Opinion
DOCKET NO. A-3311-14T4
06-17-2015
STATE OF NEW JERSEY, Plaintiff-Appellant, v. ONN RAPEIKA, Defendant-Respondent.
Deepa S. Y. Jacobs, Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Jacobs, on the brief). Evan F. Nappen argued the cause for respondent. Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Ms. Kmieciak, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano, Ostrer and Tassini. On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 14-05-0666. Deepa S. Y. Jacobs, Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Jacobs, on the brief). Evan F. Nappen argued the cause for respondent. Jennifer E. Kmieciak, Deputy Attorney General, argued the cause for amicus curiae State of New Jersey (John J. Hoffman, Acting Attorney General, attorney; Ms. Kmieciak, on the brief). PER CURIAM
By leave granted, the State of New Jersey appeals from the Law Division's order that dismissed counts eight, nine and ten of a seventeen-count indictment returned by the Bergen County grand jury against defendant Onn Rapeika. Each of the dismissed counts charged defendant with second-degree possession of an assault firearm, "without having the assault firearm licensed pursuant to N.J.S.A. 2C:58-5, or registered pursuant to N.J.S.A. 2C:58-12, or rendered inoperable pursuant to N.J.S.A. 2C:58-13; contrary to the provisions of N.J.S.A. 2C:39-5f." The order reflects the judge's legal conclusion that "defendant was protected pursuant to L. 2013, c. 117, granting a period of amnesty for possession of the assault firearms referred to in those counts of the indictment." We reverse.
I.
Although we have not been provided with a transcript of the evidence adduced before the grand jury, we accept for purposes of this appeal the facts contained in the motion judge's written opinion that accompanied the order. Furthermore, because the order results from consideration of defendant's motion to dismiss portions of the indictment, we "must construe the facts in the light most favorable to the State." State v. Saavedra, 433 N.J. Super. 501, 514 (App. Div. 2013) (citing State v. Fleischman, 383 N.J. Super. 396, 398 (App. Div. 2006), aff'd, 189 N.J. 539 (2007)), appeal granted, 217 N.J. 289 (2014).
On January 2, 2014, members of the Fort Lee Police Department executed a search warrant at defendant's residence. They recovered suspected controlled dangerous substances, numerous rifles and handguns, including the three assault firearms that were the subject of the indictment, and ammunition. A separate warrant authorized the search of a garage defendant allegedly rented; police seized three empty shoulder-fired missile tubes. Although the documents are not in the appellate record, the judge noted that defendant had "a handgun purchase permit and certificate of eligibility for firearms purchased on [November 30, 2010]," a "permit to purchase a handgun for [a] firearm purchased on [February 14, 2011]" and "an invoice for [a] firearm purchased on [December 31, 2013]."
Counts twelve, thirteen and fourteen of the indictment charged defendant with unlawful possession of destructive devices, two "Rocket HE 66 MM Anti-Tank m72 A2" launchers and a "Medium Anti-Tank AT-4."
Defendant's motion to dismiss the counts charging him with unlawful possession of an assault firearm was premised upon L. 2013, c. 117 § 2, enacted on August 8, 2013 (the amnesty provision), which provided in relevant part,
[A]ny person who has in his possession an assault firearm on the effective date of this act may retain possession of that firearm for a period of not more than 180
days after the effective date. During that time period, the possessor of the assault firearm shall:Defendant contended that, since the 180-day period did not expire until February 5, 2014, he was immune from prosecution for the unlawful possession of assault firearms on the date contained in the indictment, i.e., January 2, 2014.
(1) transfer the assault firearm to any person lawfully entitled to own or possess such firearm;
(2) render the assault firearm inoperable; or
(3) voluntarily surrender the assault firearm pursuant to the provisions of [N.J.S.A.] 2C:39-12.
The State argued that defendant had an affirmative duty to take one of the three steps set forth in the amnesty provision prior to his arrest, and his failure to do so made him culpable under existing law. It also noted that the amnesty statute was part of a comprehensive set of amendments to New Jersey's gun laws that enhanced certain penalties for the unlawful possession of firearms. See, e.g., L. 2013, c. 113 § 1 (making unlawful possession of a handgun a second-degree crime); § 2 (increasing the mandatory minimum sentence pursuant to the Graves Act and making certain predicate offenses committed while in possession of an assault firearm subject to the Graves Act). In sum, the State contends defendant's interpretation of the amnesty provision was inconsistent with the Legislature's actual purpose.
After tracing the legislative history of the amnesty provision, the judge concluded that defendant "had until February 4, 2014[,] to exercise one of the disposal options authorized," and, "[t]he assault firearms were seized . . . within the 'window' for defendant to dispose of them." The judge reasoned that the court could not "add the requirement that defendant take affirmative steps to dispose of the firearms prior to their discovery or presume that defendant had no intent to dispose of the assault firearms within the time prescribed by the [amnesty] statute." The judge granted the motion to dismiss counts eight, nine and ten, and entered a conforming order.
II.
We granted the State's motion for leave to appeal, as well as the Attorney General's motion to appear as amicus curiae. They essentially reiterate the arguments made before the Law Division and urge us to definitively adopt an interpretation of the amnesty provision that imposes an implicit, affirmative obligation upon an individual to undertake certain action in order to be entitled to the amnesty provided. In other words, the State contends that unless a person took steps to "transfer the assault firearm to any person lawfully entitled to own or possess such firearm," "render the assault firearm inoperable," or "voluntarily surrender the assault firearm" in accordance with N.J.S.A. 2C:39-12, he "may [not] retain possession" of that firearm for the 180-day period. L. 2013, c. 117 § 2. We decline to address that issue squarely, concluding, instead, there is a fundamental reason why defendant's motion to dismiss counts eight, nine and ten of the indictment should have been denied.
"Once the grand jury has acted, an indictment should be disturbed only on the clearest and plainest ground, and only when the indictment is manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations and internal quotation marks omitted). Usually, "the 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." Id. at 229 (citation omitted). However, when the motion to dismiss is addressed to a purely legal issue, "our review of a trial judge's legal interpretations is de novo." State v. Eldakroury, 439 N.J. Super. 304, 309 (App. Div. 2015).
"At the indictment stage, the State need not present evidence necessary to sustain a conviction, but only a showing sufficient for the grand jury to 'determine that there is prima facie evidence to establish that a crime has been committed.'" In re A.D., 212 N.J. 200, 220 (2012) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 27 (1984)); see also Hogan, supra, 144 N.J. at 236 ("In seeking an indictment, the prosecutor's sole evidential obligation is to present a prima facie case that the accused has committed a crime."). "A trial court . . . should not disturb an indictment if there is some evidence establishing each element of the crime to make out a prima facie case." State v. Morrison, 188 N.J. 2, 12 (2006) (emphasis added).
In this case, it is essentially undisputed that the State presented sufficient evidence to secure an indictment charging defendant with violations of N.J.S.A. 2C:39-5(f). That statute provides, "Any person who knowingly has in his possession an assault firearm is guilty of a crime of the second degree except if the assault firearm is licensed pursuant to [N.J.S.A. 2C:58-5]; registered pursuant to [N.J.S.A. 2C:58-12(b)]; or rendered inoperable pursuant to [N.J.S.A. 2C:58-13(b)]." We have narrowly construed the exceptions to criminal culpability contained in the statute. See, e.g., State v. Elrose, 277 N.J. Super. 548, 555-56 (App. Div. 1994) (concluding that the defendant was not entitled to the inoperability exception, even if his assault firearm was rendered inoperable, because he failed to file the required certificate of inoperability in a timely fashion). Most importantly, defendant's motion was not premised upon insufficient evidence before the grand jury as to the prima facie elements of the crime or application of the exceptions contained in the statute.
These exceptions were enacted as part of the 1990 legislation that criminalized the possession of assault firearms. See L. 1990, c. 32 § 12.
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Rather, defendant argued that because he possessed the prohibited weapons during the 180 days that the amnesty provision was in effect, he was not criminally culpable. Assuming arguendo that defendant's interpretation, adopted by the judge, was correct, we would still reverse the order under review. By its own terms, the amnesty provision applied only if a person "ha[d] in his possession an assault firearm on the effective date of th[e] act," i.e., August 8, 2013. Absent evidence in the State's possession that defendant possessed the three assault firearms prior to August 8, 2013, the prosecutor was under no obligation to consider application of the amnesty provision during the grand jury presentation.
We note in this regard that the State has no obligation to present the grand jury with particular evidence in its possession, unless that evidence "both directly negates the guilt of the accused and is clearly exculpatory." Hogan, supra, 144 N.J. at 237. The prosecutor has the duty to instruct the grand jurors regarding "exculpatory defense[s]," defenses "that would, if believed, result in a finding of no criminal liability, i.e., a complete exoneration." State v. Hogan, 336 N.J. Super. 319, 342 (App. Div.), certif. denied, 167 N.J. 635 (2001). However, "[t]he prosecutor has [no] obligation on his own [to] meticulously . . . sift through the entire record of investigative files to see if some combination of facts and inferences might rationally sustain a defense or justification." Id. at 343.
The record before us does not support the conclusion that defendant possessed the assault firearms on August 8, 2013. In fact, during oral argument before the judge, defense counsel asserted that his client obtained the firearms "from a dealer, even though the assault weapon ban was technically still in effect." It would appear also that defendant purchased them from a "legal dealer with a pistol purchase permit and firearms ID card," something which defense counsel acknowledged "raise[d] a whole separate issue."
We conclude that it was error to dismiss counts eight, nine and ten of the indictment, even under the Law Division's most generous interpretation of the amnesty provision. The order under review is reversed, those counts of the indictment are reinstated and the matter is remanded to the Law Division for further proceedings. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION