Firearm Possession in New Jersey: Laws, Sentencing, and Defenses

New Jersey is known for its strict gun laws, which include extensive background checks, waiting periods, strict limitations on who may lawfully possess a firearm, what types of firearms a citizen is permitted to own, and most importantly, the severe consequences if you are arrested or charged for unlawfully possessing a firearm. Gun possession cases are taken extremely seriously by New Jersey prosecutors, even individuals with no prior criminal record can face serious consequences, including prison time, if charged with unlawful possession of a firearm. This post breaks down New Jersey’s firearm possession laws, sentencing provisions, and defenses available under the law.

What is Unlawful Possession of a Handgun in New Jersey?

Under N.J.S.A. 2C:39-5(b), anyone who knowingly possesses a handgun without a permit to carry is guilty of a second-degree crime. For firearms like air guns, spring guns, or pistols propelled by compressed air or gas, unlawful possession is considered a third-degree crime.

The New Jersey unlawful possession statute reads: “any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.A. 2C:58-4, is guilty of a crime of the second degree. If the handgun is in the nature of an air gun, spring gun or pistol or other weapons of similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, which sufficient force to injure a person it is a crime of the third degree.”

How New Jersey Defines a Handgun

A handgun, under New Jersey law, is any pistol, revolver or other firearm originally designed or manufactured to be fired using a single hand. This includes many types of firearms, making it essential for gun owners to know what qualifies under the statute.

What Constitutes Possession Under New Jersey Firearm Law?

Possession in New Jersey is defined in two main ways: Actual Possession and Constructive Possession.

• Actual Possession: This occurs when an individual has direct, intentional control over a firearm and is aware that it is a handgun. For example, someone is found holding a gun or carrying it in a backpack would likely meet the criteria for actual possession.
• Constructive Possession: This applies when an individual has the power and intention to control a firearm, even if it is not in their actual physical possession. For instance, if a firearm is discovered under a car seat, each occupant might face charges under constructive and joint possession.

It is important to note that under certain circumstances, merely passing control or temporary control is an exception to the firearm possession law under N.J.S.A. 2C:58-3.1. This includes temporary possession at a licensed firing range or firearm dealer.

Presumption of Possession in a Motor Vehicle

New Jersey law presumes that each occupant of a vehicle is in possession of a firearm found within the vehicle unless certain exceptions apply. If the weapon is found on one person (such as in their pocket) or concealed in specific areas like a glove compartment, the presumption typically applies only to the vehicle owner or authorized operator. The purpose of the presumption is to stop multiple defendants in a vehicle from pointing their finger at the other occupant of the vehicle to avoid a prosecution under the unlawful possession laws.

Sentencing Requirements for Unlawful Possession of a Firearm in New Jersey

Unlawful firearm possession if heavily penalized under the Graves Act (N.J.S.A. 2C:43-6(c)), which mandates minimum prison sentences for gun-related offenses. This applies even to individuals with no criminal history. The law requires a sentence of at least five years in state prison, with a mandatory minimum of 42 months (three and a half years) before parole eligibility.

Can the Mandatory Minimum Sentence Be Waived?

The short answer is yes. A Graves Act Waiver is possible under limited circumstances, allowing first-time offenders to receive probation or a reduced mandatory minimum sentence of one year instead of 42 months. This is referred to as an escape valve provision. Pursuant to N.J.S.A. 2C:43-6.2, on motion by the prosecutor and if the defendant has never been convicted of a prior gun offense, the assignment judge can waive the mandatory minimum and sentence required by the Graves Act. To increase the likelihood of a waiver, a skilled criminal defense attorney will examine the evidence for weaknesses, such as unlawful searches or lack of reasonable suspicion to request consent to search a vehicle, or offer mitigation of the case.

What If This Isn’t My First Firearm Offense?

For defendants with prior firearm convictions, the situation is more complex. In cases of a second offense, a defense attorney must challenge the evidence itself, often focusing on suppression motions to prevent the firearm from being admitted as evidence because a Graves Waiver is not permitted. Character evidence alone is not likely to result in a dismissal of the firearm charge if it is your second offense, unless the case presents very unusual circumstances. If convicted, a second offense under the Graves Act could lead to an extended sentence above the usual ten years.

How Our Firm Works to Secure a Graves Act Waiver

For clients facing their first gun offense, there are strategies we employ to improve the chances of obtaining a Graves Act Waiver.
The first step is a detailed review of the strength of the evidence against our client. This often includes examining whether any search and seizure issues are present in the case. For example, if a firearm was discovered during a traffic stop, we investigate whether the stop itself was lawful. If the police conducted an unlawful stop or searched the vehicle without probable cause, the evidence could be challenged, creating grounds for suppression and potentially weakening the prosecution’s case. Even though suppression is never guaranteed, raising valid legal questions about the search can sometimes be enough to encourage the prosecutor to consider a Graves Act Waiver.

We also look at other mitigating factors that may support a waiver. If this is a client’s first offense, we might argue that a lengthy prison term could be an undue hardship, especially if the client is a primary breadwinner or a parent. Additionally, we gather character evidence, such as letters from family members, friends, and colleagues, to demonstrate the client’s role in their community. Factors such as stable employment, family responsibilities, and support from the community can all weigh in favor of a waiver. We also consider whether the circumstances were unusual and unlikely to reoccur and if anyone was harmed.

Each of these factors is carefully assessed and presented when we submit a Graves Act Waiver application, giving the prosecutor and judge a full picture of our client’s character and circumstances.

Exemptions To Unlawful Possession Laws

While New Jersey’s firearm possession laws are strict, there are exemptions. These include:

• In the Home or Place of Business: Lawful firearm possession without a carry permit is allowed at one’s home or the premises of a private business. However, only legal firearms qualify for this exemption.
• Transport Between Home and Business: Firearms can be transported between home and business, but must be stored separately from ammunition, locked, and kept out of any passenger compartment.
• Sporting Exemptions: Members of a certified rifle or pistol club may possess firearms on club premises or legal hunting grounds, provided they follow all rules and regulations of sporting clubs and state hunting regulations, and the firearms are legal in New Jersey.

These exemptions do not apply to charges of possession of a handgun for unlawful purposes.

Consult An Attorney

Given the serious consequences of New Jersey firearm charges, seeking legal advice before traveling with or transporting a firearm in New Jersey is essential. A skilled criminal defense attorney can help you understand your rights, assess your case for defenses or waiver eligibility, and work to protect your freedom.