New Jersey has some of the most stringent gun laws in the United States, and convictions often carry severe penalties, including mandatory prison time with lengthy periods of parole ineligibility. If you’re charged with a firearms offense, understanding the potential sentence, particularly the impact of the Graves Act, is critical. Brett M. Rosen, Esq., certified by the Supreme Court of New Jersey as a Criminal Trial Attorney, a distinction that approximately less than 1% of attorneys hold in New Jersey. He also represents individuals in Union County and the entire state, and will provide critical information on NJ gun charge sentencing and potential defenses.

908-312-0368 & brett@nynjcriminalcivilesq.com

Common New Jersey Gun Charges & Degrees

Sentencing depends heavily on the specific offense charged. Common firearms offenses include:

• Unlawful Possession of a Handgun (N.J.S.A. 2C:39-5b): Typically a Second-Degree Crime.
• Unlawful Possession of a Rifle or Shotgun (N.J.S.A. 2C:39-5c): Typically a Third-Degree Crime.
• Unlawful Possession of an Assault Firearm (N.J.S.A. 2C:39-5f): Typically a Second-Degree Crime.
• Possession of a Weapon for an Unlawful Purpose (N.J.S.A. 2C:39-4a): Possessing a firearm with the intent to use it unlawfully against another. Typically a Second-Degree Crime.
• Certain Persons Not to Have Weapons (N.J.S.A. 2C:39-7b): Possession of a firearm by someone with a prior felony conviction or other disqualifying status. Typically a Second-Degree Crime.

Standard NJ Sentencing Ranges (Before Graves Act)

Generally, potential prison terms in New Jersey are:

• Second-Degree Crime: 5 to 10 years in prison.
• Third-Degree Crime: 3 to 5 years in prison.

There’s typically a presumption of incarceration for second-degree crimes. While there’s usually a presumption against incarceration for first-time offenders convicted of a third-degree crime, this is overridden by the Graves Act for applicable gun offenses.

The Graves Act: Mandatory Prison & Parole Ineligibility (N.J.S.A. 2C:43-6c)

The Graves Act is the most significant factor in sentencing for most NJ firearms convictions. It mandates minimum prison terms and periods of parole ineligibility for specific offenses, including all those listed above (2C:39-5b, c, f; 2C:39-4a; 2C:39-7b) and others involving firearm possession or use.

What the Graves Act Requires:

1. Mandatory Imprisonment: A prison sentence must be imposed. Probation is generally not an option unless a waiver is granted.
2. Mandatory Period of Parole Ineligibility: The defendant must serve a specific minimum portion of their sentence before they can even become eligible for parole. The minimum term is the GREATER of:
   
   • For First or Second-Degree Graves Act Offenses (e.g., Handgun Possession, Assault Firearm Possession, Possession for Unlawful Purpose, Certain Persons): One-half (1/2) of the sentence imposed OR 42 months (3.5 years).
   • For Third-Degree Graves Act Offenses (e.g., Rifle/Shotgun Possession): One-half (1/2) of the sentence imposed OR 18 months (1.5 years).

Example: A conviction for second-degree Unlawful Possession of a Handgun carries a 5-10 year sentence. If sentenced to the minimum 5 years (60 months), the Graves Act requires serving at least 42 months before parole eligibility (since 42 months is greater than half of 60 months, which is 30 months).

The Graves Act Waiver: A Path to Avoid Mandatory Time? (N.J.S.A. 2C:43-6.2)

Recognizing the harshness of the Graves Act, especially for first-time offenders without criminal intent (like out-of-state residents unaware of NJ’s strict transport laws), the legislature created a limited “escape valve” – the Graves Act Waiver.

• What it allows: For certain Graves Act offenses (often simple possession under 2C:39-5, not Possession for Unlawful Purpose or Certain Persons), eligible defendants (usually first-time offenders) can apply, typically through the prosecutor, for a waiver of the mandatory parole ineligibility period.
• Process: Requires application by the prosecutor to the Assignment Judge (or sometimes direct application by defense under strict criteria). The prosecutor must show that the “interests of justice” do not warrant the mandatory term.
• Potential Outcome if Granted:
  
  • Allows the court to sentence the defendant to probation instead of prison, OR
  • Impose a state prison sentence but reduce the mandatory parole ineligibility term to one year.
• Crucial Attorney Role: Securing a Graves Act waiver is not automatic. It requires persuasive negotiation with the prosecutor and a compelling presentation to the court. An experienced attorney is essential to gather mitigating evidence and argue effectively for the waiver.

Understanding “Certain Persons Not To Have Weapons” Charges in New Jersey (N.J.S.A. 2C:39-7)

Beyond the general laws prohibiting unlawful possession of firearms without permits, New Jersey has a distinct and very serious statute, N.J.S.A. 2C:39-7, commonly referred to as the “Certain Persons” offense. This law specifically prohibits individuals who fall into certain categories, primarily due to prior criminal convictions or specific court orders, from possessing any weapons, with firearms carrying particularly harsh penalties. This charge can be brought in addition to other weapons offenses like Unlawful Possession of a Weapon (N.J.S.A. 2C:39-5), significantly increasing potential penalties.

The most frequently charged section related to firearms is N.J.S.A. 2C:39-7b. This section generally prohibits the possession of any firearm by individuals who:

• Have been previously convicted of certain serious “predicate crimes” listed in the statute (including but not limited to homicide, aggravated assault, kidnapping, sexual assault, robbery, burglary, arson, and certain drug distribution offenses).
• Have been previously convicted of any crime involving domestic violence, or a disorderly persons offense involving domestic violence, and the firearm possession occurs subsequent to that conviction.
• Are subject to a final domestic violence restraining order (FDVRO) issued under the Prevention of Domestic Violence Act that prohibits them from possessing firearms.
• Have specific histories related to involuntary mental health commitments or adjudications. (Note: This is not an exhaustive list; the statute details all prohibited categories.)

Critically, if a person prohibited under N.J.S.A. 2C:39-7b is found in possession of a firearm, the offense is typically graded as a Second-Degree Crime. Furthermore, this specific charge is subject to New Jersey’s stringent Graves Act (N.J.S.A. 2C:43-6c). This means a conviction mandates a state prison sentence with a minimum period of parole ineligibility set at the greater of one-half of the sentence imposed or 42 months (3.5 years). Unlike some other Graves Act offenses (like simple unlawful possession under 2C:39-5), Graves Act waivers allowing for probation or a reduced one-year parole ineligibility term are generally not available for convictions under N.J.S.A. 2C:39-7b. This makes the “Certain Persons” charge involving a firearm one of the most serious weapons offenses in New Jersey, requiring immediate and experienced legal defense.

Factors Influencing Sentencing for New Jersey Gun Charges (Beyond the Basics)

While statutes dictate the potential range of penalties and laws like the Graves Act impose mandatory minimums for many firearms offenses in New Jersey, the specific sentence handed down upon conviction is not automatic. Judges are required by law (N.J.S.A. 2C:44-1) to weigh specific aggravating and mitigating factors unique to the case and the defendant before imposing a sentence within the legally permissible range. Understanding these factors is crucial, as effective advocacy by a defense attorney often focuses on highlighting mitigating circumstances and challenging aggravating ones.

A paramount factor remains the applicability of the Graves Act (N.J.S.A. 2C:43-6c). If the conviction falls under the Graves Act (as most common firearm possession charges do), the mandatory minimum prison term and period of parole ineligibility set a floor for the sentence, unless a Graves Act Waiver (N.J.S.A. 2C:43-6.2) is sought and granted. Whether a waiver is pursued and obtained dramatically alters the sentencing landscape, potentially allowing for probation or a significantly reduced parole disqualifier. Beyond the Graves Act status, judges consider the nature and circumstances of the offense itself – was it simple possession, or was the firearm used or intended to be used in another crime? Was it loaded? Where was it possessed? The defendant’s prior criminal record is also heavily weighed; a history of offenses, particularly violent or weapons-related ones, acts as a strong aggravating factor, while a clean record is mitigating (and often necessary for waiver consideration).

Judges must also explicitly consider statutory aggravating factors (N.J.S.A. 2C:44-1a) such as the risk the defendant will re-offend, the need for deterrence, and the seriousness of harm threatened, alongside mitigating factors (N.J.S.A. 2C:44-1b) like whether the defendant acted under duress (though not enough for a defense), whether their character suggests they are unlikely to re-offend, or whether imprisonment would entail excessive hardship to dependents. The weight given to each factor varies. Furthermore, the outcome of plea negotiations between the defense attorney and the prosecutor often significantly shapes the final sentence recommendation presented to the judge, incorporating many of these factors into the agreed-upon disposition. Presenting a compelling case regarding these factors, both to the prosecutor during negotiations and potentially to the judge at sentencing, is a critical function of experienced legal counsel.

Potential Defenses to New Jersey Gun Charges

Despite the strict laws, defenses exist. A skilled defense attorney like Brett M. Rosen will thoroughly investigate:

• Illegal Search and Seizure: Was the stop, search of your person, vehicle, or home lawful under the Fourth Amendment? If not, the firearm evidence might be suppressed.
• Lack of Possession: Did you actually possess the firearm? Possession can be actual (on your person) or constructive (within your control). The State must prove you knowingly possessed it.
• Operability: Generally, the firearm must be proven operable (capable of firing) by the State.
• Permit / Firearms ID Card / Legal Exemptions: Do you have a valid permit to carry, FID card, or fall under a specific legal exemption for possession or transport (e.g., going to/from range, licensed dealer, inheritance under specific rules)? Note: Out-of-state permits are generally NOT valid in NJ.
• Chain of Custody: Was the firearm evidence handled properly by law enforcement?
• Misidentification: Were you correctly identified as the person possessing the weapon?
• Duress or Necessity (Rare): Were you forced to possess the weapon under immediate threat of death or serious injury?

Frequently Asked Questions (FAQ)

Q: Does any gun charge in NJ mean mandatory jail time? A: Most common firearms possession charges (handguns, rifles, shotguns, assault firearms) fall under the Graves Act, which mandates a prison sentence with a period of parole ineligibility, unless a waiver is granted.

Q: What is the Graves Act in simple terms? A: It’s an NJ law requiring anyone convicted of certain gun crimes to go to prison AND serve a mandatory minimum amount of time (often 42 months for common handgun charges) before they can even be considered for parole.

Q: What are the chances of getting a Graves Act waiver? A: It depends heavily on the specific facts, the exact charge, your prior record, the county prosecutor’s policies, and the strength of your attorney’s arguments. It’s more likely for true first-time offenders charged with simple possession who meet the statutory criteria, but it’s never guaranteed.

Q: Is the Graves Act the same as NERA (No Early Release Act)? A: No. The Graves Act imposes a mandatory parole ineligibility term for specific gun offenses (even non-violent ones). NERA (N.J.S.A. 2C:43-7.2) applies to specific violent crimes (like robbery, aggravated assault) and requires serving 85% of the total sentence before parole eligibility. A single case could potentially involve both if it’s a violent crime committed with a Graves Act firearm.

Q: I have a concealed carry permit from another state. Is that a defense in NJ? A: Generally, NO. New Jersey does not recognize concealed carry permits issued by other states. Possessing a handgun in NJ based solely on an out-of-state permit typically leads to a second-degree Unlawful Possession charge subject to the Graves Act.

Contact Brett M. Rosen, Esq. – NJ Gun Charge Defense Attorney

Facing a gun charge in New Jersey under the Graves Act is incredibly serious. The potential for mandatory prison time makes obtaining experienced legal counsel absolutely critical from the outset. Brett M. Rosen, Esq. provides knowledgeable and aggressive defense for clients facing firearms offenses in Union County and across New Jersey. He understands the complexities of the Graves Act and fights tirelessly to protect his clients’ freedom, including seeking waivers when appropriate. Contact his office immediately for a free and confidential consultation.

908-312-0368

Disclaimer: This information is for general educational purposes only and does not constitute legal advice. New Jersey gun laws are extremely strict and carry severe, often mandatory penalties. Sentencing depends heavily on the specific charges, facts of the case, and prior record. If you are facing any firearms charge in New Jersey, you must consult with a qualified New Jersey criminal defense attorney, like Brett M. Rosen, Esq., immediately. Do not rely solely on this information. Contacting Brett M. Rosen, Esq. does not create an attorney-client relationship unless a formal agreement is signed. Results are not guaranteed.