Possession of High Capacity Magazine Charges in NJ
Gun Charge Defense Lawyers Fighting for You
Like the Graves Act, new laws have been enacted in response to the increase in mass shootings in recent years. One particular new statute was passed in 2019, which reduced the amount of bullets a high capacity magazine can legally hold. Under the old law, a magazine could hold up to 15 rounds. Under the amended version, a magazine cannot possess more than 10 rounds. The purpose of the change was to reduce the firing capacity for mass shooters in the hopes that it will help reduce gun violence.
Many of our clients who are charged with illegal possession of high capacity magazines are out of state residents where these magazines are actually legal in their home states (such as Pennsylvania). In addition, they are usually charged with unlawful possession of a weapon if they have a permit in their home state but not in New Jersey. These are serious felony charges that can result in jail time and a permanent criminal record, but they don’t have to be. The Tormey Law Firm has represented many clients charged with illegal possession of high capacity magazines with fantastic results. Contact our offices anytime at (201)-614-2474 for immediate assistance and a free initial consultation.
The Law and Penalties on High Capacity Magazines in New Jersey
According to our criminal code, specifically section N.J.S.A. 2C:39-1, a large capacity magazine is defined as a box, drum, tube or other container which is capable of holding more than 10 rounds of ammunition to be fed continuously and directly into a semi-automatic firearm. Thus, is it unlawful for any individual to possess a magazine that holds more than 10 bullets. Any person who knowingly has in his or her possession a large capacity magazine is guilty of a crime of the fourth degree. N.J.S.A. 2C:39-3j.
A fourth degree offense exposes a person to the following penalties: He or she may be sentenced to serve up to 18 months in prison, serve between 1 to 5 years on probation, and may also have to pay a fine of $10,000.00 pursuant to N.J.S.A. 2C:43-6, N.J.S.A. 2C:45-2, and N.J.S.A. 2C:43-3. Additionally, if convicted, a person must pay a series of mandatory fines which include, $50.00 Victims of Crime Compensation Board fine, $75.00 Safe Neighborhoods Service Fund fine, and a $30.00 Law Enforcement Officers Training and Equipment Fund fine. See N.J.S.A. 2C:43-3.1, N.J.S.A. 2C:43-3.2, and N.J.S.A. 2C:43-3.3
Generally, unless an individual has been convicted of a very serious crime, such as a first or second degree offense, the person will not be sentenced to prison. Rather, the individual will be facing a probationary term. To determine the amount of time a person must serve on probation, the court will weigh the aggravating and mitigating factors set fourth in our sentencing code under N.J.S.A. 2C:44-1. The judge will consider factors such as, whether the person has a criminal past, the extent of his or her past, whether the person has a family, is employed, and whether anyone was harmed during the commission of the offense. After assigning weight to the applicable factors, the court will then determine whether the mitigating factors outweigh the aggravating factors or vice versa. If the mitigating factors dominate, the sentencing term will be towards the lower end of the sentencing range. If, however, the aggravating factors are greater, the sentence will be more severe.
Furthermore, if the sentencing judge determines that a person should be sentenced to prison, the presumptive term of imprisonment is 9 months per N.J.S.A. 2C:44-1. Similar to probation, the court will weigh the aggravating and mitigating factors to determine whether the individual’s term should be above or below the presumptive term.
Potential Defenses for High Capacity Magazine Possession in NJ
No Possession
The simplest defense to possession of an unlawful magazine is, I did not possess it. To “possess” an item under our law, one must have a knowing and intentional control of that item accompanied by a knowledge of its character. See Model Criminal Jury Charges. Meaning, to possess a magazine, the individual must have knowledge that he or she is in control of the magazine and must also have knowledge that the item is in fact, a magazine.
Further, it’s important to recognize that possession is not limited to holding or carrying an item. A person may also “constructively possess” an object. Constructive possession means possession in which the possessor does not physically have the item on his or her person but is aware that the item is present and is able to and has the intention to exercise control over it. See Model Criminal Jury Charges. Stated plainly, constructive possess occurs when a person knows what the object is and has the ability to exercise control over it. For example, if the high capacity magazine is kept in the closest of your home. You are probably not holding the item but you very likely know what the object is, where the object is located, and have the ability to control it.
Accordingly, if you can demonstrate lack of knowledge or control over an item, you can successfully show you did not legally possess the magazine.
Legal Possession
Another potential defense is lawful possession. Under the prohibited weapons and devices statute, there are instances where it is legal to possess a high capacity magazine that carries more than 10 rounds. The statute N.J.S.A. 2C:39-3 reads, any person who knowingly has in his possession a large capacity ammunition magazine is guilty of a crime of the fourth degree unless the person has registered:
(1) an assault firearm and the magazine is maintained and used in connection with participation in competitive shooting matches sanctioned by the Director of Civilian Marksmanship of the United States Department of the Army; or
(2) a firearm with a fixed magazine capacity or detachable magazine capable of holding up to 15 rounds.
Accordingly, there are two instances where a person may lawfully posses a high capacity magazine. One, if the magazine is attached to a registered assault firearm and the firearm is only used for competitive shooting. And two, the magazine is associated with a registered firearm and the magazine cannot be modified.
Illegal Search and Seizure
Another possible defense that can be utilized to dismiss a case is arguing that the individual’s fourth amendment right to be free from unlawful searches and seizures was violated. This type of defense generally arises when the police enter a person’s home without a warrant. It can also be raised if an officer searches your car or persons without sufficient cause.
Both our Federal and State Constitution protect against unreasonable searches and seizures. A search is deemed unreasonable if it is not supported by a warrant or does not fall into a constitutionally recognized exception to the warrant requirement. They are many exceptions that permit the police to search and seize items without a warrant. For instance, the automobile exception authorizes the police to search a vehicle, without a warrant, if the officer can show probable cause that the car likely contained contraband. State v. Witt, 871, 223 N.J. 409, 445 (2015). Another commonly used exception is search incident to arrest. Under that exception, if a person is lawfully arrested, meaning, there was probable cause to believe the individual committed a crime, the police may search the person to ensure he or she is not carrying any weapons. State v. Eckel, 185 N.J. 523 (2006), State v. O’Neal, 190 N.J. 601, 614 (N.J.,2007). Furthermore, if the police observe contraband in plain view, they may seize the item without first obtaining a warrant. State v. Johnson, 171 N.J. 192 (2002). On top of that, an officer does not need a warrant if you voluntarily consent to the search. State v. Johnson 68 N.J. 349, 354 (1975).
There are other recognized exceptions to the warrant requirement not discussed above but nevertheless, if the police cannot demonstrate that the seizure of the magazine was lawful, your case may be dismissed.
The Pre-Trial Intervention Program for 1st Time Offenders
Lastly, another option many people can take advantage is Pre-Trial Intervention, otherwise known as PTI. This option is different than a defense in that a person is not disputing the facts of the case. Rather, they are conveying to the State that based upon the nature of the offense coupled with their background, their case is not worth prosecuting. Under the PTI program, a person is placed on a light form of probation ranging from 6 months to 5 years. During the probationary period, the individual may have to undergo counseling and perform community service. Most importantly, the person cannot commit another offense. Lastly, he or she must pay a set of fines. However, if the person successfully completes the program, the case is dismissed.
To be accepted into the program, one must submit an application, pay a $75.00 application fee, and submit to an interview conducted by the Criminal Division’s Office. The interview is generally very brief and consists of simple questions concerning a person’s background as well as the underlying offense. Following the interview, the Criminal Division will decide whether a person should be enrolled into the program. If accepted, the application will then be reviewed by the Prosecutor’s Office. If the assigned prosecutor believes the person should also be enrolled, the matter will then go before the Judge who will enter the appropriate order admitting the applicant into PTI.
If, however, the Criminal Division or Prosecutor’s Office reject the applicant, he or she is entitled to an appeal. The appeal goes before the Judge to determine whether the State abused their discretion. It’s important to keep in mind, the reviewing Judge is not deciding whether he or she would have placed you into the problem. The Judge is not permitted to substitute his or her judgment in place of the State. Rather, the Court is evaluating whether it was the State’s reason to deny the application was arbitrary. It other words, was it justified or was it irrational.
Additionally, PTI is also a great option because it does not foreclose you from exploring other defenses while the application is pending. As such, you apply for PTI and also try to raise other legal defenses. On top of that, even if you are admitted by the State, you do not have to accept immediately. You can pursue other defenses. Then, if all else fails, and it appears that your case is not going to be dismissed and you will have no choice but to go to trial, you can enter the program. Thus, it is an excellent backup plan to have to ensure you do not have a criminal record at the end of the case.
If you need assistance with a high capacity ammo charge in New Jersey, contact us now for a free consultation. A highly knowledgeable New jersey weapons lawyer is available immediately to assist you.