I’ve written previous articles on the Graves Act, the unlawful possession of a gun or firearm, and the mandatory minimum sentences that come with that conviction under the Act. Despite this mandatory minimum, the prosecution is still permitted to agree to a waiver of this requirement and even pre-trial intervention (PTI) in certain circumstances for out of state visitors who unlawfully possess a weapon in the Garden State.
Before getting to these requirements in Jersey, it’s important to understand that the prosecution won’t cut a person a break if that person comes to New Jersey and has a prior conviction or some other issue that wouldn’t allow them to carry the weapon in the first place (i.e. 6105 – VUFA – Pennsylvania).
I also encourage you to read my previous article on transporting a gun or firearm through this state and the requirements for lawful transportation. In the event, however, that you fail to lawfully transport a weapon through New Jersey and you’re arrested for the unlawful possession of a firearm in the state, the prosecution will consider the following with regards to a waiver of the Graves Act mandatory minimum and a PTI application:
• Minimal exposure of the firearm to persons in New Jersey
o This means that the prosecution will consider whether the gun or firearm was kept in the car or motor vehicle at all times and whether the Defendant carried, or planned, to carry the firearm or gun on or about his person and outside of the vehicle. Further, traveling through the state on an interstate highway for example with few or any stops presents less of a danger than a longer visit with multiple visits and likely interactions with non-motorists in the state. A loaded firearm is also looked at much differently than an unloaded firearm which obviously presents less of an immediate risk to persons with whom the defendant interacted with during their time in the state.
• The defendant is otherwise a law abiding person.
o This is a huge part of the PTI process for a Graves Act offense. The prosecution will consider the nature and severity of the other crime or offense which led to the police’s discovery of the gun or firearm. These would include a traffic stop, an ordinance violation, a disorderly person’s offense, or some other crime. Obviously if a person is charged with another indictable crime (in addition to the gun) this would go against the person’s possible PTI application. The prosecution will also consider a person’s other pending cases, prior criminal record, and juvenile record in or out of the state.
• The defendant informing police of the presence of the firearm in response to a question (i.e. Is there anything the car that I should know about?).
o Volunteering information about the presence of a gun or firearm is especially important because it tends to confirm that a person didn’t realize that possession of the firearm was unlawful in the State.
• Circumstances which lead to the confusion about New Jersey’s law regarding guns and firearms.
o While everyone is presumed to know the law (ignorance isn’t a legal defense), a claim of ignorance is viewed with greater skepticism if the person was on actual notice that carrying a weapon outside of his home state could be considered a crime (i.e. Does a person’s out of state carry permit advise them that carrying is limited to that particular state?).
The bottom line is that there is no exact formula that the prosecution will use to accept or deny a PTI Application for an out of state person who carries a gun or a firearm in New Jersey. The prosecution will weigh the above mitigating aggravating circumstances and make a determination as to whether there are compelling reasons to justify a person’s admission into this special program. In closing, it’s important to consider that even if a person isn’t accepted into PTI the prosecutor can still invoke a “safety valve” to the Graves Act pursuant to NJSA 2C:43-6.2 which will allow a person to serve a non-custodial (no jail) sentence.