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September 9, 2015


Submitted February 2, 2015 Decided

Before Judges Sabatino, Simonelli and Leone.

On appeal from the Superior Court of New Jersey, Bergen County, Law Division, Indictment No. 12-05-0709.

Evan F. Nappen, P.C., attorneys for appellant (Richard V. Gilbert and Louis P. Nappen, on the briefs).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the briefs).


Defendant Hisashi Pompey appeals from his September 24, 2013 judgment of conviction for unlawful possession of a handgun without a New Jersey permit. He argues the jury should have been instructed on various defenses. We affirm.


The trial evidence showed that on the night of December 25-26, 2011, defendant was at a nightclub in Fort Lee with his friend Isaiah Wilson. Officers Raymond Rodriguez, Christopher Hicks, Daniel Espinoza, and Edwin Berdecia testified to the following. At about 2:45 a.m. on December 26, the officers responded to reports of a fight at the club involving many people. Outside the club, the officers encountered a large, loud, drunk crowd. A man ran by and pointed back in Wilson's direction, saying a person had a gun. A woman yelled, "Oh my God, that man has a gun." People fled in chaos, and the officers drew their weapons, turned, and pointed their weapons at Wilson.

Wilson was holding a semi-automatic handgun, and chambering a round in the gun. The officers ordered Wilson to drop the gun. Wilson refused, ducked behind a parked vehicle, and returned with his hands in the air, saying "I don't have a gun." However, an officer saw defendant toss the weapon under the parked vehicle. The officers pursued and arrested Wilson, who was intoxicated. They recovered the gun, which was operable, had a round in the chamber, ten rounds in the magazine, and one round on the pavement.

Meanwhile, defendant was yelling, "don't shoot, don't shoot[,] that's my brother." While the officers were arresting Wilson, defendant approached Officer Espinoza and said, "that's my gun, I'm an MP, I'm a Marine." At Espinoza's request, defendant, who was in civilian clothes, produced his military identification. Defendant said that the gun was his "off-duty weapon," and that he had a Virginia permit but no permit to carry the weapon in New Jersey.

Defendant's recorded statement to police, which was played for the jury, stated as follows. While inside the nightclub, Wilson was involved in an altercation. Defendant tried to help him, but Wilson was badly hurt. They walked outside. From Wilson's vehicle, defendant retrieved his weapon and the ammunition magazine, and inserted the magazine into the weapon. Defendant did not remember exactly how Wilson got the weapon, saying only, "I was careless."

At trial, defendant gave the following testimony. He was an active-duty sergeant in the Marine Corps. On December 24, he placed the gun in his personal travel bag as he was preparing to drive from Marine Corps Base Quantico to visit family in New Jersey. After he arrived in New Jersey on December 25, he met up with Wilson and they decided to go to the nightclub. Defendant placed his bag in Wilson's car. When they arrived, defendant changed into civilian clothes, and the gun fell out of his bag in the nightclub parking lot. Defendant had forgotten he had the gun in his bag. Defendant told Wilson he had the gun. He had Wilson lock the gun in the glove compartment, and he put the ammunition magazine in the trunk of Wilson's car. Defendant then went into the nightclub and bought beer for himself and Wilson.

Defendant testified that a lengthy brawl broke out in the club. The bouncers kicked everyone out of the club, but Wilson stayed inside. Defendant went into the parking lot, where officers were trying to disperse the crowd. Defendant went to Wilson's car, put a holster on his hip, removed his handgun from the glove compartment, put the gun in the holster, and put the magazine in the gun.

Defendant testified that he began to walk with the gun and his bags towards his own car, which he had lent to DJs whom he was going to drive home. Wilson wobbled toward him, apparently under the influence. Defendant saw Wilson had a very big gash on his forehead and was bleeding from being hit with a bottle. While defendant was administering pressure to stop the bleeding, Wilson pulled the gun out of defendant's holster and walked away with it. Defendant yelled and attempted to grab Wilson. Wilson then carried the gun into the confrontation with the officers.

The jury convicted defendant of second-degree unlawful possession of the handgun without a New Jersey permit, N.J.S.A. 2C:39-5(b).1 Judge Edward A. Jerejian sentenced defendant to five years in prison, with three years of parole ineligibility as required by N.J.S.A. 2C:43-6(c).2 The judge granted bail pending appeal.

Defendant appeals, raising the following arguments





At the charge conference during trial, defendant asked the trial court to instruct the jury on several defenses. "[I]f a defendant requests a charge on [a] defense and there is a rational basis in the record to give it, then the court should give the requested instruction." State v. Walker, 203 N.J. 73, 87 (2010). Viewing the evidence "in the light most favorable to defendant," the court must consider whether "'there exists evidence in either the State's or the defendant's case sufficient to provide a "rational basis."'" State v. Galicia, 210 N.J. 364, 390, 393 (2012) (citation omitted). "'[T]here must be a rational basis in the facts before a defense will be charged to the jury,'" whether it is an affirmative defense on which defendant has the burden of proof, or an ordinary defense on which defendant has no burden. State v. Moultrie, 357 N.J. Super. 547, 556 (App. Div. 2003) (quoting Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:1-13 (2002)).

The trial court, applying this standard, found no rational basis to give the requested instructions. We must hew to the same standard in reviewing the trial court's ruling. See, e.g., State v. Fierro, 438 N.J. Super. 517, 527 (App. Div. 2015).


Defendant first sought an instruction under N.J.S.A. 2C:2-4(a), which states

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

(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.

As a basis for the instruction, defendant cited his testimony that he forgot his gun was in his bag during his travel to New Jersey. However, by his own testimony, he knew he had his gun once it fell out of his bag in the nightclub parking lot. Thereafter, he removed the gun from the car, loaded it, and carried it. Thus, his testimony clearly established he "knowingly ha[d] in his possession" a handgun, as required by the section barring unlawful possession of a handgun, N.J.S.A. 2C:39-5(b); see N.J.S.A. 2C:2-2(b)(2) ("A person acts knowingly" if he is aware of "the nature of his conduct"). Even if defendant was initially forgetful, that did not give him a license to knowingly carry a loaded gun in New Jersey. See also State v. Grate, 220 N.J. 317, 332 (2015) ("defendants' intent or purpose in possessing the gun is not at issue here only that defendants were aware of what they were doing and where they were doing it").

"A person voluntarily possesses an object if he 'knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.'" State v. Pena, 178 N.J. 297, 304-05 (2004) (quoting N.J.S.A. 2C:2-1(c)). Here, defendant testified that after he retrieved the gun from the bag, he maintained control over it by locking it in the glove compartment, and then went into the club for several hours. He testified that when he returned, he procured the gun and carried it towards his own car, intending to spend the night in New Jersey. He did not claim any intention to terminate his possession of the gun, though he had sufficient time to do so. Cf. State v. Bolton, 230 N.J. Super. 476, 481 (App. Div. 1989) (a few moments may not have been a sufficient period for defendant to terminate his possession).3

Defendant argues the need for the mistake of fact instruction is illustrated by the jury's questions during deliberations: "At what point is the law broken? When he initially entered N.J., or when he realized it at the club? At what point is 'knowingly' possessing determined?"4 The knowing "state of mind must exist at whatever time the State claims the possessory offense[] took place." See State v. Petties, 139 N.J. 310, 315 (1995). The indictment charged defendant with possessing the gun "on or about December 26, 2011, in the Borough of Fort Lee," which encompassed his knowing possession of the gun that night in the nightclub parking lot.

Defendant also cited his testimony that, though he did not have a permit to carry his handgun in New Jersey, "from what I understand I thought all MPs and military personnel carries over to other states. I wasn't aware that it didn't." To the extent defendant is claiming ignorance of New Jersey's gun control laws, such a claim does not negate the "mental state required to establish the offense." N.J.S.A. 2C:2-4(a)(1). While "the absence of a permit is an essential element" of N.J.S.A. 2C:39-5(b), State v. Ingram, 98 N.J. 489, 494-95 (1985), knowledge "of the New Jersey requirement of a permit for the carrying of a handgun" is not an element, and ignorance is not a defense. State v. Mahoney, 226 N.J. Super. 617, 624 (App. Div. 1988); see also State v. Smith, 197 N.J. 325, 333 (2009).

"The mistakes of law covered by [N.J.S.A. 2C:2-4(a)] do not involve errors over whether actions are criminal; they are mistakes concerning legal issues that are relevant to proof of the elements of an offense." State v. Wickliff, 378 N.J. Super. 328, 335 (App. Div. 2005). "[I]gnorance of the legal standard established by the statute the defendant is alleged to have violated" is "excusable only under the narrow terms available under subsection (c) of N.J.S.A. 2C:2-4." Ibid. Defendant does not claim that N.J.S.A. 2C:39-5(b) had "not been published," that he "diligently pursue[d] all means available to ascertain the meaning and application of the offense," or that he "act[ed] in reasonable reliance upon an official statement of the law" of New Jersey. N.J.S.A. 2C:2-4(c).

"'[A] non-resident gun owner may [not] avoid the sanctions of New Jersey's gun-control laws,' . . . even where he claims to lack 'criminal intent and knowledge that New Jersey would regard the possession as illegal.'" State v. Waters, 439 N.J. Super. 215, 229 (App. Div. 2015) (alteration in original) (quoting In re Two Seized Firearms, 127 N.J. 84, 85-86, cert. denied, 506 U.S. 823, 113 S. Ct. 75, 121 L. Ed. 2d 40 (1992)).

That the non-resident gun owner had no knowledge of the specifics of New Jersey's gun-control laws is of no moment. Gun-control laws are preeminently regulatory. "[W]here dangerous or deleterious devices or products are involved, the probability of regulation is so great that anyone who is aware that he is either in possession of or dealing with them must be presumed to be aware of the regulation." In the context of gun-control laws courts have held that ignorance of the law is no defense to even a statute requiring that the defendant have "knowingly" violated the law.

[Two Seized Firearms, supra, 127 N.J. at 88 (citations omitted); see State v. Motley, 369 N.J. Super. 314, 322-23 (App. Div. 2004).]

Thus, there was no rational basis to instruct the jury of ignorance or mistake under N.J.S.A. 2C:2-4(a).


Defendant next invoked N.J.S.A. 2C:39-6(a)(1), which provides that the unlawful possession of a firearm section does not apply to

Members of the Armed Forces of the United States or of the National Guard while actually on duty, or while traveling between places of duty and carrying authorized weapons in the manner prescribed by the appropriate military authorities[.]

Defendant testified that he was off duty. See State v. Suarez, 144 N.J. Super. 98, 101 (Law Div. 1976) (explaining the distinctions between "on duty", "on leave", and "active duty"). Nonetheless, he argued that this subsection applied because he was on leave from his base, and had to go back to his base. However, as the trial court found, defendant's trip to his family's residence and then to a nightclub did not constitute "traveling between places of duty." N.J.S.A. 2C:39-6(a)(1). To adopt defendant's argument would remove any real limit from this limitation.

Moreover, defendant testified he was not carrying his military-issued weapon but his privately-owned handgun. Finally, though defendant testified that it was military protocol for MPs to insert the magazine in their service weapons "especially when we're on duty" and "on base," he testified he did so in the nightclub parking lot from "muscle memory" and to save an extra trip between the cars. Thus, his testimony indicated he was not carrying an "authorized weapon[] in the manner prescribed by the appropriate military authorities." Ibid.

N.J.S.A. 2C:39-6(a)(1), like its predecessor N.J.S.A. 2A:151-43, "was never intended to permit those who happen to be employed by the armed forces to possess weapons anywhere and at any time and under any circumstances." Suarez, supra, 144 N.J. Super. at 101-02. Thus, there was no rational basis to charge the jury under N.J.S.A. 2C:39-6(a)(1).


Defendant next invoked N.J.S.A. 2C:39-6(a)(2), which provides that the unlawful possession of a firearm section does not apply to "Federal law enforcement officers, and any other federal officers and employees required to carry firearms in the performance of their official duties[.]" This provision has been commented on only in passing. See In re Preis, 118 N.J. 564, 569 (1990) (commenting that N.J.S.A. 2C:39-6(a) gives "federal-law-enforcement officers . . . authority to carry guns both on and off duty").

Defendant argued that "conceivably" he was a federal law enforcement officer, because he was a military police officer for the Marines. As the trial court noted, defendant was not a member of one of the federal investigative agencies like the FBI and DEA, who are tasked with enforcing federal non-military (civilian) law throughout the United States, and who thus have a need to carry firearms throughout New Jersey. There is no similar need for military police officers, who are centrally tasked with apprehending persons connected with the military who violate the Uniform Code of Military Justice. 10 U.S.C.A. 802, 807(b).

Since 1878, the Posse Comitatus Act has prohibited military personnel from engaging in civilian law enforcement "except in cases and under circumstances expressly authorized by the Constitution or Act of Congress." 18 U.S.C.A. 1385; see 10 U.S.C.A. 375. Because of that Act's "[c]onstraints on the authority of military personnel to act off-installation," 32 C.F.R. 631.17(a)(1)(i), (2), Marine and other military police "normally [do not] investigate incidents occurring off-post," 32 C.F.R. 637.5(a). These provisions "reflect a traditional and strong resistance of Americans to any military intrusion into civilian affairs." Laird v. Tatum, 408 U.S. 1, 15, 92 S. Ct. 2318, 2326, 33 L. Ed. 2d 154, 164 (1972). We cannot assume that our Legislature had military police in mind when they created an exemption for federal law enforcement officers.

Here, we need only rule that N.J.S.A. 2C:39-6(a)(2) does not extend to a military police officer in defendant's position. Defendant was admittedly off-base and off-duty, and did not contend he was engaged in the performance of any official duty or carrying a Marine-authorized firearm. This "interpretation is consistent with the restrictive nature of the State's gun control policy," In re Casaleggio, 420 N.J. Super. 121, 126 (App. Div. 2011), and our Legislature's intent "to limit the use of guns." State v. Rovito, 99 N.J. 581, 586 (1985); see also Waters, supra, 439 N.J. Super. at 232. Therefore, the trial court properly did not instruct the jury under N.J.S.A. 2C:39-6(a)(2).


Defendant also invoked N.J.S.A. 2C:39-6(a)(7)(b), which states the unlawful possession of a firearm section does not apply to "[a] special law enforcement officer authorized to carry a weapon as provided in" N.J.S.A. 40A:14-146.14(b) of the Special Law Enforcement Officers Act (SLEOA), N.J.S.A. 40A:14-146.8 to 146.18. Defendant argued "special law enforcement officer" is vague term and might encompass him. To the contrary, "[t]he modes and methods of the appointment . . . of special law enforcement officers are all governed by statute" in the SLEOA. State v. Handy, 206 N.J. 39, 54 n.1 (2011). The SLEOA defines "special law enforcement officer" as a person appointed by a municipality or county "to temporarily or intermittently perform duties similar to those performed regularly by members of a police force of a local unit, or to provide assistance to a police force during unusual or emergency circumstances, or at individual times or during regular seasonal periods in resort municipalities." N.J.S.A. 40A:14-146.9(h). Defendant does not claim he had such an appointment.

In any event, N.J.S.A. 40A:14-146.14(b) provides that "[n]o special law enforcement officer may carry a firearm except while engaged in the actual performance of the officer's official duties and when specifically authorized by the chief of police, or . . . other chief law enforcement officer of the local unit to carry a firearm." See also 515 Assocs. v. City of Newark, 132 N.J. 180, 201 (1993) ("special police officers may not carry weapons when off duty unless they have a permit"). Defendant did not claim he met these requirements. Thus, the trial court correctly did not charge the jury on N.J.S.A. 2C:39-6(a)(7)(b).


Defendant next invoked N.J.S.A. 2C:39-6(e), which states the unlawful possession of a handgun subsection shall not be construed to prevent a person from carrying a handgun "between his dwelling and his place of business, [or] between one place of business or residence and another when moving," if the firearm is carried "in the manner specified in [N.J.S.A. 2C:39-6(g)]." N.J.S.A. 2C:39-6(g) requires that the firearm 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 such deviations as are reasonably necessary under the circumstances."

However, defendant testified that he had already completed his course of travel from his base to his family's residence, even assuming that location could constitute "his residence." N.J.S.A. 2C:39-6(e). Moreover, even if his trip to the nightclub somehow was a "reasonably necessary" deviation, N.J.S.A. 2C:39-6(g), and even if putting the gun in a locked glove box could be treated as carrying it in a secure case, gunbox, package, or trunk, defendant abandoned any possible defense by admittedly removing and loading the gun in the nightclub parking lot. Ibid. "[N]o 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." Morillo v. Torres, __ N.J. __, __ (2015) (slip op. at 24). Therefore, the trial court properly refused to instruct the jury on N.J.S.A. 2C:39-6(e).


Lastly, defendant asked the trial court to instruct on 18 U.S.C.A. 926A, which permits a person "to transport a firearm for any lawful purpose from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle[.]"

Defendant apparently had a permit to carry the firearm in Virginia, where his base was located. However, defendant testified that he carried that firearm to his destination in New Jersey, where he intended to stay the night. Thus, as the trial court found, he was not carrying the firearm to a "place where he may lawfully possess and carry such firearm." Ibid.; see Waters, supra, 439 N.J. Super. at 231-32. Moreover, defendant testified that in the nightclub parking lot, he first placed the firearm in the glove box of the passenger compartment, then took it out and loaded it with ammunition. Two Seized Firearms, supra, 127 N.J. at 91 (firearms that are loaded, or are kept in the glove compartment, do not meet the conditions of 926A). The court rightly refused to instruct the jury on 18 U.S.C.A. 926A.


On appeal, defendant claims for the first time that N.J.S.A. 2C:39-5(b) is preempted by the federal Law Enforcement Officers Safety Act of 2004 (LEOSA), 18 U.S.C.A. 926B-926C. The LEOSA permits "a qualified law enforcement officer," bearing photographic identification issued by the governmental agency for which the individual is employed, to carry a concealed firearm "[n]otwithstanding any other provision of the law of any State or any political subdivision thereof." 18 U.S.C.A. 926B(a), (d). However, it is unclear that defendant was a qualified law enforcement officer under the LEOSA as it existed at the time of the charged offense on December 26, 2011.

At that time, the LEOSA defined "a qualified law enforcement officer" as an employee of a governmental agency who

(1) is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest;

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the agency which could result in suspension or loss of police powers;

(4) meets standards, if any, established by the agency which require the employee to regularly qualify in the use of a firearm;

(5) is not under the influence of alcohol or another intoxicating or hallucinatory drug or substance; and

(6) is not prohibited by Federal law from receiving a firearm.

[18 U.S.C.A. 926B(c) (as amended Oct. 12, 2010).]

Moreover, at that time the LEOSA provided that "a law enforcement or police officer of the executive branch of the Federal Government qualifies as an employee of a governmental agency who is authorized by law to engage in or supervise the prevention, detection, investigation, or prosecution of, or the incarceration of any person for, any violation of law, and has statutory powers of arrest." 18 U.S.C.A. 926B(f) (as amended Oct. 12, 2010).

The State argues that the LEOSA did not apply to military police officers when the charged offense occurred. The State points out that effective January 2, 2013, Congress amended the LEOSA by including in both 926B(c)(1) and 926B(f) government law enforcement officers who have statutory powers of "apprehension under section 807(b) of title 10, United States Code (article 7(b) of the Uniform Code of Military Justice)." National Defense Authorization Act for Fiscal Year 2013, Pub. L. No. 112-239, 1089, 126 Stat. 1632, 1970-1971 (2013).

The only legislative history of the amendment was a comment by one of its sponsors. 158 Cong. Rec. 7389-90 (statement of Sen. Leahy). He stated: "[t]he Senate has agreed unanimously to extend LEOSA to the law enforcement officers that serve within our military who are currently not eligible for coverage under LEOSA." Id. at 7390. "[T]he amendment we have adopted will expressly include within the LEOSA statute currently non-covered civilian police officers and military police," and "will provide the needed LEOSA coverage for currently non-covered law enforcement personnel within the military." Ibid. "The amendment we adopt today will place military police and civilian police officers within the Department of Defense on equal footing with their law enforcement counterparts across the country when it comes to coverage under LEOSA." Id. at 7389.

Defendant does not argue that the trial court committed plain error by not instructing the jury under the LEOSA. Even if defendant had so argued, we would decline to reach such a claim. "Under the plain error standard, 'defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights.'" State v. Koskovich, 168 N.J. 448, 529 (2001) (citation omitted); United States v. Olano, 507 U.S. 725, 734, 113 S. Ct. 1770, 1777, 123 L. Ed. 2d 508, 519 (1993). It is not clear or obvious that the LEOSA applied to military police officers before the 2013 amendment.

Moreover, "[b]ecause [the LEOSA] issue never was raised before the trial court, because its factual antecedents never were subjected to the rigors of an adversary hearing, and because its legal propriety never was ruled on by the trial court, the issue was not properly preserved for appellate review." State v. Robinson, 200 N.J. 1, 18-19 (2009). In particular, the record before us does not address whether defendant met all of its prerequisites, including whether he was the subject of any disciplinary action by his governmental agency, or was under the influence of alcohol or another intoxicating substance when he left the nightclub.5 In light of "the factual shortcoming in this record," "an appellate court should stay its hand and forego grappling with an untimely raised issue." Id. at 20-21.

Defendant does argue that his trial counsel provided ineffective assistance by not requesting the trial court to instruct the jury under the LEOSA. We decline to consider on direct appeal defendant's claim of ineffective assistance of trial counsel. New Jersey courts "routinely decline to entertain ineffective-assistance-of-counsel claims on direct appeal because those claims 'involve allegations and evidence that lie outside the trial record.'" State v. Hess, 207 N.J. 123, 145 (2011) (citation omitted). Such claims generally "should be determined in a post-conviction relief [PCR] proceeding." State v. McDonald, 211 N.J. 4, 30 (2012). We therefore dismiss defendant's LEOSA claims without prejudice to a proper PCR petition and an evidentiary hearing if appropriate.

Before closing, we acknowledge the unfortunate situation here. Defendant testified of his service to the nation, his wounds in combat, and his deployments to Iraq and Afghanistan. However, despite that laudable service, his carrying, loading, and self-described careless handling of his private handgun near the already-violent nightclub situation endangered the crowd, the officers, and Wilson, and could easily have resulted in tragedy in New Jersey.

We affirm the judgment of conviction. To allow time for defendant to file any appropriate petitions in the Supreme Court or in the trial court, we continue his bail pending appeal for forty-five days from the date of this opinion, at the expiration of which he must report to serve his sentence unless another court has granted a further extension of bail.

1 Wilson pled guilty to the same offense, in return for an offer of three years in prison without parole.

2 Defendant had rejected a plea offer of three years in prison with one year of parole ineligibility. See N.J.S.A. 2C:43-6.2.

3 We note that the nightclub was near the George Washington Bridge leading out of state, and adjacent to a Port Authority of New York & New Jersey police headquarters.


The trial court responded to these questions by reiterating the elements of N.J.S.A. 2C:39-5(b). Defendant concurred in the trial court's proposal, and does not challenge on appeal the adequacy of the court's response.

5 Defendant testified he had been drinking with Wilson, and Officer Rodriguez testified defendant might have been under the influence of alcohol.