Gun Charges

March 25, 2020

Are the Courts in New Jersey Closed Because of COVID 19 Coronavirus?

The answer is it depends. The municipal courts are not holding court sessions. Municipal courts are responsible for traffic violations including DWI and disorderly persons criminal offenses (misdemeanors). They are issuing future court dates but are also trying to set up virtual court to expedite those dates. If you have a traffic charge or disorderly persons criminal offense violation like possession of less than 50 grams of marijuana or DWI, then your court date may be a few months out, but it will not go away. It is still important to address it sooner rather than later and begin the process. Police records are still producing discovery and all other documents and I expect that that courts will expecting litigants to be at least somewhat prepared to go. I think those that are ready, and willing to proceed early on when sessions resume may get favorable deals, since they will not be contributing to the municipal court backlog.

Superior Court, Criminal Division, is quickly making progress with virtual court via video. These courts are responsible for more serious offenses called indictable offenses. Indictable offenses are also called felony offenses. First, Second, Third and Fourth degree indictable offenses are the responsibility of the Superior Court. Drug possession and distribution charges for heroin, cocaine, prescription pills, theft and shop lifting over $500, aggravated assault, weapons and guns charges, eluding the police, robbery, terroristic threats, sex assault, etc. are a few examples of these types of offenses. I personally handled three matters this week via video court, 2 in Union County and one in Morris. It was actually pretty seamless. I think that as the weeks progress, we will see a marked increase in the number of cases handles by the courts and the timelines moving up considerably. Likewise, I think in the interim, there will be a good opportunity to resolve cases favorably. The reason I say this is because I believe that the courts do not want to put people in jail right now. They want a reason to not put them in jail.

I think that I have a window to get really good results if I can get cases hear. For example, I had a client who was facing two First Degree count of robbery, with a bad prior record, looking at an extended term, possibly 30 years. I was able to get him a 5 flat sentence and kept him eligible for ISP, intensive supervision program. He already had 8 months in, he will likely be out as soon as he gets in. I highly doubt this would have happened two weeks ago.

November 17, 2016

State v Benjamin examines the Discretion of the Prosecutor when Denying Graves Act Waiver in Gun Cases.

by Lubiner, Schmidt & Palumbo, LLC

State v Benjamin is a currently pending decision by the New Jersey Supreme Court, in which the defendant was denied a Graves Act sentencing waiver that would have reduced his sentence by 30 months. Under normal circumstances, when convicted of unlawfully carrying a firearm in violation of N.J.S.A. 2C:35-5b, the mandatory minimum sentence is 42 months in state prison. However, some individuals may qualify for a waiver of this mandatory sentence and be sentenced to a 1 year mandatory minimum sentence or probation with the consent of the prosecutor.

The prosecutor may refuse to sign off on this waiver, also known as an “escape valve” for a number of reasons including a significant prior record, the nature and circumstances of the offense, or gang affiliation (to name a few). But what happens when the defendant feels that they do fall within a category of defendant that deserves this waiver or escape valve but is denied by the prosecutor’s office?

The defense has the burden of proof in making an “Alvarez motion” which is the name of the motion that must be made to the court in order for the defendant to be granted a waiver under the Graves Act minimum mandatory sentencing guidelines. The defense must demonstrate to the court “that the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the interest of justice warrant reference to the Assignment Judge for sentencing under the escape valve.” State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.) (citation omitted), certif. denied, 146 N.J. 569 (1996).

May 13, 2014

U.S. Supreme Court Refuses To Hear New Jersey Gun Law Challenge

by Lubiner, Schmidt & Palumbo, LLC

NJ Criminal Defense Lawyers The U.S. Supreme Court has refused to hear an appeal that challenged the New Jersey Handgun Permit Law that requires a person prove “justifiable need” to carry a handgun outside of the home.

The high court was wary to embroil itself in the Second Amendment case brought by four individual New Jersey gun owners who were denied carry permits and two gun rights groups (The National Rifle Association and Gun Owners Foundation). They claimed that federal and state courts were split on the issue whether the right to carry a handgun also extends to public places.

The New Jersey Law is strict and requires that gun owners prove that “specific threats or previous attacks demonstrating a special danger to applicant’s life that cannot be avoided by other means” in order to obtain an open carry permit.”