Most people misunderstand firearms laws in New Jersey, even those who call the Garden State their home or conduct the majority of their business within the state!

Alfonso Gambone
Connect with me
Alfonso Gambone is a Philadelphia criminal defense attorney dedicated to protecting your rights.

Most people misunderstand firearms laws in New Jersey, even those who call the Garden State their home or conduct the majority of their business within the state!  Many Pennsylvania residents, especially those who live in Philadelphia, assume the laws are basically the same and this is a real mistake which could lead to lifetime criminal felony records and thousands of dollars in legal fees along with court costs!

 

While ignorance of the law is obviously not a defense, in most situations, it won’t result in mandatory minimum jail sentences or a felony criminal record but this isn’t the case with gun crimes.  The purpose of this article is to highlight points that I’ve made in the past about gun and firearms laws in New Jersey.  As always, my purposes is not to scare my readers but only to educate and provide immediate value about firearm laws  

 

Here are 5 things that everyone should know about guns in New Jersey, regardless of weather you live there!

 

  1.  New Jersey, unlike Pennsylvania is a “may issue” firearm carry permit jurisdiction.

 

Pennsylvania is a “shall issue” state whereas New Jersey, New York, Maryland, and Connecticut, are “may issue” jurisdictions which really just means that you can’t generally obtain a permit to carry a handgun in these states.  “Shall Issue” means that a person can generally receive a permit to carry provided that they satisfy certain requirements which include a character and fitness evaluation   

Delaware is a “may issue” state but administers it gun laws like a “shall issue” jurisdiction. There are other “may issue” jurisdictions like Delaware such as California and Alabama.  The Garden State, however, is the most restrictive when it comes to firearms, there are “no issue” jurisdictions like Illinois, Wisconsin, and the District of Columbia that simply don’t allow citizens to carry concealed handguns.

New Jersey, unlike the Commonwealth of Pennsylvania, doesn’t have reciprocity with other states.  This means, even if you own a gun in New Jersey, you just can’t take it into another state and attempt to use or carry it.  While you can travel through other states with your firearms, you should always understand the laws within that States with regards to traveling within its borders with firearms. 

  • “Shall issue” states include the following jurisdictions:
    • Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maine, Michigan, Minnesota, Mississippi, Missouri, Montana, Nebraska, Nevada, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, Washington, West Virginia, and Wyoming.

 

  1.  You need a permit just to a buy or purchase a handgun in New Jersey

 

To buy or purchase a firearm in the state of New Jersey you must have a valid permit to purchase a handgun along with one additional form of identification. The information on the handgun purchase permit obviously must match the other identification.  A person can apply at his or her local police department but if he or she is an out of state resident you must apply at the nearest New Jersey State police station. It’s illegal to sell, give, transfer, or acquire any type of firearm, including a rifle or a shotgun, unless the buyer possesses a valid firearm’s purchase identification card and the seller signs a written certification identifying the purchaser.

 

  1. There is mandatory minimum state prison sentencing gun crimes in New Jersey

 

New Jersey’s takes a very tough approach to illegal handguns and firearms with its policy of  the “promise of imprisonment”, rather than rehabilitation under the Graves Act. In 1983, the New Jersey Supreme Court in State v. Des Martes, stated if a person is convicted of a crime against another while using or possessing a firearm in state, that person will go to prison for at least 3 years.” The law now in State calls for a mandatory 42 month state prison. The New Jersey Legislature amended the Graves Act in 2013 to increase the mandatory minimum term to the greater of one half or one third of the base term which equals 42 months. The goal of the Graves Act is deterrence through widespread knowledge that one who is convicted of using or possessing a firearm while committing a crime will not escape a mandatory minimum jail sentence!

 

  1. Unlawful Possession and Possession of Gun for an Unlawful purposes are two separate criminal offenses which don’t merge at sentencing

 

In the Garden State the possession of a weapon for an unlawful purpose is a crime of the second degree if that weapon is a firearm, explosive or destructive device and the prosecution establishes that the defendant used it against property or the person of another.

If the weapon isn’t a firearm but nonetheless still used for an unlawful purpose against the person or property of another, it’s a crime of the third degree.   (Read my article on the classification of crimes and offenses in New Jersey). In these cases, the prosecution must establish beyond a reasonable doubt the following 4 elements:

  1. The item was a firearm or other weapon or explosive or destructive device;
  2. The defendant possessed it (constructive or actual);
  3. The defendant had a purpose to use it against the person or property of another;
  4. It was going to be used unlawfully.

While a gun or a firearm used against the person or property of another are both graded as crimes of the second degree, there’s an important distinction between property and person. Under New Jersey’s Graves Act, there’s mandatory parole ineligibility if the crime is committed with a gun and against a person as opposed to property. With regards to the unlawful purpose element of this criminal offense, the prosecution doesn’t have to prove a specific purpose or plan to act unlawfully.

The State only has to present enough evidence for the judge or jury to draw a legitimate inference as to that unlawful purpose. The shooting of a BB gun, for instance, would permit that inference. This criminal purpose only has to exist at the time that the offense occurred. The test for unlawful purpose isn’t whether the defendant’s belief was reasonable but rather whether it was an honest belief that he/she needed the weapon for self-defense for instance.

 

The belief therefore can be honest but unreasonable and still be sufficient to negate the mental state required for conviction. If the weapon, gun or firearm is used in the commission of a crime (robbery, burglary, and aggravated assault) it merges with that principal act. The gun charge wouldn’t merge, however, if the prosecution proves that the defendant had a “broader unlawful purpose”.  While it merges with these violent felony offenses, it would not merge with other weapons offenses.  This means that a person can be convicted of the possession of a gun or firearm without a permit or registration and the possession of that same firearm for an unlawful purpose.

 

  1. Full or Partial Graves Act Waivers are the only way to avoid a state prison sentence

 

There are only 2 ways to avoid state prison under New Jersey’s Graves Act—a full or partial Graves Act Waiver of the Mandatory Minimum Sentence.  While the defense and prosecution are allowed to present virtually anything in terms of mitigation and aggravation, New Jersey, like Pennsylvania, provides a list of these factors under 2C: 44-1. I have written previous articles on New Jersey’s published aggravating and mitigating factors (Learn about these factors now)

           

Partial Graves Act Waiver 

Unlike a Full Graves Act Waiver, a partial waiver would still require the individual to serve 1 year in state prison as opposed to the 42 month mandatory minimum sentence. A defendant should never assume a partial waiver. The prosecution must agree to the partial waiver and file a motion requesting that the court impose it. With regards to a full waiver, the sentencing judge in New Jersey, in most cases, does not have the authority to impose a probationary sentence. If the defense is seeking a full waiver it must make the motion to the assigning judge for that particular county.

For more information on Graves Act defenses I encourage you to keep reading my blog and read my previous articles on the Graves Act.
Be the first to comment!
Post a Comment