STATE OF NEW JERSEY, Plaintiff-Respondent, v. JOSEPH PELLETERI, Defendant-Appellant

CASE SUMMARY
 
PROCEDURAL POSTURE: Defendant appealed from a decision by the Superior Court of Sussex County (New Jersey) that convicted defendant of knowingly having in his possession an assault firearm, a semi-automatic rifle with a magazine capacity of 17 cartridges.  

 
OVERVIEW: Defendant was convicted of knowingly having in his possession an assault firearm, a semi-automatic rifle with a magazine capacity of 17 cartridges. Defendant appealed contending the judge erred by rejecting his claims of mistake of law and mistake of fact and by instructing the jury it could convict if it found defendant knowingly possessed the weapon even if defendant did not know its capacity exceeded 15 rounds. The reviewing court found defendant, an expert marksman and previous firearms instructor, had in his household safe a semi-automatic weapon. Defendant argued he had neither inspected nor used the firearm and was unaware the firearm had a magazine capacity exceeding 15 rounds. The court found defendant did not prove by clear and convincing evidence the grounds for mistake of fact and mistake of law. Defendant's failure to inspect the weapon or read the owner's manual to determine whether it fell within the statutory definition was unreasonable as a matter of law. The court reasoned the legislature intended to proscribe knowing possession, as distinguished from knowledge of the illegal character of the article possessed. The decision was affirmed.  

 
OUTCOME: Defendant's conviction for knowingly having in his possession an assault firearm was affirmed. Defendant's failure to inspect the weapon or read the owner's manual to determine whether it fell within the statutory definition was unreasonable as a matter of law.  

BAIME, J.A.D.

On May 30, 1990, our Legislature proscribed the "knowing" possession of "assault firearms." N.J.S.A. 2C:39-5f. Persons legally in possession of such firearms prior to the effective date of the statute could retain these weapons by obtaining the appropriate  [*332]  registration. N.J.S.A. 2C:58-12. Included in the definition of "assault firearm" is "[a] semi-automatic rifle with a fixed magazine  [***2]  capacity exceeding [fifteen] rounds." N.J.S.A. 2C:39-1w(4). Defendant was convicted of "knowingly" having in his possession an assault firearm, a semi-automatic rifle with a magazine capacity of seventeen cartridges. He appeals, contending that the trial judge erred by rejecting his claims of mistake of law and mistake of fact, and by instructing the jury it could convict if it found he knowingly possessed the weapon even if he did not know its fixed capacity exceeded fifteen rounds. We affirm.

CONTINUED>>>>>

I.

We need not recount the facts at length. Defendant, an expert marksman who at one point was employed as a firearms instructor, won a Marlin semi-automatic rifle in the late 1980's by placing first in a police combat match. An avid gun collector, defendant placed the weapon in his safe. Defendant claimed that he neither inspected nor used the firearm. When the police recovered the gun from defendant's residence in December 1993, it still had the manufacturer's tags and the owner's manual attached to the trigger guard. The owner's manual indicated that the rifle could hold at least seventeen cartridges. Defendant claimed that he never read the manual. While conceding that he knew  [***3]  the rifle was a semi-automatic weapon, defendant contended that he was unaware that the firearm had a magazine capacity exceeding fifteen rounds.
 
At trial, defendant advanced the defenses of mistake of law and mistake of fact. He asserted that he made diligent inquiry respecting whether the guns in his collection constituted "assault firearms" when the 1990 legislation was enacted and obtained the requisite registration for some of his weapons. Defendant testified that he did not register the Marlin rifle because he did not know its fixed capacity exceeded fifteen rounds. The trial judge barred the defenses of mistake of law and mistake of fact on the grounds that the statutory prohibition was clearly written and  [*333]  published, and that knowledge of the specific character of the weapon did not constitute an element of the offense. In response to a question propounded by the jury  [**557]  during its deliberations, the judge charged that defendant could be found guilty if he knowingly possessed the firearm but was unaware that its fixed capacity exceeded fifteen rounds. Defendant was convicted and placed on probation. (!!!!!!!!!) [pissed]

II.

Defendant couches his argument in terms of whether the trial judge erred  [***4]  by barring the defenses of mistake of law and mistake of fact. We find no merit in these arguments. R. 2:11-3(e)(2). As to the defense of mistake of law, defendant did not prove by "clear and convincing evidence" that he "diligently pursued all means available to ascertain the meaning and application" of the statutory proscription. N.J.S.A. 2C:2-4c(3). By its very terms, N.J.S.A. 2C:39-1w(4) defines an "assault firearm" as a "semi-automatic rifle with a fixed magazine capacity exceeding [fifteen] rounds." The statutory language is "neither vague nor unclear," and was not an issue for the jury's consideration. State v. Elrose, 277 N.J. Super. 548, 556, 649 A.2d 1351 (App. Div. 1994). [pissed]

The defense of mistake of fact suffered from much the same infirmity. The common law defense required not only that the defendant subjectively misperceive a fact critical to establishing the offense but also that the error be reasonable. The Criminal Law Revision Commission recommended that the objective test be abrogated and that any "honest" error suffice to exonerate the defendant. Final Report of  [***5]  the New Jersey Criminal Law Revision Commission, comment to 2C:2-4 at 52-53 (1971). Our Legislature rejected that proposal by requiring that the defendant "reasonably arrive[] at the conclusion underlying the mistake." N.J.S.A. 2C:2-4a. Defendant's failure to inspect the weapon or read the owner's manual to determine whether it fell within the statutory definition was  [*334]  unreasonable as a matter of law. We find no error in the trial judge's refusal to submit the issue to the jury.

CONTINUED>>>>

III.

The prosecutor candidly points out that the trial judge instructed the jury that defendant could be found guilty if he knowingly possessed the firearm but was unaware its fixed capacity exceeded fifteen rounds. [:0] The question squarely presented is whether the State was required to prove that the defendant knew the gun in his possession was an assault firearm. (KEEP IN MIND THIS IS A MARLIN .22) We hold that knowledge of the character of the weapon is not an element of the offense.

N.J.S.A. 2C:39-5f provides in pertinent part that "any person who knowingly has in his possession an assault firearm is guilty of a crime of the third degree." The word "knowingly" thus modifies the phrase "has in his possession." The Code defines "possession"  [***6]  in terms of whether the "possessor knowingly procured or received the thing possessed or was aware of his control [of it] for a sufficient period to have been able to terminate his possession." N.J.S.A. 2C:2-1c. The Code provides that "a person acts knowingly with respect to the nature of his conduct . . . if he is aware that his conduct is of that nature." N.J.S.A. 2C:2-2b(2).

We are satisfied that the Legislature intended to proscribe knowing possession, as distinguished from knowledge of the illegal character of the article possessed. In that context, "knowing possession is not to be confused with criminal intent or guilty knowledge." Id. at 149. "At common law, scienter [was] an indispensable element." Ibid. But it is within the power of the Legislature to declare an act criminal irrespective of the motive of the actor.

[**558]  We are concerned here with a statute dealing with gun control. "New Jersey has carefully constructed a 'grid' of regulations" on the subject. This 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. Hatch, 64 N.J. 179, 184, 313 A.2d 797 (1973). "The dangers are so high and the regulations so prevalent that, on balance, the legislative branch may as a matter of sound public policy and without impairing any constitutional guarantees, declare the act itself unlawful without any further requirement of mens rea or its equivalent." State v. Hatch, 64 N.J. at 184-85. When dealing with guns, the citizen acts at his  [***8]  peril. In short, we view the statute as a regulatory measure in the interests of the public safety, premised on the thesis that one would hardly be surprised to learn that possession of such a highly dangerous offensive weapon is proscribed absent the requisite license.

Affirmed.

What a load of shit!  This guy should be the NRA's poster child on illegal enforcement of gun laws! Knowingly is a key legal phrase here which was bastardized to mean knowing of possession?  I'm absolutely disgusted after reading this and other NJ cases which hang gun owners out to dry! [pissed]

It sounds like the defendant made at least two mistakes.  The first was not registering the weapon with his other AW's and the second was doing something that entitled the arresting authorities to have legal access to his safe.

The ruling was a correct one within the law.  

Now get rid of the law.

Barely, but I just saw the definition of "knowingly" which basically says that he had the ability to dispose of it.  However, this aspect of the definition also begs the question, HOW WOULD HE KNOW HE NEEDED TO GET RID OF IT?!  

My favorite part of this circus of a state is that the court spells out the demise of its law abiding voters by saying...
"it is within the power of the Legislature to declare an act criminal irrespective of the motive of the actor."  
So rather than take a case by case basis, we're looking at a system that incarcerates people and tarnishes their reputation because they are unwilling to look into ambiguity in the term "knowingly" or how they believe it modifies possession, rather than that it modifies legallity.  

As far as not registering the gun, I think the case spells out that he did not "knowingly" possess an assault weapon, he possessed a Marlin semi-automatic .22 with a tube fed magazine.  Normal people don't think of this kind of gun as an assault weapon, its a plinker.

Cough...US vs. Staples...Cough

Cough...SCOTUS Ruling on this exact issue...Cough

Cough...Majority Opinion was you had to know your weapon's capacity to be convicted...Cough

Marlin Model 99, right ?

It'll hold 17, but if you try harder it'll take 18. With slight mods. to the Tube, you could probably get a full 20 in there.

But, who cares ? The capacity of a tube is variable. Simply clip here and voila an extra 3 rounds capacity.

I never load more than 15 in mine since if I do, it usually jams. 15 is a safe load. 17 is a recomended maximum. 18 is the max. w/o modifying the tube.

I like the fact they are classifying my Marlin 99 in the same class as my AR-15. Get a clue, it's a freaking plinker.

I'm suprised they didn't note the ease of converting it to a detachable magazine. Then again, he would probly been better off with a 7 or 15 round detachable.

Seriously, the Marlin 99, 989, etc...are all built on a single design. To convert you only need a mag well. Cut out the current stock or get a new one with mag. hole and place the Mag. well in the receiver. Voila det. mag. Give 'em time, they'll get around to this.

Cool.
You know you have money in your wallet. One bill is fake. You can be convicted of passing bad money.
You know you have a car. It was stolen and the vin was scrubbed and it was sold to you. You can be convicted of possession of stolen auto.
Democrat judges are just evil. They have to be stopped. Vote these boobs out now.

"Hi, I'm a party whore who became a judge, and I wipe my ass with the constitution and common sense before dropping to my knees to deep suck the leftist elite while on the bench --'Knowingly' only affects 'possession', not 'possession of the illegal object', --oh boy, that's bad--hope no one in the press thinks that is so bad their love of a 'idiot pol' story based on my lack of any logic or precedent overwhelms their love of the dems"

I'll agree with you Dave, he did make two mistakes:

1. Being born an American.
2. Not fleeing this country.

This kind of crap makes me feel bad for going into law.
Lately I have been on the edge of feeling bad about serving in the military. I just have no respect for the current leaders of our states and nation, with few exceptions, and knowing that I helped keep them safe seems like it was the wrong thing to do.

[url]http://www-2.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/staples_v_us.txt[/url]

This is the SCOTUS decision I refered to that says the exact opposite of this dumbass judge.

Now, which is more important: The decision of a dumbass state judge in NJ or a majority opinion of the highest court of the land. I think we know the answer.

Now, that sounds oddly familiar ??????

The defendant made a single mistake:  To voluntarily live in that shithole known as New Jersey.   (No offense to Jerseyites!)

Don't live where you can't do what you want to.

CJ

Well, to that poor shmuck, the answer is that "dumbass state judge in NJ".

Anyone have info as to why the Police were looking into his safe?  I would really like to read the entire story on this.

thanks
medcop

I only found the decision, no news story behind it.  I'm going to look for any prior decision which might have more details and I'll get back to ya.

Pissed? C'mon, I'm surprised it took so long for people to just shrug because it's Jersey.

Heck, I called my local shop on Sunday to ask about ordering a Bushmaster. M4 type, fake telestock, flattop, 16in M4 profile barrel (no brake). First he said he'd have to call Bushmaster to get times and prices. Then he said he'd have to call the State Police and check if it was legal.

Read Nappen II. Check out all the insane cases he talks about. Remember, individuals traverse the mire of NJ weapon laws at THEIR OWN peril. It's the way of the beast. But remember, Jim McGreevey is 'your NEW BEST FRIEND!'. He'll be sure to do something about this (well....if there were no guns, we wouldn't have any issues with NJ Gun laws...so just ban them, problem solved!).