Process to Obtain a Graves Act Waiver in New Jersey
As highly experienced NJ firearms attorneys, we have successfully obtained countless Graves Act Waivers on behalf of clients throughout New Jersey, including in Union County, Hudson County, Passaic County, Middlesex County, and Ocean County. If you would like to talk to a lawyer about getting a waiver of the Graves Act in your gun case, call (201)-614-2474 today for a free consultation. Our gun lawyers are extremely knowledgeable about Graves Act Waivers and are available 24/7 to answer your questions and explain how we can help best position you for a Graves Act Waiver.
Getting a Graves Act Waiver in New Jersey: A Guide
The Graves Act is New Jersey’s stringent gun statute that imposes a minimum mandatory term of incarceration for certain gun crimes, including Unlawful Possession of a Firearm, Possession of a Firearm for an Unlawful Purpose, Certain Persons Offenses, and Unlawful Disposition of Firearms. The statute also applies when a defendant is accused of using or possessing a gun during the commission of a violent crime like robbery, kidnapping, or assault. The consequences of being charged with any of these offenses are life altering because you could face substantial prison time, as well as a period of parole ineligibility, and a criminal record. Simply put, if you are convicted of one of the charges enumerated in the Graves Act, or if you plead guilty to one of these charges, you are almost certain to receive a lengthy prison sentence. On top of that, you will be disqualified from early release on parole for a significant portion of your sentence. For example, in the majority of Graves Act cases, you will be ineligible for parole for either 42 months or at least one-third of the minimum sentence required by law, whichever is greater. A fourth degree weapons crime under the Graves Act has an 18-month mandatory minimum term without parole attached.
A defendant can avoid this outcome by beating the charges outright or by successfully obtaining a Graves Act Waiver. This second option is often a defendant’s only hope of staying out of prison on gun charges or at least reducing the sentence, but it can also be the most difficult outcome to achieve because the waiver application process is complicated and the necessary criteria challenging to satisfy.
Eligibility for an NJ Graves Act Waiver
A person may be eligible for a Graves Act Waiver if they have been charged with any of the weapons offenses governed by the Graves Act, which range from possession of an assault weapon, to possession of a firearm during a CDS offense. First and foremost, an individual must be a first time offender to get a Graves Act Waiver. As set forth by N.J.S.A. 2C:43-6.2 of the New Jersey Criminal Code, eligibility for a Graves Act Waiver is limited to first-time offenders who have no prior criminal convictions. In addition, the applicant must show that it is against the interests of justice to impose a mandatory minimum prison sentence as required by the Graves Act. This usually requires the assistance of an experienced weapons lawyer. If you are granted a Graves Act Waiver, you will be eligible for probation, a reduced prison term, or even Pre-Trial Intervention, even though New Jersey law technically requires a mandatory minimum term in your case.
Applying for a Waiver of Graves Act Mandatory Minimum Terms
There may be a few options to initiate the process of obtaining a Graves Act Waiver. Your first option would be to convince the prosecutor in your case to file a motion on your behalf. The assignment judge in the county Superior Court would then review the application, consider both positive and negative circumstances in your case, and ultimately decide whether granting a waiver of the state’s minimum mandatory sentencing requirements in gun cases would be appropriate here. The other option for applying for a Graves Act Waiver would be a motion filed by your own attorney. This application would be submitted to the Superior Court trial judge overseeing your gun crime case, and that judge would consider and weigh the same factors before reaching a decision. One difference with this type of application is that the prosecution may need to be convinced by your attorney to not formally object to your waiver. Otherwise, the burden for receiving a waiver is not likely to be met without an effective appeal, which is rare. Assuming both that there is no objection from the prosecutor and that the trial judge approves your application, the county assignment judge would then have to concur before the waiver is officially granted.
Considerations when a Defendant Seeks a Graves Act Waiver
When a defendant seeks a Graves Act Waiver through either a prosecutor’s motion or a defense counsel motion, the court will consider certain factors. To even apply in the first place, you will need to demonstrate that the interests of justice would not be served by sentencing you to the statutory minimum term of incarceration. More specifically, the court will consider aggravating factors that reduce the chances of your application being approved, as well as mitigating factors that make your application more likely to succeed. These factors are listed in N.J.S.A. 2C:44-1.
Aggravating Factors
The judge will consider certain criteria when deciding your Graves Act Waiver application, including factors or circumstances that will hurt your application. Some of these aggravating factors include:
- The crime was particularly cruel or depraved
- The victim sustained severe injuries
- There is a high risk that you will reoffend in the future
- You are involved in organized crime
- You have a prior criminal record
- You were hired to commit the crime
- You committed the crime against a police officer, firefighter, public servant, or sports coach
- Your offense involved fraud against the government
- The victim was elderly or disabled
- You used a stolen vehicle while committing the crime
Mitigating Factors
There are also certain things you can include to support your case when applying for a Graves Act Waiver, since the statute directs the judge to consider mitigating circumstances that make an application’s success more likely. These mitigating factors include the following:
- You did not cause any serious harm to the victim
- You were provoked
- Your conduct was justifiable under the circumstances
- You made financial restitution to the victim
- You have no prior record of criminal activity
- You are unlikely to reoffend
- Probation is more appropriate than incarceration
- You cooperated with law enforcement
Attorneys who Get Graves Act Waivers in NJ
The complexity of the Graves Act Waiver application process, including the evidence and testimony that must be shown to support your case, is just one reason why you should contact an experienced gun law attorney before proceeding. The track record of success by the defense team at the Tormey Law Firm in seeking and obtaining Graves Act Waivers is renowned in the state of NJ. For a free consultation about how to get a Graves Act Waiver in your firearm case, contact (201)-614-2474.