Graves Act

Table of Contents

New Jersey has adopted strict laws to discourage individuals from possessing firearms and other weapons illegally. A primary measure adopted to achieve this goal is the Graves Act, which imposes mandatory prison sentences for those who commit certain crimes while in possession of a handgun, shotgun, rifle or other firearm. The Graves Act was also expanded in 2008 to apply to unlawful possession of a handgun, unlawful possession of a rifle or shotgun and several other possessory weapons offenses. If you were arrested because you were allegedly in possession of a firearm while committed a criminal offense or were charged with illegal possession of a gun, the Graves Act requires that you go to prison if you are convicted. There certainly is no question that you need the services of an accomplished New Jersey Criminal Lawyer if you have been charged in this manner.

We are the Law Offices of Jonathan Marshall, a powerhouse defense firm that can offer you qualifications that are clearly very unique, including:

  • A team of ten (10) lawyers whose practice is limited exclusively to representation of clients accused of violating the law
  • Over 200 years of combined experience handling firearm cases throughout New Jersey
  • Former county prosecutors that include a former Director of the Guns Task Force, Major Crimes Bureau and an entire Trial Division
  • Criminal trial attorneys, a designation granted by the NJ Supreme Court to less than 2% of those practicing in the state
  • A rich history of securing Graves Act waivers and other relief so that incarceration is avoided in illegal handgun and other cases where parole ineligibility otherwise applies

An attorney on our staff is available by telephone 24/7 to discuss an initial appearance, a detention hearing or any other subject matter you want to discuss. To reach a lawyer who is highly knowledgeable in NJ firearms laws and how to effective defense a Graves related offense, call 855-450-8310 for a free consultation.

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When Does The Graves Act Apply?

The law known as the Graves Act is contained at N.J.S.A. 2C:43-6, subsection (c). An individual falls within the sentencing requirements of this statute if they commit a violence crime while in possession of a firearm or if they illegally possess certain firearms.

I. Crimes That Fall Under The Graves Act When Committed With A Firearm
The following crimes require imposition of a mandatory minimum term of imprisonment if they are committed while in possession of a firearm:

  • Possession of a firearm for an unlawful purpose
  • Murder
  • Manslaughter
  • Aggravated Assault
  • Kidnapping
  • Aggravated Sexual Assault
  • Aggravated Criminal Sexual Contact
  • Robbery
  • Burglary
  • Escape.

II. Possessory Weapon Offenses Falling Under the Graves Act
There are also instances when the Graves Act applies simply because an individual possesses a firearm illegally. This occurs when someone commits the following offenses:

  • Unlawful Possession of a Sawed-Off Shotgun
  • Possession of a Defaced Firearm
  • Possession of a Firearm While Committing a Drug Offense
  • Unlawful Possession of a Machine Gun
  • Unlawful Possession of a Handgun
  • Unlawful Possession of Rifle or Shotgun
  • Certain Person Not to Have a Weapon
  • Manufacture, Transport, Disposition and Defacement of a Firearms
  • Unlawful Possession of an Assault Firearm

Other Important Considerations Relating To Applicability of the Graves Act

There is no distinction whether a gun is loaded or unloaded under this law. As a result, someone is subject to the Graves Act even though the handgun or firearm was unloaded. In fact, the prosecutor isn’t even required to demonstrate that the gun was operable.

Another important consideration under this heading is that accomplice liability applies under the Graves Act. What this means is that you can be convicted of a charge falling within this law even though he did not use or possess a firearm if you were an accomplice to the individual who committed the predicate offense. The test that determines applicability of the Graves Act in this context is whether or not the accused knew or had reason to know that his or her co-defendant would use or be in possession of a firearm. See State v. Macine, 241 N.J.Super. 166, 192 (App.Div.1990).  Liability is extended in this setting under the theory that the parties shared the same purpose and should therefore be subject to the same penalties.

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Mandatory Minimum Sentence

As previously stated, a minimum period of imprisonment must be imposed when someone is sentenced for a Graves Act offense. The minimum term, also referred to as the period of parole ineligibility, 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 mandatory minimum term of incarceration is eighteen (18) months for a fourth degree crime falling under the Graves Act.

Partial Relaxation Afforded By The Attorney General’s 2008 Directive

In 1989, the New Jersey Legislature adopted N.J.S.A. 2C:43-6.2. This law outlines the process for obtaining a waiver of the mandatory imprisonment required under the Graves Act. The statute authorizes the reduction of the mandatory minimum term of imprisonment to one (1) year for individuals having no prior firearm convictions. In recognition of this legislative change, the attorney general issued a directive in 2008 allow prosecutors, in the typical first offender case, to offer a one year sentence without the possibility of parole.

The only way that a defendant can obtain relief beyond the one year mandatory minimum term of imprisonment authorized by the directive is to obtain a formal Graves Act Waiver or Pretrial Intervention. The guidelines for securing a waiver are both complicated and highly restricted. A detailed discussion of this subject can be found under How To Secure a Graves Act Waiver. Pretrial Intervention (“PTI”) is extraordinarily rare when someone is facing a Graves Act eligible charge. A detailed discussion of that subject can be found under Pretrial Intervention in Gun Cases.

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Limitations on Plea Bargaining

The New Jersey Supreme Court has created strict guidelines and restrictions on plea bargaining in cases falling under the Graves Act. A court is precluded under Supreme Court Directive #10-80 from accepting a plea that provides for the dismissal of a firearm offense that carries a mandatory term unless one of the following occurs:

  1. The prosecutor indicates in open court that the evidence in the case is insufficient to support a conviction or that the probability of a dismissal is so great that the interests of justice warrant a dismissal.
  2. The defendant is being sentenced to a term of imprisonment that is equal to or greater than the term that would apply under the Graves Act charge being dismissed.
  3. The prosecutor places on the record (e.g. in camera or open court) that the plea bargain is essential to assure the defendant’s cooperation with the prosecution; in other words, the accused must be a cooperating witness.

Any sentence that is imposed in a manner inconsistent with these limitations is illegal, void and subject to correction at any time.

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How to Secure a Graves Act Waiver

In order for an individual to avoid the mandatory minimum sentence required under the Graves Act, the prosecutor must file a motion with the court to secure a Graves Act Waiver. This course of action must be approved by the County Prosecutor because there are “extraordinary and compelling reasons that take the case outside the heartland of the legislative policy to deter unauthorized gun possession.” The motion must establish that:
  1. The defendant has no prior Graves Act charges (i.e. convictions); and
  2. The interests of justice would not be served if the normal mandatory term was imposed.

Based on the contents of the motion and evidence otherwise existing in the case, the assignment judge has one of three (3) options. First, he or she can deny the motion based on failure to demonstrate the requirements for a waiver. Second, the judge can reduce the term of imprisonment to one (1) year. The third option is for the court to place the defendant on a term of probation. Our attorneys are adept in obtaining waivers for clients charged with unlawful possession of a handgun or any other variety of firearm falling under the Graves Act.

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Pretrial Intervention in a Gun Case

There is a presumption against Pretrial Intervention (“PTI”) when someone is charged with a second degree crime or where a mandatory period of parole ineligibility applies such as where someone is charged with a Graves Act offense. Notwithstanding considerations like these against PTI in a handgun and other firearm case, the courts have recognized that there are “rare cases involving extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession’. See Attorney General Clarification of 2008 Graves Act Directive (2014) at Paragraph 5. There are three considerations that should guide the prosecutor in making this assessment:
  1. Minimal Exposure of the Firearm to Persons in New Jersey
  2. The Gun-Possession Offense was Isolated and Aberrational
  3. Volunteering the Presence of the Firearm to Police
  4. Surrender an Unloaded Firearm to Police
  5. Circumstances Concerning Confusion of New Jersey and Other State Law

The considerations are unquestionably angled toward out-of-state residents who bring legally acquired handguns into the state, hence, the inquiry into confusion regarding our law, minimal exposure to persons in New Jersey and the situation is isolated. Why is this the case? The reason is because these are the types of handgun cases that fall “outside the heartland” of the Graves Act. This does not mean that it is impossible for a resident of the state to also secure PTI but this relief is clearly even more unusual. Hiring the right attorney is obviously exceptionally important for anyone interested in securing this relief.

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Why Choose Us

There are very few areas of New Jersey criminal law that are more treacherous than the Graves Act. The state has strict rules regarding possession of firearms, particularly handguns, and the penalties are extreme when they are violated. There is no room for anything other than a highly talented defense lawyer when someone is confronted with a charge falling within the mandatory prison terms of the Graves Act. Our team of attorneys have exactly what you need with many accomplished litigators that possess an established track record of success in obtaining waivers and otherwise avoiding convictions for unlawful possession of a firearm, possession of a handgun for an unlawful purpose and similar weapon charges. You cannot afford to be sold on puffery since failure to win your gun case will probably result in a long period of imprisonment. Take a close look at the qualifications of those you are considering and, if you do, we are certain you will be calling our firm for a free consultation. A lawyer is ready to take your call now.

 

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