STATE OF NEW JERSEY v. DASEAN HARPER

We draw the following facts from the trial record. On

November 29, 2013, a police officer on patrol in Pennsville saw

a box truck parked in the wrong direction on a street. He also

observed that its tires were over the fog line, partially in the

roadway. The officer approached the driver and passenger, who

explained that they were looking for the right address to make a

delivery. The officer asked for identification, and each man

provided a Pennsylvania driver’s license. Defendant was the

driver.

The officer checked the identifications through dispatch

and learned that defendant had two outstanding arrest warrants.

The officer then asked defendant to step out of the truck, told

him that he was being placed under arrest, and directed him to

put his hands up.

Defendant complied and told the officer, “I want to let you

know, I have a gun on me, a handgun on me.” The officer called

for backup, handcuffed defendant, and retrieved a gun from

defendant’s waistband -- a Smith & Wesson .357 Magnum revolver





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loaded with four hollow-point bullets and two slug rounds.

During a search, the officer also recovered a concealed-carry

permit that the State of Florida had issued to defendant.

Defendant said that, because of the permit, he thought he had

not done anything wrong.

On February 20, 2014, a grand jury in Salem County returned

an indictment that charged defendant with second-degree unlawful

possession of a weapon, N.J.S.A. 2C:39-5(b) (Count One), and

fourth-degree possession of hollow-point bullets, N.J.S.A.

2C:39-3(f) (Count Two).

Defendant moved to dismiss the indictment before trial. He

relied, in part, on the Florida permit to claim an exemption

from prosecution under N.J.S.A. 2C:39-6. At a hearing on the

motion, defense counsel represented that defendant lived and

worked in Pennsylvania and passed through New Jersey to make a

delivery for his job. The trial court denied the motion to

dismiss and also held that defendant was properly denied entry

into the pretrial intervention program (PTI).

A jury convicted defendant on both counts. The trial court

sentenced defendant to five years’ imprisonment, with forty-two

months of parole ineligibility, on Count One. The court imposed

a 364-day concurrent term of imprisonment on Count Two.

Defendant filed a timely notice of appeal. He also filed

two motions before the Appellate Division: one for a limited





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remand to reconsider his application for PTI, which is not

relevant to this appeal, and another for bail pending appeal.

In support of his request, defendant argued for the first time

that his handgun conviction was illegal because of the amnesty

provision. In a two-page order dated August 5, 2015, the

Appellate Division remanded the case to the trial court to

conduct a bail hearing and consider the amnesty law.

The following week, the trial court granted defendant bail

pending appeal. The court later heard oral argument on the

meaning of the amnesty provision. According to defense counsel,

the law allowed an individual to “retain possession” of a weapon

during the six-month amnesty period provided he otherwise

complied with the statute by “Day 180.” After that, defendant

argued, the police could return, ask the individual if he had

disposed of the gun, and seek to prosecute him if he had not.

Based on the plain language of the law, the trial court

concluded that an individual who unlawfully possessed a handgun

on the effective date of the law could keep the firearm and

decide how to proceed for the next 179 days. To the extent the

law might “create[] some interest[ing] fact scenarios” in which

criminal conduct “becomes not criminal because of the statute,”

the court concluded that the words of the law reflected the

Legislature’s intent.





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In an order dated February 8, 2016, the court vacated

defendant’s conviction for unlawful possession of a firearm

“because the issue of amnesty was never presented to the finder

of fact.” The Appellate Division denied the State’s motions for

leave to appeal and for a stay of the trial court’s order.

We granted the State’s motion for leave to appeal. 226

N.J. 205 (2016).

II.

The State, represented by the Attorney General, argues that

the trial court erred when it vacated defendant’s conviction for

unlawful possession. The State submits that the amnesty

provision did not confer “blanket immunity for six months to all

illegal firearms possessors, regardless of whether they were

even attempting to comply with the law.” Instead, the State

contends that the Legislature intended to encourage people to

comply with the law expeditiously. The State relies on the

law’s plain language and legislative history for support, and

claims that its reading of the statute is consistent with the

law’s purpose to promote public safety.

According to the State, the law requires “the unlawful

possessor to take affirmative steps to dispose of the illegal

weapon.” In any event, because defendant failed to raise the

provision as an affirmative defense at trial, the State argues

that he waived the issue.





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Defendant asserts that the trial court’s ruling should not

be disturbed. As he did before the trial judge, defendant

argues that the amnesty provision is “unambiguous on its face”

and allows for only one interpretation: that defendant “still

had time to comply with the Amnesty Provision at the time he was

charged.” Defendant maintains that only “those who . . . failed

to comply with the Amnesty Provision prior to the sunset date”

could be prosecuted for unlawfully possessing firearms. Here,

defendant contends, “the State’s own actions in charging” him

prevented him from complying.

Defendant contends that the Legislature acted to reduce the

number of illegal firearms in the community and encourage

individuals to transfer them. He disputes that the law was

meant to operate as an affirmative defense. He argues in the

alternative that, if the law is not clear, the rule of lenity

requires that it be construed against the State.

III.

A.

At the heart of this appeal is the meaning of L. 2013, c.

117, which we refer to as the amnesty provision. Governor

Christie signed the law on August 8, 2013 as part of a series of

ten bills the Legislature passed.

The amnesty provision created a path for people to transfer

or surrender firearms that they possessed unlawfully, during a





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fixed period of time, without fear of prosecution. The law

provided that

[a]ny person who has in his possession a handgun in violation of [N.J.S.A. 2C:39-5(b)] or a rifle or shotgun in violation of [N.J.S.A. 2C:39-5(c)] on the effective date of this act may retain possession of that handgun, rifle, or shotgun for a period of not more than 180 days after the effective date of this act. During that time period, the possessor of that handgun, rifle, or shotgun shall:



(1) transfer that firearm to any person lawfully entitled to own or possess it; or



(2) voluntarily surrender that firearm pursuant to the provisions of N.J.S.A. 2C:39-12.



[L. 2013, c. 117, § 1.]



Section 2 of the law contained a similar provision for

assault firearms and added a third way to comply: a person

could transfer or surrender the assault firearm, or “render [it]

inoperable.” L. 2013, c. 117, § 2. The amnesty provision

became effective on August 8, 2013, and was set to “expire on

the 181st day after enactment.” L. 2013, c. 117, § 3.

The amnesty provision referenced two other statutes.

N.J.S.A. 2C:39-5 makes it an offense to possess certain types of

weapons, and N.J.S.A. 2C:39-12 addresses voluntary surrender.

Under N.J.S.A. 2C:39-5(b), it is unlawful for any person to

“knowingly ha[ve] in his possession any handgun, including any

antique handgun, without first having obtained a permit to





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carry.” N.J.S.A. 2C:39-5(c) makes it unlawful for any person to

“knowingly ha[ve] in his possession any rifle or shotgun without

having first obtained a firearms purchaser identification card.”

The voluntary surrender provision provides in relevant part

that

[n]o person shall be convicted of an offense under this chapter for possessing any firearms, weapons, destructive devices, silencers or explosives, if after giving written notice of his intention to do so, including the proposed date and time of surrender, he voluntarily surrendered the weapon, device, instrument or substance in question to the superintendent or to the chief of police in the municipality in which he resides, provided that the required notice is received by the superintendent or chief of police before any charges have been made or complaints filed against such person for the unlawful possession of the weapon, device, instrument or substance in question and before any investigation has been commenced by any law enforcement agency concerning the unlawful possession.



[N.J.S.A. 2C:39-12.]



B.

This case raises questions about the scope of the amnesty

provision. Our review of the statute is de novo. State v.

Gorthy, 226 N.J. 516, 530 (2016). To interpret the law, we turn

to certain basic principles of statutory construction.

A court’s responsibility “is to give effect to the intent

of the Legislature.” State v. Morrison, 227 N.J. 295, 308

(2016). To do so, we start with the plain language of the





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statute. If it clearly reveals the Legislature’s intent, the

inquiry is over. DiProspero v. Penn, 183 N.J. 477, 492 (2005).

If a law is ambiguous, we may consider extrinsic sources

including legislative history. Parsons ex rel. Parsons v.

Mullica Twp. Bd. of Educ., 226 N.J. 297, 308 (2016). We also

look to extrinsic aids if a literal reading of the law would

lead to absurd results. Burnett v. County of Bergen, 198 N.J.

408, 425 (2009); see also State v. Provenzano, 34 N.J. 318, 322

(1961) (“It is axiomatic that a statute will not be construed to

lead to absurd results.”).

In addition, a law that is part of a broader “statutory

framework should not be read in isolation”; we instead consider

the text “in relation to other constituent parts so that a

sensible meaning may be given to the whole of the legislative

scheme.” Wilson ex rel. Manzano v. City of Jersey City, 209

N.J. 558, 572 (2012).

C.

Defendant argues that, in light of the law’s plain

language, he and others cannot be prosecuted for possession of a

handgun during the 180-day amnesty period. The law, however,

does not say that.

The Legislature knows how to grant unconditional immunity

and has done so in various ways on other occasions. See, e.g.,

N.J.S.A. 2C:20-11 (noting that merchants “shall not be





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criminally or civilly liable in any manner or to any extent

whatsoever” under certain circumstances (emphasis added));

N.J.S.A. 2C:33-15(f) (noting underage person who calls 9-1-1

“shall be immune from prosecution” under certain circumstances

(emphasis added)); see also N.J.S.A. 2A:4A-32(d) (noting that

law enforcement officer “is immune from civil or criminal

liability for his action” under certain circumstances (emphasis

added)).

Here, instead, the Legislature stated that defendants “may

retain possession” of a handgun “for a period of not more than

180 days,” during which time they must transfer or surrender the

firearm. L. 2013, c. 117. That is not a declaration of blanket

immunity.

To the extent one might think the text of the amnesty

provision offers immunity for six months, such a reading of the

law would lead to absurd results that are at odds with the

overall legislative scheme. See Wilson, supra, 209 N.J. at 572.

Consider the following example. If a gang member possessed

a handgun in public without a carry permit before the amnesty

provision went into effect, he could of course have been

arrested and charged with a crime under N.J.S.A. 2C:39-5(b).

But suppose the gang member unlawfully possessed a handgun on

August 8, 2013, and carried it in public without a permit the

next day. Under defendant’s reading of the law, had a police





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officer stopped that person on August 9, the officer could not

have arrested the individual and would have been required to

return the gun.

Imagine the same gang member walking the streets the next

day with the same handgun. If the police had stopped the

individual, they would have had to return the weapon once again.

According to defendant, the same scenario could be repeated each

day for nearly six months with the same result -- so long as the

gang member transferred or voluntarily surrendered the firearm

in accordance with the amnesty provision on or before Day 180.

In other words, the law would have given gang members and others

a free pass to carry weapons in public for almost six full

months -- and place public safety at risk.

Defendant argues that the amnesty provision was designed to

remove unlawful guns from the street. But if courts interpret

the amnesty provision as defendant suggests, the statute would

have effectively suspended gun-possession laws for nearly six

months and allowed weapons on the street for that entire time.

Extrinsic sources offer further insight into the

Legislature’s intent. Although the legislative history of the

amnesty provision is sparse, we cannot conclude that the

Legislature intended the absurd result highlighted above. Such

an outcome would be at odds with the State’s overall scheme to

restrict the unlawful possession of firearms and protect public





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safety, and would be inconsistent with other bills that became

law on August 8, 2013.

On the same day the amnesty provision was enacted, the

Governor also signed nine related laws. The package of laws

“both strengthen[ed] New Jersey’s already tough gun laws and

upgrade[d] penalties for those who commit gun crimes and violate

gun trafficking laws.” Press Release, Office of the Governor,

Governor Chris Christie Builds on Comprehensive Plan to Address

Gun Violence, Takes Action on Gun Legislation (Aug. 8, 2013).

One of the laws declared a “public health crisis” in the wake of

multiple instances of gun violence and mass shootings throughout

the country. L. 2013, c. 109. Other new statutes enhanced

penalties for certain firearms offenses, L. 2013, c. 108; L.

2013, c. 111; L. 2013, c. 113, and disqualified people on the

federal Terrorist Watchlist from obtaining a firearm

identification card or a permit to purchase a handgun, L. 2013,

c. 114. Those bills all went into effect within two months and

one day of their signing; none were delayed by six months.

Only one reported decision addresses the amnesty provision.

In State in Interest of C.L.H.’s Weapons, 443 N.J. Super. 48, 51

(App. Div. 2015), the police seized five illegal assault rifles,

under the Prevention of Domestic Violence Act, from the home

C.L.H. shared with his wife. The seizure took place in April

2013 -- several months before the amnesty provision became law.





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Ibid. In December 2013, after the prosecutor filed a petition

for forfeiture, C.L.H.’s lawyer wrote that C.L.H. intended to

transfer the illegal weapons under the amnesty provision. Id.

at 52-53. Because the firearms were not in C.L.H.’s possession

on August 8, 2013, the law’s effective date, the Appellate

Division found that the amnesty provision did not apply. Id. at

56.

The panel added that “any voluntary surrender under the

amnesty law” had to comply with N.J.S.A. 2C:39-12, which

requires a person to provide written notice to law enforcement

before authorities file any charges or begin any investigation.

Ibid. Otherwise, the panel reasoned, the surrender and amnesty

“would be transformed from devices to encourage the surrender of

firearms to a ‘free pass’ for those the police have already

found or suspect to be in illegal possession, a result plainly

not intended by the Legislature.” Id. at 57.

We agree with that sound analysis.

IV.

To give full effect to the amnesty provision, we read it in

harmony with, and in the context of, other laws relating to the

unlawful possession of firearms. See State v. Moran, 202 N.J.

311, 323 (2010).

N.J.S.A. 2C:39-5(b) makes it an offense to possess a

handgun “without first having obtained a permit to carry.” A





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defendant charged under that statute for possession during the

amnesty period may raise the amnesty law as an affirmative

defense. To do so, a defendant must show two things: (1) that

he possessed a handgun in violation of N.J.S.A. 2C:39-5(b) or

(c) “on the effective date of this act” -- in other words, that

he unlawfully possessed a handgun on August 8, 2013; and (2)

that he took steps to transfer the firearm or voluntarily

surrender it during the 180-day period beginning on August 8,

2013, consistent with N.J.S.A. 2C:39-12 -- that is, before

authorities brought any charges or began to investigate his

unlawful possession. L. 2013, c. 117; N.J.S.A. 2C:39-12.1

To invoke the amnesty defense, a defendant must abide by

the same settled procedures that apply to other defenses. He

must give pretrial notice of his intention to rely on the

amnesty provision. See R. 3:12-1 (“No later than seven days

before the Initial Case Disposition Conference . . . the

defendant shall serve on the prosecutor a notice of intention to

claim any of the defenses listed herein.”). A defendant also

has the burden to raise the defense at trial.2 Cf. State v.

1 Our focus in this case is on the first paragraph of the amnesty provision. Related principles apply to the second paragraph as well. 2 To protect against self-incrimination concerns, statements a defendant makes to establish an amnesty defense -- namely, that he unlawfully possessed a weapon on or shortly before August 8, 2013 -- cannot be used as substantive evidence of guilt in a





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Toscano, 74 N.J. 421, 442 (1977) (noting “defendant shall have

the burden of producing sufficient evidence” of duress); State

v. Abbott, 36 N.J. 63, 72 (1961) (same for self-defense); see

also N.J.S.A. 2C:1-13(b)(1) (noting prosecution need not

disprove “an affirmative defense unless and until there is

evidence supporting such defense”).

Once raised, the State must rebut the defense and disprove

it beyond a reasonable doubt. See, e.g., State v. Urbina, 221

N.J. 509, 525 (2015) (self-defense); see also N.J.S.A. 2C:1-13.

Indeed, a revised model jury charge for assault firearms relates

to the amnesty provision and makes that very point: “If the

defendant alleges that the assault firearm was lawfully

possessed and/or rendered inoperable during the time frame of

August 8, 2013 to February 5, 2014, the State must disprove that

defense beyond a reasonable doubt.” Model Jury Charges

(Criminal), “Possession of an Assault Firearm (N.J.S.A. 2C:39

5(f))” (revised Oct. 6, 2014).

As with other affirmative defenses, a defendant must timely

assert the defense or it is waived. See 24 James W. Moore et

separate proceeding. Cf. Simmons v. United States, 390 U.S. 377, 394, 88 S. Ct. 967, 976, 19 L. Ed. 2d 1247, 1259 (1968) (noting that statements made by defendant to support suppression motion cannot be used “against him at trial on the issue of guilt”); State v. Whitlow, 45 N.J. 3, 16 (1965) (noting that use of inculpatory statements made during defendant’s psychiatric examination “is limited to the sanity issue and may not be used as substantive evidence of guilt”).





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al., Moore’s Federal Practice, § 612.05 (Matthew Bender 3d ed.)

(explaining that “various affirmative defenses” under Federal

Rules of Criminal Procedure “are generally forfeited by failure

to raise them before trial”). Our court rules give judges

discretion to bar witnesses, grant an adjournment, or grant a

“delay during trial as the interest of justice demands” when a

defendant fails to provide pretrial notice of a defense. R.

3:12-1. But the rules do not contemplate a defendant raising an

affirmative defense for the first time after trial.

A defendant convicted of murder cannot claim on direct

appeal that he is entitled to a new trial because the jury did

not consider self-defense. A drug dealer cannot raise

entrapment as a defense after the jury’s verdict. The same is

true here. Defendants must give pretrial notice of an amnesty

defense and present it at trial.3 Ignorance of the defense is

not an excuse. See Moran, supra, 202 N.J. at 320; accord Barlow

v. United States, 32 U.S. 404, 411, 8 L. Ed. 728, 731 (1833).

V.

In this case, defendant first raised the amnesty provision

before the Appellate Division. Because he did not claim the

affirmative defense at trial, he waived it.

3 A defendant, of course, can claim that counsel was ineffective for not presenting an affirmative defense at trial in an application for post-conviction relief.





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Even if defendant had not waived the defense, it is not

clear that the amnesty provision would apply to him. At the

time of his arrest on November 29, 2013, defendant lived and

worked in Pennsylvania. When the police approached defendant

and his passenger on that day, they explained that they were in

New Jersey to make a delivery.

The statute is not meant to cover an out-of-state person

who travels through New Jersey; it is designed to allow someone

who possessed a handgun in violation of N.J.S.A. 2C:39-5 “on the

effective date of [the] act” to transfer or voluntarily

surrender the firearm. L. 2013, c. 117. To comply with the

law, an out-of-state resident could have simply returned home;

he would not have needed to transfer or surrender a firearm in

New Jersey.

In addition, although defendant asserts that he owned the

firearm on August 8, 2013, nothing in the record establishes

that he (1) was in New Jersey then, and (2) unlawfully possessed

a firearm in violation of New Jersey law that day. See ibid.

Also, nothing in the record demonstrates that defendant took

steps to transfer or surrender the handgun prior to his arrest.

Defendant can file an application for post-conviction

relief and try to demonstrate that his counsel was ineffective

for not raising the amnesty defense at trial. See R. 3:22-1 to

-13; see also Strickland v. Washington, 466 U.S. 668, 687, 104





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S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693 (1984); State v. Fritz,

105 N.J. 42, 58 (1987). We do not limit any effort by defendant

to establish the requisite proofs, and we make no findings on

those issues. But for defendant to be entitled to a new trial,

he must demonstrate not only that counsel’s performance was

deficient but also that he was prejudiced by counsel’s failure

to raise the amnesty defense at trial. See Strickland, supra,

466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz,

supra, 105 N.J. at 52.

We do not consider the rule of lenity. The doctrine

applies when an alleged ambiguity in a statute is not resolved

by analyzing the law’s text and any extrinsic aids. See State

v. Regis, 208 N.J. 439, 452 (2011); State v. Fleischman, 189

N.J. 539, 553 n.4 (2007). That is not the case here.