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.


  • No promises, just a Pro!

  • Excellent Lawyer... Helped me in every step off my Case..

  • Great work

  • Best lawyer!!

  • FRO removal success!!

  • Easy to work with, straightforward

  • Kept my license

  • Father of client

  • Excellent Attorney , Charges Dismissed as promised

  • Helped every step of the way

  • Avoid mandatory jail time on shoplifting charges


  • Help

  • Did the job he was hired to do

  • Great lawyer

  • Simple assault charge was dropped

  • Top Notch Representation

  • Well worth it.

  • DUI Case Dismissed

  • 2 felony charges dismissed

  • Cameron bury

  • great attorney

  • Hands Down Professional and delivers results!!!

  • DUI case dismissed

  • 125 stars out of 10!!

  • Excellent at getting best outcome

  • Excellent Attorney

  • TRO Dismissal

  • Efficient Excellent attorney.

  • Excellent attorney

  • Travis successfully defended me in an unprecedented Final Restraining Order Trial with ease

  • Kick Ass Attorney!

  • Efficient and professional attorney

  • Great Lawyer And Great Results

  • Top Notch DUI Attorney

  • Client Domestic Violence

  • Restraining Order

  • A real pro in a time of need - DWI Dismissed.

  • The most experienced, patient and affordable attorney

  • Travis Tormey successfully had a False TRO against me dismissed.

  • Underaged Drinking

  • Underaged Drinking

  • DUI Dismissed

  • Saved me from a DUI. HIGHLY recommended

  • Restraining Order

  • Case dismissed with Data Driven Facts

  • Respectful. Attentive. Professional.

  • Trespassing and Under the Influence Disorderly Persons charges

  • If you are reading this- You have reached the right place! Undoubtedly, the BEST Law Firm in New Jersey!

  • Amazing attorney with a heart of gold

  • Exceeded my expectations, Highly Professional Attorney

  • Responsive and knowledgeable.

  • The Tormey law firm was very kind and professional

  • Expungement

  • Travis Tormey is a True Professional Who Kept Me Out of Jail

  • Saved me a whole ton of problems

  • Travis Tormey Review

  • A nightmare case, with a happy ending.

  • Elite NJ Marijuana Attorney! 5 Stars!!

  • An Excellent lawyer!

  • Great lawyer for DUI

  • I highly endorse Travis Tormey.

  • Travis Tormey Law Firm

  • Travis is a Lifesaver

  • Travis J. Tormey - Evaluation

  • Great Lawyer. Got me off exactly what I wanted

  • Consummate Professional!

  • Great Criminal Defense Lawyer

  • Good Service

  • Exceptional Lawyer

  • Exceptional Lawyer

  • Hired to defend me for aggravated assault

  • Hired to defend me in a restraning order

  • Excellent attorney, highly recommend his talents

  • DWI Counsel

  • I highly recommend Mr. Tormey

  • Great attorney

  • Travis Tormey, Esq. - Great Results!

  • Travis Tormey - Excellent Attorney-Kind and Trustworthy

  • Excellent Attorney-Trustworthy and Kind

  • An Outstanding lawyer!!! That will represent you in the correct way!

  • Excellent Attorney! You will not be dissapointed....

  • Travis Tormey Gets Results!

  • tormey

  • Success!!

  • Travis Tormey Review

  • Only Lawyer I Recommend

  • Very Grateful

  • Attorney review of Travis Tormey

  • Excellent

Experience You Can Trust

With unmatched knowledge and experience in the practice of law, the seasoned attorneys at The Tormey Law Firm are committed to serving their clients and tenaciously confronting the allegations against them.

We will examine every facet of your case in order to defend your constitutional rights and reputation. With a dedicated legal advocate to assist you, our attorneys will ensure that you are never forced to navigate the complex legal process on your own.

  • This field is for validation purposes and should be left unchanged.

Learn More About How to Fight Your Charges

If you've been charged with a criminal offense, disorderly persons offense, or traffic / DWI violation, you have the right to an attorney who will defend you against your charges and fight for your best interests. To learn more about how your attorney can fight to have your charges dismissed or reduced, click a link below to see our video library of legal defenses and strategies.

The Tormey Law Firm

Areas we serve

Bergen County, Essex County, Morris County, Passaic County, Hudson County, Middlesex County, Somerset County including Morristown, Denville, Dover, Mount Olive, Parsippany, Hackensack, East Rutherford, Elmwood Park, Englewood, Fort Lee, Garfield, Lodi, Lyndhurst, Mahwah, Palisades Park, Paramus, Ridgefield Park, Saddle Brook, Teaneck, Clifton, and Wayne.

  • Hackensack Office

    254 State Street Hackensack, NJ 07601

    (201) 556-1570

    view larger map

  • Morristown Office

    55 Madison Avenue Suite 400, Morristown, NJ 07960

    (908) 336-5008

    view larger map