Brian Aitken Conviction Overturned

[Midwest 28]

If this has been posted already...please delete...

 

http://www.phillyburbs.com/news/crime/mount-laurel-man-has-conviction-overturned-in-gun-case/article_a1e075e4-7fa5-54e6-a469-9847b3efcfb6.html

 

TRENTON — The former Mount Laurel man who had his prison sentence for gun violations commuted by Gov. Chris Christie in 2010, has had his conviction for the most serious charge against him overturned by the state Appellate Division.

[Malsua 1,422]

Nice. Now does this mean he retains his 2a rights?

[Krdshrk 3,878]

From FB:

Evan Nappen, Brian's lawyer, says it best:

 

Today, we were able to reverse Brian Aitken's conviction on appeal for handgun possession and large capacity magazine. The hollow point ammo charge was upheld, but we aren't done yet. This creates a strange legal situation in which you can bring your guns to your new residence while moving, but not your ammo. So when you sell your house remember the buyer gets the refrigerator, the window treatments and your stash of hollow point ammo.

[DirtyDigz 1,812]

...

Officers later searched Aitken's vehicle and found three handguns as well as 39 hollow-point bullets in the trunk, police said.

 

The ammunition is illegal to possess in New Jersey.

...

 

Sigh, the myth lives on.

[njJoniGuy 2,133]

IMHO the Appellate Court could not reverse ALL of the convictions for fear of offending their fellow cogs in the State Machine.

But they screwed up and overtuned the hi-cap mag conviction while letting the hollow point conviction stand.

In the end, Nappen will have the HP conviction overturned.

[BarkNBite 15]

NJ = Legal Chaos...........IMO.

[Theron 5]

When I applied for my last three permits I asked the interviewing Detective if hollow points were illegal in NJ. He said they were and if anyone sold them to me 'mistakenly' I should 'do the right thing.'

 

I didn't feel like contradicting him there, but I did go home and review the statue again.

 

Otherwise the guy seems like a cool police officer.

 

 

 

Sigh, the myth lives on.

[YWHIC 18]

I was going to rant.. but not worth the finger pain I'd end up with..

 

Imagine if he had AP ammo in the trunk...

[PeteF 1,044]

I'm confused.

 

The appeals found the state did not prove its case to sustain the fourth-degree possession of a large capacity ammunition magazine.

 

How can they fail to prove this? If he had one, it's a hard piece of evidence that can be seen touched and examined. If not there should be no charge in the first place.

[DevsAdvocate 112]

I'm confused.

 

 

 

How can they fail to prove this? If he had one, it's a hard piece of evidence that can be seen touched and examined. If not there should be no charge in the first place.

 

Seriously... I'm curious to see how he got that one tossed!

[LorenzoS 100]

The appeals found the state did not prove its case to sustain the fourth-degree possession of a large capacity ammunition magazine. The court did uphold Aitken's conviction for fourth-degree possession of prohibited ammunition.

 

I suspect the paper got this backwards. I hope someone posts the actual text from the court's decision so we can see the detail.

[Smokin .50 1,907]

The ammo will be next. If the mag is tossed, then the ammo never existed either. At least that's how it plays out in all of the Cop TV shows, lol!

 

What's sad about the whole episode is that his own Mother called him in to the Cops!

[BRaptor 68]

I suspect the paper got this backwards. I hope someone posts the actual text from the court's decision so we can see the detail.

 

Ask and ye shall receive.

Brian Aitken Opinion.pdf

[diamondd817 828]

When I applied for my last three permits I asked the interviewing Detective if hollow points were illegal in NJ. He said they were and if anyone sold them to me 'mistakenly' I should 'do the right thing.'

 

I didn't feel like contradicting him there, but I did go home and review the statue again.

 

Otherwise the guy seems like a cool police officer.

 

This is what I hate. Even though you are right it still becomes your problem because LE dosen't know the laws.

[njJoniGuy 2,133]

Thanks, BRaptor for the pdf of the Appeals Court decision.

 

As I read page 39 (the ruling on the hollow point charge) when you vacate your residence (after your lease expires or when you sell the property) you must leave behind all hollow point ammunition, thus making yourself a criminal if the new occupier of the property does not have a NJ FPID card or a Handgun Purchase Permit, OR become a criminal by taking them with you. Lose - lose.

 

Sounds pretty fishy to me.

 

This state is so fooked up, it's ridiculous. G-d help us all.

[Dan 177]

To break it down...

 

Posession of a HG: They found that the judge should have let the jury know about the NJ exemptions.

 

Based upon our review of the record in the light most

favorable to Brian, we concl ude 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.

 

...... 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.

 

 

Large cap mags : They proved that they held 16 rounds, but did not prove nor demonstrate that they were capable of feeding continuously into a SA firearm as defined in the statutes.

 

 

Although Joy was qualified to testify that they held sixteen

rounds based upon his having unloaded both magazines and

reloaded one of them at trial, he was not qualified to testify

that the magazines were capable of feeding ammunition

"continuously and directly therefrom into a semi-automatic

firearm" because he was not qualified as an expert and had not

actually used them for that purpose.

Consequently, we find that the State failed to prove all of

the elements of a violation of N.J.S.A. 2C:39-3(j). For that

reason, the trial judge should have granted the motion for a

judgment of acquittal on count two.

 

And they are still fighting the HP conviction...

[Vlad G 345]

What a BIZARRE opinion. First he throws out the hicaps because they didn't bother to test them, though presumably they are still in evidence and could be tests so he could be re-indicted or is that double jeopardy? And then we have the strangeness of the hollowpoints, which apparently you can buy, own, shoot, but not move .. I suppose if you are moving you need to drive to the range first for a practice session and drive the rest to your new home.

 

And then we have this belly burst inducing line:

 

In addition, N.J.S.A.

2C:58-4 provides a reasonable mechanism for obtaining a permit to carry guns outside the home.

 

Oh boy ..

[Dan 177]

What a BIZARRE opinion. First he throws out the hicaps because they didn't bother to test them, though presumably they are still in evidence and could be tests so he could be re-indicted or is that double jeopardy? And then we have the strangeness of the hollowpoints, which apparently you can buy, own, shoot, but not move .. I suppose if you are moving you need to drive to the range first for a practice session and drive the rest to your new home.

 

And then we have this belly burst inducing line:

 

 

 

Oh boy ..

Quote

 

In addition, N.J.S.A.

2C:58-4 provides a reasonable mechanism for obtaining a permit to carry guns outside the home.

 

There's that word "reasonable" , gotta love it. Most abused word in the whole R2KBA fight...

[Midwest 28]

Quote "In addition, N.J.S.A.

2C:58-4 provides a reasonable mechanism for obtaining a permit to carry guns outside the home."

 

They probably meant

 

In addition, N.J.S.A.

2C:58-4 provides a reasonable mechanism for obtaining a permit to carry guns outside the home the state...

[BRaptor 68]

What a BIZARRE opinion. First he throws out the hicaps because they didn't bother to test them, though presumably they are still in evidence and could be tests so he could be re-indicted or is that double jeopardy?

 

THAT, my friend, is double jeopardy.

 

Prosecution cannot retry these charges on these facts.

 

If there had been a mistrial or hung jury, prosecution could retry. But not now.

[Spartiati 63]

Interesting how the article indicates that hollow point ammunition is "illegal to posses in NJ". I guess it was convenient to leave out during commission of a crime. Since they dropped the charges how does the ammo conviction stick?

[KpdPipes 388]

Nice. Now does this mean he retains his 2a rights?

No, the Hollowpoint charges remain, which are Indicatble (Felony) offenses.

[Dan 177]

Possession of HP's are illegal in NJ just like possession of HG's are.

 

The only saving grace is there are exceptions for possession for both. Its been said before each HP bullet is like a mini HG when it comes to possession and transportation. I don't know of this statute that people are saying HP's are only illegal when used during the commission of a crime...

 

f.Dum-dum or body armor penetrating bullets. (1) Any person, other than a law enforcement officer or persons engaged in activities pursuant to subsection f. of N.J.S.2C:39-6, who knowingly has in his possession any hollow nose or dum-dum bullet, or (2) any person, other than a collector of firearms or ammunition as curios or relics as defined in Title 18, United States Code, section 921 (a) (13) and has in his possession a valid Collector of Curios and Relics License issued by the Bureau of Alcohol, Tobacco and Firearms, who knowingly has in his possession any body armor breaching or penetrating ammunition, which means: (a) ammunition primarily designed for use in a handgun, and (b) which is comprised of a bullet whose core or jacket, if the jacket is thicker than.025 of an inch, is made of tungsten carbide, or hard bronze, or other material which is harder than a rating of 72 or greater on the Rockwell B. Hardness Scale, and © is therefore capable of breaching or penetrating body armor, is guilty of a crime of the fourth degree. For purposes of this section, a collector may possess not more than three examples of each distinctive variation of the ammunition described above. A distinctive variation includes a different head stamp, composition, design, or color.

 

 

 

(2) a. Nothing in subsection f. (1) shall be construed to prevent a person from keeping such ammunition at his dwelling, premises or other land owned or possessed by him, or from carrying such ammunition from the place of purchase to said dwelling or land, nor shall subsection f. (1) be construed to prevent any licensed retail or wholesale firearms dealer from possessing such ammunition at its licensed premises, provided that the seller of any such ammunition shall maintain a record of the name, age and place of residence of any purchaser who is not a licensed dealer, together with the date of sale and quantity of ammunition sold.

[JackDaWack 2,895]

Looks like they went after all the discrepancies in the case and it had little to do with "law". The judge was a prick and has since been removed, im sure this played a large role in the "fair trial" aspect when he decided to neglect exemptions under the law. Also, if it is true, that the mags were never tested, then the prosecutor fabricated evidence, calling it a hi-cap mag, with out actually determining if it was a hi cap mag. This makes no sense as to why they wouldnt test the, but hey people screw up.

[Springfield1911 22]

Wasnt the original judge in the Brian Aitken the judge that was OK with oral sex with animals?

[PeteF 1,044]

So I can order 30 round mags for an AR and until they are used they are legal? WTF?

[JackDaWack 2,895]

So I can order 30 round mags for an AR and until they are used they are legal? WTF?

HUH? you can buy 15/30rd mags, how is anyone to tell they are not 30rd mags unless they test them? The point is, the court failed to show they are over the 15rd limit, if that truly is the case. I could be charged with possession of 20rd mags if no one ever bothered to check and see that they are limited to 15.

[PeteF 1,044]

HUH? you can buy 15/30rd mags, how is anyone to tell they are not 30rd mags unless they test them? The point is, the court failed to show they are over the 15rd limit, if that truly is the case. I could be charged with possession of 20rd mags if no one ever bothered to check and see that they are limited to 15.

 

No, the officer showed it held 16 rounds in the court room. What they didn't show was that the magazine worked IN A GUN. Which was why the charge was overturned.

 

Although Joy was qualified to testify that they held sixteen

rounds based upon his having unloaded both magazines and

reloaded one of them at trial, he was not qualified to testify

that the magazines were capable of feeding ammunition

"continuously and directly therefrom into a semi-automatic

firearm" because he was not qualified as an expert and had not

actually used them for that purpose.

Consequently, we find that the State failed to prove all of

the elements of a violation of N.J.S.A. 2C:39-3(j). For that

reason, the trial judge should have granted the motion for a

judgment of acquittal on count two.

[JackDaWack 2,895]

No, the officer showed it held 16 rounds in the court room. What they didn't show was that the magazine worked IN A GUN. Which was why the charge was overturned.

 

Ok, i knew i was missing some angle to this. But, what gives? the guy is qualified to load the mags? but not qualified to show it works?

[Qel Hoth 33]

No, they never proved in court that the mags met the NJ definition of a high cap. It must hold more than 15 AND feed into a semi auto. In court they loaded 16 rounds, but they never put the magazine in a fun and proved it would cycle.