Types of Probation for Weapons Offenses in NJ
Can You get Probation for a Gun Charge in New Jersey?
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Probation Alternatives to Prison Time for NJ Weapons Charges
PTI Probation
The first type of probation that you could potentially get on a New Jersey gun charge is Pretrial Intervention (“PTI”). PTI is your first and best option to consider because it is non-reporting probation. Not only do you avoid prison time but if you successfully complete this special probation then you will also avoid a felony charge on your record because the charges are dismissed. On a first or second degree charge in New Jersey, to even apply to PTI, you need prosecutorial permission. Thus, if the prosecutor does not consent then you cannot apply. In order to be eligible for PTI, you cannot have any prior criminal history or have previously used a diversion program in New Jersey or anywhere. For example, if you had a minor drug offense 20 years ago in Municipal Court and used Conditional Discharge you won’t be eligible to apply to PTI.
Felony Probation for a Firearm
There are some cases where you are not eligible for PTI or the Prosecutor won’t agree, which means you will need to pursue other avenues to probation. If your case cannot get thrown out on an illegal search, a Motion to Suppress, or another issue, then the next best option would be non-custodial probation. Non-custodial probation allows for a defendant to report to a probation officer instead of being in jail/prison. It grants the defendant the opportunity to live and work in the community. He or she can still support one’s family and not be subjected to the confines of a custodial prison term. Non-custodial Probation means that you will stay out of jail but you will have a felony on your record. Felony-probation is more intense than PTI-probation because you have to report more and it is much more intensive. You may be able to expunge a felony conviction five years after you complete your sentence, whereas with PTI-probation, the charges are dismissed after you complete it. For the PTI cases, you can file for an expungement of the arrest record six-months later. Generally, the timeframe for expungements begins after the completion of your probationary sentence and the payment fines.
County SLAP Program
Another option may be for a defendant to attend the county’s SLAP program. SLAP is a corrections program that is a substitute to imprisonment where the defendant is sentenced to community service. This program, like non-custodial probation, allows for a defendant to live, work and support one’s family without the restrictions of imprisonment, but the defendant completes labor for the community. This program is called the Sheriffs Labor Assistance Program and this program is offered to defendants that are considered minor offenders.
Probation with County Jail
Even if your case requires a custodial sentence, you may not be required to go to prison. For example, you may be sentenced to 364 days or 180 days in the county jail. This may be a good option for someone as opposed to New Jersey State Prison where the minimum time you may have to do is a year in the prison. One year in prison would be considered best case because then you would have to be approved for parole by the parole board. Thus, you may avoid prison time by doing time in the county jail. However, this is all dependent upon what the prosecutor and your attorney can negotiate as a settlement.
With gun charges, if a Defendant is sentenced to non-custodial probation or probation with county jail time, he or she has to get a Graves Act Waiver. For gun cases, a defendant wants to try to avoid the maximum penalties associated with his or her gun offense. This can be done through obtaining a Graves Act Waiver. If a Graves Waiver is granted, the defendant will avoid the mandates associated with the Graves Act. If you are convicted of a Graves offense, a Waiver will become relevant at sentencing so that you can bypass the mandatory maximums associated with the statute.
What happens if the Prosecutor won’t come off of jail time but will give me a Graves Act Waiver?
You need a Waiver to get non-custodial sentence. If a Prosecutor gives a Graves Act Waiver but still wants to argue for a custodial sentence (i.e. 5-year sentence with one year of parole ineligibility or a 3-year sentence with one year of parole ineligibility), you can still argue for probation with the Judge. Although the Prosecutor may not agree to no jail or prison, the Judge still can make the ultimate decision. Even if they won’t give you PTI or you are not eligible, they won’t give you straight probation, etc., then your lawyer can still argue for probation with the Judge. Your attorney can submit a sentencing memo, provide character references, argue aggravating and mitigating factors and try your best to stay out of prison.
For example, recently, we had a 21 year old client from Pennsylvania who had a stolen gun in the trunk of his vehicle. The prosecutor would not give PTI or non-custodial probation but did agree to a Graves Act Waiver with a recommended sentence of 5 years in prison, 1 year without parole. We agreed to this plea arrangement provided that we could argue for a lesser sentence to the Judge at sentencing. We submitted a sentencing package and argued that the mitigating factors outweighed the aggravating and the Judge agreed, he sentenced the client to no jail time and 5 years probation.
Talk to an Attorney about Probation as an Option in Your NJ Weapons Case
If you are wondering whether you can possibly secure probation as a better option when facing prison time for a gun or weapons offense, contact The Tormey Law for immediate assistance. No matter where you have been arrested and charged in New Jersey, our defense attorneys can help. Contact us today at (201) 614-2474 for a free consultation.