STATE OF NEW JERSEY v. ANTHONY CASTELLUCCIO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1410-07T41410-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ANTHONY CASTELLUCCIO,

Defendant-Appellant.

_______________________________________

 

Submitted July 28, 2008 - Decided

Before Judges Graves and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 07-077.

Evan F. Nappen, attorney for appellant.

Luis A. Valentin, Monmouth County Prosecutor, attorney for respondent (Patricia B. Quelch, Assistant Prosecutor, of counsel; Joseph M. Competello, on the brief).

PER CURIAM

Defendant Anthony Castelluccio appeals from an order entered on October 26, 2007 by Judge Anthony J. Mellaci, Jr., finding him guilty of possession of a loaded firearm, for the purpose of hunting, within 450 feet of an occupied building, contrary to N.J.S.A. 23:4-16(d). We affirm.

On February 10, 2007, Shannon Martiak, an officer employed by the Division of Fish and Wildlife in the Department of Environmental Protection, issued a summons to defendant, charging him with violating N.J.S.A. 23:4-16(d). A trial on the charge was held in the Freehold Township Municipal Court on July 25, 2007.

At the trial, Martiak testified that, at approximately 8:30 a.m., on February 10, 2007, he was driving down Route 33 in the Township. Martiak observed a group of hunters in a field behind the Church of Jesus Christ of Latter Day Saints on Wemrock Road. Because he believed that the hunters were "pretty close to the church," Martiak thought he should "inspect them."

Martiak parked his vehicle on the highway and entered the wooded area. He observed about fifteen individuals who appeared to be part of "a deer drive." Martiak testified that he thought the individuals might be in violation of N.J.S.A. 23:4-16(d), the so-called "safety zone" statute. Martiak identified himself to the hunters. Martiak approached an individual, who he identified as David Zduniak. Martiak said that Zduniak was standing facing the church, with his back towards Route 33. Zduniak's gun was loaded. Martiak secured the weapon and marked the spot where Zduniak had been standing.

Martiak then proceeded toward defendant, who was about one hundred yards from Zduniak. Martiak saw that defendant's gun was loaded. Martiak identified himself and told defendant to keep his gun where it was and not to move. Martiak approached defendant. Martiak did not recall whether he unloaded the firearm or whether he had defendant unload the weapon.

Martiak brought all of the hunters back to his vehicle. He noted that defendant was not properly attired in the orange clothing required for hunting. Martiak said that defendant was wearing an orange hat but it was covered by a hood. Another conservation officer and a park police ranger arrived to assist Martiak. Martiak used his laser range finder to measure the distances between Zduniak and defendant and the buildings. He did not use his steel tape measure to confirm the distances because of the dense foliage and the terrain in the area.

Martiak testified that, pursuant to the "safety zone" statute, a hunter cannot possess a loaded weapon within 450 feet of a building that "you would reasonably believe . . . somebody could be in." He stated that the church and a nearby shed qualified as buildings for purposes of a "safety zone infraction[.]"

Martiak further testified that in 2004, the Division of Consumer Affairs, Office of Weights and Measures, had certified that his laser range finder was "accurate within one yard between 10 yards and 150 yards." Martiak added that at the "beginning of the season" he "shoots [the range finder] off of a building" and measures the distance with his steel tape "just to make sure that everything [is] functioning properly." Martiak stated that based on his measurements, defendant was 405 feet from the church and 300 feet from the storage shed.

Defendant objected to the introduction of the certificate regarding the accuracy of the range finder. The judge overruled the objection, finding that the certificate reflected the accuracy of the device as of the time the certificate was issued. The judge also found that, although the law provided a process for renewing the certificate, the availability of that process did not affect the "accuracy determination" reflected on the original certificate.

The judge additionally stated that the renewal process for the certificate was intended to test the accuracy of the device. He noted, however, that Martiak had "accomplished the same [result] . . . by measuring [the distance] with the steel tape[.]" The judge found that Martiak's testimony was credible and it confirmed the accuracy of the range finder as originally certified in 2004.

On cross-examination, Martiak stated that he did not recall whether defendant had been holding his weapon when he first observed him. Martiak also said that he did not recall the manner in which he marked the spot where defendant had been standing. He stated, however, that he would have put defendant's hat at the spot or marked the ground in order to indicate defendant's location. Martiak asserted that he had his steel tape with him at the time, but measured the distance using the range finder because of the dense vegetation in the area and the "dips and rises" in the topography. Martiak stated that defendant was in possession of a Spartan 12 gauge shotgun.

On re-direct examination, Martiak again stated that he did not recall whether defendant had been carrying the weapon or whether it was leaning against a tree. Martiak stated, however, that defendant could have readily accessed the firearm. Martiak also reiterated that he had marked defendant's location to measure the distance but did not recall the method he used to do so.

The municipal court judge placed his decision on the record. The judge determined that the State had to prove beyond a reasonable doubt that defendant violated the law. The judge found that defendant was in control of a firearm and he was with a group that was hunting. The judge additionally found that the photograph depicted a church with vehicles "standing out in front[.]" The judge noted that Martiak had testified that it was a Church of the Latter Day Saints. The judge found that it was "very obvious" that the church was not "boarded up" or "abandoned" and was "in use."

The judge also determined, based on Martiak's testimony, that it was not feasible for Martiak to use his steel tape to measure the distances because of the terrain in the area. He concluded that, in the circumstances, the range finder was a more accurate measuring device. The judge further determined, based on the officer's testimony, that defendant was 405 feet away from the church.

The judge therefore found defendant guilty of the offense. The judge imposed a $100 fine and required defendant to pay court costs in the amount of $33. Defendant filed a notice of appeal, seeking de novo review by the Law Division.

Judge Mellaci considered the appeal on October 26, 2007. The judge placed his decision on the record on that date. The judge first determined that the State was not required to prove the charge beyond a reasonable doubt. Rather, the State only had to prove violations of the fish and game laws by a preponderance of the evidence. The judge concluded that the State had met its evidentiary burden and proven that defendant violated N.J.S.A. 23:4-16(d).

Judge Mellaci found that the State had proven that defendant was in possession of the firearm. The judge stated, "[w]hether the item was physically in the hands of the defendant at the time of the investigation is not dispositive of whether it was in his possession. Rather possession turns on whether the defendant was in control of the item." The judge noted that constructive control only requires the capacity to gain immediate physical control by direct or indirect means. The judge found that "whether the firearm was carried or leaning against a tree, it was still under the defendant's actual or constructive control."

Judge Mellaci additionally found that defendant had possessed the weapon for the purpose of hunting wildlife. The judge noted that Officer Martiak has had more than eight years of experience in the Division of Fish and Wildlife, and Martiak had testified that defendant was one of fifteen individuals who were participating in an organized deer hunt. The judge also noted that it was deer hunting season and the individuals "were wearing traditional hunter's orange garments and were carrying firearms." The judge found that defendant's "intent to hunt" was apparent.

In addition, the judge found that "defendant was in possession of a readily usable firearm." The judge noted that ammunition had been removed from the weapon either by Martiak or by defendant himself. The judge also noted that the firearm was located in close proximity to defendant, and was either carried by him or placed "against a nearby tree." The judge found that, "[i]n either circumstance[,] the firearm was clearly available to the defendant and capable of immediate use without any impediment."

The judge further concluded that defendant was within 405 feet of an occupied building. The judge rejected defendant's claim that Martiak's laser range finder was not reliable because the device had not been re-certified by the Office of Weights and Measures after the initial certification in 2004. The judge stated that the registration renewal requirements only applied to devices used for commercial purposes and were not "directly applicable to the State in the context of a police investigation." The judge found, based on Martiak's testimony, that the device was operable and accurate.

Judge Mellaci also determined that, for purposes of applying the "safety zone" statute, the church was an "occupied" building. The judge noted that Martiak had identified the structure as a Church of Jesus Christ of Latter Day Saints. Martiak had testified that the church was not boarded up, and there was no indication that the building was not being used for regular religious activities. Martiak also had testified that he had spoken to the pastor of the church. The judge concluded that the "structure clearly fits within the [statutory] definition of an occupied building."

The judge entered an order dated October 26, 2007, in accordance with his findings. The judge found defendant guilty of violating N.J.S.A. 23:4-16(d). The judge imposed the same sentence that had been imposed by the municipal court judge. He sentenced defendant to a $100 fine and ordered defendant to pay the municipal court costs in the amount of $33. This appeal followed.

Defendant raises the following issues for our consideration.

POINT I:

THE COURT BELOW ERRED BY PERMITTING THE STATE TO IGNORE ITS OWN GUN LAWS AND ADMIT READINGS AS EVIDENCE FROM EQUIPMENT WHOSE WEIGHTS AND MEASURES CERTIFICATION HAD EXPIRED AND WAS NOT, OTHERWISE, INSPECTED PROPERLY.

POINT II:

THE STATE DID NOT MEET THE ELEMENTS OF THE OFFENSE SINCE [IT] PRESENTED INSUFFICIENT EVIDENCE THAT [DEFENDANT] "POSSESSED" A FIREARM THAT WAS "READILY USABLE" FOR "HUNTING."

POINT III:

THE STATE PRESENTED NO PROOFS THAT THE STRUCTURE ALLEGEDLY UNDER 450 FEET AWAY WAS AN "OCCUPIED BUILDING" AS REQUIRED UNDER THE STATUTE.

POINT IV:

THE COURT BELOW ERRED IN LOWERING THE BURDEN OF PROOF BECAUSE THE PRESENT CONSEQUENCES ARE CLEARLY PENAL.

We reject these arguments substantially for the reasons stated by Judge Mellaci in the thorough and comprehensive decision that he placed on the record on October 26, 2007. We add the following brief comments.

It is well established that the role of an appellate court is not to review the factual record "from the point of view of how it would decide the matter if it were a court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964). Rather, an appellate court must defer to the findings of the trial judge that are "substantially influenced by his opportunity to hear and see the witnesses and to have the 'feel' of the case which a reviewing court cannot enjoy." Ibid.

Furthermore, the factual findings of the trial judge are binding on appeal if they "reasonably have been reached on sufficient credible evidence present in the record." Id. at 162. Moreover, "appellate courts ordinarily should not undertake to alter concurrent findings of fact and credibility determinations made by two lower courts absent a very obvious and exceptional showing of error." State v. Locurto, 157 N.J. 463, 474 (1999) (citing Midler v. Heinowitz, 10 N.J. 123, 128-29 (1952)).

In this matter, defendant was found guilty of violating N.J.S.A. 23:4-16(d), which provides that:

No person, except the owner or lessee of the building and persons specifically authorized by him in writing, which writing shall be in the person's possession, shall, for the purpose of hunting, taking or killing any wildlife, have in his possession a loaded firearm or nocked arrow while within 450 of any occupied building in this State or of any school playground. For the purposes of this section, "occupied building" means any building constructed or adapted for overnight accommodations of a person, or for operating a business or engaging in any activity therein, whether or not a person is actually present.

We are convinced that there is sufficient credible evidence in the record to support Judge Mellaci's findings that defendant was in possession of a loaded firearm, the weapon was possessed for the purpose of hunting, and defendant was located within 450 feet of an occupied building.

Defendant argues that the judge erred by relying upon the readings from Martiak's laser range finder because the certification issued in 2004 by the Office of Weights and Measures for that device had expired and the State failed to have the device tested each year after the initial certification was issued. In support of that contention, defendant relies upon N.J.S.A. 51:1-84(a), which provides in part that "[a]ll weights and measures used in trade shall be tested and sealed at least once in each year." However, as Judge Mellaci found, the statute applies to measuring devices used for commercial purposes, not measuring devices used by a law enforcement officer in a police investigation.

We recognize that N.J.S.A. 51:1-102 provides that a certification of the Office of Weights and Measures is "presumptive evidence" of correctness when a measuring device is used for law enforcement purposes. State v. Haskins, 131 N.J. 643, 650 (1993). "However, the statute does not by its terms exclude other methods of proving the authenticity of the device." Id. at 650-51. In this case, Officer Martiak testified that the Office of Weights and Measures had certified the accuracy of the range finder in 2004 and he tested the accuracy of the device at the start of each season using his tape measure. In our view, this evidence was sufficient to support the judge's finding that the range finder was operable and accurate.

Finally, we reject defendant's contention that the trial judge erred by requiring the State to prove its charge by a preponderance of the evidence. Violations of the State's fish and game laws are civil in nature, rather than criminal or quasi-criminal. State, Dep't. of Env't. Prot. v. Santomauro, 261 N.J. Super. 339, 344 (App. Div. 1993) (citing Dept. of Conservation and Econ. Dev. v. Scipio, 88 N.J. Super. 315, 319-20 (App. Div.), certif. denied, 45 N.J. 598 (1965)). Therefore, Judge Mellaci correctly determined that the burden of proof for civil matters applied in this case.

Affirmed.

 

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A-1410-07T4

August 7, 2008