Are you really eligible for a criminal diversion program for a felony gun charge in Pennsylvania (ARD) or New Jersey (PTI)?
Recently, felony gun charges against Eastern Michigan basketball player, Emoni Bates were dismissed after he was arrested and charged with unlawfully carrying a concealed weapon in Michigan on September 18, 2022. Bates entered a plea of not guilty to the illegal gun charge and was suspended from Eastern Michigan University where he is a student and a top Division I basketball recruit.
What happened in the Emoni Bates case? Why was he charged with a felony gun crime?
Police discovered the firearm following a vehicle stop and search. The police initiated a search of the vehicle after allegedly discovering marijuana. The handgun was underneath the driver’s seat and the serial number had been removed. In Pennsylvania and New Jersey, along with Michigan, this would lead to an additional criminal charge of possession of an unlawful firearm with an obliterated serial number; this is also a felony charge!
How strong was the case against Emoni Bates?
Had Bates’ matter proceeded to trial, it is unlikely that he would have had a successful pre-trial Motion to suppress evidence (the illegal gun). As it appears the police had probable cause for the stop and probable cause for the search. It is important to keep in mind that in most cases involving illegal possession of a gun or firearm, a Motion to Suppress is often the defenses strongest tool.
Further, had the matter proceeded to trial, the prosecution could have likely established guilt beyond a reasonable doubt pertaining to Bates’ possession of the illegal weapon. The gun was found underneath Bates’ seat, and the prosecution could have established constructive possession. Constructive possession is a legal concept which states that a person is in possession of an item even if it is not found on his or her actual person.
What type of deal did Bates receive and is it a common result?
Bates, however, will not face trial in this case and has agreed to enter a diversion program in the State of Michigan. He will enter a plea to the illegal transportation of a weapon. Pennsylvania and New Jersey, like Michigan, maintain diversion programs, but it is often difficult, if not impossible, to obtain admission into a program such as this for a felony gun charge. In Pennsylvania there is the Accelerated Rehabilitated Disposition (ARD) program, while in New Jersey there is pre-trial intervention. Both of these diversion programs are usually reserved for misdemeanor offenses and not felony offenses, particularly those involving guns or firearms. Here, it is clear that Bates received a very favorable outcome to a very serious case. If he complete the diversion program, the prosecution will withdraw the case and he will likely have his record expunged. Bates received preferential treatment based on his status. This is often the case with many professional athletes who are charged with illegal possession of contraband in various states, including Pennsylvania and New Jersey. This isn’t fair but it does happen!
New Jersey and Pennsylvania Gun Laws
New Jersey has a similar charge of illegal transportation of a weapon. It is a crime of the fourth degree and does not result in any mandatory minimum sentence, unlike the typical Graves Act (illegal gun) charge in New Jersey which carries with it a mandatory minimum State prison sentence (42 months).
While Pennsylvania does not maintain any mandatory minimum sentencing for the illegal possession of guns and firearms, a person convicted of illegal possession of gun faces a possible State prison sentence as it is a felony crime in the Commonwealth in most cases
What to do if you’re charged with gun crime in Pennsylvania or New Jersey?
If you are charged with an illegal gun crime in Pennsylvania and New Jersey, do not assume that you will receive a diversion program like Emoni Bates. While your criminal defense lawyer should obviously advocate for it, you may need to consider other options which include pre-trial Motions to Suppress Evidence and even a possible trial.
It is very important that if a police stop your vehicle that you do not make any statements or do not consent to a search of your vehicle. If police should find contraband, it is important to remain silent and not address it in anyway. All statements made to police are admissible in Court and against you for the purposes of prosecution. Finally, the burden is on the prosecution to prove the charges against you beyond a reasonable doubt in addition to all of your constitutional rights at the pre-trial level.
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