Author Archives: jefhenninger
New Jersey gun permits and employers
When you apply for a gun permit in New Jersey, you give up a lot of rights. You consent to the police reviewing records and contacting any number of people about your application. While they cannot ask you to fill out any additional forms, they are generally free to conduct an investigation into your background in any way they see fit. The STS-33 specifically requests that you provide your employer’s information. The police are then free to contact your employer.
Most employers are probably smart enough to keep quiet or else risk a lawsuit. However, some employers can cause problems for you if they are anti-gun. Although the case was reversed and remanded, In Re Dubov, 981 A.2d 87 (App. Div. 2009) demonstrates how your employer can throw a wrench into your gun permit application:
this Court with consent of all parties as stated on the record on February 28, 2008 having contacted [appellant’s] employers listed in [appellant’s] counsel’s March 5, 2008 letter to the Court, and having spoken to said employers via telephone, and the Court having been advised of information (specifically questionable and threatening behavior by [appellant]) that leads the Court to find that the issuance of a Firearms Purchaser Identification Card to [appellant] would not be in the interest of the public’s health, safety, and welfare, pursuant to N.J.S.A. 2C:58-3c(5),
Keep in mind that your employer’s anti-gun stance will not be enough to form a basis of denial. However, if they provide negative information about you, there is a good chance you will be denied. The best way to attack this is to be proactive instead of reactive. If you think your employer is going to cause a problem for you, your best course of action may be to lawyer up ahead of time to try to prevent a denial.
Call us at 1-855-9-JEFLAW to discuss anytime.
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.
Possible changes to how New Jersey Carry Permits are issued
Recently, the New Jersey State Police proposed a change to the State’s administrative code that would allegedly make it easier for residents to obtain a carry permit. The amendment clarifies that justifiable need can be shown if there is evidence of serious threats that are not directed specifically at an individual and that establish more than just generalized fears or concerns.
You can read the proposed changes here:
Right now, the justifiable need standard is nearly impossible to meet which has led to absurd results. For example, when an applicant applies for a carry permit because their job is dangerous, the response has been that since you can always just quit your job, you don’t need a carry permit. The amendment would eliminate these absurd results. The amendments still makes it clear that you cannot obtain a carry permit if there are reasonable means to avoid the harm. However, the term you don’t have to take unreasonable measures such as having to never leave your house or having to leave the state.
However, I have serious concerns about how effective these changes will be.
The proposed amendment indicates on one hand that the NJSP wants to loosen this standard, it states on the other hand that the proposed amendment will bring the regulations more in line with New Jersey Supreme Court precedent. This however doesn’t make any sense since the regulations and the case law work hand in hand to make the justifiable need standard impossible. Its not as if the regulations say one thing and the case law says another. Perhaps this language was included to prevent anti-gun types from objecting to this language but I think this can cause serious harm moving forward. Clearly this issue will be litigated as trial courts may err on the side of caution forcing these cases up on appeal. The first few courts to deal with these cases will set the precedent for all future cases. Since the new regulations make reference to the old case law, it may be difficult to determine that any change has really occurred.
Of course, all hope is not lost.
The two examples given are a little helpful. The first is a taxi driver who works nights in a particular precinct where numerous drivers were shot and robbed. The second is an eyewitness to a murder committed by a street gang that has engaged in witness intimidation. In both examples, neither application has been harmed or threatened with harm. However, both examples are very specific. If you are a taxi driver during the day, you may not qualify because no one has been robbed during the day (yet). In the other, if you witness a murder committed by a violent street gang who has yet to murder witnesses, you might be out of luck.
Hopefully these examples can be expanded. Otherwise, us lawyers will have to work hard to expand these examples in the courts.
So what happens next?
Because this is a proposed change to the regulatory code, nothing is done yet. There are 12 steps to adopt a change to the administrative code and the public comment period is step 9. It is not until step 12 will we know the effective date of these change. In addition, the proposed amendments can be changed based upon the comments.
See this link for more information on the process:
How you can help
You have until May 6 to submit comments. They can be emailed. See the notice for more information. Please keep your comments professional and constructive.
Unlawful Possession of a Weapon Charges Dismissed in Essex County
Today in Essex County, the Law Offices of Jef Henninger, Esq. were able to help a client get his second degree weapons charges completely dismissed. The client, M.D., was a security guard that was looking to become an armed guard. He applied for a carry permit and his company gave him a letter of need. He thought this was good enough. Problem is, his carry permit was not approved yet. The police saw him leave his house with his gun and he was arrested immediately and his gun was confiscated.
Despite this reasonable explanation, the State still sought an indictment against him. If convicted, he was looking at mandatory prison time up to 10 years. Unlike other cases that have been in the news lately, this firm did not seek to publicize this case. As a result, the client’s name will not appear in any Internet searches for the rest of his life. Because our fees are reasonable, there was no big fundraising campaign needed. Even more importantly, this case was 100% dismissed. There was no probation, no pre-trial intervention and no fines. He can also get his weapons back.
Please note that this is not to say that media attention is not a proper strategy in some cases. However, there seems to be some people that think this is the only way to win the case and as a result, they forego hiring the right lawyer. Or they think it will be too expensive and thus, something they cannot afford. This case demonstrates that what is necessary in some cases is not necessary in others. Before making any assumptions, speak to a lawyer first.
If you are charged with unlawful possession of a weapon in NJ, NY or PA, call us at 1-855-9-JEFLAW to discuss your case for free.
Federal Firearms Charges
There are a number of federal firearms law on the books and these crimes are very serious. There is no room for error. Between the ATF, the FBI and the US Attorney’s office, gun crimes are high priority and the prosecution is vigorous. Even worse, conviction rates are very high. That doesn’t mean that these cases are impossible. In fact, some defenses have proven to be very effective. If you are facing federal firearms charges in New Jersey, call our team of tough, smart lawyers to discuss your case and see how we can help you.
Straw Purchaser in New Jersey
Straw purchasers in New Jersey are part of the bigger problem of illegal gun trafficking. A straw purchase occurs when the actual buyer of a firearm uses another person, called a straw purchaser,to purchase the gun for them. This helps people that are prohibited from purchasing firearms or who don’t otherwise want to be identified to obtain weapons. In most cases, these guns are needed for an unlawful purpose. As a result, straw purchasers in New Jersey are vigorously prosecuted. If you are charged with being a straw purchaser for a firearms in New Jersey, call our team of tough, smart lawyers to discuss your case and see how we can help.
Unlawful Sale of Firearms in NJ
There are two types of cases under this statute. Either someone mistakenly violated the law or someone is selling weapons for a nefarious purpose. In most cases, it should be pretty easy to distinguish between the two. Although the statute itself does not make any distinction between the two scenarios, a good defense lawyer will make sure that he or she does so. As a result, the two types of cases will be handled very differently. Likewise, the defenses for each will differ. Regardless of where your unlawful sale of firearms case false, call our team of tough, smart lawyers to discuss.
Unlawful possession of an assault rifle in NJ
In New Jersey, it is unlawful to possess an assault rifle no matter what your intentions were. The definition is an assault rifle is very specific. You would think that police would be able to figure out if a weapon is or is not an assault rifle but this is not always the case. We once had a case where a client was charged with unlawful possession of an assault rifle but it turns out, it was not really an assault rifle. We had to fight hard against the State but we eventually got the case dismissed by proving that the gun was in fact legal. If you are facing charged of of unlawful possession of an assault rifle in any court in New Jersey, call our team of tough, smart lawyers today to discuss your case.
Possession of Defaced Firearms in NJ
Possession of a defaced firearm in New Jersey is a fourth degree offense. Thus, if convicted, you are looking at a felony criminal record. The State does not need to show why you possessed the defaced firearm. In other words, your intentions are irrelevant. Of course, it helps your case if we can show that you had good intentions. The extent and cause of the defacing are important as well. If you have been charged with possession of a defaced firearm in any court in New Jersey, call our team of tough, smart lawyers today to discuss your case.
Possession of a Firearm Without a Carry Permit
Possession of a firearm is a second degree crime in New Jersey. That is, if the State can show that you possessed a firearm and you did not have a permit, you are likely looking at prison time if convicted. They do not need to show that you had any unlawful purpose. You could have had the best of intentions. It doesn’t matter. Of course, hope is not lost. Our team of tough, smart lawyers have helped many clients escape harsh punishment or even any punishment when charged with Possession of a Firearm Without a Carry Permit in New Jersey. Our initial consultations are free, so call us today.