SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5551-18T1

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

LAVAR REYNOLDS,

Defendant-Appellant.

_______________________

Submitted January 4, 2021 – Decided

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Passaic County, Indictment No. 15-08-0671.

Joseph E. Krakora, Public Defender, attorney for 

appellant (Cody T. Mason, Assistant Deputy Public 

Defender, of counsel and on the briefs).

Gurbir S. Grewal, Attorney General, attorney for 

respondent (William P. Cooper-Daub, Deputy Attorney 

General, of counsel and on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

January 25, 2021
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A-5551-18T1

Defendant Lavar Reynolds appeals from a June 24, 2019 judgment of 

conviction after pleading guilty to fourth-degree violation of a firearms 

regulations, N.J.S.A. 2C:39-10(a). Defendant's guilty plea preserved the right 

to appeal denial of his motions to dismiss the charges and reconsideration. We 

affirm the conviction but remand for resentencing.

On October 11, 2014, defendant worked as a private security guard for an 

after-hours party at a nightclub in Passaic County. Defendant had a ninemillimeter handgun during the event. While the gun was registered and 

defendant had a permit to own the weapon, he lacked a permit to carry the 

handgun.

1

While working security for the event, defendant and another individual 

were arrested for failing to have the requisite carry permits for their guns. At 

the time of his arrest, defendant was a constable, having been appointed by the 

City of Paterson Municipal Council. His term as a constable ran from July 1, 

2013, to June 30, 2016. 

On August 10, 2015, defendant was indicted on one count of seconddegree misconduct, N.J.S.A. 2C:30-2(a), and one count of second-degree 

1

 N.J.S.A. 2C:39-5(b) prohibits possession of a handgun without obtaining a 

permit to carry the weapon.
3

A-5551-18T1

unlawful possession of a weapon, N.J.S.A. 2C:39-5(b).2 Defendant filed a 

motion to dismiss the charges, which was heard on July 25, 2016. As a 

constable, defendant claimed he was permitted to carry a firearm without a 

permit in accordance with exceptions under state and federal statutes. The judge 

denied the motion, stating ". . . I've listened to the arguments of counsel and 

[t]he [c]ourt's decided to rule in favor of [t]he State on this. I don't believe that 

the federal law permits [c]onstables to carry firearms under the circumstances."

In April 2019, defendant moved for reconsideration regarding dismissal 

of the charges. A different judge heard the reconsideration motion. After 

considering defendant's arguments anew, the judge denied defendant's motion

dismiss. 

The judge first reconsidered whether the exceptions in the State statute, 

N.J.S.A. 2C:39-6, allowed him to carry a firearm without a permit. The judge 

determined the statute's exception applied if the person had a contract with a 

governmental agency for the supervision or transportation of persons charged 

with or convicted of an offense. Defendant conceded he did not supervise or 

2 The other individual arrested with defendant was charged with the same 

offenses and pleaded guilty to the weapons charge in exchange for the State's 

dismissal of the misconduct charge and recommendation of probation.
4

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transport persons charged with offenses. Nor did defendant produce a contract 

or other agreement with any governmental agency to perform such tasks. 

Further, in rejecting defendant's argument under the New Jersey statute, 

the judge also noted the State adopted strict gun control laws. According to the 

judge, if the State sought to include constables as persons allowed to carry a 

weapon without a permit, the Legislature would have said so. 

Defendant also argued federal law, specifically the Law Enforcement 

Officers Safety Act of 2004 ("LEOSA" or "Act"), 18 U.S.C. § 926B, allowed 

him to carry a weapon without a permit. The judge found defendant did not 

qualify for an exemption under LEOSA because he was not paid by the County, 

municipality, or any other government agency as an employee for his work as a 

constable. He further determined defendant was not a "qualified law 

enforcement officer" consistent with the Act, and lacked the necessary 

identification card to qualify for an exemption under LEOSA. 

Based on denial of defendant's motions to dismiss the charges, the matter 

was scheduled for trial. On May 6, 2019, after jury selection, defendant 

requested renewal of plea discussions. The judge agreed, and defendant entered 

into a conditional plea to an amended charge of fourth-degree violation of a 

firearms regulation, N.J.S.A. 2C:39-10(a)(1). In exchange, the State agreed to 
5

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dismiss the misconduct charge and recommend probation with 364 days in the 

county jail. 

Defendant was sentenced on June 14, 2019. The judge had "some serious 

misgivings" regarding the recommended sentence. He noted the State argued 

defendant "had the temerity to challenge the constitutionality" of the statutory 

exemptions related to right to carry a firearm without a permit and thus sought 

imposition of a "punitive" sanction against defendant. The judge acknowledged 

his ability to "undercut this plea," but stated "the ramifications would be such 

that it would have a spill over effect on many other cases" and "would negatively 

impact many other people." 

The judge then reviewed the aggravating and mitigating factors. He found 

aggravating factor one, the need to deter future violations of the law, based on 

defendant's status as a constable. In reviewing the mitigating factors, the judge 

found mitigating factor ten applicable because defendant would make "a good 

probationer." He also determined defendant's leading a law-abiding life for a 

substantial period of time rendered mitigating factor seven applicable. The 

judge also considered a non-statutory factor, defendant's work history, in finding 

the "mitigating factors substantially outweighed the aggravating factors . . . ." 

Notwithstanding this finding, the judge explained defendant had "prior contacts 
6

A-5551-18T1

with the criminal justice system" which would "vitiate . . . the presumption 

against incarceration." The judge sentenced defendant in accordance with the 

prosecutor's recommendation. Because the State agreed, the judge stayed the 

sentence pending defendant's appeal from the denial of the motions to dismiss 

the charges. 

On appeal, defendant raises the following arguments:

POINT I

DEFENDANT WAS PERMITTED TO CARRY A 

FIREARM BECAUSE HE WAS A LAWFULLY 

EMPLOYED CONSTABLE.

A. Defendant Was a "Qualified Law 

Officer" and Permitted to Carry a Firearm 

Under Federal Law.

B. Defendant Could Carry a Gun Under 

State Law Because He Supervised 

Arrestees and Was Performing Official 

Duties.

POINT II

RESENTENCING IS REQUIRED BECAUSE THE 

TRIAL COURT IMPOSED A CUSTODIAL TERM 

THAT IT BELIEVED WAS UNWARRANTED AND 

BECAUSE THE RECORD AMPLY SUPPORTED 

ADDITIONAL MITIGATING FACTORS.
7

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Dismissal of an indictment is left to the sound discretion of the trial judge 

and will be reversed only for abuse of discretion. State v. Warmbrun, 277 N.J. 

Super. 51, 59 (App. Div. 1994). An indictment should only be dismissed on the 

clearest and plainest ground, where it is manifestly deficient and palpably 

defective. State v. Hogan, 144 N.J. 216, 228-29 (1996). Generally, "[d]ismissal 

is the last resort because the public interest, the rights of victims and the integrity 

of the criminal justice system are at stake." State v. Williams, 441 N.J. Super. 

266, 272 (App. Div. 2015) (quoting State v. Ruffin, 371 N.J. Super. 371, 384 

(App. Div. 2004)).

We defer to a trial court's findings of fact, which "should not be disturbed 

simply because an appellate court 'might have reached a different conclusion 

were it the trial tribunal.'" State v. Handy, 206 N.J. 39, 44-45 (2011) (quoting 

State v. Johnson, 42 N.J. 146, 162 (1964)). However, legal conclusions by a 

trial court are reviewed de novo. State v. Reece, 222 N.J. 154, 167 (2015).

We first consider whether defendant, as a constable, was exempt pursuant 

to State law from the requirement that he have a permit to carry a firearm. 

Defendant argued he qualified for an exemption under N.J.S.A. 2C:39-6(c). 
8

A-5551-18T1

Specifically, defendant claimed the judge erred in rejecting his exemption under 

subsection (15) and subsection (1) of the statute.

3 We disagree.

N.J.S.A. 2C:39-6(c) sets forth exemptions to N.J.S.A. 2C:39-5, requiring 

a permit to carry a handgun. N.J.S.A. 2C:39-6(c) reads in relevant part:

(1) A special agent of the Division of Taxation who has 

passed an examination in an approved police training 

program testing proficiency in the handling of any 

firearm which the agent may be required to carry, while 

in the actual performance of the agent's official duties 

and while going to or from the agent's place of duty, or 

any other police officer, while in the actual 

performance of the officer's official duties; [or]

. . . .

(15) A person or employee of any person who, pursuant 

to and as required by a contract with a governmental 

entity, supervises or transports persons charged with or 

convicted of an offense . . . .

The judge found the exemptions set forth in N.J.S.A. 2C:39-6 did not 

apply to defendant. The judge explained he was "not satisfied that constable 

[wa]s a law enforcement office[r]" or that constables were covered by the 

statute. The judge rejected the contention that defendant was essentially a police 

3

 Defendant did not present his argument for an exemption under subsection (1) 

to the trial judge. 
9

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officer, invoking the maxim "expressio unius est exclusio alterius,"4and 

concluded if the Legislature intended constables to be exempt from N.J.S.A. 

2C:39-5, it would have specifically referenced constables in N.J.S.A. 2C:39-6. 

The statute's legislative history also supports the judge's determination. 

Previously, constables were authorized to carry a firearm without a permit. See

State v. Nicol, 120 N.J. Super. 503, 506 (Law Div. 1972) (describing N.J.S.A. 

2A:151-43(f), which provided a permit to carry a firearm was inapplicable to 

"[a]ny jailer, constable, railway police, or any other peace officer, when in 

discharge of his duties."). However, the constable exemption to the carry permit 

requirement was removed in 1979 upon the State's adoption of the Code of 

Criminal Justice. In re Rawls, 197 N.J. Super. 78, 88 n.2 (Law Div. 1984). 

While the Legislature could have continued allowing constables to carry 

firearms without a permit, it chose to remove the exemption.

The judge also noted New Jersey's strong position as a "gun control state"

and the Legislature's historical approach to "narrowly constru[ing] exceptions 

to the gun carrying law" in determining defendant did not qualify for an 

exemption under N.J.S.A. 2C:39-6. See State v. Rovito, 99 N.J. 581, 587 (1985) 

4

 A well-known cannon of statutory construction, the phrase means the 

expression of one thing suggests the exclusion of another left unmentioned. See

Brodsky v. Grinnell Haulers, Inc., 181 N.J. 102, 112 (2004).
10 A-5551-18T1

("[E]xemptions from gun statutes should be strictly construed to better 

effectuate the policy of gun control."); see also In re Preis, 118 N.J. 564, 569 

(1990) ("Very few persons are exempt from the criminal provisions for carrying 

a gun without a permit.").

We are satisfied defendant did not qualify for an exemption under 

N.J.S.A. 2C:39-6(c). Subsection (15) of this statute requires an individual to 

undertake responsibility for supervising or transporting persons charged with an 

offense pursuant to a government contract. While defendant may have been 

authorized to supervise or transport persons charged with an offense in his 

capacity as a constable, he was not performing such duties at the time of his 

arrest. In fact, defendant never supervised or transported prisoners. Further, 

defendant did not claim he had a contract to perform such duties. Thus, the 

judge properly determined defendant did not qualify for an exemption under

subsection (15).

For the first time on appeal, defendant asserts he was permitted to carry a 

gun without a permit under N.J.S.A. 2C:39-6(c)(1), which allows individuals to 

carry firearms pursuant to "official duties." He argues constables have 

additional powers and privileges that have "grow[n] out of their official standing 

. . . ." State v. Grimes, 235 N.J. Super. 75, 87 (App. Div. 1989). 
11 A-5551-18T1

In reviewing the record, we discern constables work for private hire and 

are not paid for their work by a governmental agency. Working security at a 

private function, as did defendant at the time of his arrest, does not constitute 

"official duties" to qualify for an exemption under N.J.S.A. 2C:39-6(c)(1). 

Adopting defendant's logic would mean all work performed by a constable, 

including the rendering of services on behalf of private persons, constitutes

"official duties." Such a reading of the exemption is overly broad and 

inconsistent with the statutory intent to limit the exemption from the carry 

permit requirement to persons acting within the scope of their "official duties."

We next consider defendant's argument he was exempt from the carry 

permit requirement as a constable under federal law pursuant to LEOSA. 

LEOSA preempts state laws by granting qualified immunity to certain law 

enforcement officers and allowing those individuals to carry concealed firearms. 

See 18 U.S.C. § 926B. The Act provides:

(a) Notwithstanding any other provision of the law of 

any State or any political subdivision thereof, an 

individual who is a qualified law enforcement officer 

and who is carrying the identification required by 

subsection (d) may carry a concealed firearm that has 

been shipped or transported in interstate or foreign 

commerce, subject to subsection (b).

[18 U.S.C. § 926B(a).]
12 A-5551-18T1

To be exempt under LEOSA, an individual must (1) be a qualified law 

enforcement officer and (2) have the necessary identification. 

A "qualified law enforcement officer" is defined as "an employee of a 

governmental agency who":

(1) is authorized by law to engage in or supervise the 

prevention, detection, investigation, or prosecution of, 

or the incarceration of any person for, any violation of 

law, and has statutory powers of arrest or apprehension 

under [10 U.S.C. § 807(b)];

(2) is authorized by the agency to carry a firearm;

(3) is not the subject of any disciplinary action by the 

agency which could result in suspension or loss of 

police powers;

(4) meets standards, if any, established by the agency 

which require the employee to regularly qualify in the 

use of a firearm;

(5) is not under the influence of alcohol or another 

intoxicating or hallucinatory drug or substance; and

(6) is not prohibited by Federal law from receiving a 

firearm.

[18 U.S.C. § 926B(c).]

The judge determined LEOSA did not "apply for the reasons already 

indicated under the state [law exemption] analysis" because defendant was not 
13 A-5551-18T1

"employed as a police officer . . . or law enforcement, or [by an] agency." The 

judge held:

[W]hile defendant [was] a constable, . . . he [was] not

[part of] a police department. He wasn't authorized by 

a police department to take the test and be exempted 

from having the carry permit. Even if I granted you that 

he was law enforcement and I don't . . . grant you 

because I'm not satisfied that a constable is a law 

enforcement office[r] any more than broadly defined a 

judge would be. Or other public servants.

I—I don't find that he falls within [an] exception either 

because I don't see that imprimatur from a police 

department. Nor is he a special law enforcement 

officer. Nor is he an airport security officer which are 

three specific exceptions . . . .

The judge reasoned the powers accorded to defendant as a constable were no 

different than the powers granted to other public servants, therefore he was not 

a qualified law enforcement officer under LEOSA.

In addition, the judge concluded a constable was not authorized to carry a 

firearm "consistent with the restrictive nature of the State's gun control policy." 

See In re Casaleggio, 420 N.J. Super. 121, 126 (App. Div. 2011) (denying a 

retired assistant prosecutor's application for a carry permit under LEOSA based 

on the State's restrictive gun policy). Because "exceptions from gun statutes 

should be strictly . . . construed to better effectuate the policy of gun control," 

the judge determined defendant could not carry a firearm absent a permit. 
14 A-5551-18T1

We are satisfied the judge correctly concluded defendant was not a 

qualified law enforcement officer to be exempt from the carry permit 

requirement under LEOSA. First, defendant was not paid as an employee for 

his work as a constable by any governmental agency. To the contrary, to be a 

constable, defendant was required to pay the municipality an annual fee. See

N.J.S.A. 40A:9-12. Second, defendant failed to demonstrate he was authorized 

to carry a firearm pursuant to LEOSA. There is no language in the Paterson 

Municipal Code permitting a constable to carry a gun. We concur with the trial 

judge, the right to carry a gun absent a permit "ha[d] to be specifically provided 

. . . under standard statutory construction." In the absence of unambiguous

authorizing language, defendant was not authorized to carry a firearm under 

LEOSA.

Further, defendant failed to present the necessary identification to qualify 

for an exemption under LEOSA. Pursuant to LEOSA, "[t]he identification 

required . . . is the photographic identification issued by the governmental 

agency for which the individual is employed that identifies the employee as a 

police officer or law enforcement officer of the agency." 18 U.S.C. § 926B(d). 

Here, defendant's identification cards did not satisfy the requirements to trigger 

an exemption under LEOSA. The Office of Emergency Management card 
15 A-5551-18T1

produced by defendant was unrelated to his appointment as a constable.5 

Further, defendant's constable cards did not identify him as a police officer or 

law enforcement officer. 

After examining the record, we are satisfied the judge properly denied 

defendant's motions to dismiss the indictment because the state and federal 

statutory exemptions were inapplicable to defendant as a matter of law. 

Thus, we turn to defendant's argument that the judge's qualitative analysis 

during the sentencing hearing did not support the imposition of a custodial term 

and the matter should be remanded for resentencing. We agree.

Our "review of sentencing decisions is relatively narrow and is governed 

by an abuse of discretion standard." State v. Blackmon, 202 N.J. 283, 297 

(2010). Sentencing courts are instructed to consider relevant aggravating and 

mitigating factors to ensure a sentence is reasonable and fair. State v. Natale, 

184 N.J. 458, 488 (2005). In sentencing, courts must engage in this required 

analysis rather than "simply accept[ing] the terms of a plea agreement." State 

v. Warren, 115 N.J. 433, 447 (1989) (citing State v. Spinks, 66 N.J. 568 (1975)).

However, "appellate courts are cautioned not to substitute their judgment for 

5

 Defendant's Office of Emergency Management card produce to the trial court 

expired prior to the date of defendant's arrest.
16 A-5551-18T1

those of [the] sentencing courts." State v. Case, 220 N.J. 49, 65 (2014) (citing 

State v. Lawless, 214 N.J. 594, 606 (2013)). If a sentence "shock[s] the judicial 

conscience" or "the trial court fail[ed] to identify relevant aggravating and 

mitigating factors, or merely enumerates them, or foregoes a qualitative 

analysis, or provides little 'insight into the sentencing decision,' the deferential 

standard will not apply." Ibid. (quoting State v. Kruse, 105 N.J. 354, 363 

(1987)). No deference is afforded if the sentencing court failed to follow the 

sentencing guidelines. State v. Fuentes, 217 N.J. 57, 70 (2014).

Here, the judge sentenced defendant in accordance with the State's plea 

recommendation despite finding the following mitigating factors: factor seven, 

N.J.S.A. 2C:44-1(b)(7), defendant "led a lifetime . . . crime free[,];" factor ten, 

N.J.S.A. 2C:44-1(b)(10), defendant would "make a good probationer[;]" and one 

non-statutory mitigating factor, defendant's work history. In analyzing the 

aggravating factors, the judge found only factor nine, N.J.S.A. 2C:44-1(a)(9), 

the need to deter "defendant and others from violating the law," applicable. The 

judge also noted defendant's prior criminal history as negating the presumption 

against incarceration. In accordance with the plea agreement, the judge 

sentenced defendant to one-year probation conditioned on 364 days in a county 

jail. 
17 A-5551-18T1

Despite finding the "mitigating factors substantially outweigh[ed] the 

aggravating factors," and suggesting jail time might not be appropriate under the 

circumstances, the judge imposed a custodial term, explaining he did not want 

to "undercut [t]he State" or "negatively impact . . . other people." These reasons 

were insufficient to support the sentence. 

The judge expressed "serious misgivings" with the State's sentencing 

recommendation but felt "bound" by the recommendation. The judge noted the 

State's position on sentencing reflected a "punitive" posture and suggested the 

sentence served as a "sanction" for defendant's "temerity to challenge" the gun 

charge. In addition, the judge found defendant "very sympathetic" and an 

"upstanding person." Based on the judge's statements during sentencing, we are

satisfied he failed to conduct the necessary qualitative analysis to ensure 

defendant's "individual characteristics and circumstances" were addressed prior 

to imposing the sentence. Therefore, we remand to the trial court for 

resentencing.

Because we remand for resentencing, defendant may raise any additional 

mitigating factors for the judge's consideration. We leave it to the trial court to 

address the applicability of additional mitigating factors offered by defendant at 

resentencing.
18 A-5551-18T1

Affirmed as to the conviction and remanded for resentencing. We do not 

retain jurisdiction.