The Choi Law Group recently obtained a successful disposition for a defendant who was charged with unlawful possession of a handgun under N.J.S.A. 2C:39-5. Unlawful possession of a handgun is a serious charge in New Jersey, and incarceration is often unavoidable. The sentencing for a conviction for possession of an unlawful weapon is governed by N.J.S.A. 2C:43-6(c) (also known as “The Graves Act”), which mandates the imposition of a minimum term of imprisonment and a minimum period of parole ineligibility depending on the degree of crime. Unlawful possession of a handgun is typically charged as Second Degree crimes, which means that the term of imprisonment will be between 5 to 10 years with a mandatory period of parole ineligibility of 3 to 5 years. Thus, unless a plea deal is reached reducing the sentencing guidelines, a conviction will likely result in a minimum term of imprisonment of 3 years. These minimum sentences do not apply to individuals who are repeat offenders because repeat offenders are subject to enhanced penalties.
Although it is sometimes difficult to obtain, there are a few possible plea options available to reduce the minimum statutory period of incarceration and/or parole ineligibility. If a handgun is an air gun, spring gun, bb gun, or any other weapon that uses forced air or gas, the mandatory minimum sentencing requirement set forth above do not apply because the charges would be considered a Third Degree. Likewise, it a considered a Third Degree crime if an individual possesses a rifle or shotgun without obtaining a firearm’s purchaser identification card pursuant to N.J.S.A. 2C:58-3. All other unlawful possession charges in New Jersey are crimes of the Fourth Degree.
The first possible plea option is found under N.J.S.A. 2C:43-6.2, which is commonly referred to as a “Graves Waiver.” Pursuant to this statute, upon a motion made by the Prosecutor to the Assignment Judge, the Court may impose a probationary sentence or reduce the mandatory minimum term of imprisonment during which the defendant will be ineligible for parole to 1 year. This waiver only applies to a defendant who has not been previously convicted of a Graves Act violation. Thus, in order to obtain a Graves Waiver, counsel for the Defendant must first persuade the Prosecutor to consent to the same. The Prosecutor will then apply to the Assignment Judge who must also grant the request. When considering whether or not consent to the Graves Waiver, A Prosecutor will take into consideration the Criteria set forth in N.J.S.A. 2C:44-1, including but not limited to any aggravating and mitigation circumstance. Under the circumstance set forth above, a Graves Waiver would nevertheless require a guilty plea to the underlying unlawful possession charge. The sentence is determined by the Assignment Judge. There is no guaranty the defendant will receive a sentence of probation only. Furthermore, a violation of probation could very well lead to a sentence for the maximum period of incarceration for a violation of unlawful possession as set forth above, as well as an additional sentence for violation of probation.
The second possible plea-deal sentence for a defendant convicted of a Graves Act violation can be straight probation. Like the Graves Waiver, a defendant will need the consent of the Prosecutor in order to obtain a probationary sentence for a conviction for unlawful possession of a handgun. However, it is the rare and compelling case that a Prosecutor would consent to such a sentence. It would certainly require extraordinary circumstances, including that the defendant have a clean record and the circumstances of the gun was unloaded. A violation of probation can also lead to a sentence for the maximum period of incarceration for a violation of unlawful possession as set forth above, as well as an additional sentence for violation of probation.
The final possible option to avoid the severe consequences for an unlawful possession of a handgun conviction is Pre-Trial Intervention, also referred to PTI. However, due to the seriousness of the crime, Prosecutors often times withhold their consent to a defendant’s admission into PTI. While a Prosecutor cannot unilaterally reject a defendant’s application for PTI, he or she may withhold their consent. Under such circumstance, an appeal would have to be made to the Judge assigned to the case. Very rarely will a Judge permit a defendant to enroll in PTI over the objection of the Prosecutor. Such a rare case would be one involving extraordinary and compelling circumstances; where the defendant had 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. Significantly, PTI will not be approved if there is an indication that the defendant may be involved in organized criminal activity.
The Prosecutor rarely consents to a defendant’s admission into PTI in a case involving a Graves Act violations charged as a Second Degree crime. Moreover, a defendant is almost never allowed to be admitted into PTI by the assigned judge over the objection of the Prosecutor. However, in cases where the Prosecutor does consent to PTI, a defendant would be required to plead guilty to the Second Degree crime pursuant to the present state of the law in New Jersey, which was recently passed on August 10, 2015. More specifically, the law states that, inter alia, defendants charged with a first or second degree crime must plead guilty before being admitted into PTI. Thus, a defendant who thereafter violates the terms of his PTI admission, could very well likely be sentenced to the maximum period of incarceration for a conviction of unlawful possession as set forth above, as well as an additional sentence for violation of probation.
Recently, the Choi Law Group was able to obtain a remarkable resolution for a client who was charged with unlawful possession of a handgun in the Second Degree. The client was a former Law Enforcement Officer who had worked with the Federal Government. He was severely injured on the job, and thereafter separated from his employment due to his inability to perform his job duties. For unknown reasons he never applied for disability, nor did the United States Government retire him due to his disability. Thus, his separation was never clearly defined. He also never sought protection under a safe haven provided for under the Graves Act for retired law enforcement officers and, indeed he might not have been qualified given the uncertainty of his separation.
In a recent indictment, our client was found to be in possession of a loaded handgun while sitting in the food court of a mall. Police discovered another handgun in the trunk of his car. They also found hollow point bullets in the trunk. He was charged with, inter alia, possession of a handgun under N.J.S.A. 2C:39-5 – a Second Degree crime. The Choi Law Group aggressively investigated the matter and discovered several defensible points. The Choi Law Group met with the Prosecutors and provided documentation evidencing the client’s successful law enforcement career prior to his injury. We also produced medical records and had him evaluated by a Psychologist, who believed that the client most likely suffered from a previously undiagnosed Traumatic Brain Injury that may have contributed to his offense.
After initially objecting to the client’s PTI application, the Prosecutor’s Office reconsidered the application in light of the materials present by the Choi Law Group. The Prosecutor’s Office thereafter agreed to not only allow the client’s admission into PTI, but amended and reduced the underlying charges to avoid the harsh consequences of a Graves Act guilty plea in the event that he breaches the terms of his PTI agreement.
This plea deal would not have been possible without the assistance of the client’s family, the fair considerations of the Prosecutor’s Office, the report of the medical expert and the Choi Law Group’s compassion and dedication to its client.
Presented with consent and authorization from the client.
The above is for information purposes only and does not constitute legal advice. For more information or to consult with our attorneys, please feel free to contact The Choi Law Group, LLC.