NJ Court Reverses Dismissal of Unlawful Handgun Charge, Remands Case

State of New Jersey v. Damian Emanuel

Docket No. A-2274-23

Decided October 17, 2024

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Court of New Jersey decided the State’s appeal from a Law Division order granting defendant’s motion to dismiss count two of a three-count Hudson County indictment, charging him with second-degree unlawful possession of a handgun without having obtained a permit to carry under N.J.S.A. 2C:58-4, N.J.S.A. 2C:39-5(b)(1).

On June 21, 2022 officers stopped defendant for recklessly operating his motorcycle. When officers asked defendant where he charged the motorcycle, defendant removed the driver’s seat and electric battery. When doing so, a shopping bag fell from the same compartment, which appeared to contain a handgun. Officers then seized the shopping bag and removed a loaded 9mm semi-automatic handgun. There was also no serial number on the firearm. Defendant did not have a permit to carry the handgun and he had not applied for a permit either.

Two days after defendant’s arrest, the Supreme Court of the United States issued its decision in N.Y. State Rifle and Pistol Association v. Bruen, 597 U.S. 1 (2022). The Supreme Court addressed whether New York’s firearms permitting scheme, which required applicants demonstrate a “special need” for self-defense, violated the Second and Fourteenth Amendments. 597 U.S. at 11. The Court struck down New York’s special need requirement, Id. at 71, and explicitly noted New Jersey’s “justifiable need” provision was analogous to New York’s unconstitutional standard, Id. at 15.

The day Bruen was decided, the New Jersey Attorney General issued a directive advising the justifiable need requirement for obtaining a handgun permit was no longer constitutional. See Off. of the Att’y Gen., Law Enf’t Directive No. 2022-07, Directive Clarifying Requirements for Carrying of Firearms in Public (June 24, 2022). However, that same directive made clear Bruen did “not eliminate our overall permitting requirements” or “change any other aspect of New Jersey’s public carry laws.”

On December 22, 2022, a few weeks after defendant was indicted, the New Jersey Legislature revised the gun permitting scheme under N.J.S.A. 2C:58-4 and -5, by eliminating the “justifiable need” requirement, among other provisions.

In June 2023, defendant moved to dismiss count two of the indictment. In his motion brief, defendant argued prosecution under N.J.S.A. 2C:39-5(b)(1) was unconstitutional because the statute required compliance with N.J.S.A. 2C:58-4, which was rendered unconstitutional by the Supreme Court in Bruen. The State filed its responding brief on August 8, 2023.

In State v. Wade, 476 N.J. Super. 490 (App. Div.), the co-defendants were indicted for violating N.J.S.A. 2C:39-5(b)(1), following their arrest for possession of two loaded handguns in their car, which was stopped by police for a motor vehicle violation. Neither defendant had a permit to carry a handgun and, unlike the petitioners in Bruen, had not applied for one. Defendants in Wade subsequently moved to dismiss their charges, arguing the justifiable need provision of N.J.S.A. 2C:58-4 was unconstitutional under Bruen, and therefore all provisions of N.J.S.A. 2C:58-4 and N.J.S.A. 2C:39-5(b)(1) constituted a “facially invalid permitting scheme, which they were entitled to disregard.” The trial court found the defendants could challenge the statutes even though neither had applied for a permit, and subsequently granted their motion. The court concluded both statutes violated the Second Amendment under Bruen. The Appellate Court ultimately held that the defendants lacked standing to challenge their indictment under N.J.S.A. 2C:39-5(b)(1) because neither defendant had applied for a handgun permit. The Appellate Court also stated that a motion to dismiss charges was not the appropriate venue for establishing whether a defendant “would have been granted a gun-carry permit but for the justifiable need requirement.”

On September 29, 2023, the court held oral argument for defendant’s motion. Defense counsel, asserting the court’s decision in Wade was “wrongly decided,” essentially claimed the unconstitutional justifiable need provision could not be retroactively excised from N.J.S.A. 2C:58-4(c). To support his position, defense counsel claimed, “the requirement of a justifiable need goes to the heart of the statute” and, as such, it was a “substantive requirement.” Conversely, the other requirements under the same statute, such as lack of prior medical conditions, were “procedural.” The State contended that this matter was akin to Wade. As a result, because defendant had not applied for a permit, he lacked standing to challenge the statute.

The trial court, acknowledging the similarity of the material facts in the present matter with those in Wade, declined to follow the Appellate Division’s decision in that case. Instead, the court found that N.J.S.A. 2C:58-4 was facially unconstitutional when defendant was charged with violating N.J.S.A. 2C:39-3(5)(b)(1) under the United States Supreme Court’s decision in Bruen. Accordingly, the trial court determined that because prosecution under N.J.S.A. 2C:39-5(b)(1) required reliance with a statute that was void, defendant’s right to due process was violated. The State subsequently appealed.

On appeal, the State contended that the Appellate Division’s decision in Wade controls. Thus, because defendant had not applied for a permit, he lacked standing to challenge the unlawful possession of a weapon charge. Asserting that the court’s severability decision in Wade was “not a pronouncement of a new law,” the State argued in the alternative that the court’s our holding applies retroactively. The State further argued that because the elements of N.J.S.A. 2C:39-5(b)(1) did not change after Bruen was issued, defendant was provided fair notice that possessing a handgun without a permit is a criminal offense. Consequently, defendant was not denied his right to due process.

Ultimately, the Appellate Court determined that the trial court erroneously interpreted the governing legal principles and reversed the dismissal order, reinstated count two of the indictment, and remanded the case for further proceedings. The court found that the material facts in the present matter were nearly identical to those in Wade. The court was unconvinced that defendant was deprived of his right to due process under both the federal and state constitutions because defendant’s actions violated N.J.S.A. 2C:39-5(b)(1) as worded at the time of his offense and because Bruen does not alter the elements of unlawful possession of a handgun without a permit under N.J.S.A. 2C:39-5(b)(1).

At Hark & Hark, we are experienced attorneys who represent clients in Superior Court for issues like the previously discussed case pertaining to motions to counts of an indictment. We work hard to ensure that our clients receive exceptional representation in order for them to receive the most favorable outcome in their case as a result.

We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing a similar situation to that of the defendant in this case, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.