Submitted by New Jersey Criminal Defense Lawyer, Jeffrey Hark
Today’s blog revisits State v. Elsobky decided by the Appellate Division on January 30, 2015.In an earlier blog we discussed the law surrounding concealed carry permits in N.J.
After the defendant was pulled over and informed the officer that he was in possession of a weapon, he then presented him with his North Carolina concealed carry permit. However during this process the defendant allegedly told the officer that he worked in military intelligence/interrogations and that the weapon was issued to him by the Army for his personal protection. These statements that were at best loosely based in reality came back to haunt the defendant at trial.
The director of the Pre-Trial Intervention program recommended the defendant for enrollment likely because he was a veteran and did not seem to intentionally break the law and was a first-time offended. PTI is generally intended for first-time offenders of less serious offenses and is an alternative to usual criminal prosecution. PTI is meant to be more rehabilitative than punitive. It is a highly beneficial program for a defendant to be accepted into because it allows for no criminal record which is a huge factor for future employment.
The prosecutor in this case denied PTI primarily because he felt the defendant had lied to officers. For example the defendant was in the Army, but he was a reservist and not active duty. He had worked for military intelligence but as a translator and not as an interrogator. The weapon was registered at the armory but it certainly wasn’t issued to him for personal protection. However there were also many inappropriate considerations made by the prosecutor. For example the distinction between active duty and reserve was irrelevant and the prosecutor even concluded that the defendant’s military ID was fake but it was proven to be authentic. The judge remanded the denial of PTI to be reviewed by the prosecutor taking only the appropriate considerations into account. It should be noted that weapons offenses are generally more serious than the type of crime PTI was intended for but this case is a bit unique. A second-degree crime creates a presumption against PTI but this is rebuttable as will be explained in the next blog.
This remand reveals how much power prosecutors have in deciding who is prosecuted and what charges brought against them. However there are still guidelines a prosecutor must follow when making these determinations.
The main lesson for readers is that when interacting with officers it is best not to fabricate stories or exaggerate facts but always remember you do have the right to remain silent.
The full case can be accessed here.