N.J.S.A. 2C:39-5(b)(1) unlawful possession of weapon


Decided December 11, 2019

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

Defendant appeals from his conviction for second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1).1 Police found the gun stashed in a wall of a commercial establishment on a public street, where defendant had no privacy interest. He mainly contends that Judge Benjamin S. Bucca, Jr. erroneously denied defendant’s motion to suppress. We disagree and affirm.

The judge conducted a hearing, denied the motion to suppress, and rendered an oral opinion. Defendant then pled guilty. In accordance with his plea agreement, Judge Bucca sentenced defendant to a five-year prison term with a forty-two month parole disqualifier.

Argument:  POINT I


  1. Standard of Review

“[O]n appellate review, a trial [judge’s] factual findings in support of granting or denying a motion to suppress must be upheld when ‘those findings are supported by sufficient credible evidence in the record.'” State v. S.S., 229 N.J. 360, 374 (2017) (quoting State v. Gamble, 218 N.J. 412, 424 (2014)). This court “accord[s] deference to those factual findings because they are substantially influenced by [an] opportunity to hear and see the witnesses and to have the feel of the case, which a reviewing court cannot enjoy.” State v. Lamb, 218 N.J. 300, 313 (2014) (alteration in original) (internal quotation marks and citations omitted). This court “should not disturb a trial [judge’s] factual findings unless those findings are ‘so clearly mistaken that the interests of justice demand intervention and correction.'” S.S., 229 N.J. at 374 (quoting Gamble, 218 N.J. at 425). “[A] trial court’s legal conclusions are reviewed de novo.” Lamb, 218 N.J. at 313.

  1. Facts

Here, police responded to a 9-1-1 call and spotted defendant. The officer asked defendant if he was in a fight, defendant replied no, and the officer left the scene. Twenty minutes later, police returned in response to another call, specifically involving a gun. They detained defendant and two others—and asked for their identification. In conducting a protective sweep of the area, police then found the gun.

The law on whether one has an expectation of privacy is settled. “One seeking to invoke the protection of the [F]ourth [A]mendment must establish that a reasonable or legitimate expectation of privacy was invaded by government action.” State v. Marshall, 123 N.J. 1, 66 (1991). To determine whether an expectation of privacy is protectable, federal courts “employ[] a two- prong test: first, a person must have exhibited an actual expectation of privacy, and second, the expectation must be one that society is prepared to recognize as reasonable or legitimate.” State v. Sencion, 454 N.J. Super. 25, 32 (App. Div. 2018). In New Jersey, “[o]ur Supreme Court, however, has defined an objective test asking only whether a person has a reasonable expectation of privacy.” Ibid. Such “‘[e]xpectations of privacy are established by general social norms,’ and must align with the ‘aims of a free and open society.'” State v. Taylor, 440 N.J. Super. 515, 523 (App. Div. 2015) (quoting State v. Hempele, 120 N.J. 182, 200- 01 (1990)).

Here, defendant had no reasonable expectation of privacy in the public wall, which was located on a sidewalk accessible to any person. Therefore, the seizure of the gun—even though not in plain view—was constitutional. Indeed, the judge found that there was no reasonable expectation of privacy in the wall because the firearm was hidden in a public area to which the general public has access.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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