Essex County Gun and Weapons Charges Lawyer
Essex County Gun and Weapons Charges Lawyer
You’ve been arrested for unlawful possession of a weapon in Essex County. Police found a handgun in your car during a traffic stop – maybe you have an out-of-state carry permit, maybe the gun was in the glove compartment, maybe you didn’t know it was there. Now you’re charged with a second-degree crime and facing Graves Act mandatory minimum: 42 months in prison (3.5 years) with NO parole, NO early release. You have a clean record. You cannot understand why possessing a gun carries more prison time than many violent crimes. Here’s what’s happening: New Jersey has the strictest gun laws in the country, and the Graves Act eliminates judicial discretion. Your attorney’s most important job is getting a Graves Act waiver from the prosecutor – without it, you’re going to prison.
Thanks for visiting Spodek Law Group. We’re a second generation law firm managed by Todd Spodek, who has defended clients when prosecutors demanded maximum sentences. When Todd defended Anna Delvey against theft charges, he fought while media portrayed her as a villain – challenging evidence, forcing the state to prove its case. The firm was founded in 1976, giving us nearly 50 years defending clients against mandatory minimum sentences. This article explains what the Graves Act is, why your possession charge carries mandatory prison time, how an attorney challenges the charge, and how an attorney applies for a Graves Act waiver.
What Just Happened
At the traffic stop, the officer found a handgun. You were arrested and charged with N.J.S.A. 2C:39-5(b) – Unlawful Possession of a Handgun, a second-degree crime carrying 5-10 years in prison. The elements: (1) You possessed a firearm, (2) You had no valid New Jersey permit to carry, (3) The gun was not at your home or place of business. Prosecutor doesn’t need to prove intent to use the gun or that it was loaded. “Possession” doesn’t mean gun in your hand. Constructive possession applies – if the gun was in your car and you had knowledge of it plus control over the vehicle, that’s possession under the law. You thought your out-of-state permit meant you could carry in New Jersey. Or the gun belonged to someone else. None of these matter under New Jersey law – possession without a New Jersey permit is a crime, and the Graves Act applies automatically.
Why Prison Is Mandatory
The Graves Act (N.J.S.A. 2C:43-6) imposes mandatory minimum sentences for gun possession. The Legislature passed it to deter gun violence by eliminating judicial discretion. The judge CANNOT impose probation or a shorter prison term than the mandatory minimum – unless the prosecutor waives the Graves Act requirement. For second-degree unlawful possession charges, the mandatory minimum is 42 months – 3.5 years. You must serve 85% of the sentence before parole eligibility, which means 36 months minimum with no early release. There are no exceptions for clean record, first offense, out-of-state permit holders, lawful intent, or unloaded guns. The Graves Act treats ALL gun possession equally. A grandmother possessing her deceased husband’s pistol gets the same mandatory minimum as a gang member with an illegal firearm. You have a clean record, a full-time job, a family. The judge sees you’re no threat to public safety but cannot impose probation because the Graves Act mandates 42 months. The only way to avoid mandatory prison time is through the prosecutor’s discretion to waive the Graves Act.
How Attorney Challenges Charge and Applies for Waiver
Your attorney’s first job is challenging the legality of the search. If the officer lacked probable cause for the traffic stop or the search warrant was invalid, the gun gets suppressed and the charge gets dismissed. For traffic stops, the officer needs reasonable suspicion of a traffic violation. “Nervous behavior” or “high crime area” is insufficient. Your attorney reviews dash cam footage to determine whether the officer observed an actual violation. For search warrants, the warrant must be based on probable cause. If based on unreliable informant or stale information, it’s invalid. If you consented, your attorney investigates whether consent was voluntary or coerced. If the gun was found in a vehicle with multiple occupants, your attorney challenges constructive possession. The prosecutor must prove YOU knew the gun was there and had control over it. If the gun belonged to a passenger and you had no knowledge, the prosecution cannot meet its burden. And if you’re an out-of-state permit holder transporting the gun through New Jersey, the Federal Firearm Owners Protection Act (18 U.S.C. § 926A) provides a defense IF: (1) the gun was unloaded, (2) locked in the trunk or in an inaccessible container, (3) you were traveling FROM a state where you can lawfully possess the gun TO a state where you can lawfully possess it, and (4) you were just passing through New Jersey. All four elements must be met. If the search was illegal, the gun evidence gets suppressed and charges get dismissed. If the possession case is solid, your attorney’s focus shifts to negotiating a Graves Act waiver. A Graves Act waiver is the prosecutor’s discretion to waive the mandatory minimum sentence, allowing the judge to impose probation or Pre-Trial Intervention (PTI) instead of prison. Who qualifies? People with clean records, no prior gun charges, no gang affiliation, a legitimate reason for possessing the gun, and the gun was not used in a crime. Your attorney submits a waiver application package to the Essex County Prosecutor’s Office. The package includes: character reference letters from your employer, family, and community members; employment verification; clean criminal history certification; a detailed explanation of the circumstances – how the gun came into your possession, why it was in your car, where you were traveling; and your out-of-state permit if applicable. The prosecutor considers: threat to public safety (the primary factor), your criminal history, the circumstances of possession (routine traffic stop versus active crime scene), whether the gun was loaded or unloaded, and your cooperation with police. The waiver application is the most important part of your case. With a waiver, you get probation and a clean record after completion. Without a waiver, you’re facing 3.5 years in prison. If the waiver is granted, your attorney negotiates Pre-Trial Intervention (PTI) – a diversionary program requiring 1-3 years of probation supervision. If you complete PTI successfully, the charges are dismissed, you have no conviction, and you’re eligible to expunge the arrest record. If the waiver is denied, you have two options: proceed to trial on the possession charge or plead guilty and serve the mandatory 42 months. At arraignment (within 48 hours of arrest), the judge reads the charges and sets bail. Gun charges often result in high bail or pretrial detention. Within weeks, the prosecutor presents your case to a grand jury. Indictment is almost automatic for gun possession. At the pre-indictment conference, your attorney meets with the prosecutor, requests discovery (police reports, search warrant, dash cam, firearm operability test results), and submits the Graves Act waiver application. Your attorney reviews all discovery to identify illegal search issues. If the stop or search was illegal, your attorney files a motion to suppress the gun evidence. If the waiver is granted, your attorney negotiates PTI or a probation sentence. If the waiver is denied, your attorney negotiates within the mandatory minimum range – 42 months minimum, but the sentence could be higher if there are multiple charges. If you proceed to trial, the prosecutor must prove: (1) you possessed the gun, (2) you lacked a New Jersey permit, (3) the gun was an operable firearm. If you’re convicted at trial and the waiver was denied, the judge imposes the mandatory 42-month minimum sentence. Your court date is 3-4 weeks out. Your attorney immediately requests discovery and begins preparing both the waiver application and suppression motions. The waiver decision usually comes before trial – if granted, you avoid trial entirely and enter PTI.
What Conviction Costs
A gun conviction means you can never possess firearms again – federal lifetime ban under 18 U.S.C. § 922(g). If you’re a non-citizen, a gun conviction is a deportable offense. A felony conviction bars many careers: law enforcement, security, healthcare licensing, teaching. And 42 months in prison means $150,000-250,000 in lost income, plus the cost to your family. Attorney fees for gun charges run $7,500-15,000. That’s a fraction of what a conviction costs. We’ve defended gun possession cases in Essex County Superior Court. We know the Graves Act waiver process, we know what the Essex County Prosecutor’s Office requires in waiver applications. If you’re facing gun charges in Essex County, call us at 212-300-5196.
NJ CRIMINAL DEFENSE ATTORNEYS