Table of Contents
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When Does The Graves Act Apply? -
Mandatory Minimum Sentence -
Limitations on Plea Bargaining -
When a Graves Act Waiver Might Apply -
How To Secure a Graves Act Waiver -
Pretrial Intervention in a Gun Case -
When Federal Law Complicates the Picture -
The Stakes for Juveniles and Young Adults -
Why Size and Reach Matter in Graves Act Cases -
Making Prosecutors Rethink Their Position -
Graves Act Frequently Asked Questions
Graves Act Defense Guide: Understanding New Jersey’s Harsh Gun Laws
New Jersey has adopted strict laws to discourage individuals from possessing firearms and other weapons illegally. A primary measure adopted to achieve this goal is the Graves Act, which imposes mandatory prison sentences for those who commit certain crimes while in possession of a handgun, shotgun, rifle or other firearm. The Graves Act was also expanded in 2008 to apply to unlawful possession of a handgun, unlawful possession of a rifle or shotgun and several other possessory weapons offenses. If you were arrested because you were allegedly in possession of a firearm while committed a criminal offense or were charged with illegal possession of a gun, the Graves Act requires that you go to prison if you are convicted. There certainly is no question that you need the services of an accomplished New Jersey Criminal Lawyer if you have been charged in this manner.
Every New Jersey criminal defense lawyer with The Law Offices of Jonathan F. Marshall understands how unforgiving these charges can be. Thanks to our team’s size and reach, we bring depth and range to every defense strategy. With more than 15 criminal defense attorneys, many of whom once served as high-ranking prosecutors, we offer something few others can: insight from both sides of the courtroom. Our legal team’s credentials include:
- Over 300 years of combined experience handling firearm cases throughout New Jersey
- Former county prosecutors that include a former Director of the Guns Task Force, Major Crimes Bureau and an entire Trial Division
- Criminal trial attorneys, a designation granted by the NJ Supreme Court to less than 2% of those practicing in the state
- A rich history of securing Graves Act waivers and other relief so that incarceration is avoided in illegal handgun and other cases where parole ineligibility otherwise applies
An attorney on our staff is available by telephone 24/7 to discuss an initial appearance, a detention hearing or any other subject matter you want to discuss. To reach a lawyer who is highly knowledgeable in NJ firearms laws and how to effective defense a Graves related offense, call 855-450-8310 for a free consultation.
When Does The Graves Act Apply?
The law known as the Graves Act is contained at N.J.S.A. 2C:43-6, subsection (c). An individual falls within the sentencing requirements of this statute if they commit a violence crime while in possession of a firearm or if they illegally possess certain firearms.
I. Crimes That Fall Under The Graves Act When Committed With A Firearm
The following crimes require imposition of a mandatory minimum term of imprisonment if they are committed while in possession of a firearm:
- Possession of a firearm for an unlawful purpose
- Murder
- Manslaughter
- Aggravated Assault
- Kidnapping
- Aggravated Sexual Assault
- Aggravated Criminal Sexual Contact
- Robbery
- Burglary
- Escape.
II. Possessory Weapon Offenses Falling Under the Graves Act
There are also instances when the Graves Act applies simply because an individual possesses a firearm illegally. This occurs when someone commits the following offenses:
- Unlawful Possession of a Sawed-Off Shotgun
- Possession of a Defaced Firearm
- Possession of a Firearm While Committing a Drug Offense
- Unlawful Possession of a Machine Gun
- Unlawful Possession of a Handgun
- Unlawful Possession of Rifle or Shotgun
- Certain Person Not to Have a Weapon
- Manufacture, Transport, Disposition and Defacement of a Firearms
- Unlawful Possession of an Assault Firearm
Other Important Considerations Relating To Applicability of the Graves Act
There is no distinction whether a gun is loaded or unloaded under this law. As a result, someone is subject to the Graves Act even though the handgun or firearm was unloaded. In fact, the prosecutor isn’t even required to demonstrate that the gun was operable.
Another important consideration under this heading is that accomplice liability applies under the Graves Act. What this means is that you can be convicted of a charge falling within this law even though he did not use or possess a firearm if you were an accomplice to the individual who committed the predicate offense. The test that determines applicability of the Graves Act in this context is whether or not the accused knew or had reason to know that his or her co-defendant would use or be in possession of a firearm. See State v. Macine, 241 N.J.Super. 166, 192 (App.Div.1990). Liability is extended in this setting under the theory that the parties shared the same purpose and should therefore be subject to the same penalties.
Mandatory Minimum Sentence
New Jersey’s Graves Act, codified under N.J.S.A. 2C:43-6(c), locks defendants into a mandatory minimum sentence when convicted of certain gun-related offenses. That means state prison time, not probation. Even someone with no prior record can face three and a half years behind bars without parole eligibility.
It doesn’t stop there. Under this law, the type of firearm, your criminal background, and the context of your arrest matter far less than the charge itself. A single handgun in your glovebox can trigger a statutory prison term. When prosecutors push for an indictment, they almost always charge under this provision.
A New Jersey criminal defense attorney with our firm will work to challenge the arrest’s circumstances, question the search’s legality, and seek any option for relief under existing waiver programs. Those routes are limited, but they exist, especially for out-of-state residents unfamiliar with the state’s rigid firearms policy.
Partial Relaxation Afforded By The Attorney General’s 2008 Directive
In 1989, the New Jersey Legislature adopted N.J.S.A. 2C:43-6.2. This law outlines the process for obtaining a waiver of the mandatory imprisonment required under the Graves Act. The statute authorizes the reduction of the mandatory minimum term of imprisonment to one (1) year for individuals having no prior firearm convictions. In recognition of this legislative change, the attorney general issued a directive in 2008 allow prosecutors, in the typical first offender case, to offer a one year sentence without the possibility of parole.
The only way that a defendant can obtain relief beyond the one year mandatory minimum term of imprisonment authorized by the directive is to obtain a formal Graves Act Waiver or Pretrial Intervention. The guidelines for securing a waiver are both complicated and highly restricted. A detailed discussion of this subject can be found under How To Secure a Graves Act Waiver. Pretrial Intervention (“PTI”) is extraordinarily rare when someone is facing a Graves Act eligible charge. A detailed discussion of that subject can be found under Pretrial Intervention in Gun Cases.
Limitations on Plea Bargaining
The New Jersey Supreme Court has created strict guidelines and restrictions on plea bargaining in cases falling under the Graves Act. A court is precluded under Supreme Court Directive #10-80 from accepting a plea that provides for the dismissal of a firearm offense that carries a mandatory term unless one of the following occurs:
- The prosecutor indicates in open court that the evidence in the case is insufficient to support a conviction or that the probability of a dismissal is so great that the interests of justice warrant a dismissal.
- The defendant is being sentenced to a term of imprisonment that is equal to or greater than the term that would apply under the Graves Act charge being dismissed.
- The prosecutor places on the record (e.g. in camera or open court) that the plea bargain is essential to assure the defendant’s cooperation with the prosecution; in other words, the accused must be a cooperating witness.
Any sentence that is imposed in a manner inconsistent with these limitations is illegal, void and subject to correction at any time.
Understanding the Difference Between Charges
Not every weapons offense in New Jersey triggers the Graves Act, but many of the most serious and commonly charged do. Unlawful possession of a handgun, possessing a firearm for an unlawful purpose, and the transport or use of certain banned assault weapons all fall squarely within its reach. Each charge carries different implications, and those distinctions can be the key to your future.
People often find themselves swept up in this system for reasons that have little to do with criminal intent. We routinely work with clients who transported an unloaded, legally purchased handgun in the trunk of their vehicle, believing they were in compliance. They weren’t trying to commit a crime.
A New Jersey criminal defense lawyer will analyze the precise charge and statute being used against you. In some cases, the law has been stretched too far. Prosecutors sometimes overcharge to secure leverage. Police may misinterpret your behavior or apply a statute that doesn’t fit the facts. Our job is to find those flaws and push back hard.
When a Graves Act Waiver Might Apply
Even when a Graves Act charge is correctly applied, that doesn’t mean the mandatory prison sentence is a foregone conclusion. Prosecutors can agree to waive the mandatory minimum in certain circumstances. That waiver can be a lifeline, but it’s only offered in rare cases, typically when a defendant lacks prior convictions and shows compelling reasons for leniency.
If you’re facing this situation, a New Jersey criminal defense attorney from our firm will immediately begin gathering support for a waiver request. That means collecting proof that you owned the firearm lawfully in another state. It also means building a complete picture of your life – your job, family, and community role. These aren’t just character references but tools to convince prosecutors that prison isn’t the only appropriate option.
The Attorney General’s Office has provided guidance to local prosecutors encouraging waivers in situations where prison offers no public safety benefit. That gives us a framework to work within, but your lawyer must initiate and shape that conversation. Waivers don’t fall into your lap; they’re earned through targeted advocacy, persuasive documentation, and local understanding.
Understanding Prosecutorial Discretion
Each county prosecutor has a different threshold for recommending a waiver. Some demand stronger evidence of mitigating factors than others. That’s why having someone on your side who appears regularly in that courtroom – and knows how that specific prosecutor thinks – can make all the difference. We maintain offices throughout New Jersey for precisely that reason.
Our criminal defense attorneys will submit a detailed, respectful, tailored waiver package to those reviewing it. We’ve worked with prosecutors who initially resisted relief, only to change course after reviewing our presentations. There’s no shortcut to that result; it takes depth, focus, and persistence.
How to Secure a Graves Act Waiver
- The defendant has no prior Graves Act charges (i.e. convictions); and
- The interests of justice would not be served if the normal mandatory term was imposed.
Based on the contents of the motion and evidence otherwise existing in the case, the assignment judge has one of three (3) options. First, he or she can deny the motion based on failure to demonstrate the requirements for a waiver. Second, the judge can reduce the term of imprisonment to one (1) year. The third option is for the court to place the defendant on a term of probation. Our attorneys are adept in obtaining waivers for clients charged with unlawful possession of a handgun or any other variety of firearm falling under the Graves Act.
Pretrial Intervention in a Gun Case
- Minimal Exposure of the Firearm to Persons in New Jersey
- The Gun-Possession Offense was Isolated and Aberrational
- Volunteering the Presence of the Firearm to Police
- Surrender an Unloaded Firearm to Police
- Circumstances Concerning Confusion of New Jersey and Other State Law
The considerations are unquestionably angled toward out-of-state residents who bring legally acquired handguns into the state, hence, the inquiry into confusion regarding our law, minimal exposure to persons in New Jersey and the situation is isolated. Why is this the case? The reason is because these are the types of handgun cases that fall “outside the heartland” of the Graves Act. This does not mean that it is impossible for a resident of the state to also secure PTI but this relief is clearly even more unusual. Hiring the right attorney is obviously exceptionally important for anyone interested in securing this relief.
When Federal Law Complicates the Picture
Some Graves Act charges also trigger federal scrutiny. If you possess a weapon in connection with drug activity or as a convicted felon, you can face federal prosecution under 18 U.S.C. §924(c) or the Armed Career Criminal Act. Those charges carry their own mandatory penalties and typically run consecutive to state sentences.
Our attorneys have experience handling both state and federal cases. We know how to spot dual exposure and adjust your defense strategy accordingly. In some cases, federal outcomes can be leveraged to mitigate state exposure, but only with careful, deliberate planning.
Federal cases often move faster and involve different rules of evidence. A New Jersey criminal defense attorney familiar with both systems will help you prepare accordingly. We’ll coordinate with federal defense counsel when needed to protect your rights on both fronts.
The Stakes for Juveniles and Young Adults
Teenagers and young adults aren’t immune from the Graves Act. In fact, they often face the brunt of its penalties. Even a juvenile adjudicated delinquent can receive a mandatory period of detention. For college students or young professionals, that record can shut down future opportunities before they begin.
We’ll work to help avoid that outcome by identifying every possible diversion. Some counties have programs designed for youthful offenders. Others may be open to reduced pleas if the defendant demonstrates genuine rehabilitation. Our footprint across the state means we know which counties provide which paths forward.
A lawyer from our firm will work directly with the family to build a narrative of support, academic success, and remorse. Prosecutors don’t often yield, but they might when presented with a complete picture of the person behind the charge.
Why Size and Reach Matter in Graves Act Cases
Again, Graves Act cases carry mandatory sentencing rules that eliminate judicial discretion. Prosecutors walk into the courtroom with public pressure behind them and often a pre-formed plan to seek years of incarceration. Your attorney needs to bring more than just legal knowledge – they need courtroom respect.
At The Law Offices of Jonathan F. Marshall, we take a team-based approach. We’re the largest criminal defense firm in New Jersey, with more than 15 attorneys who only work in criminal law. That singular focus means our strategies are precise, refined, and built on a wide range of courtroom experience.
What separates us is the level of insight we bring from the other side. Several of our lawyers previously served as high-level prosecutors in counties statewide. We know how the state builds its cases because we’ve built them ourselves. That inside perspective allows us to anticipate how your case might evolve, which arguments might persuade, and which tactics might backfire.
Statewide Experience, Local Strategy
We’re part of the legal fabric in almost every local courthouse in New Jersey. We know the judges who hear these cases, the assistant prosecutors who handle indictments, and the policies that shift from county to county.
A Graves Act case in Essex might be approached differently than one in Morris. Camden prosecutors may follow different internal policies than those in Union. That variation means a one-size-fits-all defense simply doesn’t work. An experienced New Jersey criminal defense attorney with The Law Offices of Jonathan F. Marshall won’t just know the statute – you’ll have someone who knows how it plays out in the specific courtroom that matters most to your future.
Making Prosecutors Rethink Their Position
Once a prosecutor sets their position on a Graves Act case, it can be difficult to dislodge. That’s why early engagement with the right arguments and evidence is so critical. Our firm takes a proactive approach from the very beginning. We won’t wait for trial to start challenging the direction of your case.
Rather than relying on generic pleas for leniency, our attorneys will give the prosecutor reasons to reconsider. That might include letters from community members, documentation of military service, or records of employment and civic involvement.
We also pursue unique sentencing alternatives when they’re available. If public safety isn’t at risk, and you can demonstrate a path toward rehabilitation, there are ways to shift the discussion. That won’t happen by accident. It takes a focused lawyer who knows how prosecutors evaluate risk and what they need to see in order to justify a different path.
Changing the Narrative
Graves Act charges don’t leave much room for nuance. From the moment an arrest is made, the state often casts the accused in a harsh light – as someone dangerous, reckless, or criminally inclined. That story, repeated in charging documents and pretrial motions, becomes difficult to shake. But most people charged under the Graves Act don’t fit that mold. They’re not hardened offenders. They’re teachers, parents, military veterans, and travelers who never meant to break the law. Our job is to make that distinction clear.
We take that job seriously. A New Jersey criminal defense lawyer from our team will work to build a complete picture of who you are, far beyond the allegations. We’ll gather letters from employers, clergy, family members, and community leaders. We’ll trace the timeline that led to your arrest, and we’ll connect it to your life circumstances in a way the prosecution can’t ignore. These details matter. When presented effectively, they can shift the entire trajectory of a case.
An attorney from The Law Offices of Jonathan F. Marshall will develop a defense strategy that fits your case and your courtroom. Judges and prosecutors respond to context, especially when it’s delivered by someone they know and respect. That’s where our statewide footprint makes the difference.
An Experienced New Jersey Criminal Defense Lawyer is Ready to Fight for the Best Outcome
While many Graves Act cases resolve before trial, some must proceed to a verdict. In those instances, courtroom skill becomes everything. You need an attorney who can cross-examine aggressively, challenge the state’s chain of custody, and dismantle weak identification evidence.
If a conviction occurs, the case isn’t necessarily over. Appeals and post-conviction relief may provide avenues to contest sentencing or procedural errors. Our team will advise you on the timing, likelihood, and structure of those options, always with the long game in mind.A New Jersey criminal defense lawyer with The Law Offices of Jonathan F. Marshall won’t promise miracles. However, with the right planning and a strategic approach, we’ll give you more than a fighting chance. Schedule your free case review by using our online form or calling (877) 450-8301.
Graves Act Frequently Asked Questions
What is the Graves Act in New Jersey?
The Graves Act mandates prison time without parole for certain gun-related offenses, even for first-time offenders.
Does a legal gun from another state count under the Graves Act?
Yes. Possession can still trigger mandatory sentencing.
Can I get probation instead of prison under the Graves Act?
You can, but only if a waiver is granted or you qualify for Pretrial Intervention, both will require prosecutorial consent.
Do first-time offenders ever avoid jail under the Graves Act?
Some do, particularly if they qualify for a waiver or PTI, but those outcomes aren’t guaranteed and require active legal advocacy.
Are Graves Act cases ever dismissed?
Yes, but dismissal usually follows strong legal challenges or diversionary agreements rather than a lack of evidence alone.
