“What are the penalties for an Unlawful Possession of a Weapon N.J.S.A. 2C:39-5 and can I beat these charges in New Jersey?”

unlawful possession of weapons NJ 2c:39-5

Unlawful Possession of a Weapon NJ 2C:39-5

If you’ve been arrested for a gun or unlawful weapons possession charge in New Jersey, you are unfortunately facing some of the most serious weapons laws and regulations in the country. Unlawful possession of a weapon is among the most common and equally serious crimes for which you can face criminal charges in New Jersey. On a regular basis, people living in and traveling through the state wind up searched and arrested when found to unlawfully possess a firearm or another item that qualifies as a weapon under NJ law.

Many people are unaware that virtually anything capable of inflicting bodily injury or causing death can be considered a weapon. For instance, if you have a BB gun, this meets the criteria, as do brass knuckles, knives, rifles, and destructive devices. Depending on the type of weapon involved, you could face anywhere from 18 months to up to 10 years in New Jersey State Prison. For even the possession of an Airsoft gun you are facing significant time in prison. It seems counter-intuitive, but an Airsoft gun and an assault rifle are placed in the same category when it comes to unlawful weapons possession. Basically anything considered a firearm carries a minimum of 5 years in state prison with 10 years being the maximum when you are charged with a violation of N.J.S.A. 2C:39-5.

If you or someone you love has been charged with unlawful weapons possession in New Jersey, you are best advised to find the most experienced and dedicated lawyer to defend your rights and prove your innocence. The Tormey Law firm has a series of advanced defense strategies for weapons 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 to call us to discuss the specific details of your case: (201) 556-1570. One of our knowledgeable NJ weapons defense attorneys can answer your questions and discuss the options that may be available to successfully handle your unlawful possession charge.

What is Considered Unlawful Possession of a Weapon in New Jersey?

The law pertaining to unlawful possession of a weapon charges in New Jersey can be found in section N.J.S.A. 2C:39-5. This statute encompasses a wide variety of weapons, including machine guns, handguns, rifles and shotguns, assault firearms, and other weapons. For the purposes of this law, possession must exist knowingly, meaning the person is aware of the weapon in question. In addition, to be possessed unlawfully, the person must lack the proper permit to possess the weapon. It is important to note that New Jersey only acknowledges and honors gun permits obtained in this state. The fact that many people are unaware of this often leads to charges against people with firearms permits from other states who are visiting, driving through, or moving to New Jersey without having acquired the necessary permits.

There are a number of different types of weapons that can lead to unlawful possession charges, all of which are governed under the statute N.J.S.A. 2C:39-5. As such, there are multiple sections included in the statute, with section (a) applying to machine guns, section (b) discussing handguns, section (c) covering rifles and shotguns, other weapons included in section (d), and lastly assault firearms in section (f).

You can click on any of the following pages, for specific statute and other important information.

Penalties and Punishments for Unlawful Weapons Possession in NJ

The degree of the charge for unlawful weapons is contingent upon the type of weapon possessed. In particular, possession of a handgun, machine gun, or assault weapon is a second degree crime. This is the most serious type of charge under the statute, carrying 5 to 10 years of incarceration and a presumption that even first offenders should be sentenced to prison time if convicted. Third degree charges apply to BB guns, paintball guns, and air guns, as well as rifles and shotguns, all of which entail a prison term ranging from 3 to 5 years. Fortunately, there is a presumption of non-incarceration for a person charged with their first offense when it is a third degree crime.

In addition, the broadest category of weapons, encompassing “other weapons,” will lead to fourth degree criminal charges for the person accused of unlawful possession. Fourth degree crimes allow for up to 18 months of imprisonment but prison is not necessarily imposed for a person with no prior criminal record. The statutory definition of “weapons” is incredibly wide-ranging, to include all items readily capable of causing serious physical injury or death. This includes various types of knives, metal knuckles, bats and clubs, and many others.

Additional Sentencing Requirements for Firearms

Guns and firearms crimes are subject to additional sentencing requirements under New Jersey’s Graves Act. This Act basically establishes the minimum mandatory sentence on NJ gun charges, requiring those convicted to serve mandatory time in prison and a specific period during which they are ineligible for parole. Despite the fact that for most offenses, the person comes up for parole before serving a substantial portion of their sentence, this is not the case if you are convicted of a gun crime. Per the terms of the Graves Act, you can typically anticipate serving at least 3 years of a 5-year sentence before even being considered for parole, even if you have never been convicted of a crime before.

Now, that’s not always the case.  There are ways to avoid 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 successful in having this waiver granted, you might be able to garner a 3 year mandatory prison sentence with a one year minimum of time served before parole.  This is a more favorable result considering that you would be sparing yourself 2 years in state prison, but there may be ways to beat your gun charge altogether, so talking to a knowledgeable lawyer should be high on your list of things to do if you find yourself in this situation.

When is it Legal to Possess a Weapon in New Jersey?

Although there are varying degrees of unlawful possession of a weapon and collateral consequences, this offense is most often charged when someone is in possession of a gun without the right permit. You need both a firearms purchaser ID card and a handgun carry permit if you intend to carry a gun in New Jersey, outside of the few exceptions that allow for possession without a carry permit.

Note, it is unlawful to purchase a firearm in New Jersey without first obtaining a firearms purchaser permit. Nevertheless, this only allows for purchasing and legally possessing the gun in your home or place of business. In order to carry the weapon, you need a handgun carry permit, with limited exceptions. Specifically, you can only be in possession of a firearm in the absence of a carry permit if you are:

  • Traveling to and from your residence or business to the place where you purchase the gun;
  • Traveling between your home and your place of business;
  • Moving from your residence or business to another location;
  • Transporting the gun to and from a place for repair.

Additional rules and regulations apply to how you must transport the firearm as well. In fact, the gun must be unloaded and kept in a securely locked or fastened gun case or package, or locked in the trunk of the car. The ammunition must be kept separate as well. Also, the firearm must be inaccessible from the main part of the motor vehicle. If there is not an area separate from the passenger compartment, it must be locked in a container and cannot be in the center console or the glove compartment.

Call The Tormey Law Firm for a free consultation with experienced criminal defense attorneys, and former NJ prosecutors committed to fighting your unlawful possession of a weapon charges.

Our firm is absolutely dedicated to providing the best defense for your weapons charges and related legal issues, and we are available for free consultations regarding your criminal matter now. We are happy to talk to you about the methods that we will use to fight your case, and give you all of the information that you might need. If you have a weapons case in New Jersey, feel free to call us any time at (201) 556-1570 for a no cost, no obligation consultation.


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