Opinion
DOCKET NO. A-3920-11T3
11-02-2012
STATE OF NEW JERSEY, Plaintiff-Appellant, v. STEVEN KACZUR, Defendant-Respondent.
Joie Piderit, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief). Lora B. Glick argued the cause for respondent (The Maglione Firm, P.C., attorneys; Ms. Glick, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Sabatino.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 11-05-00066.
Joie Piderit, Assistant Prosecutor, argued the cause for appellant (Bruce J. Kaplan, Middlesex County Prosecutor, attorney; Ms. Piderit, of counsel and on the brief).
Lora B. Glick argued the cause for respondent (The Maglione Firm, P.C., attorneys; Ms. Glick, of counsel and on the brief). PER CURIAM
We granted the State leave to appeal from an order of the Law Division dismissing count four of an indictment charging defendant, Steven Kaczur, with second-degree possession of a firearm while engaged in drug distribution-related activity, N.J.S.A. 2C:39-4.1. We now affirm.
On November 6, 2010, Woodbridge police officers executed a search warrant for defendant and his Iselin residence. Defendant was located outside his home and arrested without incident. On his person, police found twenty-nine grams of marijuana in a sandwich bag and $335 in cash. Police then searched defendant's residence where they recovered a .45 caliber handgun with a full magazine of hollow point rounds and a second loaded magazine from under defendant's bed in a small lock box. The handgun was legally registered to defendant and he has a firearms identification for that handgun. In defendant's nightstand, in the same bedroom as the gun, police found an additional thirty grams of marijuana, nine oxycodone tablets, a digital scale and two sheets of paper that appeared to be "owe sheets," a means by which drug dealers keep track of who they sell drugs to and who owes them money.
The grand jury heard testimony as to the same, with a notable exception. The officer who authored the incident report detailing the correct location of the gun did not testify. Instead, another officer who had been present at the scene testified and misstated that the handgun and bullets were found in defendant's nightstand, where the additional drugs, paraphernalia and "owe sheets" were also located. The grand jury returned a five-count indictment charging defendant with, among other crimes, third-degree possession of a controlled dangerous substance (CDS) with intent to distribute in a school zone, N.J.S.A. 2C:35-7 (count three); second-degree possession of a firearm while engaged in CDS distribution-related activity, N.J.S.A. 2C:39-4.1 (count four); and fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count five).
Defendant moved to dismiss counts four and five. Following argument, the court granted defendant's motion. Although mentioning that the "misrepresentation thus allowed the grand jury to accept an improper inference that the gun was 'accessible for use' during the commission of the alleged intent to distribute[,]" the court based its dismissal decision on a construction of N.J.S.A. 2C:39-4.1, which we reject. In its March 2, 2012 letter opinion, the court held that to sustain a conviction of possession of a firearm while in the course of committing a drug offense, the State must prove that defendant illegally possessed the firearm or actually used the weapon in an unlawful manner. Finding evidence of neither in the grand jury record, the court dismissed count four, reasoning:
The State conceded that count five should be dismissed and that portion of the court's dismissal order reflecting same is not the subject of this appeal.
[I]t is axiomatic to the court the Legislature intended to punish people using unlicensed or illegal weapons in the course of CDS activity. However, when the gun is legally possessed this court is not convinced it was the Legislature's intent to punish a defendant who also allegedly was perpetrating one of the enumerated CDS offenses while owning a licensed firearm without some proof of the weapons unlawful use. Therefore, this court believes it is fundamentally unfair to allow the indictment to survive where any individual has a legally possessed firearm, and there is no evidence of the firearm's use in the CDS activity.
While we affirm the dismissal on other grounds, we reject the court's narrow construction of N.J.S.A. 2C:39-4.1. N.J.S.A. 2C:39-4.1a provides that "[a]ny person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit" the drug offenses specified in the statute, such as possessing with intent to distribute a CDS within 1000 feet of a school in violation of N.J.S.A. 2C:35-7, is guilty of a crime of the second-degree. N.J.S.A. 2C:39-4.1a. Thus, the question implicated by defendant's motion to dismiss is whether the evidence was legally sufficient to support the grand jury's determination that the State had established a prima facie case of a violation of N.J.S.A. 2C:39-4.1. See State v. Francis, 191 N.J. 571, 586 (2007); State v. Hogan, 144 N.J. 216, 227 (1996).
N.J.S.A. 2C:39-4.1a states:
Any person who has in his possession any firearm while in the course of committing, attempting to commit, or conspiring to commit a violation of N.J.S. 2C:35-3, N.J.S. 2C:35-4, N.J.S. 2C:35-5, section 3 or section 5 of P.L. 1997, c. 194 (C. 2C:35-5.2 or 2C:35-5.3), N.J.S. 2C:35-6, section 1 of P.L. 1987, c. 101 (C. 2C:35-7), section 1 of P.L. 1997, c. 327 (C. 2C:35-7.1), N.J.S. 2C:35-11 or N.J.S. 2C:16-1 is guilty of a crime of the second degree.
We find nothing in the statutory language or its legislative history to suggest N.J.S.A. 2C:39-4.1 requires that defendant either illegally possess the firearm, or actually use a firearm, during the commission of an enumerated drug offense. As to the former, the statute does not distinguish between legally and illegally held firearms, and a court should not presume that the Legislature intended something other than what it clearly expressed by way of its plain language. State v. Wright, 107 N.J. 488, 495 (1987). As to the latter, had the statute read "armed with a firearm while in the course of committing" a specified crime, the outcome might be different. See State v. Merritt, 247 N.J. Super. 425, 430 (App. Div.) (noting difference between "armed" with a weapon and "in possession of a weapon," and that "'armed' connotes not only possession but also immediate access to a weapon"), certif. denied, 126 N.J. 336 (1991).
The statutory phrase "while in the course of committing" does require, however, "a temporal and spatial link between the possession of the firearm and the drugs that defendant intended to distribute." State v. Spivey, 179 N.J. 229, 239 (2004). As the Court noted:
The evidence must permit the jury to infer that the firearm was accessible for use in the commission of the crime. The inference to be drawn--that the gun was possessed in the course of committing the drug offense--becomes more tenuous the further removed the gun is from the drugs. . . . The closer in proximity a firearm is to drugs, the stronger and more natural the inference that the two are related to a common purpose.Declining to list the multitude of scenarios that would permit the drawing of a reasonable inference that a firearm is possessed while in the course of committing a drug offense, the Court noted that there is "no formulaic solution[,]" and that "each case is fact-sensitive." Id. at 240.
[Id. at 239-40.]
Illustrative, however, in Spivey itself, involving a defendant convicted of N.J.S.A. 2C:39-4.1a by possessing a firearm while in the course of possessing CDS with intent to distribute within 500 feet of a public park. 179 N.J. at 232. Officers had executed a search warrant of the defendant's apartment. Id. at 233. In one bedroom, officers found marijuana, cocaine, and paraphernalia used for measuring and distributing drugs. Ibid. The officers also retrieved a loaded revolver from a kitchen cabinet. Ibid. The Court upheld the conviction, id. at 240, finding that the defendant had the capacity to exercise dominion over the gun, which was in physical proximity to the drugs and drug paraphernalia, and he could have used the weapon to facilitate the drug offenses. Id. at 239. The Court reasoned that
[D]efendant's loaded .22 caliber handgun and the drugs were located at the scene of the crime, his home, where he had the ability to access both simultaneously. The gun and drugs were in close proximity to each other, and a jury could infer that both were within defendant's control. As the jury could infer that defendant possessed the drugs with the intent to distribute, so too the jury could infer that he possessed the gun with the intent to further that criminal scheme.
[Ibid.]
So too here. Whether the gun was found in the bedroom nightstand where the drugs were located or in the lock box underneath the bed, we conclude that the grand jury could reasonably infer that defendant possessed the loaded firearm while in the course of committing a drug offense, namely with the purpose of protecting himself and the drugs found on his person and in his residence. Indeed, the physical and temporal proximity of the weapons and the drugs permits the inference. Thus, the proofs were sufficient to withstand defendant's challenge to the indictment on that ground.
That said, it was incumbent upon the State to present a correct account of the facts to the grand jurors. Because any inference they were being asked to draw is a permissive one, the grand jurors may well have declined to find that the gun was "accessible for use" if found other than in the nightstand where the drugs were located. Here, it is undisputed that while the grand jurors may have had the benefit of the police incident report that accurately described the location of the loaded gun, they also heard a conflicting version from the testifying officer, placing the firearm in closer proximity to the drugs. Because it cannot be determined which account the grand jury relied on and, more importantly, to preserve the integrity of the grand jury process, we conclude that dismissal of count four of the indictment on this ground alone is warranted. Simply stated, we may not allow a count of an indictment to stand where it is manifestly deficient or palpably defective as when, as here, it is based on evidence proven to be incorrect. Hogan, supra, 144 N.J. at 228-29. By the same token, in the absence of any indication that the testifying officer acted in bad faith or that his misstatement was anything other than inadvertent, we discern no reason to preclude the State from re-presenting the matter to the grand jury. Nothing in the court's March 2, 2012 order suggests the dismissal of count four was with prejudice.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION