STATE OF NEW JERSEY VS. KEVIN KELLY (18-06-0552, CUMBERLAND 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NOT FOR PUBLICATION WITHOUT THE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-2614-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

KEVIN KELLY, a/k/a

KEVIN PALLANTA and

KEVIN T. KELLYPALLANTA,

Defendant-Appellant.

_____________________________

Submitted September 23, 2020 – Decided November 6, 2020

Before Judges Accurso, Vernoia and Enright.

On appeal from the Superior Court of New Jersey, Law

Division, Cumberland County, Indictment No. 18-06-

0552.

Joseph E. Krakora, Public Defender, attorney for

appellant (Bryan A. Small, Designated Counsel, on the

briefs).

Jennifer Webb-McRae, Cumberland County

Prosecutor, attorney for respondent (Andre R. Araujo,

Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Kevin Kelly appeals from the denial of his suppression motion

and his conviction following a jury trial in October 2018. We affirm the

suppression ruling, substantially for the reasons outlined in the motion judge's

written opinion. We also affirm defendant's conviction.

At approximately 3:00 a.m. on September 5, 2017, police received an

anonymous tip that two white males were parked in a black Cadillac in a certain

section of Millville known to be a high-crime area, and that the passenger had a

handgun in his lap. The tipster reported that the suspect vehicle was parked

behind a silver minivan, the driver wore a black t-shirt, and the passenger wore

a white t-shirt.

When Officer Bryan Orndorf went to the area to follow up on the tip, he

found a black Cadillac parked behind a silver minivan, as described by the

tipster. Two additional officers joined Officer Orndorf on scene. The suspect

vehicle had heavily-tinted windows. Even after the officers shined spotlights on

the car, they could not determine whether it was occupied and if so, how many

occupants might be in the car. Officer Orndorf used his patrol car's loudspeaker

to instruct the driver (later identified as defendant) to roll down the window.

The officer received no response to his request. Twenty seconds later, he again

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asked the driver to roll his window down. Defendant only partially lowered his

window, so the officer instructed him to roll all the car windows down.

Defendant rolled just his window down. He never lowered the remaining

windows. When Officer Orndorf asked defendant if anyone else was in the car,

defendant avoided the question.

One of the officers at the scene expressed a concern that while the driver

displayed his left hand outside the vehicle, he did not "know what [the driver

was] doing with is right hand." Accordingly, defendant was ordered out of the

car. Even though defendant was directed to keep his hands raised, when he

exited the vehicle, he immediately shut the door behind him. Officer Orndorf

noted defendant was Caucasian and wore a black t-shirt, consistent with the tip.

Defendant was promptly patted down to ensure he did not have a weapon on his

person. Defendant referred to the vehicle as "my" car, and then told an officer

it belonged to his roommate, a female whose last name he did not know. He

again was asked if anyone else was in the car but evaded the question.

According to Officer Orndorf, defendant was handcuffed and placed in a patrol

car "until [the police] did [their] investigation."

Eventually, defendant told Officer Orndorf that another person,

Christopher Meyers, was in the car. The police ordered Meyers out of the

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vehicle and as he stepped out, they noted he was Caucasian and wore a white t-

shirt, consistent with the tipster's information. Meyers left his passenger door

open, with the window up. He was patted down for weapons, handcuffed, and

placed in a separate police car pending further investigation.

Although no weapon was recovered by this point, an unidentified officer

told defendant he spotted a "needle" in the car. While standing outside the

vehicle, Officer Orndorf also saw the orange cap of the syringe before it was

retrieved. Officer Orndorf confirmed the needle protruded between the center

console and the driver seat, and he "recognized what that was."

The unidentified officer told defendant a dog was going to perform an

exterior sniff of the vehicle, and if the dog alerted to the car, the police would

impound the vehicle and request a search warrant. Subsequently, the canine

dispatched to the scene positively alerted to the Cadillac. Officer Tyler Menz

then retrieved the syringe from the car, spoke to his sergeant, and went back to

the car to recover a BB gun he had spotted inside the vehicle while retrieving

the syringe. Defendant was placed under arrest once the syringe was found. As

the suppression judge noted, before the canine sniff occurred, one of the officers

briefly put his head inside the Cadillac through the open driver side window.

However, the judge was unable to discern from the motor vehicle recording

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(MVR) footage of the incident whether the officer placed his head inside the

Cadillac before or after the police discovered the syringe.

Defendant's car was impounded after the canine sniff. The police obtained

a search warrant for the Cadillac, and when it was executed, they recovered two

rifles, a dagger and a sawed-off shotgun.

Defendant moved to suppress the evidence from the stop. The suppression

judge denied the application, based on his review of the MVR footage and the

credited testimony of Officer Orndorf, as well as the testimony of another

officer. Defendant was convicted of third-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5b(2); fourth-degree possession of a prohibited

weapon, specifically, a blade larger than five inches, N.J.S.A. 2C:39-3(e); and

second-degree possession of a weapon by a convicted person, N.J.S.A. 2C:39-

7.

Following defendant's conviction, the trial judge denied his motion for

judgment notwithstanding the verdict as to the second- and third-degree

offenses. At sentencing, defendant received an eight-year prison term with a

five-year parole disqualifier for second-degree possession of a weapon by a

convicted person; a four-year term for third-degree unlawful possession of a

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weapon; and an eighteen-month term for fourth-degree possession of a

prohibited weapon. The judge directed that the sentences run concurrently.

On appeal, defendant raises the following arguments:

POINT I

THE WEAPONS FOUND IN [DEFENDANT'S]

VEHICLE SHOULD HAVE BEEN SUPPRESSED,

OR ALTERNATIVELY, A NEW SUPPRESSION

HEARING SHOULD OCCUR, BECAUSE THE

PROSECUTOR FAILED TO PRESENT ANY

EVIDENCE THAT THE SEARCHING OFFICER -

WHO DID NOT TESTIFY - HAD ACTED

REASONABLY IN STOPPING AND SEARCHING

THE VEHICLE AND BREAKING THE

THRESHOLD TO LOOK INSIDE.

POINT II

THE WEAPONS FOUND IN [DEFENDANT'S]

VEHICLE SHOULD HAVE BEEN SUPPRESSED

BECAUSE THE STATE FAILED TO ESTABLISH

THE BONA FIDES OF THE CANINE WHO

PERFORMED THE SNIFF FOR [A CONTROLLED

DANGEROUS SUBSTANCE] TO SUPPORT

PROBABLE CAUSE TO SEARCH THE VEHICLE.

(NOT RAISED BELOW).

POINT III

[DEFENDANT'S] CONVICTION FOR UNLAWFUL

POSSESSION OF A FIREARM AND POSSESSION

OF A WEAPON BY A CONVICTED PERSON MUST

BE VACATED BECAUSE AIRSOFT GUNS ARE

NOT FIREARMS[.] (NOT RAISED BELOW).

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POINT IV

THE CONVICTION OF POSSESSION OF A

PROHIBITED WEAPON SHOULD BE VACATED

BECAUSE THE STATE FAILED TO PROVE THAT

[DEFENDANT] POSSESSED A WEAPON WITH AN

UNLAWFUL PURPOSE UNDER N.J.S.A. 2C:39-3

AND THE STATE'S PER SE BAN ON DAGGERS IS

UNCONSTITIONAL[.] (NOT RAISED BELOW).

A. The State Failed to Prove that

[Defendant] Possessed A Weapon

with An Unlawful Purpose Under

N.J.S.A. 2C:39-3.

B. The State’s Per Se Ban on Daggers Is

Unconstitutional.

POINT V

THE TRIAL COURT PREJUDICED [DEFENDANT]

BY FAILING TO PROPERLY INSTRUCT THE JURY

ON THE EFFECTS OF A PARTIAL VERDICT AND

BY FAILING TO REMIND [JURORS] OF THEIR

OBLIGATION NOT TO SURRENDER THEIR

HONEST CONVICTIONS MERELY TO RETURN A

VERDICT[.] (NOT RAISED BELOW).

POINT VI

THE TRIAL COURT FAILED TO TAKE

APPROPRIATE ACTION WITH RESPECT TO A

SLEEPING JUROR[.] (NOT RAISED BELOW).

POINT VII

THE STATE FAILED TO PROVIDE A

SUPPLEMENTAL POLICE REPORT RELATED TO

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[] CO-DEFENDANT MEYERS[,] CONTRARY TO

ITS OBLIGATIONS UNDER THE RULES OF

COURT.

Regarding Point I, we "must uphold a trial court's factual findings at a

[motion to suppress] hearing when they are supported by sufficient credible

evidence in the record." State v. Hathaway, 222 N.J. 453, 467 (2015) (citing

State v. Elders, 192 N.J. 224, 244 (2007)). This is especially true when the

findings of the trial court are "substantially influenced by [its] opportunity to

hear and see the witnesses and to have the 'feel' of the case." Elders, 192 N.J.

at 244 (quoting State v. Johnson, 42 N.J. 146, 161 (1964)). By contrast, the trial

court's interpretation of the law and the legal "consequences that flow from the

established facts" are reviewed de novo. State v. Gamble, 218 N.J. 412, 425

(2014).

No constitutional justification is required for a police officer to conduct a

field inquiry. State v. Sirianni, 347 N.J. Super. 382, 387 (App. Div. 2002).

"[L]aw enforcement officers do not violate the Fourth Amendment by merely

approaching an individual on the street or in another public place, by asking him

if he is willing to answer some questions, [or] by putting questions to him if the

person is willing to listen . . . ." Florida v. Royer, 460 U.S. 491, 497 (1983);

Sirianni, 347 N.J. Super. at 388. If the person remains free to disregard the

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officer's questions and walk away, a seizure has not occurred, and Fourth

Amendment protections are not implicated. United States v. Mendenhall, 446

U.S. 544, 553 (1980). However, "'[i]f, during the course of'" an officer's

reasonable inquiries, "the circumstances 'give rise to [unrelated] suspicions . . .,

an officer may broaden [the] inquiry and satisfy those suspicions.'" State v.

Chapman, 332 N.J. Super. 452, 462 (App. Div. 2000) (quoting State v. Dickey,

152 N.J. 468, 479-80 (1998)).

An investigatory detention "occurs during a police encounter when 'an

objectively reasonable person' would feel 'that his or her right to move has been

restricted.'" State v. Rosario, 229 N.J. 263, 272 (2017) (quoting State v.

Rodriguez, 172 N.J. 117, 126 (2002)). The United States and New Jersey

Constitutions allow an investigatory stop "where a police officer observes

unusual conduct which leads him reasonably to conclude in light of his

experience that criminal activity may be afoot." Terry v. Ohio, 392 U.S. 1, 30

(1968); State v. Davis, 104 N.J. 490, 504-05 (1986). "[A] group of innocent

circumstances in the aggregate can support a finding of reasonable suspicion."

State v. Stovall, 170 N.J. 346, 368 (2002).

"An anonymous tip, standing alone, is rarely sufficient to establish a

reasonable articulable suspicion of criminal activity." Rodriguez, 172 N.J. at

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127 (citations omitted). "When an anonymous tip is involved, additional factors

must be considered to generate the requisite level of reasonable and articulable

suspicion." State v. Privott, 203 N.J. 16, 26 (2010) (citations omitted). "[T]he

reliability of an informant's tip must be analyzed in light of the totality of the

circumstances." State v. Williams, 364 N.J. Super. 23, 31 (App. Div. 2003)

(citing Illinois v. Gates, 462 U.S. 213, 238 (1983); State v. Novembrino, 105

N.J. 95, 122 (1987)). "[T]here are situations in which an anonymous tip,

suitably corroborated, exhibits 'sufficient indicia of reliability to provide

reasonable suspicion to make the investigatory stop.'" Florida v. J.L., 529 U.S.

266, 270 (2000) (citation omitted).

"An informant's 'veracity' and 'basis of knowledge' are two highly relevant

factors under the totality of the circumstances." State v. Zutic, 155 N.J. 103,

110 (1998) (citing State v. Smith, 155 N.J. 83, 92 (1998)). However, "[a]

deficiency in one of those factors 'may be compensated for, in determining the

overall reliability of a tip, by a strong showing as to the other, or by some other

indicia of reliability.'" Id. at 110-11 (quoting Gates, 462 U.S. at 233).

Here, as the suppression judge observed, the police did not immediately

move to arrest defendant or his passenger when they saw the Cadillac parked in

the location matching the tipster's description. Additionally, they did not

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surround defendant's vehicle. Instead, the police shined spotlights into the car

to be able to see inside. The judge concluded that a critical fact in this "fluid

situation" was that officers could not tell if anyone was inside the car because

of the heavily tinted windows. As it "was almost 3[:00] a.m. and the location

[of the Cadillac] was a high crime area," the judge recognized "the potential for

danger" that prompted the police not to approach the Cadillac, but use a

loudspeaker to ask the driver to roll down his window.

We agree with the suppression judge that the act of shining the spotlights

was not intrusive. See State v. Reininger, 430 N.J. Super. 517, 534 (App. Div.

2013) (holding that the use of a flashlight by an officer to observe the interior

of a car does not turn an observation into a search). Likewise, we agree with the

judge that communicating by loudspeaker was objectively reasonable and

"unobtrusive" under the circumstances, particularly since the police were

following up on an anonymous tip about a handgun on the lap of one of the

vehicle's occupants.

As their use of a loudspeaker did not result in any response, the police

waited less than a minute before they again asked defendant to lower his

window. Instead of complying, defendant "attempted to conceal himself behind

the tint by only lowering the window a couple of inches" and he never complied

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with the request to lower all his windows. "To be sure, a blatant attempt to hide

from the police can augment suspicion." State v. Alessi, 240 N.J. 501, 523

(2020) (citing State v. Valentine, 134 N.J. 536, 551 (1994)).

Regarding the request of the police to have defendant exit his vehicle, we

note that the United States Supreme Court long ago confirmed it is "objectively

reasonable for officers to order a driver out of a lawfully stopped vehicle" as

removal constitutes "only a minor intrusion into a driver's personal liberty ."

State v. Bacome, 228 N.J. 94, 104 (2017) (citing Pennsylvania v. Mimms, 434

U.S. 106, 111 (1977)). On the record before us, we are satisfied the police had

reasonable suspicion to not only ask defendant to exit the Cadillac, but to also

detain him to conduct a further investigation once he exited the Cadillac. See

State v. Matthews, 398 N.J. Super. 551, 559 (App. Div. 2008) (confirming the

existence of a tip, the lateness of the hour, and the confirmation of the type,

color, and location of the vehicle reported in the tip justified an investigatory

stop to permit the police to inquire what the occupants of the vehicle were

doing).

Additionally, an officer's "suspicions may be raised so as to enable him to

expand the scope of the stop and ask additional, more intrusive, questions" or

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even alight a passenger from the vehicle. United States v. Ramos, 42 F.3d 1160,

1163 (8th Cir. 1994); accord State v. Smith, 134 N.J. 599, 618 (1994).

[B]ecause of the need to protect police officers and

because of the minimal intrusion the requirement to exit

the car imposes on the passenger . . . . the officer need

point only to some fact or facts in the totality of the

circumstances that would create in a police officer a

heightened awareness of danger that would warrant an

objectively reasonable officer in securing the scene in

a more effective manner by ordering the passenger to

alight from the car.

[Smith, 134 N.J. at 618.]

Here, the police were warned by an anonymous tipster in the early

morning hours that a person parked in a Cadillac, in a high-crime area, had a

gun in his lap, and they observed defendant try to hide from them, and ignore

their requests to lower his windows and to keep his hands up. Thus, we are

satisfied the police were justified in asking him to exit his vehicle. Further, due

to their heightened suspicion, the police also had sufficient grounds to ask

Meyers to step out of the Cadillac.

Once defendant stepped out of the Cadillac, the police were able to verify

that his attire matched the description of the tipster. Since defendant's clothing

could not be seen at night through the heavily tinted windows of the vehicle, the

fact the tipster accurately described defendant's attire contributed to the officers'

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reasonable suspicion and supported the reliability of the tip. The same is true

for what occurred when Meyers exited the vehicle, as his attire and race also

matched the tipster's description. As we have stated, the "basis of knowledge"

for a tip is a highly relevant factor under the totality of the circumstances

analysis. Thus, we are persuaded the suppression judge properly found the

anonymous tip was sufficiently reliable to justify the investigatory stop that

occurred once defendant was ordered out of the vehicle. The judge aptly

reasoned:

A critical fact that cannot be ignored and was

immediately apparent to the officers is that the vehicle

had heavily tinted windows. The legality of such tinted

windows is not the issue. It is the fact that the tint

completely obscured the view of the interior even when

subjected to police spotlights. At the time the officers

arrived and even after [defendant] was removed from

the vehicle, officers were still unable to determine if

anyone else was inside the car . . . . The existence of the

tint not only increases the risk to the officers

responding to the anonymous report but also tells them

something about the person who made the report. The

detail in the tip as to the race and clothing worn by the

individuals inside the vehicle with the blacked[-]out

windows indicates that the reporting person had the

ability to see inside the vehicle, something the officers

could not do by looking at the vehicle. Confirmation

of those specific facts indicates that the reporting

person may have been inside the vehicle or had close

access in order to make those observations of the

interior, at night. This demonstrates that the tip is

reliable not because they confirmed the description

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offered in the tip, but because the location, time of day

and difficulty seeing inside the vehicle demonstrated

that the tipster had the ability to have close contact with

the individuals in the car. This provided confirmation

that "the tipster had knowledge of concealed criminal

actions." Gamble, 218 N.J. [at 428-29] (citing [J.L.],

529 U.S. [at 272]).

Lastly, the tip indicated that there was a handgun in this

vehicle on the lap of one of the occupants. "[T]he

greater the threat to public safety, []the greater the need

may be for prompt action, and thus allowances must be

made for the fact that perfect knowledge is often not

attainable at the moment the police must act."

Hathaway, 222 N.J. [at 472].

The suppression judge's reasoning is consistent with the analysis in State

v. Arthur, 149 N.J. 1, 11 (1997), where our Supreme Court confirmed that

"[p]olice officers should consider whether a defendant's actions are more

consistent with innocence than guilt; however, simply because a defendant's

actions might have some speculative innocent explanation does not mean that

they cannot support articulable suspicions if a reasonable person would find the

actions are consistent with guilt."

We also recognize that a police officer is permitted to pat down a citizen's

outer clothing incident to a Terry stop when the officer perceives a risk to his or

her safety and has reason to believe that the individual is armed and dangerous.

State v. Diloreto, 180 N.J. 264, 276 (2004). The officer need not be absolutely

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certain that the individual is armed; "the test under Terry 'is whether a

reasonably prudent man [or woman] in the circumstances would be warranted in

the belief that his [or her] safety or that of others was in danger.'" Ibid. (quoting

Terry, 392 U.S. at 27). "[T]he same conduct that justifies an investigatory stop

may also present the officer with a specific and particularized reason to believe

that the suspect is armed." Privott, 203 N.J. at 30. Such is the case here,

particularly since the conduct of defendant enhanced, rather than assuaged the

officers' concerns that he had access to a weapon in his vehicle. Indeed, the

police were properly concerned for their safety, at this point in their

investigation, to warrant the pat down given defendant's behavior, the late hour,

the high-crime area, the existence and reliability of the anonymous tip, and the

ongoing risk that one of the occupants of the vehicle possessed a gun. State v.

Robinson, 228 N.J. 529, 544 (2017).

Next, defendant contends his suppression motion should have been

granted because after the stop, an officer improperly "broke the threshold" of

the Cadillac by placing his head inside the driver's side window. Again, we are

not convinced.

Consistent with the Fourth Amendment to the United States Constitution

and Article I, ¶ 7 of the New Jersey Constitution, the police must "obtain a

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warrant 'before searching a person's property, unless the search falls within one

of the recognized exceptions to the warrant requirement.'" State v. Cassidy, 179

N.J. 150, 159-60 (2004) (quoting State v. DeLuca, 168 N.J. 626, 631 (2001)).

Because a warrantless search is presumed invalid, the State has the burden to

prove, by a preponderance of evidence, that it "'falls within one of the few well-

delineated exceptions to the warrant requirement.'" State v. Pineiro, 181 N.J.

13, 19-20 (2004) (quoting State v. Maryland, 167 N.J. 471, 482 (2001)).

One such exception is the protective sweep of a vehicle. It is permissible

for law enforcement to conduct a warrantless search of a vehicle's passenger

compartment when the totality of circumstances supports a reasonable suspicion

a driver or passenger is dangerous and may gain immediate access to weapon s.

Gamble, 218 N.J. at 431-32.

Here, the suppression judge concluded a valid protective sweep of the

Cadillac was appropriate due to: the reliability of the tip, which "indicated there

was a handgun in the car on the lap of one of the occupants"; defendant's failure

to obey Officer Orndorf's commands or answer the officer's questions about

whether there was anyone else in the vehicle; the heavily tinted windows on the

suspect car which prevented the police from seeing its interior; and the high -

crime location of the vehicle at three o'clock in the morning. Given the totality

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of these circumstances, we agree with the judge that the limited sweep was

reasonable, as "it was probable that the defendant [and his passenger] would

have been returned to their vehicle, thereby exposing the officers to the danger

that those individuals would then have immediate access to any firearms that

may be contained therein." As the judge correctly noted, "the fact that no

weapon was located on either [the] defendant [or his passenger] when searched

. . . did not eliminate the risk of their access to a weapon when returned to the

vehicle." The judge added that

the limited intrusion created by the officer, placing his

head through the open window and, given the nature of

the risk to officer safety, the likelihood that the

defendants would have been permitted to return to their

vehicle had the syringe not been seen . . . same was

reasonable in this specific situation.

It is evident, then, that the same reasonable suspicion that justified the

investigatory stop also justified the detention of defendant and his passenger for

a brief additional period while the police conducted a protective sweep for the

reported weapon, with which defendant and his passenger could have armed

themselves if released by the police. Gamble, 218 N.J. at 433. Certainly, the

police were "authorized to take such steps as were reasonably necessary to

protect their personal safety and to maintain the status quo during the course of

the stop." United States v. Hensley, 469 U.S. 221, 235 (1985). See also State

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v. Padilla, 321 N.J. Super. 96, 108 (App. Div. 1999) (ruling that officers had the

right to draw their handguns where a caller reported a person with a gun).

We also see no basis to disturb the judge's finding that based on the

"inevitable discovery doctrine," the police were permitted to retrieve items from

the Cadillac after detaining defendant. The inevitable discovery exception to

the exclusionary rule applies where:

(1) proper, normal and specific investigatory

procedures would have been pursued in order to

complete the investigation of the case; (2) under all of

the surrounding relevant circumstances the pursuit of

those procedures would have inevitably resulted in the

discovery of the evidence; and (3) the discovery of the

evidence through the use of such procedures would

have occurred wholly independently of the discovery of

such evidence by unlawful means.

[State v. Sugar, 100 N.J. 214, 238 (1985).]

Here, the suppression judge found that the discovery of the items retrieved

by Officer Menz, i.e., the syringe and BB gun, was inevitable because defendant

"was informed he was under arrest for the 'needle,' the dog sniff had already

occurred and the decision to seek a warrant was already made." The judge's

factfinding in this regard is overwhelmingly supported by credible evidence in

the record. Accordingly, the motion judge's legal conclusions are unassailable.

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We need not address at length defendant's Point II. As defendant did not

challenge the canine's qualifications before the trial court, we review his claim

for plain error. R. 2:10-2.

While defendant contends the State did not adequately establish the

qualifications of the canine that performed the sniff, the State counters that

information about the canine's qualifications was provided in discovery. We are

convinced that even if the State neglected to provide the canine's qualifications

to defendant in discovery, he could and should have raised any challenge

regarding the canine's qualifications in an appropriate application to the trial

court. Having failed to do so, the current challenge is deemed waived. R. 3:5-

7(f). See also State v. Kim, 412 N.J. Super. 260, 268-71 (App. Div. 2010).

While we often review allegations of error not brought to a trial judge's attention,

we need not consider such an issue unless it goes to the jurisdiction of the trial

court or concerns matters of substantial public interest. State v. Robinson, 200

N.J. 1, 20-22 (2009). Accordingly, we are persuaded this issue is not properly

raised before us.

In Point III, defendant argues for the first time on appeal that his

conviction for unlawful possession of a firearm and possession of a weapon by

a convicted person cannot stand because airsoft guns are not firearms. Again,

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we review this argument under the plain error standard, consistent with Rule

2:10-2.

As the motion judge noted, during the investigatory stop, when the syringe

and gun were recovered from the Cadillac, defendant was heard on the MVR

telling an officer the gun was a BB gun. Also, at trial, Officer Menz confirmed

the gun he retrieved from the car during the stop was a "CO2 powered BB gun."

Defense counsel lodged no objection when the State sought to admit the

BB gun, as well as the MVR referencing the gun, into evidence at trial. Still,

defendant argues that "a person is not guilty of possession of a firearm for an

unlawful purpose if the gun was a toy," citing State v. Gantt, 101 N.J. 573

(1986). His reliance on this case is misplaced, however, as Gantt also favorably

cites to another case that classified BB guns as handguns. 1

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

(1) Any person who knowingly has in his possession

any handgun . . ., without first having obtained a permit

to carry the same . . ., 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

1

"[T]his latter class of less-familiar firearms 'can best, and perhaps only, be

described in terms of their operation.' [State v. Gantt,] 195 N.J. Super. [114,]

117 [(App. Div. 1984)]. See also State v. Mieles, 199 N.J. Super. 29 (App. Div.

1985) (holding that Code's definition is broad enough to include a BB gun as a

firearm)." Gantt, 101 N.J. at 584.

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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.

In order to be found guilty of the "certain persons" statute, N.J.S.A. 2C:39-

7(b)(1), the State must prove that: (1) there was a firearm; (2) defendant had

possessed or controlled that firearm; and (3) defendant had previously been

convicted of, among other things, a qualifying predicate offense. Model Jury

Charges (Criminal), "Certain Persons Not To Have Firearms (N.J.S.A. 2C:39-

7(b)(1))" (rev. Feb. 12, 2018).

Since BB guns commonly utilize air, carbon dioxide or some other

compressed gas to fire small projectiles, they clearly fall under the definition set

forth in N.J.S.A. 2C:39-5(b)(2). See Mieles, 199 N.J. Super. at 37-38. Given

that the BB gun found in defendant's possession qualified as a handgun and he

does not contest he was previously convicted of a qualifying predicate offense,

we find no basis to vacate defendant's conviction as a certain person for the

unlawful possession of a weapon.

In Point IV, defendant claims his conviction must be vacated because the

State failed to prove he possessed a dagger for an unlawful purpose, N.J.S.A.

2C:39-3(e). It is unclear whether defendant's argument regarding the State's

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proofs equates to a claim that his conviction for this weapons offense was

against the weight of the evidence. If so, it would appear he challenges the

denial of his motion for judgment notwithstanding the verdict. However, "the

trial court's ruling on such a motion shall not be reversed unless it clearly

appears that there was a miscarriage of justice under the law." R. 2:10-1.

As a threshold issue, we note the trial judge conducted the charge

conference required by Rule 1:8-7(b). Based on that charge conference, the

judge, without objection from defendant, instructed the jury:

In order to convict the defendant of [possession of a

knife with a blade larger than five inches], you must be

satisfied that the State has proved beyond a reasonable

doubt both of the following elements:

....

The first element that the State must prove beyond a

reasonable doubt is that Exhibit S-19 is a dagger. A

dagger has been defined as a knife with a very sharp

point and one or two sharp edges, typically designed or

capable of being used as a thrusting or a stabbing

weapon. Most daggers [also] feature a full cross guard

to keep the hand from riding [] forward [] onto the

sharpened blade edges. The second element that the

State must prove beyond a reasonable doubt is that the

defendant knowingly possessed Exhibit S-19 at the

time and place alleged.

....

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Under our law, possession can be actual or

constructive, sole or joint. And I also provided

information previously regarding the inference that you

may draw regarding possession when a weapon is found

within a vehicle . . . . Finally, in order to find the

defendant guilty, the State must prove beyond a

reasonable doubt that the defendant’s possession of the

dagger was without . . . any explainable, lawful

purpose.

N.J.S.A. 2C:39-1(r)(3) designates a dagger as a prohibited weapon but

does not define the term "dagger." Accordingly, pursuant to the Model Criminal

Jury Charges, a standard dictionary definition should be utilized to explain to a

jury what is meant by the term.2 Here, the trial judge followed the Model

Criminal Jury Charges and instructed the jury, without objection from defense

counsel, that a dagger is "a knife with a very sharp point and one or two sharp

edges, typically designed or capable of being used as a thrusting or a stabbing

weapon." We note this is the same definition the judge discussed with counsel

at the charging conference.

2

"The weapons statute provides specific definitions for three of the weapons

mentioned in N.J.S.A. 2C:39-3[(e)]. See N.J.S.A. 2C:39-1h for 'gravity knife,'

N.J.S.A. 2C:39-1p for 'switchblade knife,' and N.J.S.A. 2C:39-1u for 'ballistic knife.'

A standard dictionary definition should be used for instructional purposes whenever

an indictment alleges possession of another type of weapon (dagger, dirk, stiletto,

etc.) prohibited by N.J.S.A. 2C:39-3[(e)]." Model Jury Charges (Criminal),

"Possession of Certain Weapons (N.J.S.A. 2C:39-3[(e)])," n.3 (rev. Feb. 9, 2009).

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At trial, Officer Menz testified that he found the offending knife in the

Cadillac after defendant exited the car and was detained. The trial record is

devoid of any evidence defendant had an explainable lawful purpose for the

dagger. Thus, once the judge properly instructed the jury regarding the

definition of a dagger, and the elements the State needed to prove under N.J.S.A.

2C:39-3(e), we are satisfied the jury had a sufficient understanding of the

evidence before it to find defendant guilty of violating this statute.

The defendant further claims the State's per se ban on daggers is

unconstitutional. He contends the broad definition of a dagger under N.J.S.A.

2C:39-3(e) "has the effect of acting as a per se prohibition on the possession of

daggers . . . . [and] runs afoul of the Second Amendment to the United States

Constitution." Again, we are not convinced.

"'A legislative act will not be declared void unless its repugnancy to the

constitution is clear beyond reasonable doubt.'" State v. Buckner, 223 N.J. 1,

14 (2015) (quoting Gangemi v. Berry, 25 N.J. 1, 10 (1957)). "When reasonable

people 'might differ' about the constitutionality of a law, courts must 'defer[] to

the will of the lawmakers.'" Id. at 15 (quoting N.J. Ass'n on Corr. v. Lan, 80

N.J. 199, 220 (1979)).

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Here, the Legislature determined that a dagger is so dangerous that mere

possession is prohibited, unless there is evidence a defendant has an explainable

lawful use for the weapon. Stated differently, if there is evidence a defendant

has an explainable lawful purpose for a dagger, the State is unable to prove the

violation of N.J.S.A. 2C:39-3(e). Accordingly, defendant's contention that the

prohibition on daggers "must face the same constitutional fate as per se

prohibitions on other types of weapons" ignores the fact that the Legislature

included an "escape hatch" in the challenged statute, which allows for the

possession of daggers for an "explainable lawful purpose." Under these

circumstances, defendant has not met the heavy burden of establishing the

invalidity of N.J.S.A. 2C:39-3(e).

We also find defendant's novel argument in Point V unpersuasive.

Approximately three-and-a-half hours after jurors began their deliberations,

they sent a note to the trial judge which read: "We can only agree on one charge.

We cannot come to an agreement on remaining charges. What do we do?" The

judge and counsel discussed how to answer the note and the judge proposed his

response. The judge then asked defense counsel if he had "any other ideas," to

which counsel replied, "I don't." Thus, the judge instructed the jury as follows:

[M]y answer to you is as follows. You keep

deliberating. Okay? . . . . [Y]ou're going to need to

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keep deliberating and, you know, we look at the time

and the complexity of the case and the number of hours

of testimony, that type of thing. And although it seems

like a long day for you, in the grand scheme of things

it's been about three and half to . . . three hours and

forty-five minutes of deliberations, minus lunch and the

time that it took, the charge and everything else . . . .

[A]lthough it might seem like a long time to you, in the

grand scheme of things, it's not that long. I will tell you

this. If you need help on the definitions of whatever it

is that I gave you in the charge, if you need me to try

and explain something to you, maybe that's different

than the way it might be written in the charge I'll be

more than happy to assist. If you need to listen to

testimony, it will be played back to you and it will come

through a speaker. We can do that as well. But for

now, I'm going to ask you to continue to go back into

the deliberation room and continue deliberating. Okay?

. . . . [Y]ou guys can chat about it. If you want to listen

to something, if you needed a specific instruction on the

law in some fashion, you know, write a note. We're

here for you.

We are mindful the jury did not state in its note that it was hopelessly

deadlocked on the remaining charges after it reached agreement on one charge.

Instead, the jury asked for guidance on how to proceed. Given the brevity of

the jury's deliberations, the lack of objection by defense counsel to the judge's

proposed response to the jury's note, and the lack of coercion in the judge's

response to the jury, we are persuaded it was not plain error for the court to

require the jury to continue its deliberations, rather than instruct it about the

effects of a partial verdict. See State v. Figueroa, 190 N.J. 219, 240 (2007).

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Likewise, we are not convinced the judge committed plain error by not

repeating his earlier instruction to the jury not to "surrender [their] honest

conviction as to the weight or [effect of] evidence solely because of the opinion

of [their] fellow jurors or for the mere purpose of returning a verdict." Our

conclusion is bolstered by the fact that defense counsel did not ask for this

instruction to be repeated, nor does the record reflect the jury had difficulty

following the judge's initial instructions.

We readily dispense with defendant's claim in Point VI. Trial judges

should take corrective action when counsel bring a sleeping juror to the judge's

attention. State v. Scherzer, 301 N.J. Super. 363, 491 (App. Div. 1997). If the

judge takes corrective action after learning of a sleeping juror and defense

counsel does not request any further action, there is no reversible error. Ibid.

Here, the judge, on the record, addressed his observations of inattentive

Juror Number One. The judge noted this juror was not asleep the first time the

prosecutor brought it to his attention. But when the issue was raised a second

time, the judge found the juror was asleep during testimony and he expressed

his concern about this behavior. The judge advised counsel to discuss the matter

over lunch to decide how they would like to handle the matter. Defense counsel

responded, "[l]et's keep our eye on him in the afternoon session and see what

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develops." As the discussion about Juror Number One continued, defense

counsel reiterated, "I think we should keep our eyes on him in the afternoon

session and . . . see how he's doing in the afternoon session." The judge deferred

to defense counsel's wishes. It does not appear from the record that Juror

Number One, or any juror for that matter, was sleeping or inattentive that

afternoon.

The next day, the judge received a note from one of the jurors regarding

Juror Number One's inattentiveness. The judge promptly addressed the note

with counsel, and each attorney asked that the inattentive juror be dismissed.

Moreover, without objection from counsel, two of the three jurors who had

discussed Juror Number One's behavior were asked on the record if they could

proceed with the case and remain fair and impartial. Both jurors responded

affirmatively. Defense counsel declined to speak to the third juror about her

ability to continue in the case, stating, "well, frankly, I think I know the answer."

Under these circumstances, and mindful Juror Number One was dismissed prior

to the jury's deliberations, we discern no reversible error in the judge's handling

of Juror Number One.

Finally, in Point VII, defendant argues for the first time on appeal that the

State may have failed to provide a supplemental police report to the defense.

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This report was addressed at trial and the judge ordered the prosecutor to locate

and provide a copy of the report to defense counsel. He also advised he might

provide a Clawans3 charge to the jury if the report was not produced. Such an

adverse-inference charge is a permissible remedy for a discovery violation.

State v. Dabas, 215 N.J. 114, 140 (2013). It is unclear on this record if the report

was produced, but it is uncontroverted that defendant never requested an adverse

inference charge based on the lack of its production. Also, defense counsel did

not mention the supplemental report during the remainder of the trial. Under

these facts, we are satisfied no appellate remedy is warranted on this issue.

Any remaining claims raised by defendant lack merit and require no

further discussion. R. 2:11-3(e)(2).

Affirmed.

3

State v. Clawans, 38 N.J. 162 (1962). A Clawans charge allows a jury to draw

an adverse inference against a party when that party's failure to present evidence

"raises a natural inference that the party so failing fears exposure of those facts

would be unfavorable." Id. at 170 (citation omitted).

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