“You better have my bread.” 
Possession of Defaced Firearm, N.J.S.A. 2C:39-3d


Jersey City police charged David King with, among other things, Possession of Defaced Firearm, according to nj.com.

The 35-year-old Bayonne man allegedly went into a woman's home on May 19, 2013, as reported on the news site.

Stating, “You better have my bread,” he indicated he had an alleged weapon in his waistband, according to the media report.

While fleeing the scene, the news indicates he pointed an alleged 9mm loaded handgun at a police officer.

Possession of Defaced Firearm, N.J.S.A. 2c:39-3d

New Jersey law prohibits the possession of a defaced firearm. Providing the elements of this offense, the NJ Code of Criminal Justice states in pertinent part:
Defaced Firearms
Any person who
has in his possession
any firearm which has been defaced,
except an antique firearm or an antique handgun,
is guilty of a crime of the fourth degree.

Sentencing Exposure

  • Fines: Up to $10,000.00
  • State Prison: Up to 18 months
  • Victims of Crime Compensation Assessment (VCCA): $50.00 (or $100)
  • Safe Neighborhood Services Fund Assessment: $75
  • Law Enforcement Officer Training & Equipment Fund: $30
  • Probation: 1 to 5 years, conditioned on county jail up to 364 days
  • Suspended Sentence: Up to 5 years
  • Additional Penalties:
    • Community service
    • Court Costs
New Jersey Weapons Attorney Michael A. Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding weapon crimes. Call Now—(856) 812-0321.

Ruby Wax On Mental Illness

What's So Funny About Mental Illness?

Thought Provocation

Tasso In The Madhouse
Eugène Delacroix
[Public domain],
via Wikimedia Commons
  • What ratio of people suffer from some form of Mental Illness?

  • What can prevent a baby from distinguishing right from wrong?

  • Which brain lobe enables vision?

  • Which brain lobe enables hearing?

  • Does illness in every organ induce sympathy, except the brain?

  • How can you foster dendrite growth? Would you want to? Why?

Please view this post featuring Elyn Saks for her TEDTalk about mental illness.

Do You Want “Bruce Lee” Wisdom?

Be retweetable my friend.

~> ~> Follow Me <~ <~

Statue of Bruce Lee,
by 文子言木 (Own work)
[Public domain], via Wikimedia Commons.

Whitman's “City Invincible” is Camden, not Camelot

(The Shoe Shine Boy)

John George Brown (1831-1913)
[Public domain],
via Wikimedia Commons
“In a dream I saw a city invincible.”

The proud motto of America's poorest city, Camden, New Jersey, appears above its City Hall entrance.

Derived from Walt Whitman's I Dream'd In A Dream, the motto is somewhat ironic.

Because of rampant poverty and crime, it is only in a dream where one may hope to see Camden as an invincible city.

And because of the city's decay, one expects most people would hope to see Camden never at all.

Despite the irony, however, the choice of these words from Whitman's poem is also fitting.

Its ambiguous opening may mean this describes a dream within a dream.

Indeed, assuming this was Whitman's intent, the poet's dream represents unattainable human aspiration.

I Dream'd In A Dream

I dream'd in a dream, I saw a city invincible to the attacks
    of the whole of the rest of the earth,
I dream’d that was the new City of Friends,
Nothing was greater there than the quality of robust love—it led the rest,
It was seen every hour in the actions of the men of that city,
And in all their looks and words.

Camden, America's poorest city, fights crime, poverty
March 8, 2013

Visit NBCNews.com for breaking news, world news, and news about the economy
Although Camelot may never come to Camden, her residents today hope and dream of a better future there.

South Jersey Criminal Defense Trial Attorney Michael Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all criminal cases pending in a New Jersey court.

Call Now—(856) 812-0321.

Camden, New Jersey

Camden, New Jersey

America’s poorest city struggles with crime, violence
March 7, 2013

Visit NBCNews.com for breaking news, world news, and news about the economy

Le Marauder
François Barraud (1899–1934)
[Public domain],
via Wikimedia Commons
Is Camden really like this?

I attended Rutgers School of Law—Camden, and I clerked for a criminal court judge in Camden.

To truly begin addressing Camden's many problems, one must understand it is a city of many contradictions.

People in Camden need help. But the people I have met distrusted any hint of benevolence.

Many people in Camden did not complete high school. Despite opportunities for further education, only a few people have embraced them.

In a city where the poor steal from the destitute, where people shun gainful employment because it means loss of Medicaid, and where rodents feast while people live in poverty, is it any surprise that local leaders are running in a hamster wheel? Under these circumstances, one can easily become jaded by Camden's daily vagaries.

Yes, Camden is really like this.

Criminal Defense Attorney Michael Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all criminal cases pending in a New Jersey court.

Call Now—(856) 812-0321.

Where Are Dishonest Attorneys Minted?

South New Jersey Trial Lawyer Lawyer Michael A. Smolensky Esquire brings honesty and integrity to the courtroom. Call Now--(856) 812-0321
The Art Expert
By Adolf von Becker (1831 - 1909)
[Public domain],
via Wikimedia Commons
Does a character trait for honesty matter in the legal profession? Based on my professional experience, a mere character trait for honesty is not enough. A lawyer should make it a professional habit.

Without resorting to ethical rules, the reason is simple. Among other considerations, one accustomed to conducting business out of court amid exaggeration, fabrication, deception, and subterfuge can be expected to do the same in court. And you had better believe that it absolutely matters in court. In addition, clients not only expect but more importantly deserve honesty and candor.

During the summer after my first year of law school (1L year), many fellow students competed for a position with Rutgers Law Journal.

True to the time honored tradition of law school indoctrination, we were told during the 1L academic year about the importance of Law Journal as to one's career.

Some of my classmates, like me, were indoctrinated before we set foot on campus. Naturally, those of us who were accepted on Law Journal thought we had clenched the brass ring.

But it turns out the opportunities we had imagined and hoped for did not materialize. Rest assured, however, I am unable to name anyone who committed any of the egregious violations of trust mentioned above.

Despite my personal experience, I continue to believe the story was true, once upon a time. Furthermore, it is only fair to admit that as I write this I can think of classmates who benefited from volunteering for Law Journal—two exceedingly talented students.

Cynicism is an occupational hazard of practicing law. While I cannot exempt myself from the affected, in all sincerity I am honored to post a piece of my legal research that was selected for publication in Rutgers Law Journal.

The 6 Steps to “Better Thinking”

“Better Thinking” on Quora*

Forbidden Fruit
George Agnew Reid (1860-1947)
[Public domain],
via Wikimedia Commons
While researching social media websites, I recently discovered Quora.

After poking around enough to satisfy my curiosity, I created a user account, and I found this question: “How do I become a better thinker?”

I reviewed some of the submissions, and I posted an answer. Based on positive feedback, I am sharing it here.

The 6 Steps To “Better Thinking”

Read Quote of Michael Smolensky's answer to Thinking: How do I become a better thinker? on Quora
* For the uninitiated, Quora organizes knowledge by allowing users to work together asking and answering questions. Quora users earn credibility based on peer reviews--upvotes and downvotes.

South Jersey Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations--answering and asking questions--on all criminal, juvenile, and municipal court cases in New Jersey.

Call Now—(856) 812-0321.

Presidential Authority, Congress, and Separation of Powers: Youngstown v. Sayer, 343 U.S. 579, 634-655 (1952) (Jackson, J. Concurring)

Constitution, Separation of Powers, President, Obama, Congress, Court, Judiciary, Gun Control, Second Amendment, Sandy Hook Elementary School, Steel Seizure Case, Youngstown v. Sayer 343 U.S. 579 (1952), Jackson Concurrence
King George III
Sir William Beechey
[Public domain],
via Wikimedia Commons


On January 16, 2013, ft.com reported President Barack Obama had issued "sweeping," restrictive executive orders as to military-style guns and ammunition, tightening background checks, and proposing toughest gun control laws in two decades.

This Obama Administration action has drawn sharp criticism. Those opposed to this express a clear political preference for Second Amendment respect over legislation by Presidential decree.

Additionally, this Executive Branch mandate begs the question whether Obama's action violates Separation of Powers under the United States Constitution. Accordingly, one must understand this doctrine's legal precedent.

The Steel Seizure Case:
Factual Background

In 1951, labor negotiations between United Steelworkers of America, C. I. O., and steel companies fell apart. This prompted threats of union strikes, setting a deadline of December 31, that year.

Shortly after this, the Federal Mediation and Conciliation Service (FMCS) intervened. Despite its intention to bring about a resolution, FMCS failed.

On December 22, 1951, President Dwight Eisenhower referred the dispute to the Federal Wage Stabilization Board (FWSB). Eisenhower ordered FWSB to recommend settlement terms based on an investigation. This, too, did not bring about a settlement.

On April 4, 1952, the Union threatened a nation-wide strike to begin 12:01 a. m. on April 9. All parties knew and understood the centrality of steel in the production of weapons and war materials.

Eisenhower anticipated a strike would jeopardize national defense and security. Therefore, the President, within hours of the beginning of the strike, issued Executive Order 10340. Thus, Eisenhower ordered the Secretary of Commerce to seize most of the steel mills and keep them running. The Secretary followed suit, taking possession and managerial control of the mills.

Steel mill managers obeyed under protest, and filed suit against the nation's Executive. The Steel Mills asked the court to stop the Secretary's action on grounds that it violated the Constitution. The Government defended this action as an inherent power based on the Constitution as well as historical and legal precedent.

On April 30, 1952, the District Court ruled against the Government, and issued an order restraining the Secretary from enforcing Executive Order No. 10340. Later that day, the Court of Appeals stayed the injunction. On May 8, 1952, the United States Supreme Court agreed to review the dispute.

Separation of Powers:
A Doctrine Without Precedent

Would Judicial Activism By Any Other Name Smell As Sweet?

The foregoing summarizes the basis for Youngstown v. Sayer, 343 U.S. 579 (1952) (the Steel Seizure Case). With respect to Separation of Powers, scholars and courts have attributed great weight to Justice Jackson's opinion. Id. at 634-55 (Jackson, J., concurring).

Ironically, Justice Jackson wrote his concurrence without the benefit of any legal precedent. This blog entry will focus on Jackson's concurrence to explain the Separation of Powers Doctrine of the United States Constitution.

Oliver Wendell Holmes wrote about "the life of the law" in 1881 before he became a Supreme Court Justice. Understanding Justice Holmes contributes to understanding Justice Jackson's concurrence in the Steel Seizure case. Holmes famously wrote,
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Oliver Wendell Holmes, The Common Law, 1 (1881).
In the Steel Seizure case, Justice Jackson characterized the "comprehensive and undefined" power the Constitution grants the president as having "both practical advantages and grave dangers for the country . . . ."

As if speaking through Justice Oliver Wendell Holmes, Justice Jackson wrote his concurrence based on insight he gained from prior experience in the Executive branch. This experience enabled Justice Jackson to understand,
The opinions of judges, no less than executives and publicists, often suffer the infirmity of confusing the issue of a power's validity with the cause it is invoked to promote, of confounding the permanent executive office with its temporary occupant. The tendency is strong to emphasize transient results upon policies . . . and lose sight of enduring consequences upon the balanced power structure of our Republic.
Justice Jackson referred with respectful candor to the nation's founding generation. Comparing the task of determining the intent of the american forefathers to a similar task with respect to the forefathers in the Old Testament, Justice Jackson explained the Framer's intent "must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh." Additionally, the intervening century and a half had not yielded any evidence to clarify the issue.

Justice Jackson acknowledged both the founding generation and the importance of precedent. This is, almost certainly, because Jackson formulated the Separation of Powers doctrine here without the benefit of legal precedent or evidence of the Framer's intent.

The purpose of Separation of Power under the Constitution, wrote Justice Jackson, is to better secure liberty. Nevertheless, the Constitution "also contemplates that practice will integrate the dispersed powers into a workable government." Political realities, explained Justice Jackson, prevent the nation's leaders from conforming their actions to judicial definitions of power.

Separation of Power:
The Legal Doctrine

Justice Jackson explained presidential power under the Constitution in three scenarios. In the first scenario, the president's power under Article II is at its maximum.
1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty. If his act is held unconstitutional under these circumstances, it usually means that the Federal Government as an undivided whole lacks power.
With respect to President Obama's Executive Order about guns, if President Obama issued these orders based on an Act of Congress, then they would have "the strongest of presumptions and the widest latitude of judicial interpretation, and the burden of persuasion would rest heavily upon any who might attack it."

In the second scenario, the president's power is sustainable, but less potent than the first scenario.
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
Turning to President Obama's Executive Order, if President Obama issued these orders while Congress has not yet spoken on the issue, then the totality of circumstances will dictate their lawfulness. The primary factor appears to be the urgency of the moment where the harm of waiting would outweigh the value of allowing Congress to act.

In the final scenario, the president's power is weakest.
3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.
Turning to President Obama's Executive Order, if President Obama issued these orders that directly contradict Federal Law as enacted by Congress, then his Executive Orders would be exceedingly weak.

A Deeper Analysis

In the Steel Seizure case, even though the United States was at war with Korea, the Supreme Court held President Eisenhower acted in violation of the Constitution.

The Federal Government in the Steel Seizure case relied on the president's war power to justify the steel mill takeover. But process of elimination placed Eisenhower's action in his model's third category.

The steel mill takeover did not fall in Jackson's first category because Eisenhower acted without congressional approval. Additionally, the takeover did not fall within Jackson's second category because Congress had enacted three laws on point, and the steel mill seizure did not comply with any of them.

Eisenhower did not act consistently with any of the following areas where Congress authorized the Executive to seize property:
  1. Seizure of a plant which fails to comply with obligatory orders placed by the Government;
  2. Condemnation of facilities, including temporary use under the power of eminent domain;
  3. Where the general economy of the country is to be protected, not exclusive governmental interests.
Eisenhower's conduct did not fall within either of these areas. Therefore, the steel mill seizures did not fall within category two. In choosing a different path, Eisenhower was unable to claim necessity by failure of Congress to legislate. Therefore, Eisenhower's action fell within the third category.

Justice Jackson repudiated three arguments from the Solicitor General to justify Eisenhower's actions.
  1. The Constitution did not grant the President all the executive power of which the government is capable. This directly contradicts the history of conflict with King Edward III of England, and the Declaration of Independence. It also contradicts the Separation of Powers Doctrine implicit in the Article I powers granted to Congress, Article II powers granted to the President, and Article III powers granted to the Judiciary.
  2. The Constitution did not grant the President absolute authority under the War Power. The clauses granting this power do not contain concrete limitations. Although not an empty formulation of words, there are no contours for the War Power. Even though America was at war in Korea, the War Power did not justify seizure of the steel mills.
  3. The Constitution did not grant limitless Presidential authority to execute the laws. This is so because "No person shall be . . . deprived of life, liberty or property, without due process of law . . . ." U.S. Const. amend. V.


As a government of laws, not of men, Eisenhower did not have power to seize the mills. For all these reasons, former Attorney General Edwin Meese indicated legislation by Executive Order about guns ought to subject Obama to impeachment.

New Jersey Criminal Defense Attorney Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases regarding the right to keep and bear arms under the Second Amendment.

Call Now—(856) 812-0321.

Stop and Frisk—Law, Policy, and People.

Stop and Frisk in Brownsville, Brooklyn:
Residents Question a Police Tactic

More Research and Reporting

I have blogged and commented previously about the NYPD policy to stop, question, and frisk (linking to three distinct sites). After watching this 2010 report about Brownsville, please also view (or review) the following additional Gavel Report posts.
  1. Stop and Frisk v. The Right To Be Left Alone. This links to a Gavel Report post with Reuters video documentation. It also provides legal limitations on police authority with respect to individual members of minority groups.
  2. Fighting Back Against Stop-and-Frisk. This links to a Gavel Report post with video documentation about organized protesters in New York City. The post also includes legal limitations on police authority to stop and frisk.
  3. The Hunted and the Hated: An Inside Look at the NYPD's Stop-and-Frisk Policy. Linking to our Facebook Page, this post will allow visitors to watch a VideoNation documentary (viewer discretion advised).


  • How does police power as documented in these four sources help society?
  • Do those who make these policies set out to curb this exercise of power?
  • Do the benefits outweigh the intrusion on individual rights?
  • How does this policy affect law-abiding citizens?
  • Does this policy harm society? If so, how?

Experienced Criminal Defense Lawyer Michael Smolensky, Esquire, knows how to protect his clients. Mr. Smolensky can provide consultations on all cases in New Jersey regarding stops, frisks, searches, seizures, and arrests.

Call Now—(856) 812-0321.

Special Probation, N.J.S.A. 2C:35-14

Drug Court
Special Probation
N.J.S.A. 2C:35-14

With some exceptions, any person may be sentenced to Drug Court under N.J.S.A. 2C:35-14, even if the applicant is ineligible for probation under N.J.S.A. 2C:45-1 because of either a conviction for a crime subject to a presumption of incarceration or a mandatory period of parole ineligibility.

In 2012, the New Jersey Drug Court gained political significance. On July 19, Gov. Chris Christie signed legislation expanding Drug Court through a $2.5 million pilot program in three counties, according to The Star Ledger.

The measure expands the types of crimes that can be considered for drug court eligibility, according to nj.com, and makes drug court mandatory for non-violent drug offenders. The new law contemplates implementation across the entire state over the next five years, according to The Star Ledger.

Gov. Christie endorsed the effectiveness of Drug Court to rehabilitate individuals with addictons, as reported by nj.com and pewstates.org.

Notably, drug court costs less than imprisonment, according to nj.com. The state spends $42,000 annually per prison inmate. Drug courts, however, cost $11,300 per inmate, as reported by The Star Ledger.

The law governing drug court eligibility requires certain findings by the court before sentencing an individual to special probation. These findings must include:
  1. the person has undergone a professional diagnostic assessment to determine whether and to what extent he is drug or alcohol dependent and would benefit from treatment; and
  2. the person is drug or alcohol dependent within the meaning of N.J.S.A. 2C:35-2 and was drug or alcohol dependent at the time of the commission of the present offense; and
  3. the person committed the present offense while under the influence of CDS, a CDS analog, or alcohol, or was committed to acquire property or monies in order to support the person's drug or alcohol dependency; and
  4. substance abuse treatment and monitoring will serve to benefit the person by addressing his drug or alcohol dependency and will thereby reduce the likelihood that the person will thereafter commit another offense; and
  5. the person did not possess a firearm at the time of the present offense and did not possess a firearm at the time of any pending criminal charge; and
  6. the person has not been previously convicted on two or more separate occasions of crimes of the first or second degree, other than those listed in paragraph (7); or the person has not been previously convicted on two or more separate occasions, where one of the offenses is a crime of the third degree, other than crimes defined in N.J.S.A. 2C:35-10, and one of the offenses is a crime of the first or second degree; and
  7. the person has not been previously convicted or adjudicated delinquent for, and does not have a pending charge of
    • murder,
    • aggravated manslaughter,
    • manslaughter,
    • kidnapping,
    • aggravated assault,
    • aggravated sexual assault or sexual assault, or
    • a similar crime under the laws of any other state or the United States; and
  8. a suitable treatment facility licensed and approved by the Division of Addiction Services in the Department of Human Services is able and has agreed to provide appropriate treatment services in accordance with the requirements of this section; and
  9. no danger to the community will result from the person being placed on special probation pursuant to this section.
New Jersey Criminal Defense Lawyer Michael Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases involving Drug Court. Call Now—(856) 812-0321.

Peter Gabriel fights injustice with video

Peter Gabriel fights injustice
with video

Power & the Rule of Man

In this talk, Pater Gabriel spoke about WITNESS. According to its website, this 20-year-old nonprofit organization enables people to create video documentaries to tell the world about human rights abuses.

Gabriel described the individual photographers as brave. The violent subject matter of the WITNESS recordings suggests “bravery” is an understatement. Authorities with power know the significance of video documentation. After all, many people understand power corrupts. Indeed, there are those who know it corrupts absolutely.

Power v. the Rule of Law

On November 26, 2012, an ABA Journal item addressed recording government authorities in America. The United States Supreme Court refused to review a Seventh Circuit decision about an Illinois criminal statute on Constitutional Grounds. The statute created a felony for one to record the audio of “all or any part of any conversation” unless all parties to the conversation give their consent. A defendant four to fifteen years if one of the recorded individuals were performing duties as a police officer. American Civil Liberties Union of Illinois v. Anita Alvarez, No. 11-1286 (7th Cir. 2012) available at http://www.ca7.uscourts.gov/tmp/OE0MH5TM.pdf.

In this case, ACLU-Illinois had planned a “police accountability program” in Chicago. This involved openly recording official police conduct in public places. In addition to recording video, the activists were also to record audio of police and individuals speaking at a volume bystanders could hear.

ACLU-Illinois intended, among other things, to record police at protests and demonstrations (“expressive activities”) on streets, sidewalks, plazas, and parks (“public fora”). The organization also planned to record police at expressive activities carried out by its members. To protect videographers from criminal charges, ACLU sought to prevent enforcement of the statute on First Amendment grounds.Ibid.

Rule of Law Prevails

The Seventh Circuit found the statute restricted far more speech than necessary to protect its legitimate interests. Applying the principle that audio and video recordings are among expressive media commonly used to preserve and share information and ideas, the Circuit Court determined the First Amendment also protects making these recordings. Thus, the Circuit Court found the statute would violate the First Amendment’s free-speech and free-press guarantees if applied to ACLU videographers.Ibid.

Notably, the Seventh Circuit ruling is limited to the Illinois statute. Other jurisdictions have considered the issue, including but not limited to the First Federal Circuit, and the State of Oregon. Laws may vary in different jurisdictions. To avoid legal consequences, one ought to find out the law where one lives and plan one's course of conduct accordingly.

Michael A. Smolensky, Esquire, fights injustice in courtrooms across New Jersey.

TED is a nonprofit devoted to Ideas Worth Spreading. It started out (in 1984) as a conference bringing together people from three worlds: Technology, Entertainment, Design. Since then its scope has become ever broader. Along with two annual conferences -- the TED Conference in Long Beach and Palm Springs each spring, and the TEDGlobal conference in Edinburgh UK each summer -- TED includes the award-winning TED Talks video site, the Open Translation Project and TED Conversations, the inspiring TED Fellows and TEDx programs, and the annual TED Prize.

Stop Criminalizing Mental Illness

Elyn Saks

A Tale of Mental Illenss—From The Inside

mental health, elyn saks, TEDTalks
Corral de Locos
(Courtyard with Lunatics)

Francisco de Goya (1746 - 1828)
[Public domain],
via Wikimedia Commons
We must stop
mental illness. It's
a national tragedy and scandal that
the L.A. County Jail is the biggest
psychiatric facility in the
United States. American
prisons and jails
are filled with people
who suffer from
severe mental illness, and many
of them are there because
they never
treatment. I could have
easily ended
up there
or on the streets

--Elyn Saks

South Jersey Criminal Defense Attorney Michael A. Smolensky, Esq., on the World Wide Web.