STATE OF NEW JERSEY VS. CHRISTOPHER KIM (16-07-0591 AND 17-02-0115, PASSAIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court."

Although it is posted on the internet, this opinion is binding only on the

parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0809-17T1

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

CHRISTOPHER KIM,

Defendant-Respondent.

_______________________________

Submitted May 7, 2018 - Decided August 21, 2018

Before Judges Accurso and Vernoia.

On appeal from Superior Court of New Jersey,

Law Division, Passaic County, Indictment

Nos. 16-07-0591 and 17-02-0115.

Camelia M. Valdes, Passaic County

Prosecutor, attorney for appellant (Tom

Dominic Osadnik, Assistant Prosecutor, on

the brief).

Evan F. Nappen, attorney for respondent (Ali

Homayouni, on the brief).

PER CURIAM

The State appeals on leave granted from a September 7, 2017

order dismissing one count of a superseding indictment charging

defendant Christopher Kim with second-degree unlawful possession

of a handgun, N.J.S.A. 2C:39-5(b)(1).1 Because our review of the

record convinces us the indictment was not "manifestly deficient

or palpably defective," State v. Hogan, 144 N.J. 216, 229

(1996), we reverse.

The essential facts are easily summarized. In the course

of investigating a bar fight in Clifton, police came to suspect

defendant had punched one of the victims in the head while

wearing brass knuckles. Four days after the fight, police

obtained an address for defendant and went to speak to him.

When they arrived at about nine p.m., they saw defendant leaving

by a side door. Defendant was willing to speak to the

detectives, and they conversed in the "house driveway area."

1

N.J.S.A. 2C:39-5(b) provides:

Handguns. (1) 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 N.J.S.A. 2C:58-4, is guilty of a

crime of the second degree. (2) If the

handgun 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 a crime of the third degree.

2 A-0809-17T1

Defendant acknowledged his involvement in the fight and

admitted he punched one of the victims in the head. In the

course of their conversation, the detectives noticed a folding

knife protruding from one of defendant's front pockets.

Defendant handed over the knife, actually brass knuckles with a

fold out knife feature, at their request. Noticing something

odd about the way he did so, one of the detectives asked whether

"he had anything else on him." Defendant replied, "[y]eah, I

have a piece." The detectives relieved defendant of a loaded

.25 caliber semi-automatic pistol and arrested him after he

advised them the gun was not registered to him, and he did not

have a carry permit.

At police headquarters, following administration of Miranda2

warnings, defendant told the detectives he got the gun at a

motorcycle club event in Newark a few weeks before, for free.

When asked how often he carried it, defendant claimed that

evening was the first time. Defendant told the detectives he

was going to "North Bergen" and was carrying the gun because of

a prior stabbing and shooting that had occurred there.

A Passaic County grand jury indicted defendant on multiple

charges, including unlawful possession of the pistol. The trial

2

Miranda v. Arizona, 384 U.S. 436 (1966).

3 A-0809-17T1

court granted defendant's motion to dismiss the gun charge based

on its view that the State failed to instruct the grand jury

regarding the "possible exculpatory defense" contained in

N.J.S.A. 2C:39-6(e),3 the exemption for possessing a weapon in

one's home or place of business.

The State obtained a superseding indictment, which also

included the charge of unlawful possession of the pistol, after

instructing the grand jury on the exemption in subsection (e).

Defendant again moved to dismiss that charge of the indictment,

this time because the State had also instructed the grand jury

3

Subsection (e) provides:

Nothing in subsections b., c., and d. of

N.J.S.A. 2C:39-5 shall be construed to

prevent a person keeping or carrying about

his place of business, residence, premises

or other land owned or possessed by him, any

firearm, or from carrying the same, in the

manner specified in subsection g. of this

section, from any place of purchase to his

residence or place of business, between his

dwelling and his place of business, between

one place of business or residence and

another when moving, or between his dwelling

or place of business and place where the

firearms are repaired, for the purpose of

repair. For the purposes of this section, a

place of business shall be deemed to be a

fixed location.

[N.J.S.A. 2C:39-6(e).]

4 A-0809-17T1

on the terms of the exemption contained in N.J.S.A. 2C:39-6(g),4

the provision dictating how a gun being transported pursuant to

the exemption in subsection (e) is to be secured for travel.

The trial court dismissed the charge in the superseding

indictment, finding the State's inclusion of an instruction on

subsection (g) was improper.

In its opinion, the court wrote "[t]he main issue in this

case is the language of N.J.S.A. 2C:39-6(e) and in particular

what that subsection permits a person to do with a handgun on

their own premises." It determined "that the text of N.J.S.A.

2C:39-6(e) permits a person to carry a firearm on her own

premises, and that once a person travels from her premises,

restrictions apply to the method of transport." It thus viewed

the central question to be "was the Defendant carrying the

4

Subsection (g) provides:

Any weapon being transported under paragraph

(2) of subsection b., subsection e., or

paragraph (1) or (3) of subsection f. of

this section shall be carried unloaded and

contained in a closed and fastened case,

gunbox, securely tied package, or locked in

the trunk of the automobile in which it is

being transported, and in the course of

travel shall include only deviations as are

reasonably necessary under the

circumstances.

[N.J.S.A. 2C:39-6(g).]

5 A-0809-17T1

handgun in question 'about his . . . residence' or, was he

carrying the handgun between his dwelling and another place?"

The trial court, although acknowledging the Supreme Court

in Morillo v. Torres, 222 N.J. 104, 120 (2015), deemed "[t]he

phrase 'premises or other land owned or possessed by him' is not

perfectly clear as to its application," concluded that "in order

to avail [one]self of the right to carry 'any firearm' on his

premises," under subsection (e), the "individual must have the

legal right to possess those premises." Applying that

interpretation of subsection (e) here, the court found "the

Defendant was in lawful possession of the property at which he

was found to be in possession of the firearm."

Specifically, the court found defendant "rented the house,

and Black's Law Dictionary defines rent as 'compensation or

return of value given at stated times for the possession of

lands and tenements corporeal.'" Based on its finding that

defendant "was legally renting the house at which the police

stopped him; and there is no indication that the Defendant did

not have any possessory interest in the land immediately outside

the side door of his home," the court found defendant "was on

his premises when the police stopped him 'as he was exiting his

side door.'" The court further found that because the

detectives

6 A-0809-17T1

stopped the Defendant as he was in the act

of exiting, there is no way to know whether

the Defendant was permissibly exiting with

the purpose to remain on his premises, or

whether he was impermissibly attempting to

leave his premises and transport the weapon

in violation of subsection (g).

The court concluded defendant

was on his premises and regardless of what

he may have intended to do in the future,

the statute does not permit the State to

charge an individual for unlawful acts he

may commit in the future. As stated above,

under the Second Amendment, individuals are

constitutionally permitted to keep handguns

in their home, and in New Jersey, the

Supreme Court has determined that within

N.J.S.A. 2C:39-6(e) "premises" included

those areas where an individual has lawful

possession. See Heller, 554 U.S. at 577;[5]

Morillo, 222 N.J. at 121. Therefore, the

indictment for Count Eight, Unlawful

Possession of a Firearm, should be

dismissed.

We granted the State's motion for leave to appeal. The

State contends the trial court erred in exercising its

discretion to dismiss the gun charge of the indictment because

the State presented evidence establishing probable cause that

defendant committed the offense, and it was not improper to have

instructed the grand jury on subsection (g). We agree.

The grand jury, having been instructed on the elements of

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), as well as

5

District of Columbia v. Heller, 554 U.S. 570, 577 (2008).

7 A-0809-17T1

the exemption in N.J.S.A. 2C:39-6(e) for "keeping or carrying [a

firearm] about [one's] place of business, residence, premises or

other land owned or possessed by him" and the provisions of

subsection (g) dictating how a gun being transported between

those places is to be secured for travel, handed up the

superseding indictment after hearing one of the detectives

testify he went to an address in Ridgefield to speak to

defendant, whom he found outside "about 6 feet from the house"

with an unsecured gun. The detective testified that as he

approached, defendant had "already exited the house, closed the

door[,] and he was on his way." Although the detective

testified he did a "Department of Motor Vehicle[s] search" for

defendant and the prosecutor once referred to the house where

defendant was arrested as "his" house, there was no testimony

before the grand jury about whether the "house" was a single-

family or multi-family dwelling or whether defendant owned or

rented any part of it.

The Supreme Court has instructed a trial "court should

dismiss an indictment '"only on the clearest and plainest

ground," and only when the indictment is manifestly deficient or

palpably defective.'" State v. Twiggs, __ N.J. __, __ (2018)

(slip op. at 19-20) (quoting Hogan, 144 N.J. at 228-29). As the

Court has recently summed it, "[i]n a nutshell, a court

8 A-0809-17T1

examining a grand jury record should determine whether, 'viewing

the evidence and the rational inferences drawn from that

evidence in the light most favorable to the State, a grand jury

could reasonably believe that a crime occurred and that the

defendant committed it.'" State v. Feliciano, 224 N.J. 351,

380-81 (2016) (quoting State v. Morrison, 188 N.J. 2, 13

(2006)). Although we review a trial court's decision to dismiss

an indictment only for abuse of discretion, we owe no deference

to the court on questions of law, which we review de novo.

Twiggs, __ N.J. at __ (slip op. at 20).

As the Supreme Court has noted, and the trial court

recognized, the statutory language of subsection (e), the home-

carry exemption, "leaves open to debate the intended reach of

its exemption, and the scope of that exception remains unsettled

by any interpretive decision by the courts." Morillo, 222 N.J.

at 123 (analyzing the exemption in the context of a claim of

qualified immunity). Writing for the Court in Morillo, Justice

LaVecchia observed "[i]t is not entirely clear whether the

exemption was intended to encompass, for example, common areas

within a multi-unit dwelling, where one may have a right to be

if one is residing in a unit in that dwelling, but which area

technically is not possessed by that individual" or "whether it

is intended to encompass, for example, carrying a weapon in the

9 A-0809-17T1

open areas surrounding a private residence where one may be

staying but which is not owned or possessed by the individual."

Id. at 121.

After reviewing the cases addressing the exemption, Justice

LaVecchia concluded:

the overwhelming majority of New Jersey case

law that has touched on the circumstances in

which the statutory exemption is applicable

supports the view that the statute permits

gun owners to carry firearms, without a

carry permit, inside their residences. On

the other hand, no case law suggests that

the statute generally permits a gun owner to

carry a firearm outside his or her residence

on premises he or she neither owns nor

possesses.[6]

[Id. at 122-23.]

Because the issue in Morillo was qualified immunity, the Court

expressly did not resolve the scope of subsection (e)'s home-

carry exemption or "how to treat premises or land if not owned

or possessed by the person carrying a registered gun." Id. at

125.

Although the scope of the home-carry exemption obviously

remains unsettled, what is clear after Morillo is that when a

6

Indeed, the Morillo Court observed we had implied the opposite

in State v. Gomez, 246 N.J. Super. 209, 216 n.1 (App. Div. 1991)

(noting the trial court's instruction correctly informed the

jury that the defendant's possession of a gun outside his

apartment would violate N.J.S.A. 2C:39-5(b)). Morillo, 222 N.J.

at 122-23.

10 A-0809-17T1

defendant is charged with unlawful possession of a gun on

premises outside his dwelling, as defendant was here, his

entitlement to the home-carry exemption, and thus whether there

is probable cause to charge him with the offense, may well turn

on facts relating to his ownership or possessory interest in

those premises. See id. at 121-25. Here, the trial court

determined to dismiss the superseding indictment based on its

finding that defendant "was in lawful possession of the property

at which he was found to be in possession of the firearm"

because he "rented the house."

As far as we can tell, however, there was no proof of that

on this record. Nothing in the record on appeal suggests

defendant presented facts on either of his motions to dismiss

the indictment that he rented "the house" and had a possessory

interest in the premises where he was arrested. The State

insists that had the court considered this fact-intensive

defense "at a later point in time, perhaps at the end of the

State's case, as a motion for judgment of acquittal," it would

have had additional facts to consider, including that the

Ridgefield tax assessor lists the property as a two-family

dwelling and the police report and motor vehicle records note

defendant's address as limited to the first floor.

11 A-0809-17T1

The law is clear that the State survives a motion to

dismiss an indictment so long as it "presents 'some evidence

establishing each element of the crime to make out a prima facie

case.'" Feliciano, 224 N.J. at 380 (quoting State v. Saavedra,

222 N.J. 39, 57 (2015)). It is not obligated to present the

grand jury with evidence sufficient to secure a conviction.

Ibid. Here, there is no question but that the State presented a

prima facie case of defendant's unlawful possession of the

pistol in violation of N.J.S.A. 2C:39-5(b). The only issue is

whether defendant's entitlement to the home-carry exemption of

N.J.S.A. 2C:39-6(e) is so clearly established as to negate

defendant's guilt, thus destroying probable cause for the

unlawful possession charge. See Hogan, 144 N.J. at 236

(explaining "the grand jury cannot be denied access to evidence

that is credible, material, and so clearly exculpatory as to

induce a rational grand juror to conclude that the State has not

made out a prima facie case against the accused").

The Court many years ago made clear the grand jury is "an

accusatory and not an adjudicative body" and that "[c]redibility

determinations and the resolution of factual disputes are

reserved almost exclusively for the petit jury." Hogan, 144

N.J. at 235. The State is accordingly not obligated "generally

to provide the grand jury with evidence on behalf of the

12 A-0809-17T1

accused." Ibid. Instead, a prosecutor has only a limited duty

"triggered only in the rare case in which the prosecutor is

informed of evidence that both directly negates the guilt of the

accused and is clearly exculpatory" to inform the grand jury of

such evidence. Id. at 237.

"[A] prosecutor's obligation to instruct the grand jury on

possible defenses is a corollary to his responsibility to

present exculpatory evidence." Saavedra, 222 N.J. at 65

(quoting State v. John Hogan, 336 N.J. Super. 319, 341 (App.

Div. 2001)). The Court has cautioned that "[a]scertaining the

exculpatory value of evidence at such an early stage of the

proceedings can be difficult, see, e.g., 2 [Wayne R.] LeFave &

[Jerold H.] Israel, [Criminal Procedure] § 15.4(d), at 318

[(1984)], and courts should act with substantial caution before

concluding that a prosecutor's decision in that regard was

erroneous." Hogan, 144 N.J. at 238-39.

Applying those standards here, we are satisfied the trial

court erred in dismissing the superseding indictment on the

basis that defendant "was legally renting the house" and the

absence of evidence indicating defendant "did not have any

possessory interest in the land immediately outside the side

door." Defendant does not assert he owned the property where he

was arrested in possession of the pistol, and there is nothing

13 A-0809-17T1

in the record before the grand jury or the record on appeal

establishing his right to possess those premises.

The State presented a prima facie case of defendant's

unlawful possession of the pistol. Leaving aside the questions

regarding the scope of the home-carry exemption, see Morillo,

222 N.J. at 121-25, defendant's entitlement to the exemption

depends on facts nowhere established on this record. As

defendant has not alleged this is "the exceptional case in which

[the] prosecutor's file includes not only evidence of guilt but

also evidence negating guilt that is genuinely exculpatory,"

Hogan, 144 N.J. at 237, the State was under no obligation to

provide the grand jury with evidence that might establish

defendant's entitlement to the home-carry exemption in N.J.S.A.

2C:39-6(e), see Hogan, 144 N.J. at 235. Defendant remains free

to pursue the defense at trial and may well be entitled to a

jury charge on the exemption if warranted by the evidence. See

Saavedra, 222 N.J. at 77.

On a final note, we reject as without merit defendant's

argument that the State "did not question before the trial

court, as it does now, whether [defendant] was still on his own

premises when he was . . . arrested, as the court determined on

two separate occasions," and thus should not be permitted to do

so now. As the Supreme Court recently reiterated, a

14 A-0809-17T1

prosecutor's concession of a point favorable to defendant in the

trial court does not bind a reviewing court. Twiggs, __ N.J. at

__ (slip op at 40); see also State v. Josey, 290 N.J. Super. 17,

32 (App. Div. 1996) (quoting Young v. United States, 315 U.S.

257, 258 (1942)) (noting "the proper administration of the

criminal law cannot be left merely to the stipulation of

parties").

The State did not instruct the grand jury initially on the

home-carry exemption based on the prosecutor's belief the

exemption was not applicable. See John Hogan, 336 N.J. Super.

at 343 (holding "it is only when the facts known to the

prosecutor clearly indicate or clearly establish the

appropriateness of an instruction that the duty of the

prosecution arises"); cf. State v. Reininger, 430 N.J. Super.

517, 531-32 (App. Div. 2013) (finding no interference with the

grand jury's charging function by the prosecutor's having failed

to instruct the grand jury on the federal exemption available

under 18 U.S.C.A. 926A). After the trial court dismissed the

count of the indictment charging defendant with unlawful

possession of the pistol for failure to provide the instruction,

the prosecutor included the instruction in re-presenting the

charge to the grand jury. But as there is no evidence in the

record of the grand jury proceeding or this record establishing

15 A-0809-17T1

defendant was outside his residence on premises he either owned

or possessed when he was arrested, the prosecutor's inclusion of

an instruction on subsection (g) was clearly not error. Because

the instruction provided to the grand jury on re-presentation of

the case accurately explained the applicable law and was not

misleading, there was no basis on which to dismiss the

superseding indictment. See State v. Majewski, 450 N.J. Super.

353, 365 (App. Div. 2017).

Reversed and remanded for entry of an order reinstating the

unlawful possession charge of the superseding indictment. We do

not retain jurisdiction.

16 A-0809-17T1