New York Handgun Owner Arrested for Possessing an Illegal Handgun

What Is Unlawful Possession Under NJ Law?

The United States Constitution preserves the right of an individual to possess and bear a handgun or other firearm within the household. Firearms may however be regulated by state law enforcement. In this regard, New Jersey is not among the states granting reciprocity to a New York handgun permit and, for that matter, to instances where they are transporting the weapon to or from a gun range or gunsmith. N.J.S.A. 2C:39-5b makes it a second degree crime to knowingly possess a handgun, including an antique, under any other circumstances if you do not have a carry permit. When the handgun is in the nature of air gun or spring, for example, a BB or pellet pistol, unlawful possession is reduced to a third degree crime.

Transporting a Handgun from NY To or Through NJ Without a Carry Permit

An individual is permitted to transport a handgun to and from a gun range, gunsmith, or the place of purchase, and during the course of reasonably necessary deviations from these routes. As long as you limit your travel to these locations, NJ law allows you to possess the handgun in a car, truck or even a motorcycle, without a permit to carry.

There are also instances where federal preemption will come into play, override state law, and permit possession beyond what is normally permitted in New York or New Jersey. A gun owner is entitled under federal law to:

transport a firearm for any lawful purpose from any place where [you] may lawfully possess and carry such firearm to any other place where [you] may lawfully possess and carry such firearm if, during such transportation the firearm is unloaded, and neither the firearm nor any ammunition being transported is readily accessible or is directly accessible from the passenger compartment of such transporting vehicle.

18 U.S. Code § 926A. What this means is that you are also permitted to possess a NY handgun during the course of travel or reasonable stops, if you are in route to a state where your firearm is legal, for example, Virginia or North Carolina. Please note that the handgun must be properly stored, possessed for a lawful purpose, and be held by someone who isn’t disqualified (i.e. certain person, etc.) in order for these federal preemption rights to apply.

Proper Storage During Transport

The NJ storage during transport law is set forth at N.J.S.A. 2C:39-6g. This statute says that a NY handgun, or any for that matter, must be transported unloaded, in a separate case or chest, and in a location that is inaccessible from the passenger compartment, customarily in the trunk. Storing a handgun in a glove box or center console does not comply with this requirement. You should also know that ammunition is supposed to be stored separately from the firearm. The weapon should be stored in a saddle bag or case when it is being transported on a motorcycle, and the ammunition should be in a separate container.

Penalties If Convicted

Unlawful possession of a handgun by someone from New York or another state is a second degree crime. You face five (5) to ten (10) years in prison and a fine of up to $150,000 if you are convicted for violating N.J.S.A. 2C:39-5b. There is also a mandatory period of parole ineligibility under the Graves Act that must be imposed at the time of sentencing. The minimum sentence that must be served, without any possibility of parole, is five (5) years absent some form of waiver.

Securing Pretrial Release Following An Arrest

Bail reform has made it mandatory for someone to appear before a judge to set terms for pretrial release within forty-eight (48) hours of being arrested for possession of an illegal handgun. The court is required to review a Public Safety Assessment (“PSA”) in order to craft conditions, if any, that will permit a release from custody prior to trial.

The judge is not permitted to make the aforesaid determination if the prosecution files a motion detain. The case and a detention hearing to determine whether an individual shall be released is suspended for an additional three (3) days when this motion is filed. You should also know that the NJ Attorney General has issued a directive this motion should be filed in all Graves Act firearms offense cases. The practical effect of this guideline is to create an extremely high probability for someone to be detained for at least three (3) days if they have been charged with unlawful possession of a handgun.

Our NJ handgun possession defense lawyers are extremely effective in securing pretrial release despite the delay that can be posed by a motion to detain. We are able to secure release in almost all cases absent an extremely poor criminal record or history of non-appearance.

Graves Act Waivers for NY Gun Owners

New Jersey requires every individual convicted for possession of a handgun without a carry permit to be sentenced to prison absent a Graves Act Waiver. This means that a prosecutor is prohibited from making a plea offer that does not include prison unless he or she has secured a waiver approved by both the county prosecutor and the court.

The Attorney General has adopted special guidelines for issuance of Graves waivers to out of state residents who bring handguns into the state, for example, someone from New York. There are several specific factors which must be examined in order to determine whether a waiver should be granted:

1. Minimum Exposure to New Jersey Residents
2. Defendant Is A Law Abiding Citizen from Another State
3. Presence of the Gun Was Disclosed
4. Weapon was Surrendered by the Owner
5. Lack of Knowledge that Possession was Illegal

The defense team at the Law Offices of Jonathan F. Marshall has a healthy history of obtaining Graves Waivers for NY residents and others who unlawfully possess a handgun. Jason Seidman, a former Gun Task Force Director, or another attorney at the firm, is well equipped to help you obtain a waiver so that you can obtain Pretrial Intervention, a probationary plea, or some other resolution that avoids incarceration.

How Our Experienced Handgun Attorneys Can Help You

Handgun possession cases are unquestionably an area of criminal defense where experience is extremely important. Whether its the ability to pinpoint a potential search issue, crafting a mitigation package, or convincingly presenting your defenses at trial, there is no substitute for the skill that is derived over years of handling handgun cases in courts throughout New Jersey. Our attorneys use their exceptional know-how to help you in numerous areas, including:

1. Search & Seizure. The police are required to possess probable cause to conduct a search and even request a consent search of a car, house or other area where there is an expectation of privacy. If they fail to comply with the requirements of the law by conducting an improper search, they violate the 4th Amendment and the evidence discovered (e.g. a firearm or drugs) is inadmissible to prove a criminal charge. The evidence is referred to as fruit of the poisonous tree and must be suppressed, meaning that it has to be eliminated from any use in court, thereby resulting in dismissal of the offense in most instances. Our lawyers are adept in flushing out ripe search and seizure issues and persuasively presenting suppression motions to allow our clients to escape conviction when a handgun is brought into the state from New York or another state.
2. Miranda Rights. The police are required to Mirandize someone whenever they are going to be subjected to a custodial interrogation. If the fail to adhere to this requirement and conduct an interrogation without Miranda Warnings, any incriminating statements or conduct that is thereafter provided cannot be used in a handgun case. A savvy lawyer at our firm will focus on precisely when the police encounter turned into an interrogation and preclude use of any statements provided after that point, such as an admission concerning the presence of the gun in question.
3. Graves Act Waiver. As previously outlined in this article, your attorney will have to secure a Graves Act Waiver in order to avoid a prison sentence in your unlawful possession of a handgun case. Our team knows how to secure Graves Act Waivers, having not only served as prosecutors in charge of gun cases in a particular county but also as defense attorneys who have successfully represented defendants from states like NY in avoiding jail in illegal handgun cases.
4. Pretrial Intervention. NJ has a diversionary program called Pretrial Intervention or PTI that allows a defendant to avoid imprisonment and even a criminal record altogether if they complete a limited period (i.e. typically one year) of probation.  You can rely on our knowledge in evaluating applications as prosecutors and presenting 1000’s of these applications in private practice to know that you will have the best chance of obtaining PTI in an out of state handgun case through the efforts of our firm.
5. Trial. When all other efforts fail in securing a dismissal or favorable plea bargain, your case will have to proceed to trial. This is where you separate the men from the boys because the truth is that while many lawyers solicit gun cases, they actually have little to no trial experience presenting these cases to a jury. The attorneys at the Law Offices of Jonathan F. Marshall certainly are not among these individuals and have tried countless gun cases over the last three (3) decades. You can have the upmost confidence that we have the ability to see your case through and not just work out a plea.

To discuss these and other potential issues in your NY handgun matter with a highly accomplished defense lawyer, call 855-450-8310 anytime 24/7. One of the lawyers at the firm will give you the time you need in a free initial consultation, and counsel you on the best course of action for you to escape a conviction and/or penalties for unlawful possession of a NY handgun in New Jersey.

Frequently Asked Questions