It’s important to understand that the Garden State treats illegal gun offenses much harsher than the Commonwealth of Pennsylvania

Alfonso Gambone
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A Philadelphia criminal defense lawyer representing accused persons throughout Pennsylvania and New Jersey.

Our New Jersey criminal defense law firm located in Moorestown handles illegal gun and firearm offenses in South Jersey for those accused of these crimes. It’s important to understand that the Garden State treats illegal gun offenses much harsher than the Commonwealth of Pennsylvania and, unlike its neighbor, imposes mandatory minimum state prison sentences on those convicted, and even to some who plead guilty.


Actual or Constructive Possession of a Firearm

A major issue in any illegal gun, firearm, or even drug or narcotic case, is the issue of possession. The prosecution must establish beyond a reasonable doubt that the accused individual either actually or constructively possessed the contraband in question for it to meet its burden of proof in a criminal courtroom. This evidentiary standard is the same in New Jersey, like any other state in the United States. Keep in mind, however, that in New Jersey a person is still subject to a mandatory minimum state prison sentence if they are found guilty of a criminal offense in which they participated as an accomplice in which a gun was used. For example, a criminal defendant who is not personally armed at any time during a robbery, but whose co-defendants were found guilty of Graves Act offenses, is subject to the same sentencing requirements under the Graves Act.


Accomplice Liability—New Jersey Graves Act

In this situation, the prosecution must only prove that the defendant knew or had reason to know that his co-conspirators would use or be in possession of a firearm in the course of committing, or attempting to commit, the crime. Remember that the purpose of the Graves Act is not rehabilitation, but deterrence. Legally, an accomplice is a person who acts with a purpose of promoting or facilitating the commission of an offense. Under the law, an accomplice of an armed robbery commits the same crime and is therefore subject to the same mandatory minimum Graves Act offense.


Keep in mind that in New Jersey the Graves Act defines a firearm according to its original design and not by its operability. This means that as long as a weapon has been designed to deliver a lethal bullet it does not need to be operable to subject the person to the mandatory minimum sentence. Inoperability is only an issue if the gun has been changed to such a degree that it has lost its characteristics as a real gun.


Graves Act Extended Terms

A person who’s convicted under the Graves Act as the principle actor or accomplice of any of the following offenses, which involve the possession of a firearm, is subject to a mandatory minimum of ½ of the sentence imposed or 42 months, whichever is greater. In addition to criminal penalties for these offenses, a person who commits any of the following offenses is subject to a potential extended term of incarceration.

These offenses include:

  1. Murder—NJSA 2C:11-3
  2. Manslaughter—NJSA 2C: 11-4
  3. Aggravated Assault—NJSA 2C: 12-1(b)
  4. Kidnapping—NJSA 2C: 13-1
  5. Aggravated Sexual Assault—NJSA 2C: 14-2
  6. Aggravated Criminal Sexual Conduct—NJSA 2C: 14-3
  7. Robbery—NJSA 2C: 15-1
  8. Burglary—NJSA 2C: 18-2

A court will impose an extended term of incarceration under the Graves Act if a person commits any of the above offenses and has a prior conviction for committing these same offenses. See NJSA 2C: 44-3(d). This extended term, which could include a parole disqualifier, is 1/3-1/2 of the sentence imposed or 5 years, whichever is greater. The prosecution must seek this extended term and prove by a preponderance of the evidence that the weapon used or possessed was a firearm.


First Time Offenders

If you are charged as an accomplice to a Graves Act offense in New Jersey it’s important to understand that the court isn’t required to impose the mandatory minimum sentence if your criminal defense lawyer can successfully argue that as a first time offender it is not in the interest of justice for you to be sentenced to state prison. Although the prosecutor in New Jersey retains discretion in any case to decide whether to seek Graves Act waiver of a mandatory minimum term, the defense may argue for a probationary term if conditioned on a custodial term. This is known as the Escape Valve, and discretion rests with the sentencing judge to impose either a 1 year minimum term of parole ineligibility or probation conditioned on a custodial term.


For more information on Graves Act defenses in New Jersey please keep reading my blog and visit the free download section.

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