STATE OF NEW JERSEY v. RUBEN A. LEIVA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3192-06T53192-06T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

RUBEN A. LEIVA,

Defendant-Appellant.

________________________________

 

Submitted: October 11, 2007 - Decided October 25, 2007

Before Judges Axelrad and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 06-03-00543.

Evan F. Nappen, attorney for appellant (Louis P. Nappen, on the brief).

Anne Milgram, Attorney General, attorney for respondent (Joie Piderit, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant Ruben Leiva appeals his conviction entered after a guilty plea to second-degree eluding, N.J.S.A. 2C:29-2b, and second-degree certain persons not to possess firearms, N.J.S.A. 2C:39-7b. Pursuant to the negotiated plea agreement, defendant was sentenced to concurrent five-year terms with a five-year period of parole ineligibility on the weapons conviction. The remaining counts of the indictment charging third-degree unlawful possession of a weapon, fourth-degree possession of body armor-penetrating bullets, and fourth-degree certain persons not to possess weapons were dismissed.

In his plea allocution, defendant acknowledged that on November 13, 2005, while under the influence of alcohol, he operated a motor vehicle at a high rate of speed within the City of Long Branch. He further testified he ignored the overhead lights of a patrol car and continued to travel through two other towns before he was stopped by the officers. Defendant admitted he was aware that someone could have been hurt as a result of his erratic driving and inability to pull over.

Defendant also acknowledged that four months prior to this incident he had been convicted of aggravated assault and as part of that conviction he was prohibited from possessing any firearms or weapons. He admitted, however, that on November 13, 2005, he possessed a "weapon," a "handgun, a 45, Remington," for which he did not have a permit, and he expressly understood that as part of his prior conviction he was not entitled to possess that gun.

On appeal, defendant argues that because neither his attorney nor the court ever used the terminology "firearm" to describe what he possessed, it was never established that he possessed a firearm, a requisite element of N.J.S.A. 2C:39-7b. Rather, defendant contends, the factual basis only confirmed he possessed a handgun, a term not mentioned in N.J.S.A. 2C:39-7, or a "weapon," an element of the lesser-included offense under N.J.S.A. 2C:39-7a. As such, there was an inadequate factual basis for his plea to the charge of the second-degree "certain persons" offense under N.J.S.A. 2C:39-7b. Defendant's second argument on appeal is that the record does not establish he voluntarily waived his rights to a trial or to confront witnesses prior to pleading guilty. Accordingly, he contends his plea must be vacated. We find defendant's arguments to be completely without merit and affirm his convictions.

Defendant was previously convicted of aggravated assault. As he was aware, he was thus not permitted to possess a firearm, or he would be guilty of a crime of the second degree. N.J.S.A. 2C:39-7b. During his plea colloquy, defendant admitted he possessed a .45 caliber Remington handgun and that such conduct violated the statute. There may have been a less than perfect recitation of the facts insofar as the word "firearm" was never explicitly used at the hearing to describe the type of handgun defendant possessed. We are convinced, however, that defendant's factual basis for his guilty plea satisfied the requirements of N.J.S.A. 2C:39-7b.

The weapon defendant admitted to possessing, which he acknowledged was a "handgun," was clearly encompassed within the statutory definition of firearm as defined in N.J.S.A. 2C:39-1f:

"Firearm" means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell . . . .

A firearm is defined not by its present operability but by its original design. State v. Gantt, 101 N.J. 573, 584 (1986). Defendant does not contend the Remington .45 caliber handgun he admitted to possessing was, in actuality, a fake or toy gun not designed to fire a potentially deadly missile, and thus not a firearm. Id. at 585. In fact, defendant was arrested in the possession of body armor-penetrating bullets for his semi-automatic weapon. The mere absence of the use of the word "firearm" in his factual allocution is an insufficient basis upon which to vacate the guilty plea that defendant voluntarily entered in connection with this offense.

In view of the plea form, plea colloquy, and sentencing transcript, it is clear defendant understood the nature of the charges and the consequences flowing from his plea. He also understood what rights he was waiving and the benefits he was receiving when he voluntary pled guilty to the charges. All of defendant's constitutional rights were addressed in the form of individual questions, which he appropriately answered, and he established a factual basis for his plea by allocuting to his crimes. As defendant's plea to the charges fully complied with all of the requirements of Rule 3:9-2, there is no cognizable ground upon which to vacate it.

Affirmed.

(continued)

(continued)

5

A-3192-06T5

RECORD IMPOUNDED

October 25, 2007