Opinion
DOCKET NO. A-0896-11T3
01-16-2013
STATE OF NEW JERSEY, Plaintiff-Respondent, v. STEVEN M. TOTH, a/k/a STEVEN MICHAEL TOTH, Defendant-Appellant.
Lora B. Glick, attorney for appellant. Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 10-10-1486.
Lora B. Glick, attorney for appellant.
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Emily R. Anderson, Deputy Attorney General, of counsel and on the brief). PER CURIAM
Defendant Steven M. Toth appeals from his September 9, 2011 judgment of conviction as well as the March 24, 2011 order denying his pretrial motions. Defendant was charged in Middlesex County Indictment No. 10-10-1486 with second-degree certain persons not to have weapons, N.J.S.A. 2C:39-7(b) (count one). Defendant moved pretrial for the judge to charge the jury that the State must prove mens rea with regard to his prior conviction. He claimed that he was entitled to the defense of mistake-of-fact because he thought his prior conviction was vacated through the pretrial intervention (PTI) program and he was twice granted permits to possess firearms. Defendant was also charged in count five of Middlesex County Indictment No. 09-10-1704 with second-degree unlawful possession of a machine gun, N.J.S.A. 2C:58-5 and 39-5(a). He filed a motion to dismiss this count due to the State's failure to inform the grand jury that the machine gun was inoperable. Defendant appeals the denial of these two pretrial motions and also claims that his aggregate sentence of seven years with a five-year period of parole ineligibility is excessive. After reviewing the record in light of the contentions advanced on appeal, we affirm.
This indictment superseded Indictment No. 09-10-1713, and also charged defendant with two counts of third-degree violations of regulatory provisions relating to firearms, N.J.S.A. 2C:39-10(c), for giving false information when applying for a firearms purchasers identification card and/or application to purchase a handgun (counts two and three).
See R. 3:28.
Defendant's October 19, 1992 judgment of conviction reflects that when he was twenty years old he pled guilty to third-degree aiding and abetting arson, N.J.S.A. 2C:17-1(b). He was sentenced to a three-year term of probation with a special condition of 364 days of incarceration, which was to be deferred for three years. If defendant successfully completed probation, the period of incarceration would be commuted to the one day of incarceration he had served.
In April 2009, defendant's employer, the owner of Johnstone Supply Company, reported to the South Plainfield Police Department that defendant had stolen a boiler valued at more than $1700. The police investigated and discovered that defendant had installed the boiler, charged the homeowner $5400, and personally pocketed the proceeds. Defendant was terminated for this offense and ultimately indicted in Middlesex County Indictment No. 09-10-1861 for third-degree theft, N.J.S.A. 2C:20-3(a).
We relate the facts as contained in the guilty plea transcript, defendant's presentence report and the grand jury minutes of September 25, 2009.
On May 6, 2009, defendant sought employment at Pride Retail Contractors (Pride), which is located behind the home where he lived with his wife and two children. After he was turned away, defendant returned to the Pride office wearing a camouflage jacket and carrying a black AR-15 assault rifle on his shoulder. Defendant was ultimately persuaded to leave. Once outside the office, he made vague threats while moving the gun around. He also took the safety off the weapon. Later, Pride employees heard seven to nine gunshots coming from the direction of defendant's home.
Defendant's wife gave the police consent to search the home. Ten to twelve spent shell casings were found on the back patio. In the basement, the police found a loaded AR-15 assault rifle, two or three other long guns and two or three handguns in an unsecured cabinet area. The detached garage contained approximately twenty weapons, thousands of rounds of ammunition and approximately thirty-five large-capacity magazines. A silver .22 caliber Ruger rifle that had been converted into an assault rifle and a .30 caliber Browning machine gun were found among the weapons.
In addition to the fifth count charging unlawful possession of a machine gun, defendant was also charged in Indictment No. 09-10-1704 with third-degree terroristic threats, N.J.S.A. 2C:12-3(b) (count one); second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count two); third-degree unlawful possession of an assault weapon, an AR-15, N.J.S.A. 2C:39-5(f) (count three); third-degree possession of an assault firearm, "a [R]uger 22 caliber rifle with pistol grip and folding stock[,]" N.J.S.A. 2C:39-5(f) (count four); fourth-degree possession of a large-capacity ammunition magazine, N.J.S.A. 2C:39-3(j) (count six); and second-degree endangering the welfare of a child "by keeping loaded weapons unsecured in the [home,]" N.J.S.A. 2C:24-4(a) (count seven).
After his pretrial motions were denied, defendant pled guilty to count one of Indictment No. 09-10-1861 charging third-degree theft, count two of Indictment No. 09-10-1704 charging second-degree possession of a weapon for an unlawful purpose, and count one of Indictment No. 10-10-1486 charging second-degree certain persons not to have weapons. Defendant reserved the right to appeal the pretrial rulings. R. 3:9-3(f). The remaining counts were dismissed by the State.
Defendant raises the following issues on appeal:
POINT I: THE TRIAL COURT, IN DENYING DEFENDANT'S MOTIONS, VIOLATED HIS CONSTITUTIONAL RIGHTS, WARRANTING REVERSAL.
A. THE TRIAL COURT VIOLATED DEFENDANT'S SECOND AND SIXTH AMENDMENT RIGHTS IN DENYING HIS MOTION TO COMPEL THE STATE TO PROVE SCIENTER AS TO HIS STATUS AS A CONVICTED FELON AND FOR A SCIENTER JURY INSTRUCTION.
B. THE TRIAL COURT VIOLATED DEFENDANT'S SECOND AND SIXTH AMENDMENT RIGHTS IN DENYING HIS MOTION TO BE PERMITTED TO ASSERT THE DEFENSE OF MISTAKE-OF-FACT.
C. THE TRIAL COURT VIOLATED DEFENDANT'S DUE PROCESS RIGHTS IN DENYING HIS MOTION TO BE PERMITTED TO ASSERT AN ENTRAPMENT-BY-ESTOPPEL DEFENSE.POINT II: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN RELYING ON STATE V. GANTT, 101 N.J. 573 (1986) TO HOLD, AS A MATTER OF LAW, THAT OPERABILITY OF THE .30 CALIBER BROWNING WAS RELEVANT ONLY TO QUESTIONS BEARING UPON DESIGN.
POINT III: DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
I
We review defendant's appellate claims with the understanding that gun control "is an area in which 'regulations abound and inquiries are likely,' and where the overarching purpose is to insure the public safety and protect against acts and threats of violence." State v. Pelleteri, 294 N.J. Super. 330, 335 (App. Div. 1996) (quoting State v. Hatch, 64 N.J. 179, 184 (1973)), certif. denied, 148 N.J. 461 (1997). Accordingly, the legislature has "'place[d] restrictions on those who may carry such weapons[, which are] intended to prevent criminal and other unfit elements from acquiring and possessing them.'" State v. Copling, 326 N.J. Super. 417, 441 (App. Div. 1999) (quoting State v. Wright, 155 N.J. Super. 549, 553 (App. Div. 1978)), certif. denied, 164 N.J. 189 (2000).
A
Defendant maintains that the certain persons offense contains the element of mens rea with regard to his status as a convicted felon and that the State must therefore prove that defendant knew he had a prior conviction. Defendant also maintains through counsel that he thought he had been admitted into the PTI program. He submits no certification to support his contention that he had the mistaken belief that he was accepted into the PTI program and that his conviction was therefore set aside or expunged.
Neither party disputes that defendant must act "knowingly" with respect to possession of the weapon. N.J.S.A. 2C:39-7(b); see State v. Sewell, 127 N.J. 133, 141 (1992).
We have no indication that defendant so testified. Although the order states "having heard testimony[,]" the judge's written opinion does not reference a hearing or oral argument and no such transcript was provided on appeal.
Defendant's mistaken belief is not well-founded. Entering a plea of guilty prior to enrollment in the program is contrary to the stated purpose of PTI. State v. Randall, 414 N.J. Super. 414, 421 (App. Div.), certif. denied, 203 N.J. 437 (2010). Neither are defendants sentenced prior to entry into the program. Defendant does not deny that he attended his plea and sentencing hearings in 1992 as required by law. R. 3:16(a); R. 3:21-4(b). We do not agree with defendant that the State must not only provide proof that defendant was convicted and sentenced, but also that he remembers the proceedings accurately. See District of Columbia v. Heller, 554 U.S. 570, 626, 128 S. Ct. 2783, 2816-17, 171 L. Ed. 2d 637, 678 (2008) (noting the "longstanding prohibitions on the possession of firearms by felons"); see also State v. Scott, ___ N.J. Super. ___, ___ (2012) (slip op. at 2) (analyzing the mens rea needed to convict a defendant of a community gun charge, N.J.S.A. 2C:39-4(a)(2), and determining that the State need not prove that the defendant knows the firearm is a community gun).
The State presented a Middlesex County judgment of conviction indicating that defendant pled guilty to an accusation on August 14, 1992 and was sentenced approximately two months later. The State may generally rely on a judgment of conviction as proof of a prior conviction. See N.J.S.A. 2C:44-4(d) (stating that for sentencing purposes the court may rely on "any evidence . . . that reasonably satisfies the court that the defendant was convicted") and State v. H.G.G., 202 N.J. Super. 267, 273 (App. Div. 1985) ("The proof of conviction required [in the expungement context] is satisfied by the introduction into evidence of a certified judgment of conviction."). Thus, the motion judge did not err in denying defendant's motion seeking a jury charge that the State must prove mens rea with respect to defendant's knowledge of his prior conviction.
Although neither party indicates whether this judgment was certified, had the case gone to trial the State could have produced a certified copy.
B
On two occasions, the South Plainfield Police Department conducted criminal background checks on defendant prior to issuing him firearms purchaser permits. A Federal Bureau of Investigations (FBI) fingerprint criminal background check inaccurately "FAILED TO DISCLOSE A PRIOR CRIMINAL HISTORY RECORD INDEXED IN FBI FILES." Defendant asserts that because he was incorrectly issued firearms purchaser permits, he should have been permitted to assert the defense of mistake-of-fact pursuant to N.J.S.A. 2C:2-4(a) and (c). The pertinent parts of this statute state:
a. Ignorance or mistake as to a matter of fact or law is a defense if the defendant reasonably arrived at the conclusion underlying the mistake and:Defendant maintains that the firearms purchaser permits issued by South Plainfield constitute "an administrative order or grant of permission[.]" N.J.S.A. 2C:2-4(c)(2)(c). On the application for a firearms purchaser identification card, however, defendant responded "No" to the question, "Have you ever been convicted of a crime that has not been expunged or sealed?" Defendant may not rely on a faulty background check when he has lied to the authorities about his criminal record.
(1) It negatives the culpable mental state required to establish the offense; or
(2) The law provides that the state of mind established by such ignorance or mistake constitutes a defense.
. . . .
c. A belief that conduct does not legally constitute an offense is a defense to a prosecution for that offense based upon such conduct when:
. . . .
(2) The actor acts in reasonable reliance upon an official statement of the law, afterward determined to be invalid or erroneous, contained in . . . (c) an administrative order or grant of permission, or (d) an official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense; or
(3) The actor otherwise diligently pursues all means available to ascertain the meaning and application of the offense to his conduct and honestly and in good faith concludes his conduct is not an offense in circumstances in which a law-abiding and prudent person would also so conclude.
The defendant must prove a defense arising under subsection c. of this section by clear and convincing evidence.
[N.J.S.A. 2C:2-4.]
C
In a related argument, defendant also asserts that he should have been permitted to argue the defense of "entrapment by estoppel" because he reasonably and in good faith relied on the representation of a government official that his conduct was legal. See United States v. Stewart, 185 F.3d 112, 124 (3d Cir.), cert. denied, 528 U.S. 1063, 120 S. Ct. 618, 145 L. Ed. 2d 512 (1999). In order to establish the entrapment by estoppel defense, a defendant must demonstrate, by a preponderance of the evidence, that
(1) a government official (2) told the defendant that certain criminal conduct was legal, (3) the defendant actually relied on the government official's statements, (4) and the defendant's reliance was in good faith and reasonable in light of the identity of the government official, the point of law represented, and the substance of the official's statement.A defendant who misrepresents the facts to a government official, as defendant did by his false answer to the question about his prior criminal convictions, cannot then claim he relied "in good faith" on the representation of that official as to the legality of his conduct.
[Ibid. (citation omitted).]
II
Defendant also argues that the motion judge should have dismissed count five of Indictment No. 09-10-1704, charging unlawful possession of a machine gun, because the State failed to present to the grand jury exculpatory evidence that the gun was inoperable.
The State's expert reported the results of his examination of the Browning .30 caliber gun as follows:
AFTER INSTALLING THE TOP COVER LATCH THREE TEST SHOTS [TWO BLANKS & ONE LIVE CARTRIDGE] WERE FIRED HAND LOADING ONE ROUND AT A TIME. THE WEAPON IS BELT FED AND BELTS ARE NOT AVAILABLE AT THE LAB. THE LAST ROUND FIRED WAS THE LIVE ROUND AND BROKE IN THE CHAMBER ON EJECTION AND IS STILL INPLACED IN THE CHAMBER. THE WEAPON IS OPERABLE AS A MACHINE GUN.
The New Jersey Supreme Court has held that "[t]he issue of so-called 'inoperability' should enter [a] case only if it bears on the question of design[.]" State v. Gantt, 101 N.J. 573, 590 (1986); see also State v. Orlando, 269 N.J. Super 116, 128-29 (App. Div. 1993) (holding that a rifle barrel stuffed with a wooden dowel and lacking a firing pin did not make the weapon inoperable under New Jersey law), certif. denied, 136 N.J. 30 (1994). Thus, in the context of a trial on the charge, the factfinder should consider the disputed issue of operability
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. Only then must the factfinder determine whether the State has sustained its overall burden of establishing, by a preponderance of the evidence, that the instrument used or possessed was a "firearm" as defined. That determination should be resolved as are other questions of fact.
[Gantt, supra, 101 N.J. at 590.]
The State is required to present pro-defense evidence to a grand jury only if it is clearly exculpatory. State v. Smith, 269 N.J. Super. 86, 92 (App. Div. 1993) ("We hold the prosecutor does have an obligation to present to the grand jury evidence in his or her possession that clearly negates a defendant's guilt."), certif. denied, 137 N.J. 164 (1994). Exculpatory evidence did not exist when defendant's case was presented to the Grand Jury because the State's expert opined that the machine gun was operable. When the State seeks an indictment, they need only present evidence sufficient to demonstrate a prima facie case. State v. Hogan, 144 N.J. 216, 235-36 (1996). Resolutions of factual disputes are not the province of the grand jury. Id. at 235. Thus, the judge properly denied defendant's motion to dismiss the charge of unlawful possession of a machine gun prior to trial.
The defense expert's report, which arguably was exculpatory, was prepared after defendant was indicted.
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III
Finally, defendant argues that his sentence is excessive. After the judge evaluated the aggravating and mitigating factors, he sentenced defendant in accordance with the plea agreement, ordering that all three custodial terms be served concurrently. Defendant received three years in prison for the third-degree theft charge, five years with a mandatory minimum of three years on the second-degree charge of possession of a weapon for an unlawful purpose, and seven years in prison with a mandatory minimum of five years on the second-degree charge of certain persons not permitted to have a weapon. The certain persons crime requires a five-year period of parole ineligibility. N.J.S.A. 2C:39-7(b)(1).
We are satisfied that the sentence is not manifestly excessive or unduly punitive and does not constitute an abuse of discretion. State v. Blackmon, 202 N.J. 283, 297 (2010) (citing State v. Jarbath, 114 N.J. 394, 401 (1989)).
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION