State v. Frederick L. Hunt, unpublished opinion, App. Div. Docket No. A-1463-07T4 (March 25, 2010) – NJ Conviction for possession of a firearm without a permit reversed. “At trial, defendant asserted that he was arrested within one minute of picking up a handgun he found on the sidewalk to prevent danger to children and others, he never intended to keep the gun, and he had no opportunity to turn it in to the police before his arrest….
A common law defense of justification was presented by the evidence, and it was relevant to opposing arguments regarding the one disputed issue in the case, defendant’s intent. Justification as a defense required instruction to the jury, even in the absence of a request by counsel…. In this case, the State argues that danger to nearby children and others was not imminent and compelling….
Although there was no specific evidence of children or others who might have picked up the gun, other than the two elderly men, the immediacy of danger presented by a loaded handgun on a city sidewalk was a factual issue for the jury to determine. Defendant was entitled to the jury’s consideration of a provision of the Code that recognizes a defense of justification to protect against a greater harm than his own allegedly temporary possession of the handgun without a permit….[The jury instructions] focusing the jury only on ‘the time and opportunity to surrender the handgun,’ and on whether defendant intended to do so, did not fully apprise the jury of the law regarding alleged justification for defendant’s conduct. Charges on temporary possession and intent, combined with a charge on justification, would have fully informed the jury about the law applicable to the factual issues raised by the defense.” (Kevin G. Byrnes, Designated Counsel)