STATE OF NEW JERSEY v. DRAGOS P. CHIHAIA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

DRAGOS P. CHIHAIA,

Defendant-Appellant.

____________________________________________

September 20, 2016

Submitted July 19, 2016 Decided

Before Judges Messano and Suter.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 13-01-0209.

Joseph E. Krakora, Public Defender, attorney for appellant (John A. Albright, Designated Counsel, on the brief).

Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Camila Garces, SpecialDeputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a jury trial, defendant Dragos Chihaia was convicted of fourth-degree unlawful possession of a knife, N.J.S.A. 2C:39-5(d) (count two). The jury acquitted defendant of third-degree aggravated assault on a police officer, N.J.S.A. 2C:12-1(b)(2) (count one), and third-degree possession of a knife for an unlawful purpose, N.J.S.A. 2C:39-4(d) (count three).1 The judge sentenced defendant to time served, 438 days in the Essex County Jail, and imposed appropriate financial penalties.

Defendant raises the following points on appeal

POINT I

THE LOWER COURT ERRED IN DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AS TO UNLAWFUL POSSESSION OF A STEAK KNIFE, BECAUSE THERE WAS NO PROOF THAT DEFENDANT WAS ENGAGED IN, OR ABOUT TO ENGAGE IN, CRIMINAL CONDUCT, OR THAT HIS CONDUCT IMPLICATED A DANGER TO PERSON OR TO PROPERTY.

POINT II

THE PHRASE "NOT MANIFESTLY APPROPRIATE" IN THE UNLAWFUL POSSESSION OF A WEAPON STATUTE, N.J.S.A. 2C:39-5[d], IS UNCONSTITUTIONALLY VAGUE AS APPLIED TO DEFENDANT'S CONDUCT IN MERELY POSSESSING A STEAK KNIFE IN HIS PANTS A FEW FEET FROM HIS APARTMENT DOOR. (Not Raised Below).

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

Nutley Police Department Patrolman Christopher Melilli testified that on October 6, 2012, he and Patrolman Michael O'Halloran were dispatched to a certain location, parking their respective police cars near the courtyard of the apartment complex. After speaking to an individual at the scene, Melilli and O'Halloran entered the courtyard and saw defendant standing with his back against the wall. As the officers walked toward him, defendant shouted, "'Don't shoot! Don't shoot!'"

O'Halloran left the courtyard to speak to "the other individual," and Melilli was left alone with defendant. Defendant had his hands behind his back, and Melilli instructed him to "keep them out in front[.]" Defendant removed his hands from behind him, and Melilli saw a serrated knife in defendant's right hand. Defendant "raised it above his head," and "took a step toward" Melilli. Melilli took a step back, drew his firearm and ordered defendant to drop the knife three times. After the third time, defendant threw the knife to the ground in front of him, Melilli moved it further away and placed defendant under arrest.

On cross-examination, Melilli acknowledged that the individual the police first encountered at the complex "had called dispatch," and "as a result of the discussion [they] had with this other individual, [Melilli and O'Halloran] went into the apartment complex towards" defendant. Melilli also stated that he first encountered defendant ten to fifteen feet from defendant's apartment door. On redirect, Melilli testified the "complainant" was also a resident of the complex.

The only other witness called by the State was Officer O'Halloran, who largely corroborated Melilli's version of events. At the close of the State's case, defendant moved for a judgment of acquittal on all counts. See R. 3:18-1. In a brief oral opinion, the judge reviewed the trial testimony in detail and applied the standard set forth in State v. Reyes, 50 N.J. 454, 458-59 (1967), before denying the motion.

II.

Defendant argues that precedent interpreting N.J.S.A. 2C:39-5(d) demonstrates an item which has lawful uses, like a steak knife, only "loses its innocent character when possessed during the commission of a crime." Defendant contends that the State failed to "establish the reasons for defendant's possession of the steak knife, and there [was] no indication that defendant contemplated using the steak knife against person or property[.]" We disagree.

We conduct our review of the denial of defendant's motion for acquittal de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[Reyes, supra, 50 N.J. at 459.]

N.J.S.A. 2C:39-5(d) provides that "[a]ny person who knowingly has in his possession any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have is guilty of a crime of the fourth degree."

We have said that

[t]he legislative intent in respect of th[e] section is . . . to address

"the situation in which someone who has not yet formed an intent to use an object as a weapon possesses it under circumstances in which it is likely to be so used. The obvious intent of the Legislature was to address a serious societal problem, the threat of harm to others from the possession of objects that can be used as weapons under circumstances not manifestly appropriate for such lawful uses as those objects may have."

[State v. Blaine, 221 N.J. Super. 66, 69-70, (App. Div. 1987) (emphasis added) (quoting State v. Lee, 96 N.J. 156, 161 (1984)).]

Therefore, "where the implement is of an equivocal character, susceptible to both lawful and unlawful uses, its status as a weapon whose possession is capable of subjecting its possessor to criminal liability is entirely dependent on the circumstances attending the possession." Id. at 70.

In Blaine, we held that the defendant's possession of a folding knife as he walked down the street could not sustain his conviction under the statute. Id. at 70-71. However, in State v. Kelly, 118 N.J. 370, 383-87 (1990), the Court affirmed the defendant's conviction where she possessed a carpet cutter, anticipating its use as a weapon for self-defense.

Here, police arrived on the scene in response to a call from a neighbor of defendant. After speaking with that person, police approached defendant who had his hands behind his back and his back against the wall of the apartment complex. Upon seeing the officers, defendant cried out, "'Don't shoot! Don't shoot!'" He initially refused to show the officer his hands, and, when he did remove his hands from behind his back, one hand contained a steak knife. Defendant did not immediately discard the knife, despite repeated demands by the officer, but rather raised the knife above his head and moved toward Officer Melilli. Under the totality of these circumstances, the jury could find beyond a reasonable doubt that defendant possessed the steak knife "under circumstances not manifestly appropriate for [its] lawful use[.]" N.J.S.A. 2C:39-5(d). Defendant's motion for acquittal was properly denied.

For the first time on appeal, defendant argues that N.J.S.A. 2C:39-5(d) is "unconstitutionally vague" as applied to the facts of this case. He contends that the statute does not "provide sufficient notice that simply possessing a steak knife outside the home may lead to the conviction of a crime."

Initially, we note that defendant's failure to raise a claim in the Law Division generally bars its consideration on appeal. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973). This is true, even if the issue involves a constitutional challenge. See, e.g., State v. Witt, 223 N.J. 409, 418-19 (2015) (refusing to consider a belated challenge to the lawfulness of a motor vehicle stop).

Nevertheless, we find no merit to the argument. R. 2:11-3(e)(2). "A statute that 'is challenged as vague as applied must lack sufficient clarity respecting the conduct against which it is sought to be enforced.'" State v. Lenihan, 219 N.J. 251, 267 (2014) (quoting Visiting Homemaker Serv. of Hudson Cty. v. Bd. of Chosen Freeholders of Cty. of Hudson, 380 N.J. Super. 596, 612 (App. Div. 2005)). In Lee, supra, 96 N.J. at 167, the Court recognized that "[c]lose cases may arise" where N.J.S.A. 2C:39-5(d) fails to provide sufficient notice that certain conduct is criminally proscribed.

Defendant's assertion that he innocently possessed a steak knife outside the front door of his apartment is contradicted by the facts we recited above, all of which could be found by the jury beyond a reasonable doubt. We therefore reject defendant's constitutional vagueness as applied argument.

Affirmed.

1 The jury was unable to reach a unanimous verdict on the lesser-included charge of simple assault under count one. The State dismissed the charge at sentencing.