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.
The county prosecutor’s office has a substantial say in who gets a Graves Act Waiver; however, their decision on the subject is not necessarily final, as demonstrated by the recently decided case of State v. Mount.
On the State’s appeal, the Appellate Division affirmed the trial court’s order granting defendant a Graves Act waiver. It was alleged that defendant had obtained a gun after he and his family had been threatened with violence by a known gang member. The gang member had pistol whipped defendant, causing him to be hospitalized. While the gang member was released pending an attempted murder charge, he arrived unexpectedly at defendant’s house, accompanied by two other men. The gang member told defendant’s wife that he wanted to “fight the fair one” with defendant. The men had two AK-47 assault rifles with them. Defendant called the police and reported the incident but did not lodge formal charges. Ten days later, an informant told police that defendant was carrying a handgun. Ultimately, police stopped defendant with his family and found a gun. Defendant informed the police that he carried the gun to protect his family. The prosecutor’s office rejected defendant’s request for a Graves Act waiver, asserting that defendant had shunned police assistance to protect himself and his family from the gang member’s threats and instead had illegally obtained the gun to take matters into his own hands.
The presiding judge ruled that the interests of justice warranted a waiver. In support, the presiding judge noted that the State did not adequately consider defendant’s compelling reason to carry a handgun (duress); defendant had a limited criminal history; and the reduced concerns in this case for deterrence. Further, the judge assessed defendant’s likelihood of success at trial as “moderate. ”On the whole, the judge found the prosecutor’s decision was arbitrary, given the discrete circumstances presented. The Appellate Division found that the presiding judge did not abuse his discretion in granting the waiver. The Court opined that “this is a rare instance in which a judicial override of a prosecutor’s Graves Act waiver denial is appropriate.” The Court noted that the circumstances strongly suggested that defendant acquired the gun and ammunition solely for protection. The threat of further violence against defendant and his family was not conjectural as the gang member had already assaulted defendant and menaced his family with a display of weaponry. The Court further noted that the family duly reported the threat to police and their reluctance to lodge a formal complaint, presumably for fear of sparking retaliation, was not surprising, and should not be held against defendant in the waiver analysis.
Note the Court’s language concerning the “rare instance” in which the prosecutor’s decision on a Graves Act Waiver will be reversed. Only certain defendant will qualify, and that will depend upon the defendant’s background and the facts of their case. In order to be successful, the application must discuss the reasons supporting the waiver in as much detail as possible, and must be thoroughly supported by proper documentation.
James S. Friedman, Esq., is a criminal defense attorney centrally located in New Brunswick, New Jersey. Mr. Friedman represents people with criminal charges, such as weapons charges, in all State and Federal courts in New Jersey and New York City. If you have a weapons offense, or any other criminal charge, contact Mr. Friedman immediately to discuss your case and your defense.