March 6, 2015
By: John J. Roberts, Esq. Arseneault & Fassett, LLP
On September 24, 2014, New Jersey’s Office of the Attorney General allowed out-of-state concealed carry permit holders who bring their handguns into New Jersey to be eligible for Pre-Trial Intervention (PTI) to avoid mandatory jail time under New Jersey’s strict gun laws.
The “clarification” was provided in a Directive issued to the Division of Criminal Justice and all 21 county prosecutors in New Jersey by John J. Hoffman, the Acting Attorney General.
The new Directive results from the recent high-profile case of Shaneen Allen, a single mother of two from South Philadelphia. After twice being the victim of robberies, Allen legally obtained a permit to carry a handgun in her home state of Pennsylvania. In October 2013, while visiting Atlantic City, New Jersey, Allen was pulled over by police in a routine traffic stop. Allen informed officers that she was licensed to carry a firearm, and that her handgun was secured in the trunk of her car. Officers seized the gun and arrested Allen for violating New Jersey gun laws.
New Jersey generally does not permit residents to carry firearms outside their homes, and does not recognize carry permits issued by other states. Out-of-state visitors therefore violate the law if they bring the firearms that they are licensed to carry in their home states into the state of New Jersey. Under the Graves Act, even inadvertent violators such as Allen face a mandatory minimum sentence of three and a half years in state prison.
The Directive provides prosecutors with added discretion when considering PTI for otherwise law-abiding persons who inadvertently violate New Jersey’s gun laws. In fact, it states that “in the absence of case-specific aggravating circumstances, these defendants should not be sentenced to incarceration.” Instead, prosecutors should offer such defendants either PTI or a plea deal in which the defendant pleads guilty and is sentenced to probation without jail.
PTI allows eligible defendants to have their criminal charges dismissed after a period of supervision, without having to plead guilty and without receiving a conviction. To be eligible, defendants must be charged with an indictable (felony) offense and must not have a prior criminal conviction or diversion. PTI generally requires one to three years of supervision, during which time the enrollee must report regularly to a Probation officer and follow other conditions imposed by the Court.
Under New Jersey law, prosecutors determine whether a defendant is eligible for PTI considering a list of factors set forth by statute. The Directive sets forth additional specific factors relevant to cases such as Allen’s in which the defendant obtained her firearm legally, its possession would have been legal in her home state, and she believed that such possession was legal in New Jersey. Those special factors are:
- Whether the manner and circumstances of the possession minimized the exposure of the firearm to others, thereby reducing the risk of harm;
- Whether the defendant is otherwise a law-abiding person;
- Whether the defendant advised police of the firearm on her own initiative;
- Whether the defendant presented the unloaded firearm to a hotel clerk for safekeeping overnight;
- Whether the defendant had been advised beforehand of the limitations of her right to carry a firearm into New Jersey.
In New Jersey, ignorance of the law is still not a defense. However, prosecutors now have much greater justification for using common sense to ensure that law-abiding visitors who inadvertently violate New Jersey’s no-carry laws do not end up serving time in prison for their mistakes. Persons charged with such offenses — or any criminal violation — are strongly advised to retain a reputable attorney to represent their interests.