NJ Gun Laws - Understanding the "Graves Act"
THE "GRAVES ACT"
The "Graves Act," N.J.S.A. 43-6(c), requires the imposition of a minimum term of imprisonment and parole ineligibility for certain firearm-related offenses. Until 2008, the "Graves Act" only applied when a person was convicted of possessing or using a firearm while in the course of committing certain crimes, or possession of a firearm for an unlawful purpose, in violation of N.J.S.A. 2C:39-4(a). Now, however, the list of offenses that are subject to the "Graves Act" includes the following:
- Unlawful Possession of a Machine Gun, Handgun, Rifle or Shotgun (http://www.patersonnjcriminallawyer.com/unlawful-possession-of-a-weapon/), in violation of N.J.S.A. 2C:39-5(a), (b) or (c).
- Possession of a Sawed-Off Shotgun (http://www.patersonnjcriminallawyer.com/possession-of-prohibited-weapons-devices/), in violation of N.J.S.A. 2C:39-3(b).
- Possession of a Defaced Firearm (http://www.patersonnjcriminallawyer.com/possession-of-prohibited-weapons-devices/), in violation of N.J.S.A. 2C:39-3(d).
- Possession of a Firearm While in the Course of Committing a Drug Distribution or Possession With Intent to Distribute Offense (http://www.patersonnjcriminallawyer.com/drugs-guns-law/), in violation of N.J.S.A. 2C:39-4.1(a).
- Possession of Certain Weapons by Persons Previously Convicted of Specified Offenses (http://www.patersonnjcriminallawyer.com/certain-persons-not-to-have-weapons/), in violation of N.J.S.A. 2C:39-7(a) or (b)(2).
- Manufacture, Transport, or Disposition of a Machine Gun, Sawed-Off Shotgun, or Assault Firearm, in violation of N.J.S.A. 2C:39-9(a), (b), or (g).
- Defacement of a Firearm, in violation of N.J.S.A. 2C:39-9(e).
Except as otherwise provided or negotiated, a person convicted of any of the foregoing crimes must be sentenced to a term of imprisonment with a minimum term of parole ineligibility fixed at, or between, 1/3 to 1/2 of a sentence imposed, or 3 years, whichever is greater (or 18 months in cases involving crimes of the fourth degree). For example, if a person is convicted of the "Graves Act" offense of Unlawful Possession of a Handgun, in violation of N.J.S.A. 2C:39-5(b), a crime of the second degree, the sentencing range is between 5 and 10 years in New Jersey State Prison with a mandatory period of parole ineligibility of between 3 and 5 years.
Additionally, a person convicted of a "Graves Act" offense who has previously been convicted of certain firearms offenses must be sentenced to a mandatory extended term of imprisonment, pursuant to N.J.S.A. 2C:44-3(d). When that "repeat gun offender" statute applies, the sentence imposed must include a minimum term of parole ineligibility fixed at or between 1/3 to 1/2 of the extended term sentence, or 5 years, whichever is greater.
Furthermore, N.J.S.A. 2C:39-5(i) provides that a person convicted of the unlawful possession of a machine gun, handgun, or assault firearm must be sentenced to a parole ineligibility term of 5 years if the sentencing court finds that Aggravating Factor 5 (Organized Criminal Activity) applies.
ALTERNATE RESOLUTIONS FOR "GRAVES ACT" OFFENSES
The Pre-Trial Intervention ("PTI")Program
Because of the seriousness of firearm offenses, prosecutors often withhold their consent to a defendant’s admission to PTI unless the case involves extraordinary and compelling circumstances. Such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the defendant lawfully acquired and possessed the firearm in a different state, and the defendant’s presence in New Jersey was incident to lawful travel.
Prosecutors will also generally object to a probationary sentence unless there are extraordinary and compelling reasons. Such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the firearm was unloaded, and it is clear that the firearm posed no risk to officers or public safety.
Waiver or Reduction of Sentence
N.J.S.A. 2C:43-6.2 outlines a procedure to allow for the reduction or waiver of an otherwise mandatory minimum term of imprisonment and parole ineligibility imposed under the "Graves Act." In determining whether to move for or approve the waiver or reduction of a minimum term of parole ineligibility under that statute, prosecutors generally consider all relevant circumstances concerning the offense conduct and the offender, including those aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1.
NOTE: No alternate sentence will be approved when there is an indication that the offender may be involved in Organized Criminal Activity (Aggravating Factor 5).