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APPROVAL OF THE APPELLATE DIVISION
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Although it is posted on the internet, this opinion is binding only on the
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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