New Jersey gun/firearm possession crimes will almost always carry mandatory prison if the defendant is convicted. Unlawful possession of a handgun, machine gun, rifle, shotgun etc. ( NJSA 2c:39-5) is a weapons offense that falls under the Graves Act. The Graves Act mandates a prison sentence, usually for 42 months, during which time the defendant will be ineligible for parole if convicted of carrying a gun without a carry permit. Prior record for similar offenses can enhance the penalties, but having no criminal record will not relieve the defendant of this mandatory penalty upon conviction. This includes the possession of BB guns. I am a New Jersey gun charge defense attorney who understands the shock you may be experiencing at this moment, and I am available to answer any questions you may have.
This is the cold hard reality of this draconian legislation. The simple act of unlawfully possessing a firearm will expose the defendant to these harsh penalties. Although the statute does differentiate between the type of firearm possessed and the degree of offense, the Graves Act turns a blind eye to this distinction. The confusing aspect of the law is that the mandatory jail sentence is not made clear in the most common gun possession statute, NJSA 2C:39-5. The mandatory sentencing provisions are found in NJSA 2c:43-6.
There is also a narrowly construed safety valve which allows the Court to reduce the period of parole ineligibility to a one year, or in extraordinary circumstances, place the defendant on probation. See NJSA 2C:43-6.2. When I say extraordinary, I mean extraordinary. The simple fact that someone has no record, a family, etc. will not qualify. It will truly have to be an idiosyncratic individual who receives this consideration. However, there instances when individuals who were transporting firearms from other States have been able to get their cases dismissed or alternatively get a probation waiver.
As previously mentioned, the law also applies to BB guns, and other spring loaded/air rifle devices. The unfortunate truth is that the law has cast a much wider net than was intended. This law was supposed to curb gang related gun activity. Now many facing prosecution have done nothing more than transport a gun legally purchased in one state through New Jersey. Since one must also have a permit in New Jersey, if the suspect is caught, he/she will likely be charged with unlawful possession. There are some exceptions to the previous example. The New Jersey State Police website provides a list.
That being said, these are tough cases, but they are not unbeatable. There are ways to fashion plea agreements (in some cases) that sidestep the minefield, and keep defendants out of prison. In addition, the traditional probable cause arguments and suppression issues are frequently present with gun cases. In many instances, a suppression motion will be the defendant’s best hope of winning the case and being found not guilty of the offense. Illegal searches and seizures are a defense attorney’s and a criminal defendant’s best friend, especially in unlawful possession of a firearm cases.
Also important is the fact the state assistant prosecutors do not like these laws. most feel that they are too harsh and miss the intended target in the majority of prosecutions. However, their hands are somewhat tied. But if an experienced criminal defense attorney can create a substantive or procedural issue, or provide a basis for the offense to be charged as a different crime that does not bring into play the Graves Act, the state will usually be willing to make some concessions. The difficulty is getting to that point.
One thing is for certain. If you have been charged and arrested with unlawful possession of a weapon/gun, or any other firearm related offense, do not sit back and wait for the charges to go away. You will need to enlist the services of a criminal defense lawyer who defends those charged with gun crimes, and is prepared to invest the time and effort necessary. These are hard cases that frequently go to trial.
If you need to speak with a lawyer about a gun or weapons charge that you have received, I am available 24 hrs for free consultations.