Despite this mandatory minimum sentence, an NJ judge can depart from it if the prosecution consents or solely on a motion by the defense counsel

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

New Jersey has some of this country’s harshest handgun and firearm laws and its Graves Act (2C:39-5—Unlawful Possession of a Weapon) imposes a mandatory minimum of a 42 month prison sentence on any person convicted of the unlawful possession of a handgun, rifle, or any other firearm in the Garden State.   Despite this mandatory minimum sentence, a New Jersey judge can depart from these sentencing guidelines if there is an agreement with the prosecution or if the judge, following a motion by the defense counsel, departs from those guidelines pursuant to NJSA 2C:43-6.2 

Our Recent Criminal Case Involving the “Safety Valve”

This occurred recently in a case that our firm handled in Atlantic County, New Jersey, in which our client, a new father, was charged with unlawful possession of a firearm following a domestic dispute.  While our client was the legal owner of the gun, this is irrelevant in New Jersey as it, unlike our Commonwealth, is a “may issue” jurisdiction as opposed to Pennsylvania which is a “shall issue” jurisdiction. This basically means that New Jersey doesn’t typically issue a license to carry to anyone except in rare instances under extraordinary circumstances. In this particular case, our firm convinced the prosecution to agree to a partial Graves Act waiver which subjected our client to a 1 year state prison term as opposed to a 42 month state incarceration. While obviously our client was happy for this departure, the end result, following our arguments to the judge, was a much more favorable disposition.


The “Safety Valve” requires that defense demonstrate mitigation

To obtain a departure from a New Jersey Mandatory Minimum Guideline sentence, your criminal defense lawyer must present mitigation evidence.  Following that presentation the prosecution is permitted to present aggravation evidence.   In New Jersey, the following are mitigating factors:

  • The defendant did not cause or threaten serious harm
  • The defendant did not contemplate that his conduct would cause or threaten serious harm
  • The defendant acted under strong provocation
  • There were substantial grounds to excuse or justify the defendant’s conduct, while failing to establish an actual legal defense
  • The defendant has compensated or will compensate the victim or will participate in a program or community service
  • The defendant has no prior criminal history
  • The defendants’ conduct was the result of circumstances unlikely to reoccur
  • The character and attitude of the defendant indicate that he is unlikely to commit another offense
  • The defendant will respond well to probation
  • Imprisonment of the defendant would entail an excessive hardship to himself or dependents
  • The willingness of the defendant to cooperate with law enforcement or authorities
  • The conduct of the youthful defendant was substantially influenced by a person more mature than the defendant


PTI, Full Waiver vs. A Partial Waiver

The prosecution would not agree to Pre-Trial Intervention (PTI) which is New Jersey’s equivalent to ARD in Pennsylvania because he had a prior criminal history.   Further, our client wasn’t eligible for a full Graves Act waiver (probation) because this particular incident involved domestic violence. Under the Graves Act Safety Valve, an individual is eligible for a full waiver to a probationary term rather than a custodial sentence where the mitigating factors, as defined by NJSA 2C:44-1, substantially outweigh the aggravating factors. 

Here the domestic violence was simply too much for us to overcome with mitigation at sentencing.  For a partial waiver, the prosecutor must only determine that the aggravating factors applicable to the offense and the offender himself do not outweigh the applicable mitigating circumstances.

For more information on criminal defense strategies, I encourage to visit our Free Info section which contains my videos, blogs, and books.  

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