When is a gun not a gun

NEWTON — One day after a Newton man pleaded guilty to having a CO2-powered BB gun without a permit, the Superior Court in Sussex County took aim at a related firearms topic — plastic pellet guns.

Rules surrounding BB guns are relatively clear, because the metal pellets can cause real damage and hurt someone. But even after a close reading of New Jersey statutes, attorneys said it's unclear whether guns that shoot lighter, hard-plastic pellets should be considered true firearms.

Christopher Apostola, 19, of Newton, was indicted earlier this year for allegedly pointing and firing a Crosman pellet gun at the passenger side of a car at the intersection of Water Street and North Park Drive in Newton on May 2, 2006.

The grand jury charged him with second-degree possession of a weapon for an unlawful purpose, third-degree unlawful possession of a weapon and fourth-degree aggravated assault.

At a status conference Tuesday, the state asked for additional weeks to prepare their case.

Apostola's situation is a "middle-ground case" in the realm of firearms, and some county prosecutors treat pellet gun charges more strictly than others, Assistant Prosecutor Robert L. Klingenburg told Judge Thomas Critchley Jr.

A plastic pellet gun may be ideal for backyard play, but the handler can be criminally charged for using one in a harmful or threatening way against someone or their property.

Newton Police have seen a dramatic increase in the number of pellet gun incidents, and the Sussex County Prosecutor's Office just received a case involving a young man who shot pellets out of the sunroof of a car, authorities said this week.

There are a variety of pellet models — often referred to by the brand name "AirSoft" — which may or may not meet the definition of a firearm, which requires enough force to injure a person, state attorney general spokesman Peter Aseltine said.

"It's really within the discretion of the county prosecutor, based on the facts and circumstances of the case," he said.

Prosecutors in Sussex County would like Apostola to plead guilty to a fourth-degree firearms charge, but the defense will agree only to a non-firearms crime, Klingenburg told the judge.

Apostola's attorney, Robert Mattia, said his client should receive pre-trial intervention, a program that dismisses the charges if conditions are followed during a period of probation.

Under state statute, unlawful use of a weapon includes a device or instrument "from which may be fired or ejected any solid projectile ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing...."

Mattia said a close interpretation of the law lies in favor with his client, because an AirSoft pellet would not likely cause bodily injury or fit the physical description contained in the statute.

In the dictionary, solid can be defined as "not gaseous" — and certainly a hard plastic pellet is not — but it can also mean "not hollow," he said. Unlike BBs, airgun pellets have a small hole inside, according to Mattia.

In a simple analogy, he compared the difference between a plastic pellet and a metal BB to getting hit by a Wiffle Ball or a 98 mph fastball. But under the statute, he said, "I can see why there's confusion."

An observer can immediately tell the weight difference between an AirSoft pellet and a metal BB, said Thomas D. Frapaul, co-owner of the Simon Peter fishing and hunting store in Andover Township.

"You could probably have 10 of these to equal one BB," he said, holding up AirSoft ammo.

AirSoft guns have an orange tip, because, unlike BBs, they were invented for young people to run around and shoot each other while wearing eye protection, Frapaul said.

Some people paint over the orange tip, creating a dangerous situation for police who respond to an incident and do not know whether a firearm is real.

"If you looked at a Beretta 92, it look just like this," Frapaul said, holding up a plastic pellet gun.

New Jersey residents must be 18 years old to buy an AirSoft gun, but must have a firearms permit to purchase metal-pellet guns such as the BB rifles behind the counter at Simon Peter.

Assemblyman Guy Gregg, R-Sussex, Hunterdon, and Morris, introduced a bill in November to revise the law and state that BB guns are not firearms and therefore not subject to "New Jersey's strict firearms licensing and permitting statutes."

Mattia believes that pellet guns would be included in this bill, since they are considered more benign than BB guns.

"Some very clear legislation is needed," he said.