STATE OF NEW JERSEY v. ALLAN A. THOMPSON

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

ALLAN A. THOMPSON,

Defendant-Respondent.

Argued June 16, 2015 Decided July 14, 2015

Before Judges Alvarez and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-02-0364.

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for appellant (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

Paul S. Chiaramonte argued the cause for respondent.

PER CURIAM

On December 22, 2014, defendant Allan A. Thompson was ordered into the Pretrial Intervention Program (PTI), N.J.S.A. 2C:43-12 & R. 3:28, as a result of his Rule 3:21-10(a) and (b) motion for reconsideration of sentence based on the issuance of the Attorney General's September 24, 2014 ten-page "Clarification of 'Graves Act' 2008 Directive with Respect to Offenses Committed by Out-of-State Visitors From States Where Their Gun-Possession Conduct Would Have Been Lawful" (Directive). We reverse and remand for further proceedings in accordance with this decision.

The State successfully appealed defendant's first entry into the program. See State v. Thompson, No. A-5744-12, (App. Div. Feb. 11, 2014) (slip op. at 2) (Thompson I). The circumstances which resulted in the indictment are described in Thompson I

Defendant was involved in an automobile accident on the Garden State Parkway and sustained injuries. Emergency Medical Technicians (EMTs) arrived at the scene to provide medical attention, and as the EMTs assisted him, defendant stated to a nearby trooper that he possessed permits to carry a handgun. Defendant pulled from his pocket an unloaded nine-millimeter semi-automatic handgun, which he had previously stored in the glove compartment, and gave it to the trooper. Defendant also told the trooper that the handgun's magazine had fallen inside his automobile during the accident. The trooper saw the magazine, which was loaded with hollow point bullets, in plain view on the driver's side floor of defendant's vehicle.

Although defendant had permits to carry the firearm issued by the States of Pennsylvania and New York, he did not have a similar permit from New Jersey. The trooper informed defendant that it was illegal to carry a firearm on his person in New Jersey without a permit issued by this State, and arrested him for unlawful possession of a firearm under N.J.S.A. 2C:39-5b.

[Ibid.]

Defendant was indicted for second-degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b), and fourth-degree unlawful possession of hollow-nose bullets, N.J.S.A. 2C:39-3(f). Id. at 2-3.

Defendant claimed that he placed the handgun in his car's glove compartment because the trunk was filled with groceries he was delivering to his terminally ill daughter, who lived in Delaware. Id. at 8. He ordinarily kept the gun locked in a briefcase, locked in his trunk, when transporting the weapon. Ibid. Defendant also contended that he was traveling from his home in New York state to his second home in Allentown, Pennsylvania, in order to secure the weapon, before traveling to Delaware. Ibid.

The State objected to defendant's admission into PTI because of the explanations he provided for traveling with the weapon in his car. Id. at 7-8. The State asserted that despite defendant's familiarity with the proper protocol for transporting weapons through New Jersey, on the day of his arrest, he chose instead to violate the law. Id. at 8. Furthermore, his description of his intended route of travel was not credible, as Allentown is not in the direction of his daughter's home in Delaware. Ibid. In the State's view, defendant offered no satisfactory reason for choosing to travel with a handgun and loaded magazine readily available to him as he drove through New Jersey. Ibid.

Because we ultimately concluded that the judge had "effectively substitut[ed] his own judgment for that of the prosecutor," we reversed and remanded. Id. at 9. Defendant subsequently entered a guilty plea to possession without a permit. As called for by the negotiated plea, the State dismissed the possession of hollow-nose bullets charge. On August 1, 2014, defendant, a seventy-five-year-old real estate agent with no prior criminal history, was placed on an unspecified term of non-reporting probation.1

After the Attorney General's issuance of the Directive the following month, defendant filed a motion seeking to be readmitted into PTI. A second judge, on December 22, ordered defendant back into PTI based on the Directive, concluding that "[t]he State did not consider all relevant facts and factors when considering PTI."

On appeal, the State asserts the court made the following errors

POINT I

THE TRIAL COURT'S RULING GRANTING DEFENDANT'S RECONSIDERATION MOTION AND ORDERING HIM INTO PTI BASED UPON THE ATTORNEY GENERAL'S 2014 CLARIFICATION MEMORANDUM ON GRAVES ACT CASES WAS ERROR.

A. The trial judge's order changing defendant's sentence to PTI was untimely under R. 3:21-10(a) and not authorized by R. 3:21-10(b).

B. Even if the trial court's order was timely this [c]ourt's ruling that the State did not abuse its discretion in opposing PTI was binding on the trial court.

C. PTI is not an available sentencing option after a defendant has entered a guilty plea.

D. The Clarification Directive did not provide a basis to examine anew the State's rejection of defendant's PTI application.

E. Even if the Clarification Directive applied to defendant's case, defendant would not have been admitted into PTI.

We address only one point, the only challenge to the decision on its merits. That we have chosen that particular issue is not intended to endorse the procedure followed by the judge. Nor do we reach the propriety of the judge's reconsideration of the sentence given in our prior opinion.

Initially, we quote from the Directive's "Scope" subsection

This clarifying memorandum applies only to Graves Act cases where the defendant is an out-of-state resident who produces proof that: 1) the firearm had been lawfully acquired in another jurisdiction, 2) defendant's possession would have been lawful in his or her home jurisdiction, and 3) defendant was under the misimpression that such possession was lawful in New Jersey.

In that same subsection, the Directive warns: "the guidance to prosecutors provided in this memorandum presupposes that the three circumstances enumerated above are not disputed." As we have said, defendant's motion for reconsideration of sentence and admission into PTI was based on the Directive.

The Directive applies, however, only where the prosecutor agrees that three factors are satisfied: 1) the firearm was lawfully acquired in another jurisdiction, 2) possession of the firearm would have been lawful in the defendant's home jurisdiction, and 3) the defendant was under the misimpression that possession was lawful in New Jersey. In other words, these three factors must be established before any further consideration can be given to a PTI application and before the other factors enumerated in the Directive are evaluated.

The prosecutor did not dispute that defendant met the first two requirements that he had appropriate permits in both New York and Pennsylvania, and that his possession of the handgun in those jurisdictions would have been lawful. The prosecutor, from the inception of this matter, however, has disputed defendant's belief that his possession of the firearm was lawful in New Jersey. On the reconsideration motion, as on appeal, the prosecutor continued to challenge defendant's alleged "misimpression that such possession was lawful in New Jersey."

The prosecutor has always contended that defendant's explanations for having the handgun in the glove box and a loaded magazine available in his vehicle were not plausible. Thompson I, supra, slip op. at 7-8. The prosecutor has maintained that "defendant's decision on the day of the accident to transport the handgun and loaded magazine in an area of the vehicle readily accessible to him was not inadvertent, but indicative of a knowing and intentional act to violate our State's gun laws." Id. at 8.

The State has repeatedly rejected defendant's claim that he was traveling from New York to Delaware, and while doing so, decided to secure his handgun in his home in Pennsylvania. And, we previously ruled that "[t]he prosecutor was also entitled to question the veracity of defendant's purported purpose to travel to his residence in Pennsylvania because he could have easily left the handgun at his residence in New York rather than deliver a loaded weapon to his residence in Allentown, Pennsylvania, a location which is not on the way to where his daughter resided." Ibid.

We previously found it to be well within the prosecutor's discretion to reject defendant's explanations. Ibid. Even in light of the Directive, only when the prosecutor considers a defendant to have met all three threshold conditions should the "special considerations" discussed by the second judge be reached.

In sum, the second judge repeated the error of the first. The second judge found it "unclear" as to whether defendant believed his possession could be lawful. But the Directive does not authorize the trial court to make that decision.

Once again, the judge "erred by effectively substituting [her] own judgment for that of the prosecutor." Id. at 9. This is improper. Just as with the first appeal, we conclude that defendant has not overcome his heavy burden to compel his admission into PTI. See State v. Watkins, 193 N.J. 507, 520 (2008). The trial court's review of PTI decisions is severely limited, one of enhanced or extra deference. State v. Negran, 178 N.J. 73, 82 (2003). That standard was breached here.

This judge disagreed with the prosecutor's discretionary decision, based on a mistaken reading of the Directive. That constitutes a legal error requiring reversal. See State v. Nwobu, 139 N.J. 236, 254 (1995).

Defendant is to be resentenced pursuant to the original negotiated plea. At that time, the court may wish to consider the imposition of a suspended sentence, which is a form of nonreporting probation, pursuant to N.J.S.A. 2C:45-1. Additionally, in the exercise of its original sentencing authority, the court may give defendant credit for the time served in PTI and on "non-reporting" probation and set the term of years accordingly.

Reversed and remanded.

1 It is puzzling to note that the judgment of conviction (JOC) entered on that date merely states "non-reporting probation," without specifying the required length of the term. See N.J.S.A. 2C:45-2(a) ("The period of probation shall be fixed by the court at not less than [one] year nor more than [five] years."). Typed into the JOC's "statement of reasons" section was aggravating factor one, that the offense was committed "in an especially heinous, cruel, or depraved manner," N.J.S.A. 2C:44-1(a)(1). We assume these are ministerial errors. In any event, a new JOC will issue upon resentence.