Defendant moved to dismiss the indictment relying, in part, on the Florida permit to claim an exemption from prosecution. Defense counsel represented that defendant lived and worked in Pennsylvania and passed through New Jersey to make a delivery for his job. The trial court denied the motion to dismiss.
A jury convicted defendant on both counts. Defendant filed a timely notice of appeal. He also filed a motion for bail pending appeal. In support of his request, defendant argued for the first time that his handgun conviction was illegal because of the amnesty provision. In a two-page order dated August 5, 2015, the Appellate Division remanded the case to the trial court to conduct a bail hearing and consider the amnesty law. Once again we see the benefit of having a trial attorney that also handles appellate work. Handling appeals sharpens a trial attorney’s instinct regarding the issues that need to be raised to protect the record on appeal. Otherwise, it is generally much more difficult to prevail on appeal on an issue that was not raised to the trial court. This is because appellate courts presume that issues not raised below were not raised as a matter of trial strategy, as opposed to oversight.
The trial court granted defendant bail pending appeal and later heard oral argument on the meaning of the amnesty provision. Based on the plain language of the law, the trial court concluded that an individual who unlawfully possessed a handgun on the effective date of the law could keep the firearm and decide how to proceed for the next 179 days.
The court vacated defendant’s conviction for unlawful possession of a firearm “because the issue of amnesty was never presented to the finder of fact.” The Appellate Division denied the State’s motions for leave to appeal and for a stay of the trial court’s order. The New Jersey Supreme Court granted the State’s motion for leave to appeal.