before the relevant amendments became effective, had no
fair notice that his possession and transfer of a stun gun
was forbidden; his indictment was therefore dismissed.
State v. Gantt, 186 N.J. Super. 262 (Law Div. 1982),
aff’d, 195 N.J. Super. 114 (App. Div. 1984), aff’d, 101
N.J. 573 (1986). A machine gun, handgun, rifle and
shotgun are defined in terms of their design, not their
operability. See N.J.S.A. 2C:30-1i, k, m, and n.
Therefore, these weapons need not be operable to qualify
as firearms under N.J.S.A. 2C:39-1f. See State v. Keely,
153 N.J. Super. 18 (App. Div. 1977), certif. denied, 75
N.J. 613 (1978); State v. Marques, 140 N.J. Super. 363
(App. Div. 1976); State v. Hepner, 136 N.J. Super. 509
(App. Div. 1975); State v. Morgan, 121 N.J. Super. 217
(App. Div. 1972).
State v. Cole, 154 N.J. Super. 138 (App. Div. 1977),
certif. denied, 78 N.J. 415 (1978). Where defendant
presented no evidence which negated operability of a
gun, it was presumed to be operable, and the court was
not required to submit the question of operability to the
jury. Moreover, the inference of operability does not
depend on the recovery of the weapon or its production
in court.
State v. Schultheis, 113 N.J. Super. 11 (App. Div.
1971), certif. denied, 58 N.J. 390 (1971). Victims’
testimony that defendant’s gun appeared to be real
supported an inference that gun was operable.
- Method of propulsion and type of projectile
State v. Mieles, 199 N.J. Super. 29 (App. Div. 1985),
certif. denied, 101 N.J. 265 (1985). N.J.S.A. 2C:39-1f
divides firearms into two categories: (1) guns which are
fired by cartridges, shells, explosives or by igniting
inflammable or explosive substances, and (2) guns which
are fired by a spring, elastic band, carbon dioxide or
compressed gasses, and fire a bullet or missile smaller
than three-eighths of an inch in diameter. A spring action
BB gun meets the second enumerated criteria, and is
therefore a firearm under the Code.
- Jury Question
State v. Seng, 91 N.J. Super. 50 (App. Div. 1966).
Whether a gun constitutes a firearm is a factual issue for
the jury to determine, and could not properly be heard
on a motion to dismiss an indictment. See also State v.
Mieles, supra; State v. Morgan, supra.
C. Antique FirearmsN.J.S.A. 2C:39-1a defines an antique firearm as (1)
any firearm or antique cannon manufactured before 1898
for which ammunition is not commercially available, (2)
any firearm or antique cannon incapable of being fired or
discharged, or (3) any firearm or antique cannon that
does not fire fixed ammunition, regardless of the date of
manufacture. All three categories of guns otherwise
qualifying as antique firearms must be possessed only as
curiosities, ornaments or for historical significance or
value. State v. Schreier, 135 N.J. Super. 381 (App. Div.
1975) (court construed N.J.S.A. 2A:151-18 (repealed
1979), which is similar to N.J.S.A. 2C:39-1a). See Service
Armament Co. v. Hyland, 70 N.J. 550 (1976); State v.
Kaniper, 180 N.J. Super. 573 (Law Div. 1981).D. WeaponN.J.S.A. 2C:39-1r defines “weapon” in part as
“anything readily capable of lethal use or of inflicting
serious bodily injury.“ See State v. Brown, 185 N.J. Super.
489 (App. Div. 1982) (boning knife); State v. McCauley,
157 N.J. Super. 349 (App. Div. 1978), certif. denied, 77
N.J. 500 (1978) (garrotte, a piece of string used to
strangle a murder victim, was not a weapon under
N.J.S.A. 2C:151-5 (repealed 1979; see definition of
weapon under N.J.S.A. 2C:39-1r); State v. Tims, 129
N.J. Super. 399 (App. Div. 1974), certif. denied, 66 N.J.
326 (1974) (bottle use in armed robbery constitutes a
“bludgeon” under N.J.S.A 2A:151-5 (repealed 1979; see
definition of “weapon” under N.J.S.A. 2C:39-1r).E. Deadly WeaponN.J.S.A. 2C:11-1 defines “deadly weapon,” in part,
as any firearm or other weapon capable of producing
death or serious bodily injury. Inasmuch as the
definition of “weapon” under N.J.S.A. 2C:39-1r is
“anything readily capable of lethal use or inflicting bodily
injury” including firearms and other devices, the two
definitions are similar. Note, however, that a “deadly
weapon” also includes any object fashioned so that a
victim would believe it was capable of producing death or
serious bodily injury, whereas a “weapon” does not.
N.J.S.A. 2C:11-1, as amended by Act of January 4, 1982,
ch. 384, 1981 N.J. Laws 1415 (effective January 4,
1982).Use of a deadly weapon raises the crime of simple
assault to aggravated assault (N.J.S.A. 2C:12-1a, b),
raises robbery to a crime of the first degree (N.J.S.A.