A person can be convicted of possessing a so-called community gun without having knowledge of its status, a state appeals court ruled on Thursday.
Community guns are weapons that drug gangs routinely stash in apartments, back alleys and other hiding places where they can be easily accessed, used and returned, making it harder to link perpetrators with crimes.
“The statute at issue requires the State to prove that the weapon is a community gun, but it imposes no additional requirement that the State prove that defendant knew of the gun’s illicit communal characteristic,” the court said in State v. Scott, A-4633-10.
Nicquan Scott was found guilty of second-degree possession, receipt and transfer of a community gun under N.J.S.A. 2C:39-4a(2).
Prosecutors alleged that he retrieved a handgun that had been hidden for more than a year in a mattress in an alley for his half-brother, Darnell Reeves, who used the gun to shoot another Jersey City man, Henry Molesky, on Dec. 12, 2008.
On appeal, Assistant Deputy Public Defender Theresa Kyles, argued that the state failed to prove that Scott knew that the handgun was a community gun.
Appellate Division Judge Douglas Fasciale, joined by Judges Anthony Parrillo and Susan Maven, said knowledge of the communal character of the firearm is not an element of the crime.
Fasciale said the statute —which states that “any person who possesses, receives[,] or transfers a community gun is guilty of a crime” — is unambiguous and shows no indication of any mens rea requirement.
“If the Legislature had intended, as an element of the offense, that defendant must know that the firearm is a community gun, then we presume that the Legislature would have said so,” he said.
Fasciale pointed to a state Supreme Court ruling, State v. Smith, 197 N.J. 325 (2009), that a defendant could be convicted of possession of a defaced firearm without having to prove at the same time that he knew it was defaced.
“Based on a reasonable reading of the statute in light of its purpose, we discern that the Legislature determined that the act of possessing a community gun is unlawful without any further mens rea requirement,” he said.
Deputy Attorney General Deborah Bartolomey says the ruling is a clear analysis of what she described as an unambiguous statute.
Beyond that, she says, the ruling could be used in other ways as well. “It’s useful as a guide on how to analyze a statute,” Bartolomey says.
Through a receptionist, Kyles said she was unavailable for comment.