Author Clark, Clark & Noonan, LLC
Posted October 11, 2019
Category New Jersey Gun Crime Defense
The attorneys at our firm have obtained admission into the Pre-Trial Intervention program for individuals who have been charged with illegal possession of a handgun under the Graves Act.
Under N.J.S.A. 2C: 43-6.2 “Exception to Mandatory Minimum Sentence”, the Attorney General Directive to Ensure Uniform Enforcement of the Graves Act (corrected version as of 11/25/08) and the Attorney General’s September 24, 2014 “Clarification of ‘Graves Act’ 2008 Directive; one way in which an individual can obtain admission into the Pre-Trial Intervention program is when the individual who illegal possessed the handgun in New Jersey would have been in compliance with the law of their home state if the same circumstances occurred.
Prosecutor Discretion in Considering PTI Applications First Addressed by AG in 2008
On January 13, 2008, the Legislature elevated Unlawful Possession of a Firearm to a second degree offense and amended the Graves Act, N.J.S.A.2C: 43-6c, to include unlawful Possession of a firearm as one of its enumerated offenses. Prior to January 13, 2008, unlawful possession of a firearm was a third-degree offense and was not one of the enumerated offenses requiring the applicability of the Graves Act. The law was amended to “provide police and prosecutors with powerful new tools to address the State’s gun and gang problems.” Although the Graves Act generally required a mandatory minimum state prison sentence in 2008, the mandatory minimum term could be waived where the “interest of justice” would not be served. N.J.S.A.2C: 43-6.2.
On October 23, 2008, the Attorney General’s Office issued a Directive entitled: Attorney General Directive to Ensure Uniform Enforcement of the “Graves Act” (Corrected Version as of 11/25/08). In the Directive, the Attorney General articulated the parameters a Prosecutor should consider in tendering an initial plea offer in the “typical” case (Directive p. 4). The Attorney General, acknowledged, however, that under certain circumstances a probationary term and even PTI may be offered as an alternative to the mandatory minimum prison requirements of the Graves Act.
Cases which involve extraordinary and compelling circumstances fall outside the “heartland” of the legislative policy.
Upon review of the 2008 Attorney General Directive to Ensure Uniform Enforcement of the “Graves Act”, it is clear that Pre-trial Intervention and probationary sentences for Graves Act crimes are authorized “ . . . only in rare cases involving extraordinary and compelling circumstances . . [and] where the circumstances of the case fall outside the heartland of the legislative policy to deter unlawful gun possession.” Directive p. 5, 8, and 12. The Attorney General instructed that a defendant’s PTI application should not be categorically denied and indicates that the Prosecutor should consider all relevant factors set forth in the PTI Guidelines and in N.J.S.A.2C: 43-12 to determine “whether there are compelling case-specific reasons to overcome the presumption against admission.” Directive p. 8. The Attorney General also provided one example of what would constitute extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession and justify a defendant’s admission into PTI:
e.g., the defendant has no prior involvement with the criminal justice system, he or she lawfully acquired and possessed the firearm in a different State and the defendant’s presence in New Jersey was incident to lawful travel. [emphasis added] Directive p.8.
Out-of-State Residents with Carrier’s Permits – Unique Situation
On September 24, 2014, the Attorney General issued a directive to expand the prosecutor’s discretion to allow for PTI in Grave Act cases “with respect to offenses committed by out-of-state visitors from states where their gun-possession conduct would have been lawful.” The Attorney General recognized that the Graves Act was designed to “address gun possession crimes that pose a greater risk to public safety than the offenses committed by out-of-state visitors who do not realize that their authority to carry a weapon in their home state does not extend to New Jersey.” 2014 Directive p. 4. The State has been authorized to consider whether or not a defendant made an honest mistake in determining the level of defendant’s culpability for purposes of sentencing. 2014 Directive p. 4.
The new 2014 Directive was promulgated to address these “unusual cases” which clearly fall outside the heartland of the Graves Act, since the 2008 Directive did not specifically address out-of-state residents with firearm carrier’s permits. 2014 Directive p. 4. This Clarifying memorandum applies to out-of-state residents who produce proof that : “1) The firearm has been lawfully acquired in another jurisdiction, 2) defendant’s possession would have been lawful in his or her home jurisdiction, and 3) defendant was under the misimpression that such possession was lawful in New Jersey.” 2014 Directive p. 4. If the defendant meets the above three criteria, then the prosecutor may admit a defendant into PTI after reviewing five (5) “special considerations” as well as the aggravating and mitigating factors ordinarily considered in a PTI application. 2014 Directive p. 4 and p. 8.
When the defendant meets the above three criteria, the prosecutor assessing a PTI application of an out-of-state resident in possession of a firearm should consider the special factors outlined in the 2014 Directive. The five special factors are: a. minimal exposure of the firearm to persons in NJ; b. the gun possession offense was isolated and aberrational; c. defendant volunteered the presence of the firearm to the police;d. defendant surrendered the unloaded firearm for safekeeping; and/or e. circumstances concerning the confusion of New Jersey and other-state law. 2014 Directive p. 6 to p. 8. A review of the special considerations suggest Mr. Williams would be an appropriate candidate for PTI.
Minimal Exposure of the Firearm to Persons in NJ
The first special factor to consider is whether or not the manner and circumstances of the possession of the firearm minimized the exposure of the firearm to others in this State. 2014 Directive p. 6. According to the Directive, this factor considers whether the firearm was kept in the car the whole time while the defendant was in New Jersey as opposed to it being carried on his person. This factor also considers whether or not the defendant was traveling on the highway with only a few stops contemplated in New Jersey as opposed to a defendant who intended a longer more protracted visit where he would likely be interacting with non-motorists in this State.
The Gun Possession Offense Was Isolated and Aberrational
This factor considers whether or not the defendant is otherwise a law-abiding person. This factor also accounts for whether or not the defendant was committing any other separate offense at the time of the unlawful possession of a firearm. 2014 Directive p. 6. But, as the Directive points out, “…it would be expected in these cases that the defendant would have committed some other violation that attracted law enforcement attention, such as a motor vehicle offense, which led police to discover the unlawfully-possessed firearm.” 2014 Directive p. 6 to p. 7.
Defendant Volunteered the Presence of the Firearm to the Police
The third special consideration for a PTI application for an out-of-state resident charged with gun possession in New Jersey is whether or not the defendant “on his or her own initiative advised a police officer that a firearm is present.” 2014 Directive p. 7. Specifically, the Directive states “volunteering information about the firearm to police without being prompted to do so is an especially important mitigating factor that tends to confirm that the defendant did not realize the possession of the firearm was unlawful.” 2014 Directive p. 7.
Surrendering The Unloaded Firearm and Confusion of New Jersey Gun Law
The fourth and fifth special considerations are 4) surrendering a firearm to a hotel clerk for safekeeping and 5) confusion of New Jersey and Other-State Law. The “surrendering” of a weapon and confusion over whether the individual can lawfully possess the weapon in this state are also factors to consider.
PTI – Factors Favoring Admission
In addition to the above “special considerations”, the 2014 Directive also requires the State to consider all relevant aggravating and mitigating factors for any PTI application as set forth in N.J.S.A.2C: 43-12. 2014 Directive p. 8. The general guiding principles of the PTI statute suggest that the present case provides factual circumstances justifying the type of supervisory treatment afforded by PTI as opposed to probation or state prison. N.J.S.A.2C: 43-12 a.(2), (3) and (4) suggests that PTI should be considered as an alternative to prosecution where the applicant might be harmed by criminal sanctions and the PTI alternative would serve as a sufficient sanction to deter criminal conduct; where the offenses are “victimless”; and where the State’s resources should be saved for “matters involving serious criminality and severe correctional problems”.
As stated above, PTI was created, in part, to “provide an alternative to prosecution for applicants who might be harmed by the imposition of criminal sanctions as presently administered, when such an alternative can be expected to serve as sufficient sanction to deter criminal conduct.” N.J.S.A.2C: 43-12a.(2).
If you or someone you know would like to speak to one of our attorneys about obtaining admission into the pretrial intervention program on a gun charge in New Jersey contact us day or night. Our lawyers offer a free initial consultation and represent clients who are charged with gun offenses in all New Jersey counties including Monmouth and Ocean county.