New Jersey Criminal Defense Law Blog : New Jersey Criminal Defense Lawyer & Attorney : John Marshall Law Firm : Drug Crimes, Domestic Violence : Monmouth, Middlesex & Union Counties

The Graves Act: An Overview

The “Graves Act,” N.J.S.A. 2C:43-6(c), requires the imposition of a minimum term of imprisonment and parole ineligibility for certain gun-related crimes.  Until its amendment in 2008, the “Graves Act” only applied when a person was convicted of possessing or using a firearm while in the course of committing certain predicate crimes, or possession of a firearm for an unlawful purpose in violation of N.J.S.A. 2C:39-4(a).  However, following that amendment, the list of offenses that are now subject to the “Graves Act” was significantly expanded and now includes a number of possessory firearms crimes, including:

·                     Unlawful Possession of a Machine Gun, Handgun, Rifle or Shotgun, in violation of N.J.S.A. 2C:39-5(a), (b) or (c). 

·                     Possession of a Sawed-Off Shotgun, in violation of N.J.S.A. 2C:39-3(b).

·                     Possession of a Defaced Firearm, in violation of N.J.S.A. 2C:39-3(d).

·                     Possession of a Firearm While in the Course of Committing a Drug Distribution or Possession With Intent to Distribute Offense, in violation of N.J.S.A. 2C:39-4.1(a).

·                     Possession of Certain Weapons by Persons Previously Convicted of Specified Offenses, in violation of N.J.S.A. 2C:39-7(a) or (b)(2).

·                     The Manufacture, Transport, or Disposition of a Machine Gun, Sawed-Off Shotgun, or Assault Firearm, in violation of N.J.S.A. 2C:39-9(a), (b), or (g).

·                     The Defacement of a Firearm, in violation of N.J.S.A. 2C:39-9(e).

Except as otherwise provided or negotiated, a person convicted of any of the foregoing crimes must be sentenced to a term of imprisonment with a minimum term of parole ineligibility fixed at, or between, one-third to one-half of a sentence imposed, or three years, whichever is greater (or eighteen months in cases involving crimes of the Fourth Degree).  In other words, if a person is convicted of the “Graves Act” offense of Unlawful Possession of a Handgun, in violation of N.J.S.A. 2C:39-5(b), a crime of the Second Degree, the sentencing range is between five and ten years New Jersey State Prison with a period of parole ineligibility of between three and five years. 

Additionally, a person convicted of a “Graves Act” offense who has previously been convicted of certain firearms offenses must be sentenced to a mandatory extended term of imprisonment, pursuant to N.J.S.A. 2C:44-3(d).  When that “repeat gun offender” statute applies, the sentence imposed must include a minimum term of parole ineligibility fixed at or between one-third to one-half of the extended term sentence, or five years, whichever is greater. 

Moreover, N.J.S.A. 2C:39-5(i) provides that a person convicted of the unlawful possession of a machine gun, handgun, or assault firearm must be sentenced to parole ineligibility term of five years if the sentencing court finds that the organized criminal activity aggravating factor – N.J.S.A. 2C:44-1(a)(5) – applies.

Potential Resolutions to Graves Act Offenses

The Pre-Trial Intervention (PTI) Program

In general, persons charged with any crime of the First or Second Degree, or those charged with an offense that carries a mandatory minimum term of imprisonment, such as the “Graves Act,” are subject to a presumption of PTI ineligibility.

While a defendant’s PTI application cannot be categorically denied, the Legislature’s 2008 policy decision to significantly upgrade the seriousness of firearm offenses has caused prosecutors to withhold their consent to a defendant’s admission to PTI unless the case involves extraordinary and compelling circumstances that fall outside the heartland of the legislative policy to deter unauthorized gun possession.  For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the defendant lawfully acquired and possessed the firearm in a different state, and the defendant’s presence in New Jersey was incident to lawful travel.

For information regarding the lawful transport of firearms into/through New Jersey, see:  http://www.njsp.org/about/fire_trans.html

Probation

Prosecutors will generally withhold their consent to a probationary sentence unless there are extraordinary and compelling reasons that take the case outside the heartland of the legislative policy to deter unauthorized gun possession.  For example, such a rare case would be one where the defendant has no prior involvement with the criminal justice system, the firearm was unloaded, and the circumstances make clear that the firearm posed no risk to officer or public safety.  In such rare instances, the imposition of a state prison term would constitute a serious injustice that overrides the need to deter others from unlawfully possessing a firearm.

Waiver or Reduction of Sentence

N.J.S.A. 2C:43-6.2 outlines a procedure to allow for the reduction or waiver of an otherwise mandatory minimum term of imprisonment and parole ineligibility imposed under the “Graves Act.”  In determining whether to move for or approve the waiver or reduction of a minimum term of parole ineligibility under that statute, prosecutors generally consider all relevant circumstances concerning the offense conduct and the offender, including those aggravating and mitigating circumstances set forth in N.J.S.A. 2C:44-1.

Note, however (as indicated above), that a waiver or reduction will not be approved when there is an indication that the offender may be subject to the organized criminal activity aggravating factor.

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In honor of Valentines Day, it is important to remember the long lasting effects of domestic violence including potential criminal charges and collateral consequences. The consequences of being charged with a crime of domestic violence can be dire. Further, the entry of a Temporary or Final Restraining Order (“TRO” and “FRO”) can have lasting effects.

In 1991, the New Jersey Legislature found and declared that:

·                     domestic violence is a serious crime against society;

·                     there are thousands of persons in this State who are regularly beaten, tortured and in some cases even killed by their spouses or cohabitants;

·                     a significant number of women who are assaulted are pregnant;

·                     victims of domestic violence come from all social and economic backgrounds and ethnic groups;

·                     there is a positive correlation between spousal abuse and child abuse; and

·                     children, even when they are not themselves physically assaulted, suffer deep and lasting emotional effects from exposure to domestic violence.

See N.J.S.A. 2C:25-18

Therefore, in enacting the “Prevention of Domestic Violence Act of 1991” it was the Legislature’s intent to assure the victims of domestic violence the maximum protection from abuse the law can provide. 

When an alleged act of domestic violence occurs, the victim has the opportunity to file a criminal complaint (if appropriate), a civil complaint/TRO (if appropriate), or both.  The complaint(s) can be signed where the alleged act of domestic violence occurred, where the defendant resides, where the victim resides, or where the victim is sheltered or temporarily staying.  The filing of a criminal complaint does not preclude the victim from filing a domestic violence complaint and seeking a TRO.  A person may also file criminal charges without seeking a TRO.

For domestic violence to be found, the defendant and victim must have a relationship, as defined under the statute.  Specifically, a “victim of domestic violence” means any person who is 18 or older or who is an emancipated minor and who has been subjected to domestic violence by a spouse, former spouse, or any other person who is a present or former household member.  (This means, for example, that a roommate relationship qualifies.)  The definition also includes any person, regardless of age, who has been subjected to domestic violence by a person with whom the victim has a child in common, or with whom the victim anticipates having a child in common, if one of the parties is pregnant.  It further includes any person who has been subjected to domestic violence by a person with whom the victim has had a dating relationship.

The criminal offenses in New Jersey that can constitute domestic violence are as follows:

            1.         Homicide                                N.J.S.A. 2C:11-1, et seq.

            2.         Assault                                    N.J.S.A. 2C:12-1

            3.         Terroristic Threats                N.J.S.A. 2C:12-3

            4.         Kidnapping                             N.J.S.A. 2C:13-1

            5.         Criminal Restraint                 N.J.S.A. 2C:13-2

            6.         False Imprisonment             N.J.S.A. 2C:13-3

            7.         Sexual Assault                        N.J.S.A. 2C:14-2

            8.         Criminal Sexual Contact       N.J.S.A. 2C:14-3

            9.         Lewdness                                N.J.S.A. 2C:14-4

            10.       Criminal Mischief                   N.J.S.A. 2C:18-3

            11.       Burglary                                    N.J.S.A. 2C:18-2

            12.       Criminal Trespass                 N.J.S.A. 2C:18-3

            13.       Harassment                             N.J.S.A. 2C:33-4

            14.       Stalking                                      N.J.S.A. 2C:12-10

Note that the crimes on the list range from Homicide, a crime of the 1^st Degree which can be punishable in some instances by a term of life imprisonment without eligibility for parole, to Harassment, which can range from a crime of the 4^th Degree (punishable by up to 18 months New Jersey State Prison) to a Petty Disorderly Persons offense (punishable by up to 30 days in the county jail).

Note also that a conviction for a crime of domestic violence requires the payment of additional fines.

Collateral Consequences of a Finding of Domestic Violence:

Even if there is a only a finding of domestic violence for purposes of the entry of a Final Restraining Order (“FRO”), there can still be serious consequences.

For instance, following a hearing and finding of domestic violence, the court may issue an Order granting any or all of the following relief:

·                     Weapons

                      The entry of an TRO/FRO can prohibit a defendant from purchasing, owning, possessing or controlling a firearm and from receiving or retaining a firearms purchaser identification card or permit to purchase a handgun pursuant to N.J.S.A. 2C:58-3 for the entire period the TRO/FRO is in effect.

·                     Further Acts of Violence

·                     Exclusive Possession of Residence

                       A court can order exclusive possession of the residence or household to the victim regardless of whether it is jointly or solely owned by the parties or jointly or solely leased by the parties.   If it is not possible for the victim to remain in the residence, the court may even order the defendant to pay the victim’s rent at a residence.

·                     Parenting Time and Risk Assessments

·                     Monetary Compensation (including Support)

                         A court can order the defendant to pay the victim monetary compensation for losses suffered as a direct result of the domestic violence.  Losses can include loss of earnings or other support, including child or spousal support, out-of-pocket losses for injuries sustained, cost of repair or replacement of real or personal property damaged or destroyed or taken by the defendant, cost of counseling for the victim, moving or other travel expenses, reasonable attorney’s fees, court costs, and compensation for pain and suffering. 

·                     Professional Domestic Violence Counseling

·                     Location Restraints

·                     Communication Restraints

                        A court can prohibit the defendant from making personal, written, or telephonic contact with the victim or with the victim’s family members, employers, employees, or fellow workers, or others with whom communication would be likely to cause annoyance or alarm to the victim.  Courts

·                     Other Support and Personal Property

·                     Temporary Custody

·                     Law Enforcement Accompaniment

·                     Prohibition From Possessing Weapons

·                     Prohibition Against Stalking

·                     Any other appropriate relief, including monitoring that relief

See N.J.S.A. 2C:25-29b

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In State v. Brimage, 153 N.J. 1 (1998), the New Jersey Supreme Court was called upon to address the constitutionality of N.J.S.A. 2C:35-12, which the Court characterized as an “atypical” sentencing statute because it shifted sentencing power from the judiciary to the prosecutor.  The Court held that to satisfy the constitutional requirements of the separation of powers doctrine, prosecutors must be guided by specific, universal standards in their waiver of mandatory minimum sentences under the Comprehensive Drug Reform Act.  Because the then-existing plea negotiation guidelines were not adequate, the Court directed the Attorney General to issue new guidelines – now known as the “Brimage Guidelines” – to promote uniformity and to prevent arbitrariness.  The new guidelines became effective on May 20, 1998.

Often times, defense attorneys negotiate plea agreements on behalf of their clients, but still reserve the opportunity to “argue for less” at the time of sentencing – and quite frequently judges agree and render lower sentences than those called for under the plea agreements.  However, unlike with ordinary plea agreements, an agreement made under the “Brimage Guidelines” binds judges not to impose a lesser term than that to which the parties agree.

Therefore, the consequences of being charged with a drug offense that may subject you to sentencing under the “Brimage Guidelines” is serious.  For example, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute a Controlled Dangerous Substance (“CDS”) and you are first-time offender, you may be eligible to enter a plea agreement that will only subject you to a non-custodial sentence (i.e., probationary sentence).  However, if you are charged with a violation of 2C:35-5, Distribution/Possession With Intent to Distribute CDS and you are a repeat offender, the “Brimage Guidelines” will likely be applicable and your sentence will likely be a term of imprisonment in New Jersey State Prison with a mandatory period of parole ineligibility.

“Brimage Guidelines” apply to violations of the following New Jersey drug statutes:

2C:35-3            Leader of a Drug Trafficking Network

2C:35-4            Operating a Drug Production Facility

2C:35-5            Distribution/Possession With Intent to Distribute – First Degree OR

2C:35-5            Distribution/Possession With Intent to Distribute – Repeat Offender

2C:35-6            Using a Juvenile in Drug Distribution

2C:35-7            Distribution/Possession With Intent to Distribute in a School Zone

Most notably, on January 12, 2010, N.J.S.A. 2C:35-7 (Distribution/Possession With Intent to Distribute CDS in a School Zone) was amended to give discretion under certain circumstances to waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases.  The amendment was intended to address concerns about the broad geographic sweep of the school zone offense.  In some jurisdictions, and especially in densely populated urban areas, most locations are situated within 1,000 feet of a school.  As a result, the law’s mandatory minimum sentencing provisions can apply even though the conduct did not directly endanger schools or school-aged children.

The circumstances under which courts can waive or reduce the mandatory term of imprisonment and parole ineligibility in school zone cases are set forth in N.J.S.A. 2C:35-7b(1):

a.              the extent of the defendant’s criminal record and the seriousness of any prior offenses for which the defendant has been convicted;

b.              the specific location of the present offense in relation to school property and the reasonable likelihood of exposing children to drug-related activities at that location;

c.               whether school was in session at the time of the offense; and

d.              whether children were actually present or in the immediate vicinity when the offense took place.

However, you are ineligible for a waiver or reduction if the offense took place while on school property or a school bus; or if violence was used or threatened during the commission of the offense; or if a firearm was possessed during the commission of the offense.

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