James Vomero brought a little too much from home when he visited Atlantic City last week — his two guns.
A legal gun owner in New York, the 57-year-old man was arrested last Tuesday when officers responding to a domestic dispute at his hotel room in Resorts were alerted to the weapons.
Permits do not cross statelines. And New Jersey’s strict gun laws do not allow concealed weapons.
Now, Vomero’s bail is set at $100,000 full cash for possession of the guns and ammunition.
New Jersey’s gun laws got national attention recently through the case of Philadelphia mother Shaneen Allen, who could face three years in prison without parole for bringing her legally owned gun into the state.
That set punishment is the result of the 2008 extension of legislation meant to crack down on armed gang members. It also highlights the stance of the Atlantic County prosecutor, who says the law doesn't allow for exceptions like Allen's.
In 1981, longtime Paterson Mayor and state Sen. Frank Graves wrote the Graves Act to crack down on gun crimes and allow for extended sentences in gang-related cases, experts say.
Then, 27 years after the law was enacted — and 18 years after Graves’ death — it was expanded to include additional firearm possession charges in which another crime did not have to be committed. The law not only makes law-abiding citizens felons, but requires mandatory sentences that give judges no discretion, said attorney Evan Nappen, who will be in court Tuesday arguing on Allen's behalf.
Charges such as those facing Allen and Vomero carry with them a five-year sentence with three years without parole. Some can be pled down to three years with no parole for a year.
“The Graves Act was supposed to be directed to gangs and gun violence,” said Atlantic City attorney Joseph Levin, who has had several of these cases. “But it ended up without a safety valve.”
The previous county prosecutor, however, created one.
In 2012, then-county Prosecutor Ted Housel put out a five-page memorandum outlining his stance on the Graves Act, and indicating he would liberally apply the "rare" exception that allows for pretrial intervention because of the cases "unique to Atlantic County."
"I note that the existence of persons visiting the county as tourists who possess valid out-of-state permits to purchase and/or permits to carry are treated liberally in this regard absent aggravating circumstances," he wrote.
Translation: If the person is otherwise law-abiding and has a legally obtained gun in their home state, they can be accepted into pretrial intervention, which allows them to avoid prosecution by completing a program.
Current Atlantic County Prosecutor Jim McClain has a different stance.
“My position is that that’s a very common situation that the Legislature could have created a specific exception for and they chose not to do that,” he previously told The Press of Atlantic City. “I’m not going to usurp the function of the Legislature and make a common exception when they refused to do so.”
He also questioned whether such blanket exceptions would be fair to state residents, who don’t have these rights.
“If you allow people from out of state to have a routine exception, what about the people in New Jersey?” McClain asked. “Why should we enforce that law to the detriment of the citizens who live here? It almost creates citizens of New Jersey as a less-protected class than those from out of state.”
He has refused to speak on the issue since Allen's case garnered attention.
The mother of two was driving on the Atlantic City Expressway in Hamilton Township, when a state trooper pulled her over for a motor vehicle violation Oct. 1. Allen, 27, told the trooper she had a gun and a permit, but was then charged for possession of it and hollow-point bullets.
A grand jury indicted her in December, and her public defender tried to get her into PTI.
The program’s director accepted her Feb. 12, court records show. But in March, McClain denied entrance.
A pretrial conference is set for 1:30 p.m. Tuesday.
“There is a presumption that gun licenses are treated like driver’s licenses, and that is not the case,” Nappen said. “People make an honest mistake, and the penalty is draconian.”
The longtime NRA attorney recently took over the case from a public defender, and now spotlights it on his website — with a link to donate to a fund to pay her legal fees.
More than half the $25,000 goal had been reached by Monday.
Pleasantville attorney Mark Roddy said he believes the law is unconstitutional, because it gives sentencing power to the prosecutor, rather than the judge.
That is not true, said Peter Aseltine, a spokesman for the state Attorney General’s Office.
“The prosecutor’s discretion is channeled by the Attorney General’s Guidelines and defendants are free to argue that a prosecutor has committed a gross and patent abuse of discretion,” he said. “This has not happened to date.”
But at least one attorney is working on it.
Michael Schreiber has filed a motion that — at last count — included responses to 153 waiver applications made by lawyers on behalf of their similarly charged clients in Atlantic County. About seven were granted PTI under McClain, Schreiber said.
The lawyer also has collected the written responses from those waiver requests, and is comparing how Atlantic County handles these cases compared to others.
“This is how these cases turned out: probation, probation, PTI, probation, PTI, probation,” Schreiber said of those other counties. “Why is it different in Atlantic County?”
Nappen agreed: “My office is not experiencing this anywhere else but Atlantic County.”
“I’ve had some discussions and, quite frankly, it appears as if — for some reason — in Atlantic County, we have many more Graves Act waiver applications than any other county,” McClain said in last month’s interview with The Press.
Defense attorneys and law enforcement say that often tourists don’t know their permits don’t carry across state lines.
Sometimes someone is seen putting the gun into their bag. Sometimes a valet will discover it while parking a car. Other times, housekeeping may come across it.
“There were cases where people would go to the casino and go to the front desk and say, ‘Here’s my gun can I put it in your safe?’” said Housel, the former prosecutor. “I treated those differently than I’ve heard the current administration does, and that’s (the prosecutor’s) right.”
Nappen will have his stance heard Tuesday before Superior Court Judge Michael Donio.
Meanwhile, Vomero’s attorney, Anthony Fusco, said he still needs to see the evidence against his client. First, he wants to get the $100,000 full cash bail that has kept Vomero jailed for a week lowered.
“It’s the equivalent of a million dollar bail,” Fusco said. “It’s a little ridiculous. We’re trying to negotiate to get him out.”
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