New Jersey Criminal Defense Lawyer Blog

A New Jersey Sentencing Statutes referred to as "The Graves Act" was amended on January 13, 2008 to include a number of possessory firearm related crimes that were formerly outside the mandatory parole ineligibility sentencing provisions required by the Act. N.J.S.A. 2C:43-6c . Surprisingly, I still run into criminal defense attorneys who are unfamiliar with the implications of this change in the law. A complete recitation of the provisions and its nuances is beyond the scope of this posting. Suffice to say, practitioners really need to familiarize themselves with the "Attorney General Directive to Ensure Uniform Enforcement of the Graves Act" as corrected on 11/25/08.

There seems to be a lot of confusion as to whether or not certain weapons are covered by the Act. For example, pellet guns, air guns and BB guns are now Graves Act possessory offenses that fall within the mandatory parole ineligibility provisions of the Graves Act although their possession is a third degree offense. The Attorney General (A.G.) Guidelines, however, give the Prosecutors Office the discretion to dismiss a BB gun type possession offense as part of a plea bargain (and only that type of gun charge). All other Graves Act offenses must be fully pursued by the Prosecutors office and the mandatory parole ineligibility provisions applied.

In advising your client of potential sentences, a practitioner must be aware that the A.G. Guidelines impose a strict presumption of ineligibility for Pre-Trial Intervention (PTI) or a Probationary Term. Despite the presumption, the Guidelines do set out some very specific grounds upon which a practitioner could at least argue that the presumption of parole ineligibility has been overcome. It is imperative that Criminal practitioners intimately familiarize themselves with the Guidelines so that they can give their clients a real chance of limiting their jail exposure during the plea bargaining process.

Continue reading "New Jersey imposes Mandatory Jail Terms For Certain Firearm Offenses" »

It used to be that a charge for Unlawful Possession of a Firearm or Handgun in New Jersey would expose a defendant to little more than a probationary sentence. On January 13, 2008, the penalties in New Jersey for Unlawful Possession of a Firearm took on a whole new meaning even for first time offenders. Effective on that date, the Unlawful Possession of a Firearm or Handgun offense (N.J.S.A. 2C: 39-5b.) was elevated from a Third Degree offense (maximum 3 to 5 years in prison) to a Second Degree offense (maximum 5 to 10 years in prison). More importantly to those accused in New Jersey, the presumption of non-incarceration for a third degree offense no longer applied. In other words, even if it is your first offense, you are staring in the face of State Prison and mandatory parole ineligibility time pursuant to the Graves Act. (N.J.S.A. 2C: 43-6c.).

Recently, Federal Legislators have proposed a Bill that would have a major impact on the Unlawful Possession of a Firearm charge in New Jersey. I have read a number of news articles and editorials on this proposed gun amendment but it can be slightly confusing. The concern among some New Jersey residents, New Jersey Legislators and our current Governor, is that the Federal Law will allow residents in New Jersey to obtain a firearms carrier's permit in another State where it is easy to obtain a carrier's permit, and then return to New Jersey. Presumably, those with valid carrier's permits from other States would then be allowed to legally carry in New Jersey and effectively circumvent New Jerseys' strict limitation on the issuance of carrier's permits.

I can also see how the new Federal legislation would limit the effectiveness of the amended Unlawful Possession of a Firearm charge in New Jersey. The deterrent effect of having elevated the Possession of a Firearm charge in New Jersey to a second degree, Graves Act offense, may be rendered meaningless once New Jersey residents with questionable backgrounds realize how easy it is to obtain a carrier's permit in certain other States.

Continue reading "New Jersey Firearms and Handgun Possession - Effect of Proposed Federal Legislation " »