Monmouth County Weapon Lawyers

Monmouth County Weapon Offenses

The range of weapon offenses someone can be arrested for in Monmouth County are set forth in Subtitle 39 of the NJ Criminal Code. Almost all of these charges are indictable crimes of the fourth degree, third degree or second degree that can only be dealt with at the Monmouth County Superior Court which is located in Freehold. There are very few weapon cases, and certainly none involving a handgun, shotgun or rifle, that are heard in municipal court. You will obviously need to be represented by a Monmouth County weapon defense attorney with considerable experience handling these types of cases if you want to have the best opportunity for avoiding penalties. The following is a summary of the more common weapons offenses:

I. Unlawful Possession of a Weapon – N.J.S.A. 2C:39-5

There are basically five (5) ways that someone can find themself charged with violating this criminal law and that is by possessing: (1)a machine gun; (2) a handgun in any context without a New Jersey permit to carry, other than transporting a licensed handgun to or from a gun range or gun smith; (3) a rifle or shotgun without first obtaining a firearms purchaser identification card; (4) a firearm or imitation firearm at an educational institution or school; or (5) an assault firearm.

In terms of the grading of an unlawful possession of a weapon offense, you can face a first degree, second degree, third degree, fourth degree or even disorderly persons offense depending on the type of charge and your prior record. It is a first degree crime someone with a prior No Early Release Act (“NERA”) conviction to possess a machine gun, handgun, or assault firearm. It is a second degree crime to possess a machine gun, a handgun without first obtaining a permit to carry, or an assault rifle or similar firearm. A third degree unlawful possession of a weapon charge is triggered where someone possesses a handgun that is in the nature of a air gun or spring gun such as a BB gun or pellet gun, a rifle/shotgun without first obtaining a firearms purchaser identification card, a loaded rifle or shotgun, or a firearm on school grounds. It is a fourth degree crime under 2C:39-5 to possess any other weapon under circumstances not manifestly appropriate for lawful use. A disorderly persons offense, a municipal court charge, arises where someone is in possession of an imitation firearm on school or educational institution property.

Please note that there is an exemption under the Second Amendment to the United States Constitution that can apply in this context to preclude prosecution for unlawful possession of a firearm. This exemption allows an individual to be in possession of a handgun, rifle or shotgun at their residence or place of business. You cannot be charged with this weapons offense when this is the scenario since your gun rights are protected by the constitution.

II. Possession of a Weapon For an Unlawful Purpose – N.J.S.A. 2C:39-4

This offense is commonly referred to as an inchoate crime because it does not require actual use of the weapon – possession alone triggers a violation where the person’s intention is to use it unlawfully.  possession alone There are basically four (4) elements to this charge: (1) the item must be a weapon (i.e. capable of inflicted harm to person or property); (2) it must be possessed, meaning that the accused has knowledge or awareness that the weapon is within his/her control; (3) the purpose of the defendant must be to use it against the person or property of another; and (4) the intended use must be prohibited by law.

It is a second degree crime for someone to be in possession of any form of firearm, a community gun, or an explosive/destructive device with an unlawful purpose. It is a third degree crime to possess a weapon, other than a firearm, with an unlawful purpose to use it against another person or their property. This weapons charge results in a fourth degree crime where the item is an imitation firearm.

III. Certain Person Not to Possess a Weapon – N.J.S.A. 2C:39-7

An individual is disqualified from possessing a weapon if they are convicted of certain criminal offenses in New Jersey. If an individual fails to comply with this limitation and is found in possession of a firearm or other weapon, they face a conviction for a certain persons offense under 2C:39-7. An individual becomes a “certain person” and is exposed to this weapons offense once they are convicted for:

• Aggravated assault—N.J.S.A. 2C:12-1b
• Arson—N.J.S.A. 2C:17-1
• Burglary—N.J.S.A. 2C:18-2
• Escape—N.J.S.A. 2C:29-5
• Extortion—N.J.S.A. 2C:20-5
• Homicide—N.J.S.A. 2C:11-2
• Kidnapping—N.J.S.A. 2C:13-1
• Robbery—N.J.S.A. 2C:15-1
• Aggravated sexual assault—N.J.S.A. 2C:14-2
• Sexual assault—N.J.S.A. 2C:14-2b
• Bias intimidation—N.J.S.2C:16-1,
• Carjacking N.J.S.A. 2C:15-2
• Gang criminality N.J.S.A. 2C:33-29
• Racketeering N.J.S.2C:41-2,
• Terroristic threats N.J.S.2C:12-3,
• Unlawful possession of a machine gun N.J.S.2C:39-5a;
• Unlawful possession of a handgun N.J.S.2C:39-5b,
• Unlawful possession of an assault firearm N.J.S.2C:39-5f;
• Leader of firearms trafficking network N.J.S.A. 2C:39-16
• Endangering the welfare of a child pursuant to N.J.S.2C:24-4
• Possessing a prohibited weapon N.J.S.2C:39-3,
• Possessing a weapon for an unlawful purpose—N.J.S.2C:39-4 or
• Manufacture or transport of weapons—N.J. S.2C:39-9
• Criminal unlawful use, possession or sale of CDS (non-D/P level)
• Stalking—N.J.S.A. 2C:12-10
• Crime or offense involving domestic violence—N.J.S.A. 2C:25-19
• Leader of narcotics trafficking network—N.J.S.A. 2C:35-3
• Maintaining a CDS production facility—N.J.S.A. 2C:35-4
• Manufacture/distribution of CDS—N.J.S.A. 2C:35-5
• Employing a juvenile in a drug distribution scheme—N.J.S.A. 2C:35-6
• School zone distributions—N.J.S.A. 2C:35-7
• Imitation CDS—N.J.S.A. 2C:35-11

An individual is also disqualified in this manner if he/she is convicted of a domestic violence offense, even one that is a disorderly persons offense like simple assault, contempt, or trespass, or if they are they are the subject of a domestic violence restraining order. The same is true if an individual has been previously adjudicated mentally incompetent or is the subject of an Extreme Risk Protection Order (“ERPO”). An individual’s firearms are seized when they are served with a restraining order, a protective order or found to be mentally incompetent, so the law presumes that they are notice that they can no longer possess a weapon lawfully.

It is a second degree crime for a certain person to purchase, own, possess or control any type of firearm, including a handgun, rifle or shotgun. A conviction for violating this law also triggers a mandatory period of parole ineligibility of five (5) years, during which the defendant is ineligible for parole.  It is a third degree crime for someone to possess a weapon in violation of 2C:39-7 after they have been convicted for domestic violence, if they are the subject of a restraining order because of an assault charge, or if they are the subject of a ERPO. An individual is exposed to a fourth degree crime if they possess a weapon after being subject to psychiatric disqualification.

IV. Prohibited Weapons – N.J.S.A. 2C:39-3

Another weapons charge that arises with frequency in Freehold NJ at the Monmouth County Superior Court is possession of a prohibited weapon in violation of 2C:39-3. There are 12 categories of weapons that are illegal to knowingly possess in New Jersey, including:

1. Destructive Devices. A deadly weapon designed to explode or produce combustion such as a grenade, bomb, missile, rocket, large projectile, or Molotov cocktail.
2. Sawed-off Shotguns. A long firearm falls within this classification if its barrel measures less than 18 inches.
3. Silencers
4. Defaced Firearms. A handgun or other firearm is defaced where the name of the maker, model, serial number, or another distinguishing characteristic is removed, covered, altered, or destroyed.
5. Dum-dum or Armor-piercing Ammunition. Bullets that are hollow-tipped, Teflon coated, or otherwise capable of piercing a protective vest are illegal.
6. Large Capacity Magazine. A magazine is prohibited in this manner if it is capable of holding 10 rounds or more of ammunition.
7. Handcuffs
8. Bump Stock or Trigger Crank
9. Stun Guns
10. Covert or Undetectable Firearms. Possession of a ghost gun or other firearm that is undetectable is a crime.
11. Firearms Without a Serial Number. It is also illegal to possess a firearm with a frame or receiver which is not imprinted with a serial number.
12. Certain Other Weapons. Knowing possession of the many other types of weapons are also illegal altogether in NJ, including a gravity knife, switchblade knife, dagger, dirk, stiletto, billy club, blackjack, metal/brass knuckle, sandclub, batton, or slingshot.

Illegal weapon charges in violation of N.J.S.A. 2C:39-3 fall within the range of a third-degree crime, fourth-degree crime or, in the limited case of handcuffs, a disorderly persons offense. It is a third-degree crime to possess destructive devices, a sawed-off shotgun, a bump stock or trigger crank, a covert or undetectable firearm, or a firearm that does not have a serial number. Possession of a prohibited weapon results in a fourth degree crime it involves a silencer, defaced firearm, gravity knife, switchblade, dagger, dirk, stiletto, batton, billy club, blackjack, brass knuckle, sandclub, or slingshot, hollow tip or other body piercing ammunition, large capacity magazine, or stun gun.

V. Possession of a Firearm During the Commission of a Drug/CDS Offense – 2C:39-4.1.

This law makes it illegal to possess a handgun or long-gun during the course of committing, attempting to commit, or conspiracy to commit:

1. Leader of a Narcotics Trafficking Network – N.J.S.A. 2C:35-3
2. Maintaining a CDS Production Facility – N.J.S.A. 2C:35-4
3. Manufacturing, Distributing, or Dispensing CDS – N.J.S.A. 2C:35-5
4. Manufacturing Gamma Hydroxybutyrate – N.J.S.A. 2C:35-5.2
5. Manufacturing Flunitrazepam – N.J.S.A. 2C:35-5.3
6. Employing a Juvenile in a Drug Distribution Scheme – N.J.S.A. 2C:35-6
7. Distribution in a School Zone – N.J.S.A. 2C:35-7
8. Distribution in a Public Park or Housing Project – N.J.S.A. 2C:35-7.1
9. Imitation CDS – N.J.S.A. 2C:35-11
10. Bias Intimidation – N.J.S.A. 2C:16-1

A conviction for this second-degree crime is unlike most weapon charges since a conviction does not merge with the underlying possession offense, for example, unlawful possession of a handgun. The result of this fact is that a prison sentence imposed in accordance with 2C:39-4.1 must run consecutive to the sentence for the underlying offense.

It should be abundantly apparent that a weapons charge should be taken very seriously given the consequences of a conviction. It is also worth mentioning that law enforcement, including members of the Monmouth County Prosecutors Office, tend to take an aggressive approach whenever they are confronted with defendants in possession of a weapon, especially one that is a firearm or a deadly weapon. Selection of the right Monmouth County criminal defense lawyer is certainly significantly important for anyone charged with violating subtitle 39 of 2C of New Jersey law.

Penalties If You Are Convicted

The penalties imposed at sentencing for a weapons offense hinge largely on the type of violation involved. The following is a breakdown of the penalties that apply for each level of crime:

• First Degree Crime. The court can impose 10-20 years in state prison and a fine of up to $200,000.
• Second Degree Crime. The range of imprisonment is 5 to 10 years and the maximum fine is $150,000.
• Third Degree Crime. The range of incarceration is 0 to 5 years with a presumptive sentence of 3-5 years in prison. The potential fine for a third-degree weapon offense is up to $15,000.
• Fourth Degree Crime. You can be imprisoned for up to 18 months and fined $10,000 for a fourth-degree weapon violation.

It must also be kept in mind that subtitle 39 cases frequently include companion theft crimes, domestic violence, drug/cds, or other underlying offenses. The fact that someone is committing a crime while in possession of a firearm or other weapon is often the entire basis for this type of violation. Conversely, a non-weapon charge can be enhanced in severity, for example, an aggravated assault or robbery, when the accused is in possession of a weapon.

Graves Act Implications

The Graves Act requires that a period of parole ineligibility (a.k.a. mandatory minimum term of imprisonment) be imposed at the time of sentencing for many gun offenses, including unlawful possession of a handgun. The period of parole ineligibility must be set at one-half of the sentence imposed or 42 months, whichever is greater, for a first degree, second degree or third degree Graves Act offense. This represents the minimum period that a defendant must serve in prison before he/she can be considered for parole. is the greater of one-half of the sentence imposed or  forty-two (42) months when the conviction is for a first degree, second degree or third degree crime. The minimum term is 18 months for a fourth degree Graves Act offense.

Disqualification from Pre-trial Intervention & Drug Court. An individual is ineligible for Pretrial Intervention if they are facing a weapons charge for possession a machine gun, handgun, assault rifle,  or is a person who has a prior conviction for a No Early Release Act (“NERA”) offense. A similar disqualification applies to drug court since individuals with a pending offense or prior conviction for a gun offense are excluded from the program.

Defenses To Weapon Charges

There are an array of potential defenses to a weapon offense in Monmouth County or anywhere else in New Jersey. The following are some of the more frequently encountered defenses:

1. Your Rights Against Unreasonable Search & Seizure Were Violated. The Fourth Amendment of the United States Constitution guarantees that every citizen shall be free from unreasonable searches and seizures. What this means is that a law enforcement officer (e.g. member of the local police or detective in the Monmouth County Prosecutors Office) cannot conduct a warrantless search of your car, residence or other structure except under special circumstances and then, only if supported by probable cause. If this constitutional right is violated and evidence is seized unreasonably, it cannot be introduced at trial to proof guilt.
2. The State Is Unable To Prove The Weapon Offense Beyond A Reasonable Doubt. The prosecutor has an obligation to prove each and every element of a weapon offense beyond a reasonable doubt. The related charge must be dismissed if the state is unable to satisfy this burden of proof.
3. Lack of Knowledge or Intent. A fundamental element of just about every weapon offense prosecuted at the Monmouth County Courthouse is knowledge that the weapon is present and an intention to exercise control over the item. The state cannot sustain a weapon charge if it cannot prove both knowledge and intent.
4. Your Miranda Rights Were Violated. An individual cannot be subjected to a custodial interrogation without being read his rights. If this constitutional protection is not fulfilled, any admissions made by the person interrogated cannot be used against them. Suppression of the statement can provide success in dismissing a violation where the admission is a fundamental to the state proving its case.

The defenses outlined are only the most common ones that arise in Monmouth County weapon cases. To learn what can be done to defend the weapon charges you are facing, contact our Freehold Office at 732-462-1197. A Monmouth County weapon lawyer is available to conduct a comprehensive review of the facts of your matter and to outline your best options for avoiding a criminal record and penalties.

Bail & Pretrial Release

New Jersey no longer has a classic bail system for securing pretrial release. The process is now much more complicated with a high percentage of individuals getting arrested and taken to the Monmouth County Correctional Institute (i.e. Monmouth County Jail) after being charged with possession of a weapon of almost any nature.

The arrestee will have a first appearance before Monmouth County Judge within forty-eight (48) hours but must have his/her Public Safety Assessment (“PSA”) to assist the court in crafting terms for pretrial release. A PSA forecasts the risk on a scale of 1 to 6 of the defendant committing another offense if released and also the risk of not appearing in court after release. A score of 1/1 is the best someone can obtain and a score of 6/6 is the worst possible outcome.

The judge must decide what the terms for release will be when the accused appears at his/her initial appearance.  The individual can be released on his/her own recognizance (“ROR”), on level I report, on level II report, on level III report, or on level III Plus reporting. There is also the possibility that pretrial release is denied altogether based on the court finding that the risk associated with releasing the individual is too high.

You should know that the New Jersey Attorney General has issued a directive that prosecutors filing a motion to detain whenever someone is charged with unlawful possession of a handgun. This means that a defendant will be held at the county jail in Freehold for an additional three (3) business days and that a contested hearing will be conducted to determine whether or not the defendant shall be released. Motions to detain are also very common in domestic violence related weapon cases, weapon cases involving violent crimes, and it situations where an individual has a significant prior record.

It is a very risky proposition for someone arrested on a weapon charge in Monmouth County to delay in hiring a defense lawyer since failure to win a detention hearing will result in pretrial detention until conclusion of the related case. If the end result of the matter is a conviction and a term of incarceration, this means that the individual will never get out of jail or prison until the entire sentence is satisfied. I hope this is ample encouragement for you to contact our Monmouth County criminal lawyers immediately so that a proper defense is presented at the initial appearance and/or detention hearing.

Why You Should Hire Our Monmouth County Gun Lawyers

No matter what, you are entitled to the presumption of innocence until proven guilty in a court of law. This is a fundamental principle of our criminal justice system, and it ensures that everyone accused of a crime has a fair chance to defend themselves.

You also have a Constitutional right to a zealous defense, which can raise doubts about the charges against you and ultimately resolve your case in a manner favorable to you.

While you have the rights that we have just described, it is up to you to take the steps necessary to exercise these rights. The first step is to hire a weapons defense lawyer with the skill to maximize your chances of an acquittal. We genuinely believe that the lawyers at Marshall Criminal Defense represent your very best option in Monmouth County.

The attorneys at our law firm know how to properly develop a defense that will cast doubt on the prosecution’s version of events so that you can achieve a finding of not guilty or beneficial plea bargain.

Contact our office as soon as you are able so that we can:

• Work to secure your release for the lowest bail available .
• Begin our investigation into the weapons charges against you, including obtaining statements from witnesses and reviewing police reports and other evidence connected to the case.
• Argue that disputable evidence should be excluded from further proceedings.
• Identify holes in the prosecution’s case such as illegal search and seizure, illegal arrest, failure to inform of Miranda rights, improper suspect lineup, unavailable witnesses, false or impeachable witness testimony, issues with chain of custody, inability to prove control of the weapon, bias, or other prosecutorial or police misconduct.

Weapons and gun cases are often complex, and it is not unusual to find that police did not have all of the facts at the time of an arrest. In some cases, we may be able to negotiate a reduction or dismissal of your charges.

We may be able to make a deal and avoid trial if you’re facing a first charge and no one was harmed or no significant property damage occurred. Our attorneys are respected and are able to negotiate deals for our clients because they have built working professional relationships with prosecutors in Monmouth County over decades of legal practice.

And if your case must go to trial, our team of attorneys will use the evidence gathered in our investigation and our extensive litigation experience to give you a strongest possible defense.

While every case is unique, our firm has a solid track record of obtaining successful outcomes

We have a deep understanding of how crimes involving weapons are prosecuted in Monmouth County and throughout New Jersey. Our team includes former Monmouth County prosecutors who know what the other side is planning. We use this knowledge to develop creative and effective strategies that have helped our clients achieve positive outcomes in court.

If you are facing gun or weapon charges in Freehold at the Superior Court, contact one of our Monmouth County law offices to schedule a consultation with one of our experienced criminal defense attorneys.