Atlantic County Prosecutor Jim McClain told a judge his office is reviewing its position in the case of a Philadelphia mother facing prison time for bringing her legally owned gun into New Jersey.
Shaneen Allen, 27, was arrested last year after she was pulled over Oct. 1 on the Atlantic City Expressway in Hamilton Township, and told the state trooper she had her gun and a concealed carry permit with her. She says she did not know it was illegal to bring the gun into New Jersey.
McClain has faced criticism for denying Allen admission into a diversion program that would allow her to complete a program and avoid prosecution. It is a stance the prosecutor has taken in most of these cases, under the state’s strict Graves Act.
“I am presently in the process of reviewing our office’s position on the appropriate resolution of this matter,” McClain wrote in a letter sent last week to Superior Court Judge Michael Donio.
He asked that the case be adjourned for three weeks to allow the review. Donio granted the request.
A trial set for Oct. 6 has now been moved to Oct. 20. A conference to discuss motions and jury selection set for this week has been moved to Sept. 25.
Donio previously became the first judge in the state to open up the Graves Act waivers, which record decisions on pretrial intervention concerning these cases. The records are meant to be kept for the attorney general’s review to make sure the law is being applied uniformly.
Local attorney Michael Schreiber argued that if the state can see the records, the defense should be granted the same access. Donio agreed, and opened up three years of decisions. They show that not only do other prosecutors allow for PTI or probation in these cases, McClain’s predecessor also allowed them.
Former Prosecutor Ted Housel liberally applied a normally rare exception in these cases, which allows for parole or pretrial intervention. Housel said in a 2012 memorandum that Atlantic County is unique since tourists who legally own guns often bring them into the state not realizing their permits do not cross state lines.
But McClain's stance is that — since it is so common — the Legislature would have included it as an exemption in the law, which it didn't.
Now, there are bills in both houses of the Legislature to allow for cases such as Allen’s and to give judges more discretion in sentencing.
“Why is it that you have to worry about each state that you travel through when you’re on your way from California to New York?” asked Frank Fiamingo, president and found of the Manahawkin-based New Jersey Second Amendment Society. “It’s an impossible standard to hold people to.”
Fiamingo’s group Monday unveiled its own attempt to draw more attention to the case with four billboards at locations near the courthouse: “Free Shaneen from Unfair Prosecution,” they say.
“We decided to bring national attention to this case because it was obvious that the prosecutor had made up his mind and wasn’t about to budge,” Fiamingo said.
Donio, the judge in the Allen case, gave his views on mandatory minimums the Graves Act calls for during sentencing in a similar case last month.
In that case, Justin Brey, 26, had his gun on him at work in Pennsylvania — where he has a concealed carry permit — when his friend picked him up to take him to his surprise bachelor party destination in April 2013.
He didn’t realize he would be crossing state lines, and when they got to Caesars Atlantic City, he put his gun in a drawer of the hotel — then left for home without it. By the time he returned for it, a maid had found it and police were called. Despite a plea deal calling for a three-year sentence with one year without parole, Donio gave Brey two years’ probation.
Another case, in which he gave day-reporting, has been appealed by the Prosecutor’s Office.
“If you don't trust the judge enough to make the correct decisions, then don't appoint them to the bench,” Donio said at Brey’s sentencing. "These mandatory laws tie our hands, and in tying our hands, sometimes justice doesn't get served.”
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