New Jersey has some of the toughest gun laws in the country. There is a special sentencing in New Jersey gun law called the Graves Act under N.J.S.A. 2C:43-6. This sentencing law mandates that anyone convicted of possessing a firearm without a permit to carry the same must serve 85% of the sentence imposed, but no less than 42 months. But there are also many exceptions to this rule including a Graves Act Waiver in some instances. In fact, our Firm has time and again avoided this draconian penalty provision. We have got our clients into pre-trial intervention (PTI), straight probation (no jail time) and in some instances, we have achieved complete dismissal after a suppression hearing challenging the admissibility of the gun evidence. In other cases, we have successfully argued that our client was not “carrying” a weapon as defined in the statute. The facts of your case will determine the defense strategy in your gun case. But even when you think you may be dead in the water, we will be able to mount a defense to your charge.
In most cases, the weapon involved is a handgun. In many cases, the discovery of the gun is the result of a motor vehicle search. This is a particularly common fact pattern. Multiple passengers in the vehicle only adds to the proof problems for the State. When no one makes an ownership admission, the police will charge all the occupants as co-defendants. The prosecutor will put pressure on everyone to turn over and give testimony against the person they feel is most culpable. The State does this because they know at trial it may be difficult to convince a jury beyond a reasonable doubt that one person or all possessed the weapon. The State does get the benefit of certain rebuttable presumptions as to the owner or driver of the vehicle, but these presumptions can be challenged.
Possession in the law is a malleable concept. To possess in legal terms means to actually possess or to constructively possess. Constructive possession means that you were in a situation that you didn’t actually have the gun on you but knew or should have known of its location. Constructive possession is harder to prove. You should never make any admissions to the police when you are questioned. Those statements regarding the gun and ownership will only hurt you. If you do make statements though, we can make arguments to exclude them. In many instances, statements about the weapon are elicited by police before Miranda is administered. This is not always a winning argument but it can be under the right set of circumstances.
Gun offenses are escalated when drugs and CDS crimes are involved. This is the case with allegations of drug distribution and possession of a handgun during the commission of a CDS offense under N.J.S.A. 39:4.1. This is a second degree offense and a conviction for this could run consecutive to the underlying gun charge. The same issues apply for defense purposes, but the stake are higher when you are facing two consecutive 85% terms.
Likewise, there are instances when gun charges are coupled with “Certain Persons” offenses punishable under N.J.S.A. 2C:39-7. If you have been convicted of certain indicatable offenses or a disorderly persons domestic violence offense (some not all) you could face a certain persons charge and be looking at an addition 5 to 10 years.
I recently represented a client who was arrested based upon the information provided by a confidential informant. He was arrested exiting a restaurant. During the course of the arrest, he was found to be in possession of 2nd degree weight of heroin and a handgun. He had, on a prior occasion. been convicted of a distribution offense. He was facing gun charges, drug distribution charges and certain persons. He was looking at 30 years with 85% parole disqualifier.
We challenged everything. We challenged the reliability of the confidential informant, we challenged the States subpoena process and we challenged the search of the bag, the car, and everything else. When my client came to me, he thought we would have to plead out. But following our 2 day suppression hearing, the judge suppressed all the evidence and all the charges against my client were dismissed.
Not all cases need to go that far. In many cases we have successfully negotiated a Graves Act Waiver and used equitable circumstances to convince the State and the Court that the defendant should not go to jail even if he pleads guilty to a gun charge. This takes lots of preparation and information gathering to make sure that the waiver application submitted to the State includes the right information.
Please feel free to contact our office with any questions. We will take the time to answer all of your questions.