What happened to Carlo, could happen to you

The Carlo Bellario case is finally done so I can now discuss this case in more detail.  Today he was sentenced to two years probation; down from the three years as called for in the plea agreement.  You can read more about today’s sentencing here:  http://newjersey.news12.com/news/actor-carlo-bellario-sentenced-to-two-years-probation-over-prop-pellet-gun-used-in-film-1.12778579

While the case was going on, I really couldn’t discuss a number of things.  Most people were outraged that he was arrested.  If you didn’t follow the case, Carlo was an actor that was shooting a moving in Woodbridge, New Jersey.  He was handed what he thought was a prop gun to shoot a scene.  The police were called because the residents of the neighborhood saw Carlo with the gun.  Since the movie producers did not secure a permit to film in the town, the police responded to investigate.  Turns out, this was a BB gun which is illegal in New Jersey.  As a result, he was arrested and he was facing many years in prison for unlawful possession of a BB gun in addition to other charges.

A lot of people thought it was that you could be arrested for such an offense.  After all, all of the evidence supported Carlo’s statement that he had no idea that this was a BB gun.  In New Jersey, like most states, you are punished for knowingly doing something illegal. That does not mean that you need to know that something is illegal as mistake of law and/or lack of knowledge about the law is not a defense.  Instead, the knowing element of an offense goes to your state of mind.  For example, if you buy an old trunk at a garage sale and it contains cocaine, you would have a great defense if you did not open it.  That is because you did not knowingly possess the cocaine.

So with regard to Carlo’s case, he did not knowingly possess a BB gun.  He thought it was a fake gun and all of the evidence supports this defense.  So he’d be not guilty right?  Wrong!

The primary case on this issue is State v. Pelleteri, 294 N.J. Super. 330 (1996) in which the Defendant was an expert marksman and gun collector.  In the late 80’s he won a rifle at a contest.  He didn’t inspect the weapon and instead just put it in his safe with the rest of his collection.  For some reason, the police came in contact with him and this rifle in 1993.  There is no indication that he was accused of doing any illegal or that he was charged with any other offenses.  When the police inspected this rifle, they found that it had a 17 round capacity and as a result, was an illegal assault rifle in New Jersey.  He was charged possession of an assault firearm.  Based upon his extensive gun collection, it is clear that he did not have a felony criminal record.  For whatever reason, the case went to trial.

At trial, like on appeal, his attorney argued that he did not know that this rifle was an assault rifle.  However, the trial judge refused to instruct the jury that this lack of knowledge as to the character of the rifle was a defense.  The Appellate Division summed up the case in these two sentences:  “The question squarely presented is whether the State was required to prove that the defendant knew the gun in his possession was an assault firearm. We hold that knowledge of the character of the weapon is not an element of the offense.”

Let that sink in for a minute.  Even if you did nothing wrong, even if you had the best of intentions, a simple mistake could land you in handcuffs (and everything that comes after that).  Towards the end of the opinion, the Appellate Division has this warning:  “When dealing with guns, the citizen acts at his peril”.

This concept was further explored in the case of State v. Smith, 197 N.J. 325 (2009)in which the New Jersey Supreme Court considered the Defendant’s charge of possession of a defaced firearm.  Like the Pelleteri case, the Defendant in Smith argued that the State must prove that the he knew the firearm was defaced.  Also like Pelleteri, the Court disagreed by holding:  “In conclusion, we hold that the term “knowingly” in N.J.S.A. 2C:39-3(d) modifies “possession” of a firearm which has been defaced. The State was not required to prove that, at the time that he knowingly possessed the firearm, defendant also knew that it was defaced.”

Therefore, what happened to Carlo, as wrong as it was in the court of public opinion, was actually legal in a court of law.  Just imagine borrowing flour from your neighbor and it turns out to be cocaine.  Do you think you should be charged with possession of a controlled dangerous substance?  Of course not because you have to know that what you are possession is in fact cocaine.  For some reason, the laws in New Jersey differ when it comes to firearms.

While there were a number of issues in Carlo’s case, this was a big one.  Even though there was no evidence that he was knowingly possessing a BB gun, the fact that he knowingly possessed the object and the object was in fact an illegal BB gun is all the State was going to have to prove.  Now you may think that these cases are rare and that this would never happen to you.  Consider this.  Carlo’s case was wrapped up today.  On Wednesday, I will be wrapping up another case where my client legally bought a rifle at a NJ gun store.  It turns out that this rifle is an illegal assault rifle as it holds 17 rounds.  He had no idea this was illegal and apparently, neither did the gun store owner.  One would think that the owner of a gun store would know the laws right?

Much like Carlo’s case, none of that is a defense.  Also like Carlo’s case, the State’s original plea offer called for several years in prison.  This client had two other lawyers working on the case for months but they were getting nowhere fast.  He then hired me and I worked out a deal to get his charges dismissed via PTI and to also prevent him from getting charged with the assault rifle charge (he was facing other minor charges).  So that’s two cases in one week with the same issue and I’m just one lawyer.  Who knows how many other cases like this are out there?

I would love to be able to give you some words of wisdom here short of moving out of the state but I unfortunately don’t have much.  I encourage everyone to learn about firearms and learn how to shoot them.  However, if you are going to be involved in firearms in anyway in New Jersey, you have to really know the law and be very careful in everything you do.





Posted on December 19, 2016, in My Practice and tagged . Bookmark the permalink. Comments Off on What happened to Carlo, could happen to you.

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