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An Overview of New Jersey’s Graves Act

November 4, 2013

Pursuant to the N.J.S.A. 2C:43-6(c) (also known as the “Graves Act”), there are mandatory terms of incarceration and ineligibility for parole for those convicted of specific firearms-related crimes.  Prior to 2008, the act applied only to individual convicted of possession of a firearm for an unlawful purpose or to an individual convicted of possession of a firearm during the commission of certain crimes.  The statute was broadened, however, effective January 13, 2008.  The following offenses committed on or after that date are also included in the Graves Act:

  • Unlawfully possessing a rifle, machine gun, shotgun, or handgun contrary to N.J.S.A. 2C:39-5(a), (b) or (c).
  • Possessing a defaced firearm contrary to N.J.S.A. 2C:39-3(d).
  • Defacing a firearm contrary N.J.S.A. 2C:39-9(e).
  • Possessing of a sawed-off shotgun contrary to N.J.S.A. 2C:39-3(b).
  • Possessing a firearm while committing a drug distribution or possession with intent to distribute offense contrary to N.J.S.A. 2C:39-4.1(a).
  • Possessing certain weapons by individuals convicted of specified firearms offenses contrary to N.J.S.A. 2C:39-7(a) or (b)(2).
  • Manufacturing, transporting, or the disposition of a firearm contrary to N.J.S.A. 2C:39-9(a), (b), or (g).

Unless otherwise provided, the act requires that an individual convicted of the above-mentioned offenses serve a period of incarceration along with a mandatory period of ineligibility for parole fixed at or between the greater of either: (1) 1/3 to 1/2 of the sentence imposed; or (2) three years in cases involving first through third-degree crimes and 18 months in cases involving fourth-degree crimes.  So, for example, if an individual is convicted of unlawfully possessing a handgun contrary to N.J.S.A. 2C:39-5(b) (a second-degree crime), the individual would face five to ten years of incarceration with a mandatory three to five year term of parole ineligibility.

Moreover, those who have prior convictions for certain firearms offenses are subject to enhanced penalties as a “repeat offender.”  Those penalties include an extended period of incarceration in accordance with N.J.S.A. 2C:44-3(d).  Additionally, they are subject to a mandatory term of parole ineligibility fixed at or between the greater of either: (1) 1/3 to 1/2 of the extended sentence imposed; or (2) five years.

Additionally, if the Court determines that an individual is involved in organized criminal activity, pursuant to N.J.S.A. 2C:39-5(i), if the individual is convicted of unlawfully possessing a firearm, they must be sentenced to a mandatory period of parole ineligibility of five years.

Eligibility for the Pre-Trial InterventionDue to the seriousness of a Graves Act offense, defendants are not admitted into PTI with the exception of cases involving extraordinary and compelling circumstances.  An example of such a case is where the defendant had no criminal history, he lawfully obtained and possessed the firearm in another state, and he was travelling though New Jersey at the time of the arrest.  PTI will not be approved if there is an indication that the defendant may be involved in organized criminal activity.

Eligibility for Probation: Defendants are likewise not sentenced to probation unless the case involves extraordinary and compelling circumstances.  Another example would be where the individual had no criminal history, the gun was not loaded, and it was clear that the firearm did not pose a risk to the officers’ or the public’s safety. Like PTI, probation will not be approved if there is an indication that the defendant may be involved in organized criminal activity.

Eligibility for a Waiver:  The procedure of obtaining a reduction or waiver of a mandatory term of incarceration and parole ineligibility is contained in N.J.S.A. 2C:43-6.2.  When deciding whether or approve a waiver, prosecutors in general will consider relevant facts concerning the commission of the offense and defendant’s conduct including any relevant aggravating and mitigating circumstances provided for in N.J.S.A. 2C:44-1.  A waiver is not available if the defendant is involved in organized criminal activity.

If you have been arrested or charged with a firearms-related offense in New Jersey, contact an experienced weapons defense attorney.  Randolph H. Wolf has successfully defended numerous individuals charges with firearms offenses.  Call us today for a free consultation.

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