Have you been charged with illegal possession of a firearm? Surprised to learn that your plea offer calls for a State prison sentence (typically, five years with a 42-month parole disqualifier), and that the prosecutor is not willing to even discuss it? This scenario has been playing out in courts all over New Jersey for several years now. Here’s why, and what you may be able to do about it.
Years ago, the New Jersey criminal code included a third degree offense for unlawful possession of a weapon. Depending upon the facts of the case, it was frequently possible for those charged under this section of the Code to plead to the possession charge in exchange for a term of non-custodial probation. But the gun laws changed, and the third degree offense was no longer available. Offenses in these cases are charged under the Graves Act, with the result that a State prison sentence is frequently a given.
It is, however, possible to apply for something known as a “Graves Act Waiver”. If successful, the defendant will be placed on non-custodial probation with appropriate terms and conditions. In order to qualify for a waiver, the typical defendant must have little to no criminal record. They should also be able to document a life style punctuated by things that demonstrate the ability to live a successful, law-abiding and productive life in the community. The application for the waiver is prepared by the defendant’s lawyer, and is typically supported by documentation such as letters of reference from employers and community leaders, documentation showing achievement in employment and/or education, records of military service, and the like. The application will be ruled upon the county assignment judge, or that judge’s designee.