeen cartridges. He appeals, contending
that the trial judge erred by rejecting his claims of mistake of
law and mistake of fact, and by instructing the jury it could
convict if it found he knowingly possessed the weapon even if he
did not know its fixed capacity exceeded fifteen rounds. We
affirm.
I.
We need not recount the facts at length. Defendant, an expert
marksman who at one point was employed as a firearms instructor,
won a Marlin semi-automatic rifle in the late 1980's by placing
first in a police combat match. An avid gun collector, defendant
placed the weapon in his safe. Defendant claimed that he neither
inspected nor used the firearm. When the police recovered the gun
from defendant's residence in December 1993, it still had the
manufacturer's tags and the owner's manual attached to the trigger
guard. The owner's manual indicated that the rifle could hold at
least seventeen cartridges. Defendant claimed that he never read
the manual. While conceding that he knew the rifle was a
semi-automatic weapon, defendant contended that he was unaware that
the firearm had a magazine capacity exceeding fifteen rounds.
At trial, defendant advanced the defenses of mistake of law
and mistake of fact. He asserted that he made diligent inquiry
respecting whether the guns in his collection constituted "assault
firearms" when the 1990 legislation was enacted and obtained the
requisite registration for some of his weapons. Defendant testified
that he did not register the Marlin rifle because he did not know
its fixed capacity exceeded fifteen rounds. The trial judge barred
the defenses of mistake of law and mistake of fact on the grounds
that the statutory prohibition was clearly written and published,
and that knowledge of the specific character of the weapon did not
constitute an element of the offense. In response to a question
propounded by the jury during its deliberations, the judge charged
that defendant could be found guilty if he knowingly possessed the
firearm but was unaware that its fixed capacity exceeded fifteen
rounds. Defendant was convicted and placed on probation.
II.
Defendant couches his argument in terms of whether the trial
judge erred by barring the defenses of mistake of law and mistake
of fact. We find no merit in these arguments. R. 2:11-3(e)(2). As
to the defense of mistake of law, defendant did not prove by "clear
and convincing evidence" that he "diligently pursue[d] all means
available to ascertain the meaning and application" of the
statutory proscription. N.J.S.A. 2C:2-4c(3). By its very terms,
N.J.S.A. 2C:39-1w(4) defines an "assault firearm" as a
"semi-automatic rifle with a fixed magazine capacity exceeding
[fifteen] rounds." The statutory language is "neither vague nor
unclear," and was not an issue for the jury's consideration. State
v. Elrose, 277 N.J.Super. 548, 556, 649 A.2d 1351 (App.Div.1994).
The defense of mistake of fact suffered from much the same
infirmity. The common law defense required not only that the
defendant subjectively misperceive a fact critical to establishing
the offense but also that the error be reasonable. See State v.
Bess, 53 N.J. 10, 16, 247 A.2d 669 (1968); State v. Fair, 45 N.J
77, 91, 211 A.2d 359 (1965). The Criminal Law Revision Commission
recommended that the objective test be abrogated and that any
"honest" error suffice to exonerate the defendant. Final Report of
the New Jersey Criminal Law Revision Commission, comment to 2C:2-4
at 52-53 (1971). Our Legislature rejected that proposal by
requiring that the defendant "reasonably arrive[ ] at the
conclusion underlying the mistake." N.J.S.R 2C:2-4a. Defendant's
failure to inspect the weapon or read the owner's manual to
determine whether it fell within the statutory definition
was unreasonable as a matter of law. We find no error in the trial
judge's refusal to submit the issue to the jury.
III.
The prosecutor candidly points out that the trial judge
instructed the jury that defendant could be found guilty if he
knowingly possessed the firearm but was unaware its fixed capacity
exceeded fifteen rounds. The question squarely presented is whether
the State was required to prove that the defendant knew the gun in
his possession was an assault firearm. We hold that knowledge of
the character of the weapon is not an element of the offense.
N.J.S.A 2C:39-5f provides in pertinent part that "[a]ny person
who knowingly has in his possession an assault firearm is guilty of
a crime of the third degree." The word "knowingly" thus modifies
the phrase "has in his possession." The Code defines "possession"
in terms of whether the "possessor knowingly procured or received
the thing possessed or was aware of his control [of it] for a
sufficient period to have been able to terminate his possession."
N.J.S.R 2C:2-1c. The Code provides that "a person acts knowingly
with respect to the nature of his conduct ... if he is aware that
his conduct is of that nature." N.J.S.R 2C:2-2b(2).
We are satisfied that the Legislature intended to proscribe
knowing possession, as distinguished from knowledge of the
illegal character of the article possessed. Cf. State v. Labato, 7
N.J. 137, 148, 80 A.2d 617 (1951). In that context, "[k]nowing
possession is not to be confused with criminal intent or guilty
knowledge." Id at 149, 80 A.2d 617. "At common law, scienter [was]
an indispensable element." Ibid. But it is with in the power of
the Legislature to declare an act criminal irrespective of the
motive of the actor. Ibid.; see also United States v. Freed 401 U.S
601, 610, 91 S.Ct. 1112, 1118, 28 L.Ed.2d 356, 362 (1971); United
States v. Balint, 258 U.S. 250, 254, 42 S.Ct. 301, 303, 66 L.Ed
604, 606 (1922); United States v. Holland, 810 F.2d 1215, 1223
(D.C.Cir.), cert. denied, 481 U.S. 1057, 107 S.Ct. 2199, 95
L.Ed.2d 854 (1987); State v. Edwards, 257 N.J.Super. 1, 4, 607 A.2d
1312 (App.Div. 1992); State v. Torres, 236 N.J.Super. 6, 13, 563
A.2d 1141 (App.Div.1989).
We are concerned here with a statute dealing with gun control.
"New Jersey has carefully constructed a 'grid' of regulations" on
the subject. In re Two Seized Firearms, 127 N.J. 84, 88, 602 A.2d
728, cert. denied sub nom Sholtis v. New Jersey, 506 U.S. 823, 113
S.Ct. 75, 121 L.Ed.2d 40 (1992). This is an area in which
"regulations abound and inquiries are likely," and where the
overarching purpose is to insure the public safety and protect
against acts and threats of violence. State v. Hatch, 64 N.J. 179,
184, 313 A.2d 797 (1973); see also Burton v. Sills, 53 N.J. 86, 248
A.2d 521 (1968). "[T]he dangers are so high and the regulations so
prevalent that, on balance, the legislative branch may as a matter
of sound public policy and without impairing any constitutional
guarantees, declare the act itself unlawful without any further
requirement of mens rea or its equivalent." State v. Hatch, 64 N.J.
at 184-85, 313 A.2d 797. When dealing with guns, the citizen acts
at his peril. In short, we view the statute as a regulatory measure
in the interests of the public safety, premised on the thesis that
one would hardly be surprised to learn that possession of such a
highly dangerous offensive weapon is proscribed absent the
requisite license.
Affirmed.
FOOTNOTES
1. Judge Shebell did not participate in oral argument. However, the
parties consented to his participation in the decision subsequent
to argument.
