New Jersey Criminal Defense Firm: Your Resource for Understanding 2C:39-7

If you are accused of a certain person not to have a weapon, unlawful possession of a handgun, or possession of a weapon for an unlawful purpose charges in New Jersey, you need to understand the law and your rights. You also need to hire a New Jersey criminal defense lawyer who has the experience and the skills to handle your case and fight for your freedom. If you’re seeking legal representation in New Jersey, particularly in the areas of criminal defense, domestic violence, or manslaughter, Attorney Brett M. Rosen is an excellent choice. Here’s why:

1. Experience: Brett M. Rosen is a seasoned lawyer, licensed in both New York and New Jersey. He has been practicing law for over 8 years, specializing in criminal and civil litigation.
2. Client Satisfaction: Rosen has received high praise from his clients for his professionalism and effectiveness. Clients have described him as “the example of a true winner” and “one of NJ’s finest attorneys”.
3. Trial Skills: Rosen has demonstrated exceptional trial skills, standing ‘toe to toe’ at trial against current and former prosecutors, and certified criminal and civil trial attorneys. His aggressive questioning and thorough approach have been commended by clients.
4. High-Profile Cases: Rosen has handled high-profile cases, including representing a celebrity on their domestic violence case and a Grammy-Award winning artist on their drug cases.
5. Recognition: He has been recognized as a Rising Star by Super Lawyers.

Contact us today for a consultation, or continue reading this page that will provide you with a general overview of the law regarding certain persons not to have a weapon charge in New Jersey, as well as some common defenses that may be available to you.

Law 2C:39-7: Certain Persons Not to Have Weapons NJ

2C:39-7 is a New Jersey law that prohibits certain individuals from owning, possessing, or controlling any weapon. Specifically, the law applies to individuals who have been convicted of certain crimes, including: 

• aggravated assault, 
• arson, 
• burglary, 
• escape, 
• extortion, 
• homicide, 
• kidnapping, 
• robbery, 
• aggravated sexual assault, 
• sexual assault, 
• bias intimidation, 
• endangering the welfare of a child,
• carjacking, 
• racketeering, 
• terroristic threats, 
• unlawful possession of a machine gun, 
• unlawful possession of a handgun, 
• unlawful possession of an assault firearm, or
• leader of firearms trafficking network

The law also applies to individuals who have been committed for a mental disorder to any hospital, mental institution, or sanitarium.

Elements of Certain Persons Not To Have Any Firearms in New Jersey 

It is the State/Prosecutor’s burden to prove beyond a reasonable doubt the crime of 2C:39-7. The State must prove each element beyond a reasonable doubt, and these elements are: 

1. Exhibit________is a firearm [or that there was a firearm]. 
2. Defendant purchased, owned, possessed or controlled the firearm [on the date alleged in the indictment]. 
3. Defendant is a person who previously has been convicted of [a certain enumerated crime named in the statute] OR [a predicate offense].

The New Jersey Model Jury Charge, which is what the Judge uses when charging the jury with the law, states that for the first element the State must prove the following: 

• The first element the State must prove beyond a reasonable doubt is that exhibit_______is a firearm [or that there was a firearm]. A “firearm” means any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eights of an inch in diameter, with sufficient force to injure a person.

The second element that the Model Jury Charge tells the jury that the prosecutor must prove the following:

• The second element the State must prove beyond a reasonable doubt is that defendant knowingly purchased, owned, possessed or controlled a firearm. A person acts knowingly with respect to the nature of his conduct or the attendant circumstances if he is aware that the conduct is of that nature or that such circumstances exist or the person is aware of a high probability of their existence. A person acts knowingly with respect to a result of the conduct if he is aware that it is practically certain that the conduct will cause a result. “Knowing,” “with knowledge,” or equivalent terms have the same meaning.
• Knowledge is a condition of the mind. It cannot be seen. It can only be determined by inference from defendant’s conduct, words or acts. A state of mind is rarely susceptible of direct proof but must ordinarily be inferred from the facts. Therefore, it is not necessary that the State produce witnesses to testify that an accused said that he had a certain state of mind when he did a particular thing. It is within your power to find that such proof has been furnished beyond a reasonable doubt by inference which may arise from the nature of his acts and conduct and from all he said and did at the particular time and place and from all surrounding circumstances established by the evidence.
• To possess an item under the law, one must have a knowing intentional control of that item accompanied by a knowledge of its character. So, a person who possesses the firearm must know or be aware that he possesses it, and he must know what it is that he possesses or controls, that is, that it is a firearm

The third element the State must prove beyond a reasonable doubt according to the Model Jury Charge is the following:

• The third element the State must prove beyond a reasonable doubt is that defendant is a person who previously has been convicted of a certain enumerated crime. The statute specifically provides that “any person having been convicted in this State or elsewhere of the crime of who possesses or controls a firearm is guilty of a crime.” The term “convicted of the crime(s) of …” means evidence of a judgment of conviction16 entered by a court of competent jurisdiction in this State, New Jersey, or elsewhere.

As stated before, the prosecutor (commonly referred to as the State) must prove each element of a Certain Persons Not To Have A Weapon charge beyond a reasonable doubt. Listed below are the penalties a defendant faces when charged with N.J.S.A. 2C:39-7. 

New Jersey Graves Act

The Graves Act is a New Jersey law that imposes mandatory minimum sentences for individuals convicted of specific gun-related offenses. The primary goal of the act is to reduce gun violence and protect the public from the misuse of firearms.

The Graves Act applies to various firearms-related offenses, including but not limited to:

• Unlawful possession of a weapon (UPW): This includes possessing a firearm without the proper permits or possessing a weapon that has been unlawfully modified.
• Possession of a firearm for an unlawful purpose: If you’re found in possession of a firearm with the intent to use it unlawfully, such as for committing a crime, you could be subject to the Graves Act.
• Certain felonies committed while in possession of a firearm: If you commit certain felonies while possessing a firearm, such as robbery or assault, the Graves Act may apply.

The Graves Act also pertains to the New Jersey law of certain persons not to have weapons, which is explained in section N.J.S.A. 2C:39-7 of the New Jersey Statutes. According to this statute, a person with a prior conviction for a felony such as robbery, burglary, or aggravated assault, is not allowed to have any weapon in their possession. If such a person purchases, owns, possesses, or controls a firearm, they are guilty of a crime of the second degree and shall be sentenced to a term of imprisonment of at least five years, during which they shall be ineligible for parole.

Therefore, a person charged under the New Jersey law of certain persons not to have weapons is also subject to the Graves Act, which imposes mandatory minimum sentences for gun-related offenses. This means that they will face a harsher penalty and a longer period of parole ineligibility than a person who is not prohibited from having weapons.

Penalties for Certain Persons Not To Have A Weapon NJSA 2C:39-7

If you are found guilty of violating 2C:39-7, you could face serious penalties. The type of weapon you are alleged to have at the time of arrest depends on what type of indictable (felony) charge you may be facing. If it is a weapon (not a handgun, machine gun, etc.) then it is a crime of the fourth degree. The penalties you could face include:

• up to 18 months in prison and 
• a fine of up to $10,000.
• Additionally, you may be prohibited from owning, possessing, or controlling any weapon in the future.

If at the time of the arrest you allegedly had a firearm and were previously convicted or one or more of the listed crimes above, then the crime is a second-degree. The penalties you could face include:

• up to 10 years in New Jersey State Prison,
• a fine of up to $150,000 and
• a minimum of 5 years of parole ineligibility.
• Additionally, you may be prohibited from owning, possessing, or controlling any weapon in the future.

If at the time of the arrest you were previously convicted of an offense of domestic violence, and/or you were subject to a court order pursuant to the “Extreme Risk Protective Order Act”, and/or were subject to a Temporary/Final Restraining Order, then the crime is a third degree. The penalties you could face include:

• up to 5 years in New Jersey State Prison and
• a fine of up to $15,000.
• Additionally, you may be prohibited from owning, possessing, or controlling any weapon in the future.

Please keep in mind that if the defendant does not have a criminal record, then a fourth and third-degree charge(s) carry a non-presumption of incarceration. This means that if the defendant pleads guilty or is found guilty, then at sentencing it is presumed that the judge will not sentence the defendant to prison. However, a second-degree indictable (felony) carries a presumption of incarceration. This means that if a defendant either pleads guilty or is found guilty, then it is presumed at sentencing the judge will sentence the defendant to state prison. 

Defenses to New Jersey 2C:39-7 Charges

If you are charged with a NJSA 2C:39-7 violation, there are several defenses that may be available to you, such as:  

• Lack of Knowledge: This may involve arguing that the weapon was not yours, that you did not know about it, that you did not have control over it, or that you had a lawful reason to possess it.
• Unlawful Search and Seizure: The police obtained the weapon through an illegal search or seizure.  This may involve arguing that the police violated your Fourth Amendment rights by conducting a warrantless or unreasonable search, or that they lacked probable cause or reasonable suspicion to stop or detain you.
• Possession for Legitimate Purpose: You possessed the weapon for a legitimate purpose, such as self-defense. If the person possessed the weapon for the purpose of self-defense or to defend others, this may be a valid defense. However, it is important to note that the use of deadly force is generally only justified in situations where there is an imminent threat of serious bodily harm or death.
• Entrapment: Law enforcement induced you to possess the weapon.
• Challenging the validity of the prior conviction that makes you a prohibited person: This may involve arguing that the prior conviction was obtained in violation of your constitutional rights, such as the right to counsel, the right to a fair trial, or the right to due process.
• Duress or Necessity: If the person possessed the weapon under duress or necessity, this may provide a defense. For example, if they were coerced into possessing the weapon or if they did so to prevent imminent harm to themselves or others, this could be considered a valid defense.
• Insufficient Evidence: If the prosecution lacks sufficient evidence to prove beyond a reasonable doubt that the person possessed the weapon, this may lead to a dismissal of the charges. This could involve challenging the reliability of witnesses, the accuracy of forensic evidence, or the chain of custody of the weapon.

These are just some possible defenses that may be available. However, it is always important to discuss your case with an experienced attorney. 

NJ Pre-Trial Intervention & Certain Persons Charge 

The Pretrial Intervention Program (PTI) is a diversionary program in New Jersey that aims to divert eligible defendants from the traditional criminal justice process of ordinary prosecution. PTI provides defendants, generally first-time offenders, with opportunities for alternatives such as counseling, supervision, and other services. If the defendants complete all the conditions set by the court, the charges will be dismissed.

However, not all defendants are eligible for PTI. The New Jersey law of certain persons not to have weapons is explained in section N.J.S.A. 2C:39-7 of the New Jersey Statutes. 

According to this statute, a person with a prior conviction for a felony such as robbery, burglary, or aggravated assault, is not allowed to have any weapon in their possession. If such a person purchases, owns, possesses, or controls a firearm, they are guilty of a crime of the second degree and shall be sentenced to a term of imprisonment of at least five years, during which they shall be ineligible for parole.

Therefore, a person charged under the New Jersey law of certain persons not to have weapons is not eligible for pre-trial intervention in New Jersey, unless they can show compelling reasons for their admission. The decision to admit a defendant into PTI is based on several factors, such as the nature of the offense, the impact on the victim and the community, the defendant’s background and character, and the likelihood of rehabilitation. The prosecutor and the court have the discretion to approve or reject a defendant’s application for PTI.

Is there a Statute of Limitations for Certain Persons Charge?

According to New Jersey law, a certain person not to have a weapon is someone who has been convicted of certain crimes, such as aggravated assault, arson, burglary, homicide, sexual assault, etc., or who has been committed for a mental disorder. The statute of limitations for this offense is five years, meaning that the state has five years from the date of the crime to file charges against the suspect. However, there are some exceptions to the statute of limitations, such as when the suspect flees from justice or when the victim is a minor. If you are facing this charge, you should contact a lawyer as soon as possible to discuss your legal options.

Frequently Asked Questions (FAQs) 

• Question: If I get my prior conviction expunged, can I still face a certain persons charge in New Jersey?
  • Answer: In New Jersey, once a conviction is expunged, the arrest and conviction are treated as if they never occurred. This means that, generally, you can legally deny ever having been arrested or convicted of that crime, and it will not show up in most background checks. However, expunged records are not destroyed and may be used in certain limited circumstances, such as in future criminal proceedings. Therefore, if you face new charges, the expunged conviction could potentially be considered by the court, depending on the specifics of the case and the nature of the charges. 

• Question: If I legally owned my firearm in another State, can I still face a certain persons charge in New Jersey? 
  • Answer: In New Jersey, new residents who legally owned firearms in another state are required to obtain a New Jersey Firearms Identification Card and register their handguns. This must be done within 60 days of becoming a resident. Failure to comply with these requirements can result in legal consequences, including potential charges. It’s important to adhere to these regulations to avoid facing a “certain persons” charge, which refers to individuals who are prohibited from possessing firearms under New Jersey law due to various reasons, such as a prior criminal conviction.

• Question: Is there mandatory prison time for a New Jersey certain person charge? 
  • Answer: In New Jersey, a “certain persons” offense for illegal possession of a firearm is considered a serious crime. If convicted, it is classified as a second-degree crime, which carries a mandatory minimum prison sentence. Specifically, the law states that a person convicted of this offense shall be sentenced to a term of imprisonment with a minimum term fixed at five years, during which the defendant is ineligible for parole. This mandatory minimum can increase if the defendant is sentenced to an extended term of imprisonment. 

• Question: Can I be charged with a certain persons offense in New Jersey if I Have a TERPO against me?
  • Answer:  Yes, in New Jersey, if you have a Temporary Extreme Risk Protective Order (TERPO) against you, it means that a court has determined you pose a risk of causing bodily injury to yourself or others by possessing a firearm. Under these circumstances, you are prohibited from owning, possessing, or purchasing firearms and ammunition. If you violate this order by possessing a firearm, you could be charged with a “certain persons” offense, which is a serious crime in New Jersey. It’s important to understand that a TERPO is a civil court order, and violating it can lead to criminal charges, including the “certain persons” offense for illegal possession of a firearm. This offense is typically considered a second-degree crime, carrying severe penalties, including mandatory prison time.

Top-Shelf New Jersey Certain Persons Charge Attorney

At our firm, we understand the serious nature of criminal charges related to 2C:39-7. Our attorneys have extensive experience defending clients against these charges, and we will work tirelessly to protect your rights and your freedom. We will conduct a thorough investigation of your case, gather evidence, and build a strong defense on your behalf.

If you have been charged with a crime related to NJSA 2C:39-7, don’t wait to get the legal help you need. Contact us today to schedule a consultation with our experienced criminal defense attorney. There are many reasons why you should choose NJ Attorney Brett M. Rosen to defend your certain persons charge. Here are some of them:

• He is one of the top criminal defense attorneys of 2023, according to LA Weekly.
• He has a proven track record of winning seemingly impossible cases, such as a recent acquittal of a karate instructor accused of sexual assault.
• He is passionate, dedicated, and assertive in representing his clients, standing up for their rights and challenging the evidence against them.
• He is experienced in handling robbery cases, which are serious offenses that can result in long prison terms and hefty fines.
• He is an advocate for mental health and well-being within the legal profession, understanding the stress and emotional toll that comes with facing criminal charges.
• He is knowledgeable about the latest advancements in artificial intelligence and their impact on the legal industry, using AI-powered tools to enhance his practice.

These are just some of the reasons why NJ attorney Brett M. Rosen is a great choice for your certain persons defense.

Contact our office today for a consultation.