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NJ Supreme Court Establishes Guideline for Graves Act Waiver Procedure on Gun Cases

NJ Gun Laws

NJ Gun Laws
NJ Gun Laws

On April 5, 2017, in State v. Shaquille E. Nance, Taja Willis-Bolton, and Alvin D. Williams, the New Jersey Supreme Court set forth the procedural framework for the appropriate application of Graves Act waivers. The Graves Act, N.J.S.A. 2C:43-6(c) imposes a mandatory minimum term of incarceration, without parole eligibility, on an offender who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of certain designated crimes. Specifically, the periods of parole ineligibility for defendants convicted of first-degree, second-degree, and third-degree offenses include one-half of the sentence imposed by the court or 42 months, whichever is greater. However, N.J.S.A. 2C:43-6.2 permits the prosecutor to motion before the assignment judge for a waiver of the Graves act mandatory minimum terms of incarceration for certain first time offenders and the assignment judge may place the defendant on probation or reduce the mandatory minimum term of imprisonment to one year, without parole. Alternatively, the Graves Act permits the sentencing judge to refer a case to the assignment judge for a waiver of the Graves Act penalties.

The Graves Act applies to a defendant who has been convicted of one of the following offenses: possession of a sawed-off shotgun or defaced firearm, N.J.S.A. 2C:39-3(b), (d); possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a); possession of a firearm while committing certain drug-related offenses or bias intimidation offenses, N.J.S.A. 2C:39-4.1(a); unlawful possession of a machine gun, handgun, rifle or shotgun, or assault firearm, N.J.S.A. 2C:39-5(a), (b), (c), (f); certain persons not to have weapons, N.J.S.A. 2C:39-7(a), (b)(2), (b)(3); and manufacture, transport, disposition and defacement of machine guns, sawed-off shotguns, defaced firearms, or assault firearms, N.J.S.A. 2C:39-9(a), (b), (e), (g). The statute also applies to a defendant who “used or was in possession of a firearm” while in the course of committing, attempting to commit, or fleeing from the following crimes: murder, N.J.S.A. 2C:11-3; manslaughter, N.J.S.A. 2C:11-4; aggravated assault, N.J.S.A. 2C:12-1(b); kidnapping, N.J.S.A. 2C:13-1; aggravated sexual assault, N.J.S.A. 2C:14-2(a); aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); robbery, N.J.S.A. 2C:15-1; burglary, N.J.S.A. 2C:18-2; and escape, N.J.S.A. 2C:29-5.

In these consolidated cases before the Supreme Court, the prosecutor recommended a sentence of incarceration with a one-year period of parole ineligibility and the sentencing judge imposed terms of incarceration with one-year of parole ineligibility rather than a probationary term. On appeal, the Appellate Division held that the sentencing judge has the authority to choose between the alternative sentencing provisions of section 6.2. But upon certification and review, the Supreme Court held: “We reverse the panel’s ruling that sentencing judges have the discretion to elect one of the two alternative sentences set forth in section 6.2. In accordance with the plain language of section 6.2, the assignment judge, not the sentencing judge, has the authority to decide whether a defendant will be sentenced to a term of probation or a term of incarceration with a one-year period of parole ineligibility. If the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge or designee must consider the presumption of incarceration prescribe by N.J.S.A. 2C:44-1(d) when he or she chooses between the probationary and one-year mandatory minimum sentences envisioned by section 6.2.”

Thus, the Supreme Court established a clear guideline regarding the application of Graves Act waivers in New Jersey: the prosecutor decides whether or not to seek a Graves Act waiver under section 6.2 and may advocate a particular sentence in the motion. The assignment judge, not the sentencing court, has the authority to determine whether the defendant will be sentenced to a probationary term pursuant to N.J.S.A. 2C:43-2, or a term of incarceration with a one-year period of parole ineligibility. In that determination, the assignment judge or designee may accept the prosecutor’s recommendation as to the appropriate sentence, but is not bound by that recommendation. When the defendant has been convicted of a first-degree or second-degree Graves Act offense, the assignment judge, or the presiding judge as his or her designee, must consider the presumption of incarceration set forth in N.J.S.A. 2C:44-1(d). Following the assignment judge’s or designee’s determination, the sentencing court, applying N.J.S.A. 2C:44-1 and other pertinent provisions of the Code, exercises its discretion to weigh the aggravating and mitigating factors and determine the remaining terms of the sentence; it may impose the sentence recommended as part of the plea agreement, but is not required to do so.

The fact of the matter is that Graves Act cases are complex and nuanced. If you are charged with Graves Act offenses in New Jersey such as the possession of weapon for an unlawful purpose, the unlawful possession of a weapon, or a certain person’s offense, you should contact the firearms defense attorneys at the Tormey Law Firm. With combined decades of criminal defense experience, the weapons defense lawyers at the Tormey Law Firm are ready to aggressively defend your case.

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