Category Archives: My Practice
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.
How to apply for a gun permit in New Jersey
1. Before you apply, make sure you are not subject to any disabilities that would prevent you from obtaining a gun permit in New Jersey. Click “Will you get denied” above for more information. If you have some issues that could present a problem, call us to discuss.
2. Call your local police department (or State Police if you live in an area without a local department) and ask when you can submit an application. Some departments will only help you during certain days and times.
3. Pick up the application and submit all of the forms completely and honestly. Again, if you have questions, call us to discuss. If you make a mistake, they may consider this falsification which is a felony in New Jersey.
4. You will then have to get fingerprinted. The police department will give you this information.
5. After your fingerprints are complete, follow up with your references to make sure that they have been contacted and that they have submitted the information back to the police.
6. A few weeks later, follow up with the police officer or detective to make sure that everything is on track. If something is wrong, such as they didn’t hear back from your references, follow up on this right away.
7. When your permit is ready, the police will call you. Go down there, pick it up and enjoy.
Note: most people can get through this entire process without our help. However, if you run into a snag, we are a free phone call away at anytime.
I am working on a gun permit application for a client and everything should be done. A Captain from a police department in Passaic County was nice enough to follow up on my letter of representation. He informed me that everything is pretty much done but they are waiting on the mental health information from the Passaic County Adjuster’s Office. Two problems have combined to cause significant delays. First, at this police station and I am sure many others, applications are double what they were last year. Second, the Passaic County Adjuster’s Office is backed up by four months due to these increased applications as well as having their staff cut. I am in the process of helping my client cut through this red tape.
If you have been able to successfully deal with this, feel free to post a comment below. If you have run into something similar in a different county, please post that as well.
It can happen to the most experienced gun owner. For one reason or another, your firearm gets accidentally discharged. I have a few cases dealing with an accidental discharge in my office now so I thought I would cover a few issues that I have seen. Clearly, if someone has been injured, your first step is to call 911 right away. I sure hope that was beyond obvious.
Assuming no one was seriously injured, this is still a very serious situation. Of course, a lot will depend on what happened and what led to the accidental discharge. Here are a few scenarios:
-Normal gun handling
Whether its just cleaning or storing the gun, if the gun goes off in your house and just causes damage to your own property, you are probably OK even if the police come. This also assume that everything is legal. See below.
I have a case now where a gun was accidentally discharged during a domestic violence incident. This is a huge problem. The fact that it was an accident won’t have a big impact on the police. Domestic violence and guns don’t mix and even handling one for any reason during a domestic violence incident can lead to an arrest and seizure.
-Bullet leaving your house
Regardless of how the firearm was accidentally discharged, if the bullet leaves your house, you may be in for a lot of trouble. It could have killed someone and the closer you get to doing this, the more trouble you will be in. I’ve seen bullets go through one house, across the street and into another. In addition to criminal issues, you may wind up facing a civil lawsuit by the other home owner(s).
-Bullet hitting someone causing minor injury
When it comes to guns, there is no such thing as a minor injury in the eyes of the police. You could be facing arrest as well as a civil law suit. Keep in mind that the decision to arrest you may not be up to the victim.
-Bullet hitting someone causing serious injury
It is almost certain that you will be arrested her. Likewise, unless this was a family member, you will likely be sued.
As you can see, the seriousness of the situation will depend on the context in which the firearm was discharged, the people involved and the damage caused. I cannot give legal advice here, but here are a few considerations:
-You will likely be an emotional wreck
The more serious the situation, the less likely you will be capable of rational thought. Thus, hiring a lawyer ASAP may be very important. Of course, this might be impossible until you have already done some damage to your case
-You have the right to remain silent
Anything you say can be used against you in either a criminal or civil case. This doesn’t just apply to the police. Anything you say to everyone will be taken down at some point and analyzed. This is why its important to get a lawyer to get information and give information without helping to build a case against you. And no, this won’t make you look guilty. That decision was likely made before you picked up the phone and called the lawyer.
-If you give up your guns, you’ll have to fight to get them back
New Jersey has an unwritten policy that once firearms are taken, only a judge will give them back. I’m sure someone, somewhere hasn’t had to deal with this, but I think its very rare. I also don’t care what the police tell you about getting them back in a few days. They will tell you anything to calm you down.
-If you have any illegal, they will likely find it and charge you
This is the risk you take when you are not legal. If you picked up something off of the Internet or out of state that is not legal in NJ, this is the time the police will find it. Look around at your collection including your bullets. Are you sure everything is legal? Would you be OK if the police came in your house and saw everything? If the answer to that is no, you might want to think long and hard about the risk you are running.
-Don’t apologize to anyone
If a bullet hits someone else or someone else’s property, don’t apologize. You have to remember that anything you say to anyone will be used against you. An apology is an admission of guilt. It might not make sense if they already know you did it, but trust me, don’t say or do anything until your lawyer advises you to do something.
-DYFS (now DCPP) is to be feared
If there is an accidental discharge in a house with children present, DYFS may be called. DYFS really, really hates guns and they could make your life a living hell. Saying anything to them without a lawyer is very dangerous. Forget about your guns, your custody rights may be placed at risk here.
New Jersey is one of the most anti-gun states in the US. An accidental discharge is just what the police need to take away your firearms rights forever and make an example out of you by arresting you. Your reaction will help determine how this ultimately impacts you.
This is an interesting story of a bodega that was robbed. After the robber leaves, one of the victims chases after them and shoots one of them. I was asked to comment on the law of self defense and the possibilities here. Of course, I don’t have many facts and I can just go on my experience. I’m not advocating that this guy get charged or not; I’m just giving my opinion on the law. I’ve been involved in many self defense cases and right or wrong, I just don’t see how the law authorizes the victim to chase after the assailant and then use deadly force when there is no longer any threat, let alone a threat of serious injury or death.
Of course, the State may choose not to prosecute this victim because there is no public outcry and the victim may have been acting on pure adrenaline and fear, instead of just vengeance. As I said, leaving the store is tough but the robber’s horrible background helps.
Article is here:
If you have any thoughts on this, feel free to comment.
Besides doing a ton of firearms related matters, I also handle more DYFS matters than almost any other attorney in New Jersey. When DYFS (now technically known as DCPP) investigates a family, they often ask if there are any firearms in the house. Now there is nothing that requires firearms to be removed but most people give in to whatever DYFS asks. The DYFS case worker will not take possession of your guns but will be happy to help you get them out of your house. Of course, this will often involve your local police taking your firearms for “safe keeping”. Isn’t it amazing how helpful they are? Of course, once the police take your firearms, it may be impossible to get them back without a court order. Thus, before you hand over your firearms to anyone, call an attorney for advice, assuming you have enough time to make that call.
also see our child custody blog: New Jersey Child Custody Attorneys
While not a very common issue, I get a few calls a month from clients that have a prior out of state conviction. The problem with these convictions is that New Jersey can view them as felonies even if the other state views them as a misdemeanor. In New Jersey, anything punishable by more than 6 months in jail is considered a felony. In other states, it may be anything under 1 year. Furthermore, it doesn’t matter what punishment you actually received. The only thing that matter is what the potential punishment was. Thus, if you got probation for a misdemeanor assault but the maximum punishment was 364 days in jail, New Jersey will consider that a felony. As a result, you will likely have big problems with your New Jersey firearms application. You should speak to an attorney in that state to see what you can do to take that conviction off of your record.
Our client was a truck driver going from one state to another when an argument started with his boss. His boss told him to meet him in New Jersey and when our client got there, he was met by the police. Apparently, our client’s boss thought there would be an incident. When the police checked the cab of the truck, they found a firearm. Since the cab of a 18 wheeler isn’t a trunk and my client didn’t have a permit to carry the gun, he was arrested and charged with second degree unlawful possession of a weapon. This used to be a minor offense but a few years ago, the law was changed. Now this offense results in a minimum 5 year prison sentence under the Graves act even for first offenders. In this case, the first plea offer did include prison time. We actually received a number of plea offers but in our opinion, the client did nothing wrong. We continued to fight and in the end, the Prosecutor voluntarily dismissed the indictment that charged the client with unlawful possession of a weapon. As a result, this was a total victory. The client didn’t even have to pay court costs.
If you are facing a charge of second degree unlawful possession of a weapon in Mercer County or any other court in New Jersey, call us today.
On August 21st, I posted about a woman that hired us for a gun permit that she applied for 2 years ago. Its now September 5th and we got it approved. If it wasn’t for the Labor Day holiday, I could have probably shaved a few days off of this case but hell, 2 weeks is a lot better than 2 years. I help so many people with gun permit applications that I can’t post about all of them, but I’ll continue to post about the crazy ones that pop up. As always, call me anytime if you think I can help you but remember, not everyone has to go through this madness. Some towns are pretty good, some are not, some change. Its different for everyone.
I’ve had plenty of people call me and say its been a year since they applied without an answer. I’ve even had people call up and say its been 18 months. Today, a client hired me and she has been waiting 2 years! It sounds pretty crazy but this is what is out there. Hopefully we can get this cleared up right away for her.