Unlawful Possession of a Weapon New Jersey

“Unlawful possession of a weapon in New Jersey usually relates to possession of a gun without a proper permit. This is typically a second degree charge punishable by 5-10 years in jail, and, a mandatory period of parole ineligibility under the Graves Act. However, a seasoned firearms lawyer in New Jersey can fight to keep you out of jail and keep this serious felony charge off your record.”

Do you need a lawyer for an unlawful possession of a weapon charge in New Jersey? You’ve come to the right place. The firearms defense attorneys at the Tormey Law Firm LLC represent clients facing illegal weapons offenses, including unlawful possession of handguns, rifles, shotguns, air guns, assault firearms, and other weapons throughout the State of New Jersey. In fact, the firm has offices located throughout New Jersey including in Hackensack, Morristown, and Newark. Our trial team is composed of experienced criminal defense lawyers including former firearms prosecutors who now use their experience to defend our clients charged with weapons offenses.

If you or a loved one is facing a weapons charge in NJ, you need to understand the severe penalties that can come with these felony convictions and what steps you can take to challenge, and even potentially avoid them. Contact the Tormey Law Firm immediately for a free initial consultation at (201)-614-2474.

Unlawful Possession of a Weapon: N.J.S.A. 2C:39-5

The criminal statute governing charges for unlawful possession of a weapon in New Jersey is N.J.S.A. 2C:39-5. Section (a) governs weapons offenses for machine guns which is a second degree offense punishable by 5-10 years in New Jersey State prison if convicted. Section (b) covers handguns which is a second degree felony crime, unless it’s for BB guns and air guns, which is a third degree offense.

NOTE: The difference between a second degree offense and a third degree offense is significant. A second degree crime is punishable by 5-10 years in jail with a presumption of imprisonment even if you have no prior record. A third degree offense, on the other hand, is punishable by 3-5 years in jail but there is a presumption against incarceration for first-time offenders.

Section (c) governs rifles or shotguns which are generally third degree offenses.

Section (d) governs “other weapons,” which are fourth degree crimes punishable by up to 18 months in jail. Other weapons may encompass baseball bats, brass knuckles, knives, or any other items that the State believes were being possessed as “weapons.”

Section (f) governs assault weapons which are generally second degree offenses.

NOTE: Firearms offenses in New Jersey are governed by the Graves Act which requires mandatory jail time and parole ineligibility if convicted of these offenses. The typical plea offer on an unlawful gun possession charge (even if the person has no prior record) is 5 years in prison, 3 years to be served before the possibility of parole.

NOTE: Firearms ID cards merely allow you to purchase and/or own a weapon legally in New Jersey. They do not allow you to carry the weapon, which requires a handgun carry permit. Lack of authorization to possess a firearm by lacking the necessary permit, or possessing the weapon in an unauthorized location, may give rise to an unlawful possession offense. For instance, you can legally possess a permitted weapon in your home, at a gun range, or in transit to these locations if the weapon is being transported in a legal manner. However, having the same weapon in the glove compartment of your vehicle or in your bag at the mall may lead to your arrest for violation N.J.S.A. 2C:39-5.

Type of Weapon for Determining NJ Unlawful Possession Sentences

The specific type of weapon involved in a violation of 2C:39-5 is critical for determining both the degree of the crime charged and the sentencing range. It also impacts where mandatory sentencing guidelines apply, such as those under the New Jersey Graves Act, which applies to various firearms offenses. As a general rule, the more lethal a weapon can be, the more severe the penalties to be imposed on offenders. Thus, a violation of the weapons possession statute involving a machine gun, handgun, or assault firearm carries harsher consequences than a violation of this law that involves an “other weapon.” For example, unlawful possession of a handgun is a second degree crime, while unlawfully possessing a rifle is a third degree crime. As for items like brass knuckles, gravity knives, and other items that fall under the category of “other weapons,” this is a fourth degree crime.

Since unlawful possession of a weapon can be either second, third, or fourth degree, it is important to understand that second degree is the highest level with the longest sentence, third being the mid-level, and fourth being the lowest degree. As such, the prison time for a second degree handgun or machine gun offense is 5 to 10 years, while a third degree BB gun or shotgun is punishable by 3 to 5 years of imprisonment, and the term of incarceration for a fourth degree 2C:39-5 crime is a maximum of 18 months.

Actual vs. Constructive Possession of a Weapon

New Jersey law acknowledges two primary types of possession: actual and constructive. As such, an individual can be charged with, and convicted of, unlawfully possessing a weapon either actually or constructively. Actual possession is the more obvious of the two, referring to possession of an item on your physical person. To have actual possession, a person must have knowledge of what the item is, and have it somewhere on their person at the time of the offense. An example would be carrying a gun in your pocket, your jacket, or your waistband.

The second type of possession, constructive, is more nuanced and expansive in its application. A person can constructively possess an article or thing by having knowledge of its character (knowing what it is), as well as having the ability and intention to physically exercise control over it. The intention to exercise control can be accomplished by the person themself or through another individual. An example would be having a gun in the backseat of your car. One may assume from the circumstances that you were aware of its presence, had the ability to control it, and had the intent to do so, whether it be in the moment or at some point thereafter.

Notably, possession may also be joint or sole. In other words, you can be guilty of constructively possessing a weapon with others. Taking the example of driving with a handgun in the main compartment of a car, all of the vehicle’s occupants may face charges for unlawful possession of a weapon in the second degree based on their joint, constructive possession. Also, for an unlawful possession of a weapon charge to stand, the period of possession must surpass a momentary or brief instance. The law requires the possessor to have knowledge of their having the article for an adequate amount of time. The person needs to be able to give up their control over the weapon, given the length of time they have it.

Challenging a Gun Possession Charge in New Jersey

There are a number of ways to fight an unlawful possession of a weapon charge in New Jersey including challenging the search. If the gun was found in your car, and the police illegally searched the vehicle without a warrant and without your legal consent, the gun can be suppressed and thrown out of court on a motion. We did exactly that for a client recently in Hudson County Superior Court where the case was completely dismissed. The State must also provide an operability report on the weapon proving that it fires and that it actually qualifies as a firearm in New Jersey. In addition to that, if you have no prior record, you may be eligible for a Graves Act waiver to avoid the mandatory jail time and parole ineligibility. In certain cases, we can apply you to the Pre-Trial Intervention program (known as “PTI”) which will allow you to stay out of jail and even keep the felony charge off of your record.

Traveling Through the State with Your Legally Purchased Weapon

Many of these 2nd degree unlawful possession of a handgun charges are incidents where out of State residents are traveling through the State of New Jersey with a legally purchased weapon from their home state but they are not doing so legally in New Jersey. To legally travel through the State, you are supposed to have your gun secured in the trunk of your vehicle in a locked gun case separate from the ammunition. If you are traveling in this matter, you should not be charged with anything.

However, in many cases, people are unaware of New Jersey laws and do not have their weapon legally secured in the trunk. In these cases, our clients are charged with a 2nd degree gun possession offense and are facing 5-10 years in prison, even if they have no prior record. In these cases, we typically submit a compelling reasons package in writing to the prosecutor asking for a Graves Act waiver and admission into the PTI program. This package usually includes legal purchase of the weapon, a gun permit from their home state (if applicable), character references, proof of employment, and proof of travel plans as to why they were traveling through the State of New Jersey.

Luckily, we have been very successful in getting clients into PTI who are facing these serious charges in this scenario.

Charged with Unlawful Possession of Weapon in New Jersey? We can help

Unlawful possession of a weapon is serious no matter what type of weapon is involved in the offense, and these cases demand careful attention and zealous defense by experienced criminal defense attorneys who know how to challenge the evidence, negotiate plea bargains for reduced sentences, and argue for waivers of the Graves Act in order to obtain optimal outcomes. For additional information or immediate assistance, contact the Tormey Law Firm at (201)-614-2474. The initial consultation is always provided free of charge.