New Jersey Gun Charge Lawyer

A New Jersey gun charge lawyer defends people accused of unlawful firearm possession and related weapons offenses under statutes that impose mandatory prison terms in many first-time cases. New Jersey grades most firearm-possession offenses as second-degree crimes, and the Graves Act attaches a mandatory period of parole ineligibility to a conviction. We represent clients from the first appearance and detention hearing through suppression motions, plea negotiation, Graves Act waiver applications, and trial.

How New Jersey Grades Firearm Charges

New Jersey does not use the labels felony and misdemeanor. It classifies indictable crimes by degree, from first degree down to fourth degree, and the degree controls the sentencing exposure. Understanding the degree of the charge is the starting point for every firearm case, because it determines whether a conviction carries a presumption of prison and whether the Graves Act applies.

The most common firearm charges and their grading are as follows:

• Unlawful possession of a handgun without a permit to carry is a second-degree crime.
• Unlawful possession of a machine gun or an assault firearm is a second-degree crime.
• Possession of a firearm for an unlawful purpose is a second-degree crime.
• Unlawful possession of a rifle or shotgun without a firearms purchaser identification card is a third-degree crime.
• Possession of certain other weapons under circumstances not manifestly appropriate for a lawful use is a fourth-degree crime.

Governing law: N.J.S.A. 2C:39-5 (unlawful possession of weapons); N.J.S.A. 2C:39-4 (possession of a firearm for an unlawful purpose).

Certain Persons Not to Have Weapons

New Jersey separately prohibits firearm possession by people who have a disqualifying prior conviction, who are subject to certain court orders, or who have been committed for a mental disorder without later medical clearance. This is charged under the certain persons statute, and it is often filed alongside an unlawful possession count arising from the same incident.

When the item possessed is a firearm, a certain persons offense is a second-degree crime that carries a five-year period of parole ineligibility. A disqualifying conviction counts whether it occurred in New Jersey or in another state, because prior records are accessible through federal databases. This is one reason a person who could lawfully own a firearm elsewhere can still face a serious charge here.

Governing law: N.J.S.A. 2C:39-7 (certain persons not to have weapons or ammunition).

The Graves Act and Mandatory Minimum Sentences

The Graves Act is the sentencing provision that makes New Jersey firearm cases so consequential. For the offenses it covers, the court must impose a mandatory minimum term during which the defendant is ineligible for parole. The mandatory minimum is set at one-third to one-half of the sentence imposed, or 42 months, whichever is greater. In practice, a second-degree conviction that carries a five to ten year sentence commonly brings a parole-ineligibility term of 42 months, which is three and a half years.

The base sentencing ranges by degree are:

• Second-degree crime: five to ten years, with a presumption of imprisonment even for a person with no prior record.
• Third-degree crime: three to five years.
• Fourth-degree crime: up to 18 months.

Because the Graves Act removes the court's ordinary discretion to avoid prison, the early strategy in these cases focuses on the strength of the State's proof, the lawfulness of the search that produced the firearm, and eligibility for the statutory waiver described below.

Governing law: N.J.S.A. 2C:43-6(a) (ordinary terms) and 2C:43-6(c) (Graves Act mandatory terms).

The Graves Act Waiver

New Jersey law contains an escape valve from the mandatory minimum. On a motion by the prosecutor, or on a referral from the sentencing court that the prosecutor approves, the assignment judge may place a defendant on probation or reduce the parole-ineligibility term to one year. The waiver is generally available to a defendant who has not previously been convicted of a firearm offense, and the decision turns on the specific facts, including how the firearm came into the person's possession and whether it posed a risk to others.

The waiver is the central issue in many first-offense cases, particularly those involving a firearm lawfully acquired in another state and brought into New Jersey without recognition of the state's separate requirements. Building the record that supports a waiver application begins early, well before sentencing.

Governing law: N.J.S.A. 2C:43-6.2 (reduction or waiver of the Graves Act mandatory minimum).

Pretrial Intervention for a Gun Charge

Pretrial Intervention is a diversion program that can end with a dismissal on completion. Prosecutors are cautious about admitting firearm defendants into the program, so it is not routinely available for a gun charge. In appropriate cases, admission can be sought in connection with a Graves Act waiver where the defendant enters a guilty plea. Whether that path is realistic depends on the charge, the record, and the circumstances of the arrest.

Defenses We Raise in Firearm Cases

A firearm case is not only about whether a weapon was present. It is about how the firearm was found, what the State can prove about knowledge and control, and whether the arrest and search complied with the constitution. Depending on the facts, we develop defenses that include:

• Suppression of the firearm where a motor vehicle stop, detention, or search violated Fourth Amendment or state constitutional standards.
• Challenges to constructive possession where the firearm was not on the defendant and more than one person had access to the location.
• Lack of knowledge that the firearm was present.
• Justification, within the limits of New Jersey law, in cases where force was used.
• Attacks on the sufficiency and reliability of the State's evidence at every stage.

On the justification point, New Jersey is not a Stand Your Ground state. Outside the home, the law imposes a duty to retreat before using deadly force when the person knows retreat can be made with complete safety. The Castle Doctrine is a narrow exception: a person who is not the initial aggressor is not required to retreat from the dwelling. Applying that framework correctly is essential in any firearm case that involves a self-defense claim.

Governing law: N.J.S.A. 2C:3-4 (use of force in self-protection; duty to retreat and the dwelling exception).

When a Firearm Case Becomes a Federal Matter

Some firearm cases are prosecuted in federal court rather than state court, and federal exposure is significant. Possession of a firearm by a prohibited person, such as a person with a qualifying prior conviction, carries a federal maximum of 15 years. A defendant with three qualifying prior convictions for violent felonies or serious drug offenses committed on separate occasions faces a 15-year mandatory minimum under the Armed Career Criminal Act. Federal cases also arise from trafficking and interstate transfer allegations. We defend firearm matters in both state and federal court.

Governing law: 18 U.S.C. 922(g) (prohibited persons); 18 U.S.C. 924(a)(8) and 924(e) (penalties, including the Armed Career Criminal Act).

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