Graves Act

Freehold NJ Illegal Firearm Charge

The Graves Act (1981) establishes mandatory minimum sentences for offenders convicted of certain weapon charges, violent crimes, and other offenses committed while possessing a firearm. If a defendant is found guilty of an offense falling under the Graves Act, any prison or county jail term imposed carries a period of parole ineligibility, also referred to as a mandatory minimum period of incarceration. This means that the defendant cannot even be considered for release until such time as the stipulated minimum sentence (a.k.a “stip”) has been served. The charges that fall under the Graves Act include:

  • Possession of a firearm for unlawful purpose (i.e. “to use it unlawfully against another person or another person’s property”)
  • Murder
  • Manslaughter
  • Aggravated Assault
  • Kidnapping
  • Aggravated Sexual Assault
  • Aggravated Criminal Sexual Contact
  • Robbery
  • Burglary
  • Escape
  • Unlawful possession of a sawed-off shotgun
  • Possession of a Defaced Firearm
  • Possession of a Firearm while committing a drug offense
  • Unlawful possession of a machine gun, handgun, rifle, or shotgun
  • “Certain persons” offenses related to domestic violence
  • Manufacture, transport, disposition, and defacement of machine guns or assault firearms

The attorneys at our firm, The Law Offices of Jonathan F. Marshall have decades of experience representing individuals charged with Graves Act offenses in Monmouth County, including those arising in Long Branch, Manalapan, Wall Township, Middletown and Howell. If you have been charged with a violation falling within this provision of the law, we certainly have the tools to help you. A lawyer on our team, perhaps one our several former prosecutors, is available for a free consultation immediately. You may reach our Freehold Office 24/7 at 732-462-1197.

Graves Act Sentencing & Penalties

All Graves Act offenders must receive a mandatory minimum term. For a first degree, second degree, or third degree crime, the stipulated mandatory minimum sentence is to be set at the greater of three (3) years or between one-third and one-half of the sentence imposed. For a fourth degree crime, the minimum term of imprisonment (during which time the defendant is ineligible for parole) is eighteen (18) months. By way of comparison, an individual sentenced to a “flat” term of incarceration, that is, one without any stipulation of parole ineligibility, typically reaches a maximum term of incarceraton and is released from jail after serving one third of his or her sentence. But when the Graves Act or any other form of parole ineligibility attaches to a sentence, it all changes and an individual is not even eligible to start the process for release until the mandatory minimum has been served.

What constitutes “possession” or “use” under the Graves Act?

The Graves Act can be applied to an unloaded gun, or even a gun which the defendant never used or displayed intention to use during the commission of the crime. The Graves Act also applies to guns that are stolen during the commission of a crime. “Constructive possession”, meaning not necessarily on one’s person, but within immediate reach, also constitutes possession for the purposes of the Graves Act. Case law in State v. Orlando established that a firearm that is “missing some pieces” still constitutes a firearm under the legislative intent. The Graves Act also applies to a defendant whose codefendant used or possessed a firearm during the commission of the offense. The standard used to determine Graves Act liability for the actions of an accomplice tests whether the defendant “knew or had reason to know” that his companion would use or be in possession of a firearm, therefore consciously sharing his purpose.

Are there ways to plea-bargain around the Graves Act?

The Supreme Court has placed limitations on plea-bargaining, also referred to as a waivers, around the requirements of the Graves Act. As a result, the law does not permit a waiver of the mandatory minimum and parole ineligibility requirements of the Graves Act unless one of the following occurs:

  1. The prosecutor must state on the record that there is not sufficient evidence for a conviction or that the risk of an acquittal is so great that a dismissal is warranted in the interests of justice.
  2. The defendant is pleading to a different offense that will require an equal term of parole ineligibility.
  3. The prosecutor states on the record that the plea deal is essential to the defendant’s cooperation with the prosecution.
  4. Unforeseen circumstances (which must be disclosed on the record) lead the judge to accept the plea deal.

Graves Act Defense Lawyers in Freehold NJ

If you or a loved one has been charged with a Graves Act offense in Neptune, Asbury Park, Red Bank, Eatontown, Ocean or another municipality, it is critical that you contact an experienced lawyer. The team of attorneys at The Law Offices of Jonathan F. Marshall has been practicing at the Freehold Superior Court for decades and is also knowledgeable with the intricacies of the Graves Act. The former prosecutors and qualified defense lawyers at our firm are available for free initial consultations at 732-450-8300.