In State in Interest of C.L.H.’s Weapons, (App. Div. 2015), the panel stated that “any voluntary surrender under the amnesty law” had to comply with N.J.S.A. 2C:39-12, which requires a person to provide written notice to law enforcement before authorities file any charges or begin any investigation. Otherwise, the panel reasoned, the surrender and amnesty “would be transformed from devices to encourage the surrender of firearms to a ‘free pass’ for those the police have already found or suspect to be in illegal possession.” The New Jersey Supreme Court agrees with that sound analysis. The logic behind this analysis is undeniable. It seems likely that the Appellate panel and trial court may have let their own sense of justice creep into their opinions in the hope that the prosecution would come around and give a break to an otherwise law-abiding individual that qualified for, and took the time to get the lawful gun permits in Florida.
N.J.S.A. 2C:39-5(b) makes it an offense to possess a handgun “without first having obtained a permit to carry.” A defendant charged under that statute for possession during the amnesty period may raise the amnesty law as an affirmative defense. To do so, a defendant must show two things: (1) that he possessed a handgun in violation of N.J.S.A. 2C:39-5(b) or (c) “on the effective date of this act”—in other words, that he unlawfully possessed a handgun on August 8, 2013; and (2) that he took steps to transfer the firearm or voluntarily surrender it during the 180-day period beginning on August 8, 2013, consistent with N.J.S.A. 2C:39-12—that is, before authorities brought any charges or began to investigate his unlawful possession.
To invoke the amnesty defense, a defendant must abide by the same settled procedures that apply to other defenses. As with other affirmative defenses, a defendant must timely assert the defense or it is waived. Defendants must give pretrial notice of an amnesty defense and present it at trial. Ignorance of the defense is not an excuse. Because defendant did not claim the affirmative defense at trial, he waived it.
Even if defendant had not waived the defense, it is not clear that the amnesty provision would apply to him. The statute is not meant to cover an out-of-state person who travels through New Jersey. In addition, although defendant asserts that he owned the firearm on August 8, 2013, nothing in the record establishes that he (1) was in New Jersey then, and (2) unlawfully possessed a firearm in violation of New Jersey law that day. Also, nothing in the record demonstrates that defendant took steps to transfer or surrender the handgun prior to his arrest. Defendant can file an application for post-conviction relief. The Court does not limit any effort by defendant to establish the requisite proofs and makes no findings on those issues. The judgment of the Appellate Division is reversed and defendant’s conviction and sentence for unlawful possession of a weapon are reinstated.