NJ Unlawful Possession of Handguns – N.J.S. 2C:39-5b – What are the penalties for Unlawful Possession of Handguns in NJ

“Unlawful Possession of a handgun in New Jersey is punished by a very serious legal statute. Those convicted of these charges are facing significant jail time, with long mandatory minimum sentences.”

unlawful possession of a handgun Illegal possession of handguns in NJ is highly frowned upon since handguns can easily be concealed. The process to legally obtain a handgun in NJ is far more stringent than even powerful shotguns. Although there are countless facts and scenarios that result in one’s gun charges, common themes include improperly transporting and unlawfully possessing the handgun. Many times the charges begin with a traffic stop, while others may occur in conjunction with domestic violence charges. Most often, our office sees individuals that are legal owners of a firearm or legal permit holders from his or her home state finding themselves violating New Jersey’s laws through conduct that would be legal from where one is from.

Typically handgun charges are either second or third degree charges.  Third degree charges are reserved for air and spring related handguns (BB, or airsoft guns) with second degree charges involving guns that shoot “real bullets.” The following excerpt from the NJ Weapons Statute clarifies:

b. Handguns. Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same is guilty of a crime of the third degree if the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. Otherwise it is a crime of the second degree.

The Tormey Law firm has a series of advanced defense strategies for gun charges and we have implemented these defenses with great success in New Jersey.  Please watch our video series on “How to Beat Gun Charges” and feel free call us to discuss the specific details of your case: (201) 556-1571.

Charged with Illegally Possessing a Handgun, What are my Options in NJ?

Attorneys that know the law in and out will know if the charges you are facing are appropriate and if any exceptions apply to your case. For example, statutorily, N.J.S.A. 2C:39-5 is in place for individuals who knowingly possess a handgun without having a permit to carry it. However, N.J.S.A. 2C:39-6e provides exceptions that may result in your given charge not being applicable based on your case. Not being charged appropriately may result in your charge being amended or possibly dismissed. Also, if the evidence in your case was retrieved during an unlawful search, we may be able to have this evidence suppressed, which means it can no longer be presented in the state’s case against you. Barring an effective defense strategy to get your illegal handgun gun charge dropped altogether, we can pursue other options.

For example, plea negotiations can result in offers that include: a stint in county jail, a State prison sentence, noncustodial probation, entry into a diversionary program, like PTI, or other offers. PTI is like the “unicorn” of gun case resolution because the charges will be dismissed once a Defendant successfully completes the terms and conditions associated with the probationary sentence.  A prosecutor may require that you plead guilty to an offense in order to participate in PTI. Thus, PTI with a plea means that you are afforded the benefit of this probationary program, however, if you fail to complete the conditions or if you violate it in any way then you will be exposed to the maximum fines and penalties associated with your plea.

Ways to Avoid Sentencing Mandates for Illegal Handgun Offenses

Notably, on most handguns cases, a Defendant is exposed to the Graves Act and, as a result, is also subjected to mandatory penalties including a fixed term of imprisonment. Usually, on a 5 year offense, an offender will be eligible for parole in about a year to a year and a half. Unfortunately, due to the Graves Act, there is a minimum of three years that must be served without parole on a gun charge. The Graves Act basically establishes the minimum mandatory sentence on NJ gun charges.  If arrested and convicted for a gun charge in NJ, you can expect to spend at least three years in state prison. The good news is, there are ways around these minimum mandatory sentences. However, you are going to have to have your attorney apply for a Graves Act Waiver, and go through a fairly complicated process in order to “de-mandatorize” the sentence.

If you are offered PTI, the State will have to provide a Graves Waiver so that you can bypass the penalties associated with your gun offense. Usually, PTI is not an immediate offer but is something that is advocated for based on the Defendant’s lack of criminal background, the severity of the offense and more. Likewise, in the case of an out-of-state resident who brings a legally purchased and owned handgun into the state without knowing the weapons are illegal in New Jersey, they may still be prosecuted under the Graves Act for illegal possession of a handgun and sentenced to 42 months in state prison.

Remember, the Graves Act sentencing applies unless you qualify for the Pre-trial Intervention Program that allows first-time offenders to divert their case through the program rather than a conviction, or your attorney successfully negotiates a deal to reduce the charges to avoid unjust punishment. Hiring an attorney can place you in a position to consider the best options available for your case. Of course, each case is determined on a case-by-case and factual basis. However, if applicable, we can assist in submitting a mitigating package to the State to support the best resolution for your case.

When is it Legal to Possess a Handgun in NJ?

Ordinary, non-assault type rifles (non-military grade), and other guns are legal to purchase in New Jersey with a purchasing permit and firearms buyer identification card, which requires individuals to undergo the gun permit application process, including a background check and fingerprints, and providing certain personal identifying information to the state. Police departments also require you to consent to a mental health records check in order to qualify to own a firearm. A person in New Jersey may be able to get a gun purchaser’s permit, so long as the applicant has no criminal convictions that disqualify them from owning or possessing a weapon (certain persons), no substance addictions, no previous mental illness requiring institutionalization (unless provided with a clean bill of mental health by a licensed professional), and no physical disability that would make owning a firearm dangerous.

Notably, getting a permit to purchase a firearm does not mean you can carry it in New Jersey. In order to do that, outside of certain allowed circumstances, you must obtain a handgun carry permit and show a justifiable need to keep such a weapon on your person. An experienced New Jersey gun permit attorney on our team can help you position yourself for the best result when seeking any type of permit like this in NJ.

Call The Tormey Law Firm for a free consultation with experienced criminal defense attorneys, and former NJ prosecutors.

New Jersey’s strict gun laws can land a person charged with a firearm in prison for a long time. As strict as the Graves Act convictions are, probation or reduced sentences may be available for those with no prior involvement with criminal activity or firearms violations, but each case’s total circumstances are considered in granting either. Do not take a chance on fighting a weapons charge on your own. Our experienced weapons defense attorneys know how to deal with the prosecutors and can defend your rights, examining the legitimacy of the arrest and evidence gathering in your case.

We can help you decide and pursue your best strategies and options, whether your charges originated in Essex County, Bergen County, Morris County, Passaic County, Middlesex County, or anywhere else in the state. Call (201)-556-1570 for a free consultation to learn more.


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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.

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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.

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