Pennsylvania Handgun Owner Arrested for Unlawful Possession in New Jersey

New Jersey Handgun Possession Law

If you are a Pennsylvania resident looking for a NJ criminal defense attorney to defend you or to simply educate yourself about a charge of illegal possession of a handgun, you should definitely know what law applies in your case. N.J.S.A. 2C:39-5b makes it a second degree crime to knowingly possess a handgun, even an antique, without a permit to carry the weapon. If the handgun is powered by air or a spring such as a BB or pellet gun, then possession without a carry permit is reduced to a third degree crime. The following are some secondary laws effecting handgun possession in New Jersey:

• Hollow Point Ammunition. Teflon coated ammunition and hollow tip bullets are totally illegal to possess and result in a fourth degree crime.
• High Capacity Magazines. A magazine for a handgun is considered “high capacity” if it is capable of loading more than  ten (10) bullets. Possession of a high capacity magazine results in a fourth degree crime.
• Ghost Guns. Handguns and other firearms that have untraceable parts, for example, ghost guns, are also illegal in NJ. You face a third degree crime if you possess this type of weapon.
• Assault Weapons. It is a second degree crime to possess an assault firearm. An “assault firearm” is defined as any of those listed or substantially identical to those listed in N.J.S. 2C:39-1.w or N.J.A.C. 13:54-1.2.

Transport of Pennsylvania Handguns Through New Jersey

The State Police have published a guide for transporting firearms in New Jersey. As a general rule, a handgun can only be transported if it is unloaded, secured in a separate compartment or container, and inaccessible to the passengers. Storing the weapon in a center console or glove box does not suffice in terms of storage.

You should also know that you cannot drive with a gun at your discretion. The NJ firearm transport law limits your ability to possess the weapon to travel to a gun range or gun repair facility or to make a reasonably necessary deviation from the route.

Federal Preemption & Pennsylvania Residents Passing Through New Jersey

New Jersey law governing what is and isn’t legal in terms of possession of a handgun does not apply to the extent that it is in conflict with applicable federal law. The federal law preempts state law in this instance. The result of this rule is to absolve someone from an unlawful possession offense in New Jersey if they held the handgun in compliance with federal law.

Federal law allows an individual to transport a handgun from his/her home state, Pennsylvania for the sake of this discussion, through New Jersey under the following circumstances:

1. The firearm was lawfully held in Pennsylvania when the accused started his/her trip;
2. The firearm would be legal in the state where the accused was ultimately traveling to;
3. The firearm is unloaded;
4. The firearm isn’t being used for an unlawful purpose;
5. The firearm and ammunition aren’t accessible from the passenger compartment; and
6. The accused isn’t a certain person (i.e. convicted felon), a fugitive from justice, an illegal alien, or someone who has otherwise been deemed unfit to possess a firearm.

If the person complies with each of these conditions, he/she cannot be charged or convicted in NJ for illegally possessing the related handgun.

Penalties for Possessing a Handgun Without a Permit

The penalties for unlawful possession of a handgun are extreme in New Jersey. If you don’t have a carry permit and federal preemption does not apply, you face 5-10 years in prison for this second-degree crime. There is also a fine of up to $150,000 that may be imposed.

You should also know that, absent a Graves Act waiver, there is a mandatory period of parole ineligibility of five (5) years that is supposed to be imposed at the time of sentencing on an illegal handgun charge. This term represents the minimum time that a defendant must serve in prison before they can be considered for release on parole.

Securing Bail & Pretrial Release for Pennsylvania Residents

New Jersey has adopted “bail reform” and this has largely eliminated monetary bails. The process for pretrial release now involves an individual being taken into custody whenever their charge(s) is placed on a warrant.

Shortly after being arrested, a Public Safety Assessment (“PSA”) is prepared. This report assigns a risk level on a scale of 1 to 6 for: (1) committing another offense if released; and (2) failure to appear or obstruct prosecution. Typically, a Pennsylvania resident will score a 1/1 if they are a lawful handgun owner. In other cases, the risk levels can obviously be all over the place depending on prior criminal record, history of appearing in court, or the like.

The court will consider the PSA in crafting conditions of pretrial release. If the PSA is extremely poor, the court can deny pretrial release. You should also know that the prosecutor can file a motion to detain and that will result in your remaining in custody for an additional three (3) business days until a detention hearing can be completed. Our attorneys have an excellent record in defending these hearings and securing pretrial release.

How Our New Jersey Criminal Attorneys Can Help You

There are a variety of ways that the lawyers at the Law Offices of Jonathan F. Marshall can help someone from Pennsylvania facing a gun charge in New Jersey. The best result is to secure a dismissal based on the application of federal preemption, violation of the search and seizure laws, failure to possess probable cause to make a stop, Miranda, and other dispositive issues.

The second option for helping someone accused of possessing an illegal handgun from Pennsylvania is to obtain a full Graves Act Waiver. What this means is that our lawyers have secured an Order from the Court, after approval by the Prosecutor’s Office, to disregard the mandatory prison and parole ineligibility requirements of the Graves Act. This outcome typically then yields a sentence that either includes probation only or Pretrial Intervention.

The third way we can assist someone accused of unlawful possession of a handgun is to secure what is commonly referred to as a soft waiver. What we are referring to here is obtaining a resolution that, although involving prison, reduces the period of parole ineligibility (i.e. mandatory minimum term of incarceration) to one (1) year, for example, three (3) years in prison with one (1) year of parole ineligibility. This wouldn’t be the desired option sought by the criminal attorneys at our firm but a soft waiver can definitely come into play where the facts associated with possession by a Pennsylvania resident are not favorable (e.g. prior criminal record, the handgun isn’t innocently possessed, etc.).

The fourth option for resolving your handgun case is to obtain Pretrial Intervention. This program usually involves one (1) year of probation and, upon successful completion, the original criminal complaint or indictment is dismissed. The benefit of this resolution is that the defendant not only avoids prison but also a criminal record. You will need a crafty handgun defense lawyer like those at our firm in order to obtain a Graves Act waiver before you will have any chance for PTI.

Contact Our Highly Skilled NJ Handgun Defense Attorneys

While there are certainly numerous ways that an attorney can utilize to help you avoid incarceration in an unlawful handgun case, the presumption under the law is that you will be imprisoned if you don’t have a carry permit. It is therefore crucial that you retain a defense lawyer with the knowledge, experience, and skill to avoid the letter of the law in New Jersey. The team at the Marshall Law possesses exactly what you need with accomplished litigators who have successfully defended countless illegal firearm charges in NJ. To speak to a lawyer in a free initial consultation, call 855-450-8310.

 

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