One would be shocked by the number of telephone calls I get every year from individuals arrested for illegal weapon possession at or on their way to a NJ casino. The scenarios go on and on. There is the guy who is charged when a pistol is discovered by police as a result of a domestic event with a wife, girlfriend, or boyfriend at a casino. We also find individuals running into trouble by virtue of partying in their room and the situation escalating to the point that the police are summoned. Another common scenario is the accused who leaves a weapon in his vehicle while or after valet parking, or in a bag at Atlantic City Airport.

The truth is that New Jersey takes unlicensed handguns very seriously and mandates imposition of a jail sentence in most cases. One would assume that this fact would prompt individuals to retain private counsel soon after arrest but the unfortunate reality is that the majority of the calls I receive involve out-of-state residents who take the charges lightly, opt for a public defender, and finally realize what they are up against when they are facing a plea cutoff. The plea cutoff typically requires that the defendant either accept a plea that involves 1 or 3 years of parole ineligibility, meaning that they must serve at least one year or three years of any sentence before they are even eligible for release from jail (e.g. 3 years with 1 year of parole ineligibility or 5 years with 3 years of parole ineligibility), or proceed to trial and face at least 5 years in jail if found guilty.  Why do individuals repeatedly make this mistake — a lack of knowledge of the law and penalties for unlicensed handgun possession in NJ. Indeed, what may apply in terms of handgun possession in states like, for example, Florida, Virginia, Georgia, Pennsylvania, has no bearing in this state.

My hope is that through blog posts like this and other information on the internet, suspects charged with possessing an illegal gun will seek legal assistance early. Perhaps, this will translate into better outcomes for the long list of defendants who end up contacting us when it is too late to avoid a mandatory jail sentence and/or conviction. An even more optimist goal is to encourage individuals to  leave their guns at home when they visit New Jersey as there really is no legally permissible use for them within the state absent a license.

The “Graves Act,” N.J.S.A. 2C:43-6(c), requires the imposition of a minimum term of imprisonment and parole ineligibility for certain gun-related crimes.  Until its amendment in 2008, the “Graves Act” only applied when a person was convicted of possessing or using a firearm while in the course of committing certain predicate crimes, or possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a).  However, following that amendment, the list of offenses that are now subject to the “Graves Act” was significantly expanded and now includes a number of possessory firearms crimes, including:

·                     Unlawful Possession of a Machine Gun, Handgun, Rifle or Shotgun, in violation of N.J.S.A. 2C:39-5(a), (b) or (c). 

·                     Possession of a Sawed-Off Shotgun, in violation of N.J.S.A. 2C:39-3(b).

·                     Possession of a Defaced Firearm, in violation of N.J.S.A. 2C:39-3(d).

·                     Possession of a Firearm While in the Course of Committing a Drug Distribution or Possession With Intent to Distribute Offense, in violation of N.J.S.A. 2C:39-4.1(a).

·                     Possession of Certain Weapons by Persons Previously Convicted of Specified Offenses, in violation of N.J.S.A. 2C:39-7(a) or (b)(2).

·                     The Manufacture, Transport, or Disposition of a Machine Gun, Sawed-Off Shotgun, or Assault Firearm, in violation of N.J.S.A. 2C:39-9(a), (b), or (g).

·                     The Defacement of a Firearm, in violation of N.J.S.A. 2C:39-9(e).

Except as otherwise provided or negotiated, a person convicted of any of the foregoing crimes must be sentenced to a term of imprisonment with a minimum term of parole ineligibility fixed at, or between, one-third to one-half of a sentence imposed, or three years, whichever is greater (or eighteen months in cases involving crimes of the Fourth Degree).  In other words, if a person is convicted of the “Graves Act” offense of Unlawful Possession of a Handgun, in violation of N.J.S.A. 2C:39-5(b), a crime of the Second Degree, the sentencing range is between five and ten years New Jersey State Prison with a period of parole ineligibility of between three and five years. 

Additionally, a person convicted of a “Graves Act” offense who has previously been convicted of certain firearms offenses must be sentenced to a mandatory extended term of imprisonment, pursuant to N.J.S.A. 2C:44-3(d).  When that “repeat gun offender” statute applies, the sentence imposed must include a minimum term of parole ineligibility fixed at or between one-third to one-half of the extended term sentence, or five years, whichever is greater. 

Moreover, N.J.S.A. 2C:39-5(i) provides that a person convicted of the unlawful possession of a machine gun, handgun, or assault firearm must be sentenced to parole ineligibility term of five years if the sentencing court finds that the organized criminal activity aggravating factor – N.J.S.A. 2C:44-1(a)(5) – applies.

Potential Resolutions to Graves Act Offenses

The Pre-Trial Intervention (PTI) Program

In general, persons charged with any crime of the First or Second Degree, or those charged with an offense that carries a mandatory minimum term of imprisonment, such as the “Graves Act,” are subject to a presumption of PTI ineligibility.

While a defendant’s PTI application cannot be categorically denied, the Legislature’s 2008 policy decision to significantly upgrade the seriousness of firearm offenses has caused prosecutors to withhold their consent to a defendant’s admission to PTI unless the case involves extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession.  For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the defendant lawfully acquired and possessed the firearm in a different state, and the defendant’s presence in New Jersey was incident to lawful travel.

For information regarding the lawful transport of firearms into/through New Jersey, see:  http://www.njsp.org/about/fire_trans.html

Probation

Prosecutors will generally withhold their consent to a probationary sentence unless there are extraordinary and compelling reasons that take the case outside the heartland of the legislative policy to deter unauthorized gun possession.  For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the firearm was unloaded, and the circumstances make clear that the firearm posed no risk to officer or public safety.  In such rare instances, the imposition of a state prison term would constitute a serious injustice that overrides the need to deter others from unlawfully possessing a firearm.

Waiver or Reduction of Sentence

N.J.S.A. 2C:43-6.2 outlines a procedure to allow for the reduction or waiver of an otherwise mandatory minimum term of imprisonment and parole ineligibility imposed under the “Graves Act.”  In determining whether to move for or approve the waiver or reduction of a minimum term of parole ineligibility under that statute, prosecutors generally consider all relevant circumstances concerning the offense conduct and the offender, including those aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1.

Note, however (as indicated above), that a waiver or reduction will not be approved when there is an indication that the offender may be subject to the organized criminal activity aggravating factor.