Mandatory Jail For Firearm Offenses
A conviction for most firearm violations results in mandatory minimum jail term under the Graves Act. What this means is that, when the Graves Act applies to a handgun, rifle, shotgun or other firearm charge, there is a period of parole ineligibility that applies to any jail sentence. And while jail was traditionally inescapable whenever someone fell under the Graves Act, the law has recently carved out some exceptions where a waiver can be obtained so that a non-custodial sentence (i.e. no jail term) is possible. Our attorneys are former prosecutors that know the ins and outs of parole ineligibility/mandatory minimum sentences and the New Jersey firearms laws. Call our firm today for an immediate no obligation consultation free of charge.
What Gun Charges Fall Under The Graves Act?
As previously stated, there are certain crimes involving handguns and other firearms that require a mandatory jail sentence upon conviction. If one of the following offenses is committed with a firearm, there is a mandatory prison sentence that must be imposed under the Graves Act:
• Aggravated Assault
• Aggravated Sexual Assault
• Aggravated Criminal Sexual Contact
There are also a whole host of firearm violations which automatically carry a state prison term in accordance with the Graves Act. These offenses include, but are not limited to, possession of a firearm for unlawful purpose, possession of a firearm while committing a drug offense, possession of an unlicensed handgun, unlawful possession of rifle or shotgun, and certain persons not to have a weapon.
What Is The Minimum Jail Sentence Under The Graves Act?
Graves Act offenses require imposition of a minimum term in prison. If the charge is a first degree, second degree or third degree crime, the period that a person much serve before they are eligible for parole is at least three (3) years. More specifically, when the Court imposes a prison sentence for a qualifying charge, it must set a mandatory minimum sentence equal to the greater of one-half of the jail term imposed or three (3) years. If one half the sentence imposed is less than three years, the minimum sentence is three years. For a fourth degree crime falling under the Graves Act, the mandatory minimum sentence is eighteen (18) months. Unless and until an individual serves the minimum term, he/she is ineligible for parole. This is why a minimum sentence is also referred to as a mandatory period of parole ineligibility.
Is There Plea Bargaining With Graves Act Offenses?
As you probably anticipated, plea bargaining is extremely limited when the Graves Act applies. In terms of dismissing a criminal offense that carries a mandatory prison sentence under the Graves Act, that can only unless one of the following apply: (1) there is insufficient evidence establish a conviction and/or dismissal is warranted in the interests of justice; (2) the defendant is already being sentenced to an offense that carries a period of parole ineligibility that is at least equal to the one that would be required under the Graves Act; (3) the accused provided or is providing substantial cooperation with law enforcement; or (4) the judge finds compelling reasons to do so and he states them on the record. Unless one of these exceptions apply, dismissal or departure from the minimum term required under the law is illegal and may be corrected at any time.
Can The Graves Act Be Applies To Me If I Was Not Holding or Otherwise In Physical Possession Of The Gun?
Unfortunately, you can be convicted of a Graves Act related offense based on constructive possession. Construction possession exists where, although not on your physical person, you have knowledge of the existence of the weapon and the ability to exercise control over it.
How Do I Apply For A Waiver From The Graves Act?
The law provides a procedure for seeking a waiver from the mandatory jail sentence triggered under the Graves Act. It is, however, a formal process that is rather involved in order to achieve this result. The prosecutor must file a motion with the Assignment Judge seeking approval for the departure from the law. The defendant cannot have a prior weapons offense and, in addition, it must be in the interests of justice for the Assignment Judge to approve the waiver. If approved, the relief is either probation or a mandatory minimum term of one (1) year.
Newark NJ Handgun Charge Defense Attorneys
Any firearm offense is extremely serious and the situation only gets more complicated when the weapon is a handgun. Call our Newark Law Firm for immediate counsel from an attorney knowledgeable in the defense of Graves Act charges. A lawyer on our team is available now at 973-710-1520 for a free consultation.