NJ How To Obtain a Graves Act Waiver Lawyers

NJ How To Obtain a Graves Act Waiver Lawyers

If you are facing firearm possession charges in New Jersey, you may be subject to the state’s strict mandatory minimum sentencing law known as the Graves Act. This law requires a minimum prison term upon conviction of certain gun crimes.

However, in some cases it may be possible to obtain a waiver of the Graves Act mandatory minimum sentence. Here is an overview of Graves Act waivers in New Jersey and how experienced criminal defense lawyers can assist in the process of seeking one.

What is the Graves Act in New Jersey?

The Graves Act, contained in N.J.S.A. 2C:43-6(c), establishes mandatory minimum prison sentences for convictions of certain firearm possession and trafficking crimes. For example:

• Illegal possession of a handgun – 3 year minimum
• Possession of a firearm for unlawful purpose – 3 year minimum
• Unlawful transfer or sale of firearms – 3 year minimum

This “one size fits all” sentencing has been controversial since the Graves Act was passed in 1981. But it remains the law in New Jersey.

What is a Graves Act Waiver?

A Graves Act waiver allows the mandatory minimum sentence to be waived under certain circumstances. If approved by the judge, a waiver reduces the parole disqualifier term so you become eligible for parole sooner.

For example, a 3 year Graves Act term may be reduced to just 1 year before parole eligibility if a waiver is granted. This can result in significantly less prison time.

Who Can Apply for a Graves Act Waiver in NJ?

Only the prosecutor, not the defendant themselves, can apply for a Graves Act waiver. The prosecutor must file a formal motion requesting that the court waive the mandatory minimum term.

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Some factors that may convince a prosecutor to seek a waiver include:

• Minimal criminal record
• Strong evidence against mandatory minimum sentence
• Unfairness of applying Graves Act in particular case
• Defendant’s employment, education, and family circumstances

How Can a Defense Lawyer Help Obtain a Waiver?

While only prosecutors can file for a Graves Act waiver, an experienced defense attorney plays a crucial role in obtaining one. Strategies criminal lawyers may use include:

• Highlight mitigating factors to prosecutor and argue for waiver
• Negotiate plea deal contingent on prosecutor filing waiver motion
• Advocate to judge that waiver serves interests of justice
• File appeals if waiver is unreasonably denied

Having an attorney who frequently deals with Graves Act cases and has good working relationships with local prosecutors is key.

What is the Graves Act Waiver Process in New Jersey?

The process for obtaining a waiver involves the following steps:

1. Prosecutor files formal motion requesting waiver
2. Judge reviews prosecutor’s motion and defendant’s circumstances
3. Judge decides whether to grant or deny the Graves Act waiver
4. If approved, minimum term is reduced per waiver order

The judge will only grant a waiver if they believe it serves the interests of justice based on the facts of the case.

How Common are Graves Act Waivers in NJ?

Graves Act waiver requests were relatively rare in the past, but have become somewhat more common in recent years as prosecutors use them as bargaining chips during plea negotiations. However, they are still not frequently granted.

Statistics show prosecutors applied for waivers in less than 5% of eligible Graves Act cases between 2009 and 2013. However, judges approved over 90% of waiver applications that were filed during that period.

Can Out-of-State Defendants Get a Graves Act Waiver in NJ?

Yes, New Jersey prosecutors can apply for Graves Act waivers regardless of whether the defendant is a resident or not. The same process applies.

An experienced criminal lawyer can argue that it serves no benefit to society to impose a lengthy mandatory minimum on an out-of-state resident who will likely leave NJ after serving their sentence. Prosecutors are sometimes willing to agree.

Are Graves Act Waivers Guaranteed if Requested?

No, there is never a guarantee that a waiver request will be granted by the judge. Even if the prosecutor asks for one, the judge can still deny it if they believe the mandatory minimum sentence is justified.

This is why having an skilled attorney who can zealously advocate for the waiver and highlight mitigating factors is so important.

Can a Graves Act Sentence be Appealed?

Yes, if a judge denies a waiver request, the defense lawyer can file an appeal arguing the judge abused their discretion. The appellate court can overturn the denial and send the case back for reconsideration of the waiver.

However, appeals are rarely successful given the high level of discretion judges have in Graves Act cases. But appeals should still be explored in questionable cases.

Are There Other Options Besides Graves Act Waivers?

If a waiver is not possible, some alternative options to avoid the mandatory minimum may include:

• Plea bargain to reduce charges not subject to Graves Act
• Diversionary program like PTI instead of conviction
• Argue unconstitutional selective prosecution
• File motion to suppress evidence leading to gun charges

A creative defense lawyer can sometimes find alternatives to the Graves Act even if a waiver is off the table.

Conclusion

The Graves Act imposes strict mandatory minimum prison sentences for gun crimes in New Jersey. But obtaining a waiver provides hope for a less severe punishment in appropriate cases. An experienced criminal defense attorney can guide defendants through the complex waiver process and advocate for the best possible outcome.

Don’t assume the mandatory sentence is unavoidable. With strong legal representation highlighting mitigating circumstances, many defendants can still avoid the full brunt of the Graves Act, even when a waiver is denied.

References

[1] New Jersey Graves Act – N.J.S.A. 2C:43-6(c)

[2] NJ Courts Overview of Graves Act

[3] NJ Court Rules on Attorney Conduct