The opinion
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APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0944-15T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ERIC SHELTON,
Defendant-Appellant.
____________________________
Submitted February 7, 2017 – Decided March 17, 2017
Before Judges Fasciale and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Indictment
No. 13-04-00935.
Spencer & Associates, L.L.C., attorneys for
appellant (Remi L. Spencer, of counsel and on
the brief).
Carolyn A. Murray, Acting Essex County
Prosecutor, attorney for respondent (Maria I.
Guerrero, Special Deputy Attorney
General/Acting Assistant Prosecutor, on the
brief).
PER CURIAM
Following the denial of his motion to dismiss one of the
charges against him, defendant Eric Shelton pled guilty to second-
degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b).
Defendant was sentenced to five years in prison with three years
of parole ineligibility. He now appeals the denial of his motion
to dismiss the count of the indictment charging him with unlawful
possession of a handgun. We affirm.
I.
Defendant was walking on a street when a police officer
stopped him believing that defendant matched the description of a
burglary suspect. As part of the investigatory stop, the officer
frisked defendant and felt a bulge in defendant's front pants
pocket. Defendant told the officer that he had an unloaded gun.
As the officer was removing the gun, the defendant struck the
officer and ran away. Ultimately, defendant was apprehended and
arrested.
A grand jury indicted defendant on three counts: count one,
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b); count two, fourth-degree aggravated assault, N.J.S.A. 2C:12-
1(b)(5)(a); and count three, fourth-degree resisting arrest,
N.J.S.A. 2C:29-2(a).
Defendant moved to dismiss count one of the indictment,
contending that the handgun was inoperable, that it had lost the
characteristics of its original design and, therefore, it was not
a handgun. At a hearing on the motion, the State called Lieutenant
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Peter Carbo, who is the commanding officer of the Essex County
Sheriff's Department's ballistic unit. It was stipulated that
Lieutenant Carbo was an expert in ballistics and firearms.
Lieutenant Carbo had prepared two reports on the handgun
found on defendant. Both reports concluded that the handgun was
inoperable in its current condition because "[a]pproximately one
third of the barrel is missing from the forcing cone area forward
rendering this firearm incapable of firing a projectile through
the barrel."
At the hearing, Lieutenant Carbo testified that the handgun
was a forehand model break-top .32 caliber revolver, manufactured
by Ira Johnson. He explained that the manufacturer had gone out
of business in 1916, and he opined that this particular revolver
was made "around 1907."
Lieutenant Carbo confirmed the conclusions of his written
reports that the handgun was not operable in its current condition.
He went on to testify, however, that the revolver "could be made
readily -- readily operable." While acknowledging that his lab
did not have a matching barrel, Lieutenant Carbo explained that
such barrels are available for purchase and the barrel could be
replaced. Lieutenant Carbo then opined that if the barrel were
replaced, the revolver would be able to fire a bullet. Thus, the
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Lieutenant opined that the revolver was not permanently inoperable
and it was capable of being made operable.
Based on the testimony of Lieutenant Carbo, the trial court
denied defendant's motion to dismiss the count of the indictment
that charged defendant with unlawful possession of a handgun.
Relying on our Supreme Court's decision in State v. Gantt, 101
N.J. 573 (1986), and our decision in State v. Orlando, 269 N.J.
Super. 116 (App. Div. 1993), certif. denied, 136 N.J. 30 (1994),
the trial court held that the revolver needed to be originally
designed to fire a bullet, ball or projectile. The court also
held that the only exception to the original design requirement
was if the gun was so mutilated that it had lost its ability to
function as a gun. The trial court then found that Lieutenant
Carbo had testified that the revolver was originally designed to
fire a bullet and that it was still able to function as a gun if
the barrel was replaced.
As previously noted, defendant thereafter pled guilty to
count one, admitting that he possessed a handgun without a permit.
He now appeals the denial of his motion to dismiss count one of
the indictment.
II.
On appeal, defendant argues:
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I. THIS COURT SHOULD REVERSE THE TRIAL
COURT'S DECISION AND DISMISS COUNT I OF THE
INDICTMENT BECAUSE THE STATE'S EVIDENCE FAILED
TO ESTABLISH THAT MR. SHELTON POSSESSED A
WEAPON
A. The Applicable Legal Standard
B. A Handgun that is Not Operable and
Not Capable of Being Made Operable Does
Not Meet the Statute's Definition of a
Firearm or a Weapon, and, Therefore,
Precludes Prosecution of the Unlawful
Possession of a Weapon Pursuant to
N.J.S.A. 2C:39-5(b)
C. The Handgun Had Lost the
Characteristics of its Original Design
and Manufacture, and, Therefore, it is
Not a Handgun
Our review of the trial judge's decision to dismiss an
indictment is guided by established legal principles. "[T]he
decision whether to dismiss an indictment lies within the
discretion of the trial court, and that exercise of discretionary
authority ordinarily will not be disturbed on appeal unless it has
been clearly abused." State v. Eldakroury, 439 N.J. Super. 304,
309 (App. Div.) (alteration in original) (quoting State v. Hogan,
144 N.J. 216, 229 (1996)), certif. denied, 222 N.J. 16 (2015).
Our review of a trial court's interpretation of the law, however,
is de novo. State v. Grate, 220 N.J. 317, 329-30 (2015).
A trial court should not dismiss an indictment except on the
clearest and plainest grounds where it is "manifestly deficient
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or palpably defective." State v. Saavedra, 433 N.J. Super. 501,
514 (App. Div. 2013) (quoting Hogan, supra, 144 N.J. at 228-29),
aff'd, 222 N.J. 39 (2015). When reviewing a motion to dismiss,
the court must construe the facts in the light most favorable to
the State. State v. Fleischman, 383 N.J. Super. 396, 398 (App.
Div. 2006), aff’d, 189 N.J. 539 (2007). "As long as an indictment
alleges all of the essential facts of the crime, the charge is
deemed sufficiently stated." State v. Schenkolewski, 301 N.J.
Super. 115, 137 (App. Div.), certif. denied, 151 N.J. 77 (1997).
We have explained that "[t]he quantum of this evidence . . . need
not be great." Ibid.
Here, defendant was charged with unlawful possession of a
handgun in violation of N.J.S.A. 2C:39-5(b). That statute states:
Any person who knowingly has in his possession
any handgun, including any antique handgun,
without first having obtained a permit to
carry the same . . . is guilty of a crime . .
. .1
To convict defendant, the State must prove three elements: (1)
there was a handgun; (2) defendant knowingly possessed the handgun;
and (3) defendant did not have a permit to possess such a weapon.
1
Defendant was found to be in possession of the handgun in October
2012. N.J.S.A. 2C:39-5 was amended effective August 8, 2013. The
language we quoted is from the statute in effect on October 12,
2012.
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Model Jury Charge (Criminal), "Unlawful Possession of a Handgun"
(2011).
On this appeal, we focus on the first element; that is,
whether the device found on defendant was a handgun. A handgun
is defined as "any pistol, revolver or other firearm originally
designed or manufactured to be fired by the use of a single hand."
N.J.S.A. 2C:39-1(k). Focusing on the plain language of that
definition, there is no requirement that the handgun be operable.
Instead, the definition focuses on the original design and that
the gun was capable of being fired by the use of a single hand.
Our Supreme Court and this court have reviewed statutory
provisions concerning handguns and firearms in the context of
imposing mandatory terms under the Graves Act, N.J.S.A. 2C:43-
6(c). See Gantt, supra, 101 N.J. 573; Orlando, supra, 269 N.J.
Super. 116; see also State v. Harmon, 203 N.J. Super. 216, 227
(App. Div. 1985), rev'd on other grounds, 104 N.J. 189 (1986). In
all of those cases, both the Supreme Court and our court have held
that there is no requirement that a weapon be operable to meet the
definition of a firearm or a handgun.
For example, in Gantt, the Supreme Court held that a firearm
is determined in terms of its original design. The Court went on
to identify one exception to the general design requirement. That
exception applies when a gun, originally designed to be lethal,
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is so mutilated or destroyed that it can no longer be called a
gun. Thus, the Court explained, "we prefer to state the issue not
in terms of inferring 'operability' from design, but in the more
straightforward terms of merely inquiring whether an object
designed to deliver deadly force has been so substantially altered
as no longer to qualify as such." Gantt, supra, 101 N.J. at 589.
The Court then went on to quote our decision in State v.
Morgan:
It may become a question of fact as to whether
a particular device possesses or retains the
characteristics of a firearm as thus defined.
Conceivably, although having initially
possessed such characteristics, it may have
lost them through mutilation, destruction or
disassembly. Where there appears to be a
legitimate dispute as to whether any such
device possesses or retains the essential
characteristics . . . [t]hat question should
be resolved as any other question of fact.
[Ibid. (alterations in original) (quoting
State v. Morgan, 121 N.J. Super. 217, 219
(App. Div. 1972)).]
The issue of so-called "inoperability" should
enter the case only if it bears on the question
of design–only if and when substantial
evidence is introduced, from whatever source
it may come, tending to show either that the
object is of innocuous design, or that it has
undergone such substantial alteration or
mutilation that the instrument has completely
and permanently lost the characteristics of a
real gun.
[Id. at 590.]
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Consistent with Gantt, we have held that a gun used by a
defendant to commit armed robbery was a firearm even when the gun
was inoperable because the barrel had been stuffed and the firing
pin had been removed. Orlando, supra, 269 N.J. Super. at 127-28.
We noted that the weapon need not be operable, but only be proven
to be a firearm based on the original design. Id. at 130-131.
In summary, both the plain language of the statutory
definition of a handgun and the cases interpreting firearms, which
includes handguns, define a handgun by its original design. Thus,
there is no requirement that the weapon be operable. The one
exception to the design requirement is that the gun still retains
the characteristics of a gun. Thus, a fact question can arise if
the gun is so mutilated, destroyed, or disassembled that it no
longer retains the essential characteristics of a gun.
Here, there was sufficient evidence for the motion judge to
find that the handgun found on defendant was originally designed
to be operable. Lieutenant Carbo, an expert in ballistics and
firearms, testified that the gun was originally designed to act
as a revolver. He also testified that while the gun was currently
inoperable, it could be made operable by replacing the barrel.
Those facts were sufficient to satisfy the State's burden at a
motion to dismiss.
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Defendant makes two related arguments. First, he contends
that a handgun that is not operable and not capable of being made
operable does not meet the statutory definition of a firearm or
weapon. First, it is important to note that defendant was indicted
and pled guilty to unlawful possession of a handgun. As already
pointed out, a handgun is simply defined as "any pistol, revolver
or other firearm originally designed or manufactured to be fired
by the use of a single hand." N.J.S.A. 2C:39-1(k). The
definitions of firearms and weapons are helpful in construing the
meaning of a handgun, but they do not control. In Gantt, the
Supreme Court explained that firearms included within its
definition a handgun. Gantt, supra, 101 N.J. at 584. The Court
went on to reject the argument that handgun was modified by the
language "or any gun . . . in the nature of a weapon from which
may be fired or ejected any . . . missile or bullet." Ibid.
(alterations in original) (quoting N.J.S.A. 2C:39-1(f)). The
Court then explained that the "operative word in the clause is the
disjunctive 'or,' and as such, it does not modify" handgun, which
is defined in terms of its original design. Ibid.
Defendant's arguments concerning whether the handgun was
capable of being made operable or whether it had lost the
characteristics of its original design, is a fact question that
was never reached in the context of this case. Lieutenant Carbo
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testified that the handgun found on defendant was capable of being
made operable and was not permanently inoperable. That testimony
was sufficient to satisfy the State's burden on a motion to
dismiss. If defendant had wanted to contest whether this
particular handgun was capable of being made operable or whether
it had lost the characteristics of its original design, defendant
would have had to present that case to a jury, who would have
acted as the fact finder on that issue. See Gantt, supra, 101
N.J. at 588. Defendant, however, elected to plead guilty after
the denial of his motion to dismiss.
Affirmed.
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