Judge Espinosa’s adopted dissent continued: The second attempt at establishing a factual basis yielded the following:
- And you didn’t have a lawful purpose for that knife, right?
- I did not.
As the majority has noted, in State v. Montalvo, 229 N.J. 300 (2017), the Court distinguished between the elements of possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4(d), which “calls for an inquiry into the intent of the possessor of a weapon,” and unlawful possession of a weapon, N.J.S.A. 2C:39-5(d), for which “intent is not an element.” Id. at 317.
The Court instructed that the proper inquiry is “‘whether the circumstances surrounding the possession were manifestly appropriate’ for lawful use.” Ibid. (quoting State v. Colon, 186 N.J. Super. 355, 357 (App. Div. 1982) (per curiam)). The Court reviewed circumstances a jury might consider to determine “whether the use of a weapon is manifestly appropriate or inappropriate under the circumstances.” Ibid. The Court cited cases in which the circumstances supported a conviction for unlawful possession: State v. Lee, 96 N.J. 156, 164-67 (1984) (defendant possessed scissors taped to simulate stiletto while burglarizing home); State v. Wright, 96 N.J. 170, 172-73 (1984), appeal dismissed, 469 U.S. 1146, 105 S. Ct. 890, 83 L. Ed. 2d 906 (1985) (defendant possessed Exacto knife, strapped to leg, while wandering neighborhood) as well as cases in which the circumstances failed to support a conviction, such as when the defendant possessed a pocket knife in his pocket while walking down the street, State v. Blaine, 221 N.J. Super. 66, 70-71 (App. Div. 1987) or when the defendant possessed a pocket knife but did not display it while committing a robbery, State v. Riley, 306 N.J. Super. 141, 149-51 (App. Div. 1997).
When this case is remanded back to the trial court, the parties will be returned to the pre-plea posture. There is no guarantee that the defendant will receive a plea offer better than the one that was accepted at the time of the original guilty plea. Thus, after all of the work that went into two levels of appeals before the Appellate Division and New Jersey Supreme Court, the parties may reach the exact same outcome. Or, the defendant could go to trial. If the defendant goes to trial and loses, he will likely end up with a much longer sentence than the one originally bargained for and will wish that he never pursued an appeal.