Need a favor

[jackandjill 683]

I read Blue Tent Sky, so this is completely in my wheelhouse.

 

Nappen was using this defense to attempt to get the hollow point charge thrown-out.  (He WAS moving, so Nappen had a slam-dunk until the wacky Judge did what he did and was later disbarred for it.)  Which didn't happen, so he was sentenced to both possession during his move (later reversed, as you so stipulated) AND possession of HP ammo w/o an exemption.  So he went-away for (2) things and had to wait for his commutation to get OUT!  He still needed a pardon at this point.  Since NJ never bothered to change the law, IMHO it's more important to note for casual armchair lawyers the fact that now since the lawyers that write the laws didn't bother to exempt transportation of HP from one dwelling to another, now we must all stop at a range's driveway (even in the middle of the night) if we wish to transport HP ammo from dwelling #1 to dwelling #2!

 

Interestingly, NONE of the armchair lawyers have yet to figure-out what they'll do w/o a gun they have the ammo for at dwelling #2..........

Court documents (State of New Jersey v. Brian D. Aitken, link below ) show that the argument around "move" goes to the "Illegal Possession of Firearms" (not just HP). 

 

 

Here is the appeals panel write on reversing COUNT 1 - Illegal Possession.  Count 1 was reversed based on "move" exemption... 

------------------------

  Based upon our review of the record in the light most favorable to Brian, we conclude that there was a rational factual basis to instruct the jury about the State exemption. According to the defense, Brian was residing at both the Mount Laurel and Hoboken locations at the time of his arrest. That evidence was introduced at trial through several witnesses. Susan and Torrice testified that Brian was living at both the Mount Laurel and Hoboken locations during the period leading up to his arrest. They were unsure where Brian would reside permanently because of his uncertain job prospects and visitation with his son. Torrice testified that each time Brian moved, he would transfer his belongings by car.

 

Joy testified that Brian's car was packed with his possessions, including clothes, a briefcase, one or two duffle bags, and a backpack. Although Joy testified that Brian had the weapons in the car because he wanted to take them out of his Hoboken apartment where a party was to be held, that testimony was subject to evaluation by the jury and was not necessarily inconsistent with the defense. The same is true of Joy's testimony that Brian told him he was in Philadelphia.

Although not determinative, we note that the jury requested information about the exemptions three times during its deliberations. The third request, which specifically referenced the moving exception at issue, reflects the jury's understanding that there was evidence indicative of the weapons being in transit between residences.

 

The note read:

Why did you make us aware at the start of the trial that the law allows a person to carry a weapon if the person is moving or going to a shooting range, and during the trial both defense and prosecution presented testimony as to whether or not the defendant was in the process of moving, and then in your charge for us to deliberate we are not permitted to take into consideration whether or not we believe the defendant was moving.

We hold that the judge should have instructed the jury on the exemptions and that his failure to do so was "capable of producing an unjust result." Consequently, we reverse the conviction on count one.*fn7

----------------------------------------------------

 

 

The back and forth focused on the "move" between residences is so convoluted, my head spins.. 

 

http://nj.findacase.com/research/wfrmDocViewer.aspx/xq/fac.20120330_0000730.NJ.htm/qx

[Smokin .50 1,907]

"and then in your charge for us to deliberate we are not permitted to take into consideration whether or not we believe the defendant was moving?"^[16]

 

If I'm on a jury and I'm getting an instruction from a judge that I think is bull... no way in hell would I pay any attention to what the judge said.

Not a single juror was smart enough to know how to bring-up jury nullification.  So instead of telling the judge they were "hung", after the judge sent them back in to deliberate for the 2nd or 3rd time, they caved-in and found him guilty.  And sent an innocent man to jail.  Naive and uninformed, apparently there's no civics test to serve on a jury...........

[Smokin .50 1,907]

Aitken's precedent-setting case was a Cluster-F**K from the word "Go".  The Judge intended to sway the jury by not charging correctly.  The Judge intended to sway the jury by ruling against testimony that should have been allowed.  The Judge intended to sway the jury by not answering the jury's questions.  The Judge's intentions were to re-write the law as he saw fit, instead of including all of the exemptions.  Between you, me and the lamp-post, I think they (Aitken's Lawyers) thought that the moving exemption was an "automatic ticket".  So they never prepared for the worst and tried to defend based upon a "second dwelling" type exemption.  Even the book is a little murky about what constitutes "moving" for a young 20-something kid w/o a job or a house or apartment fully in his name.  So once "moving" was gone, nobody bothered to explore any other possibilities since Aitken "was just drivin'-around with hand guns" in the car.  A classic case of cause and effect.

 

Fast-forward back to our OP's case at hand, with a gainfully employed owner of TWO homes, and suddenly "other land or property owned or possessed by him" certainly rears its' ugly head.  Like it or not, the Court to this day recognizes land owners as having certain "liberties" otherwise not enjoyed by the likes of a 20-something kid (with an exotic dancer for an estranged wife) bouncin' back and forth between "flop houses", friend's couches, etc.  One of those "liberties" is being able to buy a hand gun at an FFL of your choosing close enough to your Shore house, so that if you were to stop for ice cream on the way home from buying your newest hand gun, the ice cream wouldn't melt onto the seat of your $70K Mercedes SUV.........  And THAT's the "HOW" of "how to get the hand guns to the Shore House"....  And once they're THERE, magic happens, for they all somehow fall into the same laundry basket.........

[jackandjill 683]

Aitken's precedent-setting case was a Cluster-F**K from the word "Go".  

--------------

That I agree on without debate :-) 

 

On the defense part, what happened in Aitken case may be incompetence or the Defense knew whats coming. Imagine dealing with the Judge on "interpretation",   when the slamdunk (or so thought) "moving" stuff failed to materialize. Even appeals court failed to put blame where it belongs (on the Judge). Instead, they took advantage of "move" argument to save the face, quoting the testimony and presence of overwhelming evidence of a move. I cannot imagine NJ Appeals panel to be that "generous" had it been around interpretation of second dwelling. 

 

A rich guy with another home the Shore and $70K Mercedes may afford to skip being on the spot to begin with. But once a regular Joe got his a** marked and in the system, you bet "every word" from that book is literally going to be used to teach public the perils of being a firearm owner in NJ. 

 

BTW, one should also read  Section E, subsection(ii) (concerning HP charges) of appeals ruling (link couple of posts up).. ARE YOU READY FOR THIS ? 

 

" In contrast to N.J.S.A. 2C:39-6(e), which concerns exemptions with respect to the possession of weapons, N.J.S.A. 2C:39-3(g)(2)(a) does not contain a specific exemption for possession while moving between residences."

 

So what appeals court said right there is, We Do NOT have any legal exemption to take HPs between residences, EVEN if you are moving. Go figure that out..     Thats further evidence that even Appeals courts will stick it you by  literally reading into the NJSA. 

[Smokin .50 1,907]

^^^^EXACTLY!

 

FWIW I doubt very strongly that it (the case of SUV owner w/ second house "down the Shore") would even be prosecuted by a DA.  That's IF the DA ever got notified to begin with.  Hell, what are the odds of you drivin' your Mercedes SUV and having your Mother call the Cops worried about "your state of mind" during a divorce while you have hand guns in the back of the SUV?

 

As GRIZ mentioned earlier, where are all of the arrests for possession (transportation really) of hand guns while you're driving around town en-route to the local range, gun shop, FFL, gunsmith, etc?  Even vehicles with hand guns aboard involved in collisions requiring a flatbed to tow the vehicle(s) away?  You never hear of some poor, dumb bastard getting the bracelets put on after he/she totals their ride coming out of a parking lot after stopping on the way home from the range, FFL, gunsmith, etc.......  I wonder why that is??????????

[Smokin .50 1,907]

Aitken's precedent-setting case was a Cluster-F**K from the word "Go".  

--------------

That I agree on without debate :-) 

 

On the defense part, what happened in Aitken case may be incompetence or the Defense knew whats coming. Imagine dealing with the Judge on "interpretation",   when the slamdunk (or so thought) "moving" stuff failed to materialize. Even appeals court failed to put blame where it belongs (on the Judge). Instead, they took advantage of "move" argument to save the face, quoting the testimony and presence of overwhelming evidence of a move. I cannot imagine NJ Appeals panel to be that "generous" had it been around interpretation of second dwelling. 

 

A rich guy with another home the Shore and $70K Mercedes may afford to skip being on the spot to begin with. But once a regular Joe got his a** marked and in the system, you bet "every word" from that book is literally going to be used to teach public the perils of being a firearm owner in NJ. 

 

BTW, one should also read  Section E, subsection(ii) (concerning HP charges) of appeals ruling (link couple of posts up).. ARE YOU READY FOR THIS ? 

 

" In contrast to N.J.S.A. 2C:39-6(e), which concerns exemptions with respect to the possession of weapons, N.J.S.A. 2C:39-3(g)(2)(a) does not contain a specific exemption for possession while moving between residences."

 

So what appeals court said right there is, We Do NOT have any legal exemption to take HPs between residences, EVEN if you are moving. Go figure that out..     Thats further evidence that even Appeals courts will stick it you by  literally reading into the NJSA. 

You are correct, which is why I pointed this out earlier.  One must either run the risk of being arrested for HP possession outside of exemptions, OR mail/ship the ammo with a self-generated label and have the shipping co. do the pick-up at your exempt (home) location, OR you must go directly to any range's parking lot--even in the middle of the night (since the law doesn't say that the range has to in-fact actually BE OPEN for your visit) and then directly to your new house!  Aitken's case exposed this flaw in our Master's oppressive laws.  Was it deliberate to begin with?  Only THEY know, lol!  Or just never come back home with HP rounds--always finish the box at the range, lol!

 

And the wheels on the bus go round and round!

[JohnnyB 4,325]

You are correct, which is why I pointed this out earlier.  One must either run the risk of being arrested for HP possession outside of exemptions, OR mail/ship the ammo with a self-generated label and have the shipping co. do the pick-up at your exempt (home) location, OR you must go directly to any range's parking lot--even in the middle of the night (since the law doesn't say that the range has to in-fact actually BE OPEN for your visit) and then directly to your new house!  Aitken's case exposed this flaw in our Master's oppressive laws.  Was it deliberate to begin with?  Only THEY know, lol!  Or just never come back home with HP rounds--always finish the box at the range, lol!

 

And the wheels on the bus go round and round!

If you go to a range, any range, and are pulled over a few blocks from your new home. How can you possibly prove that you stopped at that range first?

[maintenanceguy 510]

To answer the OPs question:

I see nothing in the law that allows transport dwelling to dwelling unless you are moving. Since they spell out "moving", it's reasonable to assume that "moving" means something more than just "going somewhere" since the other exemptions clearly allow "going somewhere" but don't mention "moving".

As ridiculous as it is, all you need is one overzealous cop, one overzealous prosecutor (is there any other kind in NJ?), and one judge who thinks you deserve to be punished because you're one of those reckless, dangerous gun owners.

The only way out that I see is in:

"or between his dwelling or place of business and place where such firearms are repaired, for the purpose of repair."

 

I think I'd keep my firearms at my primary dwelling but would have my spare parts and tools at my vacation home. I would do my twice a year tear down, inspection, adjustments, lubrication, etc. at my vacation home while on vacation - it is so relaxing.

But most importantly: If I did ever get stopped and guns were discovered while transporting between dwelling places. I would SHUT UP! and let my lawyer explain why I was transporting legally later.

[maintenanceguy 510]

If you go to a range, any range, and are pulled over a few blocks from your new home. How can you possibly prove that you stopped at that range first?

 

The way it's supposed to work, they have to prove that you didn't.  I realize that's not how it really works where guns are involved.

[Smokin .50 1,907]

If you go to a range, any range, and are pulled over a few blocks from your new home. How can you possibly prove that you stopped at that range first?

 

Well, several ways really, some more of a PITA than others:

 

1.  Take a pic of your car in the parking lot of said range.  Phone pix have meta-data and are date and time stamped..........

 

2.  If you belong to a private club (like I do), you can offer a copy of the video showing you there, again date and time stamped.  Also the log book has signatures that are date and time stamped.

 

3. If you go to an outdoor range w/o video date and time stamping, click a pic of your ammo box and your car at said range using your phone.

 

4.  A copy of my score sheet from a Match I shot that's held at a specific date, time and location, the information of which is published on the internet.

 

5.  Video or stills of me at the Match.....

 

6.  You get the idea.  

 

7.  I don't let myself be "pushed-around".

 

8.  44 years behind the trigger

 

9.  And so forth.......

[Zeke 5,504]

Zeke, did you give your client any info? Wondering if you feel like you got an answer.

Cut and pasted the info you provided( vlad also)

Thanks.

Enduro guys like me ride all day mxer. Jus sayen

 

What is actually considered moving? It is a grey area, and it's more proof nj laws are seriously shit.

This isn't a gangbanger, it's a productive member of society with 2 homes.

[Kevin125 4,772]

What is moving.... is the question.

 

Dumb laws fix nothing and make criminals where there was no real crime.

 

Ha... Enduro is tough. Friend of ours. #69 pro number who races outdoors and SX did some enduro in NC just to check it out. He said it was seriously tough racing. Not a trail ride. But also not his thing. But 2 time 30 mins and two laps isn't easy either. Luckily my races are usually 5 laps. Old guy stuff. But you're spent when its over. Like running a 2 mile race.

 

I don't have anything plated so I stick to eTown or Millville.

[jackandjill 683]

What is moving.... is the question.

 

......

In Brian case, the "moving" was interpreted as - relocating with your typical possessions. 

 

I am sure there are going to be more questions than answers if we dig into it...specially in the context of vacation homes etc. 

[Zeke 5,504]

Jus listened to gun for hire.

 

For those of you that use the quote " better to be judged by 12 then carried by six"

 

From Nappen" those 12 were to stupid to get out of jury duty"

It's a jest. I'm sure. But makes you think.

[Kevin125 4,772]

Yeah... Makes me think about two things.

 

1- It's a bad idea for those who are not idiots ( and Pro 2A ) to skip jury duty if its feasible financially for you to not skip it, because you never know....

 

2- You have to demonstrate basic competency to drive. It might be a good thing if the same applied to jury service.

[JohnnyB 4,325]

Yeah... Makes me think about two things.

 

1- It's a bad idea for those who are not idiots ( and Pro 2A ) to skip jury duty if its feasible financially for you to not skip it, because you never know....

 

2- You have to demonstrate basic competency to drive. It might be a good thing if the same applied to jury service.

You are very wise for your years grasshopper!!! Very good thoughts that should be heeded by everyone!!!

[Smokin .50 1,907]

^^^Don't stop there Kevin!  How about a HS Civics Test to graduate HS and earn the right to VOTE?!

[gleninjersey 2,141]

Some of you girls worry too much.

[Kevin125 4,772]

^^^Don't stop there Kevin!  How about a HS Civics Test to graduate HS and earn the right to VOTE?!

Ha... If only. Would never happen. That would discriminate against the ignorant and its the ignorant that a certain breed of politicians need involved in politics and juries.

 

Lol glen.

[oldguysrule649 397]

If you go to a range, any range, and are pulled over a few blocks from your new home. How can you possibly prove that you stopped at that range first?

Further to the post #40 list.

 

Some gps devices enable you to turn on "Tracking". This will record the time and location coordinates of your journey every few seconds. My Garmin model GPSMAP76C does this and the data can be exported. I suspect various cellphone apps can do the same.

[Kevin125 4,772]

If you go to a range, any range, and are pulled over a few blocks from your new home. How can you possibly prove that you stopped at that range first?

The way it's supposed to work, they have to prove that you didn't. I realize that's not how it really works where guns are involved.

It can't possibly be the case that you have to prove you were somewhere when they have no evidence you committed a crime. Regardless of whether a gun is involved. If you are on a road that would be reasonably to use to return from a range, there is no evidence of a crime. They would have to search traffic cameras to prove you where somewhere you were besides where you claimed you were.

 

Unless the state of NJ is not subject to due process.

 

It would be no different than accusing a cop of entering your home through an unlocked door, looking around, then leaving, just because he was in your neighborhood. You'd have to prove he did it. He wouldn't have prove he didn't.

[Smokin .50 1,907]

^^^^Kevin you are correct.  That in and of itself is of little consequence when it comes to an over-zealous investigation.  That's why every private club indoor range that I've ever had the pleasure of shooting at in 44 years worth of shooting experiences has maintained a written Log of some sort (at the very least) showing date and times when you were at their range.

 

Truth be told, in all my years of shooting I've never heard any scuttlebutt about a Range's Logs being scrutinized by any Police agency.  But since this is PRNJ, those Logs are maintained as a service to the membership should they ever have to avail themselves of its' intended (and hopefully never requested) use.

[Kevin125 4,772]

^^^^Kevin you are correct.  That in and of itself is of little consequence when it comes to an over-zealous investigation.  That's why every private club indoor range that I've ever had the pleasure of shooting at in 44 years worth of shooting experiences has maintained a written Log of some sort (at the very least) showing date and times when you were at their range.

 

Truth be told, in all my years of shooting I've never heard any scuttlebutt about a Range's Logs being scrutinized by any Police agency.  But since this is PRNJ, those Logs are maintained as a service to the membership should they ever have to avail themselves of its' intended (and hopefully never requested) use.

Right, the odds of anyone falling victim to this sort of problem without something else also happening....Aitken's situation for example...are probably almost non-existent. We're just tossing around the hypothetical example of the known tyranny that exists here.

 

That said, even the lack of a log entry isn't anything more than circumstantial. Even a lack of electronic records mean nothing. If you decided it was too late to shoot and didn't open the driveway gate or range door, your travels are still legal. So those records can only help you...provided they line up chronologically with any story you volunteered. Which by the way....stating the obvious....emphasizes why saying less is better than saying more to an LEO.

[Smokin .50 1,907]

EXACTLY!

 

One of the "blessings" of belonging to a private club's indoor range w/ 24/7/365 electronic key-card access is that I can "always be headed that way"......

 

Just like the American Express Card commercials tout, MEMBERSHIP HAS IT'S PRIVILEGES!

[Kevin125 4,772]

LOL.

 

Had a shitty week. But that made me laugh for some bizarre reason. If we ever meet up, I owe you a drink.