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A Graves Act charge in New Jersey means you could face a mandatory minimum prison sentence, with no chance of early parole, even if you have never been arrested before. A conviction or guilty plea to a covered firearms offense triggers automatic incarceration that the judge cannot waive on their own. However, there are ways to reduce or avoid that mandatory sentence. The prosecution must still prove every element of the charge, and the Graves Act waiver process can lead to probation, a reduced prison term, or Pretrial Intervention (PTI).
New Jersey gun crime lawyer Adam M. Lustberg has defended firearms cases throughout Bergen County and New Jersey for over two decades, including cases involving unlawful handgun possession, certain persons offenses, and other Graves Act charges in New Jersey. Attorney Lustberg understands how prosecutors evaluate waiver applications and what it takes to present a persuasive case for leniency.
This guide explains what the Graves Act covers, the mandatory penalties you face, how the waiver process works, and what defense options may apply to your case. Call Lustberg Law Offices, LLC at (201) 880-5311 for a free consultation.
The Graves Act is a New Jersey sentencing law that imposes mandatory minimum prison terms for certain firearm-related offenses. Originally passed in 1981, the law was expanded in 2008 to cover additional possessory weapons offenses, including unlawful possession of a handgun without a permit.
Under this law, a person convicted of a Graves Act offense must serve a fixed minimum portion of their sentence before becoming eligible for parole. The judge has no discretion to impose probation or a suspended sentence unless the prosecution applies for a formal waiver. This means that the standard mitigating factors, such as a clean criminal record, steady employment, or family responsibilities, do not allow the court to withhold imposing a prison term without the waiver.
The Graves Act applies in two main situations. First, it covers specific possessory firearms offenses, such as carrying a handgun without a New Jersey permit. Second, it applies when certain violent crimes, like robbery or aggravated assault, are committed while the defendant has a firearm.
Key Takeaway: The Graves Act requires mandatory prison time for covered firearms offenses in New Jersey. Even first-time offenders face at least 42 months behind bars unless a formal waiver or diversionary program is approved. Contact Adam M. Lustberg in New Jersey at (201) 880-5311 to discuss your case.
The Graves Act covers two categories of offenses: standalone firearms charges and violent crimes committed with a firearm.
The following standalone weapons charges trigger the Graves Act mandatory minimums:
The Graves Act also applies when a defendant uses or possesses a firearm during the commission or attempted commission of any of the following crimes:
It does not matter whether the gun was loaded or unloaded, or whether the defendant displayed or fired the weapon. Constructive possession, meaning the firearm was within the defendant’s reach or control, also satisfies the possession element.
Key Takeaway: The Graves Act covers a wide range of firearms charges, from carrying a handgun without a New Jersey permit to possessing a firearm during a violent crime. Even an unloaded gun triggers mandatory minimums. Adam M. Lustberg of Lustberg Law Offices, LLC can evaluate which specific charges apply and what defenses may be available. Call (201) 880-5311.
The penalties under the Graves Act depend on the degree of the crime. The law requires a mandatory minimum period of parole ineligibility, meaning the defendant cannot be released or considered for parole until that minimum term has been served in full.
| Crime Degree | Typical Sentence Range | Graves Act Mandatory Minimum (Parole Ineligibility) |
|---|---|---|
| First Degree | 10 to 20 years in state prison | Five years, or between one-third and one-half of the sentence imposed, whichever is greater. |
| Second Degree (e.g., unlawful handgun possession) | 5 to 10 years in state prison | 42 months (3.5 years) before parole eligibility |
| Third Degree | 3 to 5 years in state prison | One-third to one-half of a sentence, or 3 years, whichever is greater |
| Fourth Degree | Up to 18 months in state prison | 18 months without parole eligibility |
The most common Graves Act scenario in New Jersey involves unlawful possession of a handgun, which is a second-degree crime. A defendant convicted of this charge typically receives a five-year sentence with a mandatory minimum of 42 months before parole eligibility. Good behavior credits and early release programs do not apply during the parole ineligibility period.
Repeat offenders face even harsher consequences. If you have a prior Graves Act conviction, the mandatory minimum increases, and your eligibility for a waiver may be significantly limited or eliminated.
Key Takeaway: For a second-degree firearms offense, the Graves Act requires at least 42 months in state prison before parole eligibility. Fourth-degree offenses carry an 18-month mandatory minimum. These terms cannot be reduced through good behavior. Contact Lustberg Law Offices, LLC in New Jersey at (201) 880-5311 to review your sentencing exposure.
We have years of experience in courts through NJ and NY and a proven track record of success in criminal cases.
The Graves Act waiver is the primary mechanism for avoiding or reducing the mandatory minimum sentence. Under N.J.S.A. 2C:43-6.2, the county prosecutor may file a motion asking the court to waive the mandatory minimum if certain conditions are met. You cannot apply for a waiver yourself; the prosecutor must initiate the process.
To qualify, you must meet two requirements. First, you cannot have any prior Graves Act convictions. Second, the prosecutor must determine that the interests of justice would not be served by imposing the full mandatory minimum sentence. This usually requires demonstrating that your case falls outside the typical pattern of gun crime that the law was designed to address.
When deciding whether to grant the waiver, the court evaluates mitigating and aggravating factors listed under N.J.S.A. 2C:44-1. Mitigating factors that may support a waiver include a clean criminal record, no intent to cause harm, willingness to make restitution, and evidence that the conduct was unlikely to recur. Aggravating factors, such as the severity of the offense, a prior criminal record, or involvement in organized criminal activity, reduce the likelihood of approval.
If the waiver is granted, the judge has three options: reduce the mandatory minimum to one year of parole ineligibility, impose a term of probation instead of prison, or allow the defendant to enter Pretrial Intervention (PTI).
In 2008, the New Jersey Attorney General issued a directive giving prosecutors discretion to offer first-time offenders a reduced sentence of one year without parole eligibility, rather than the standard 42-month minimum. This directive has provided a framework for resolving many Graves Act cases, particularly those involving otherwise law-abiding individuals. However, prosecutors are not required to follow it, and each county applies the directive differently.
Key Takeaway: A Graves Act waiver can reduce the mandatory minimum to one year or allow probation, but only the prosecutor can file the motion. Having no prior convictions and strong mitigating factors improves your chances. Adam M. Lustberg handles Graves Act waiver negotiations throughout Bergen County and New Jersey. Call (201) 880-5311.
Pretrial Intervention (PTI) is a diversionary program in New Jersey that allows eligible defendants to avoid a conviction entirely. If you complete the program successfully, the charges are dismissed, and you have no criminal record. However, PTI is extremely difficult to obtain in Graves Act cases because there is a strong presumption against admitting defendants charged with second-degree crimes or offenses carrying mandatory parole ineligibility.
Despite this presumption, New Jersey courts have acknowledged that PTI may be appropriate in rare cases involving extraordinary and compelling circumstances. The 2014 Attorney General’s Clarification of the 2008 Graves Act Directive identified several factors that may support PTI eligibility in gun cases. These include minimal exposure of the firearm to other people in New Jersey, an isolated incident that was out of character for the defendant, voluntary disclosure of the firearm to law enforcement, surrender of an unloaded weapon, and confusion about the differences between New Jersey gun laws and the laws of the defendant’s home state.
These factors are designed primarily for out-of-state residents who bring legally owned firearms into New Jersey without realizing they need a separate New Jersey permit. However, residents of New Jersey may also qualify in rare circumstances if their case meets the “extraordinary and compelling” standard.
Key Takeaway: PTI is available in Graves Act cases only under extraordinary circumstances, and it requires the prosecutor’s consent. Out-of-state residents who unknowingly brought a lawfully owned firearm into New Jersey may have the strongest case for PTI eligibility. Call Lustberg Law Offices, LLC at (201) 880-5311 to discuss whether PTI is an option in your case.
Adam M. Lustberg graduated from Seton Hall University School of Law in 2004 and is admitted to practice in both New Jersey and New York. He began his career in criminal defense while interning at the Essex County Public Defender’s Office as a first-year law student through Seton Hall’s Pro Bono Program, and later represented juveniles at initial proceedings through the school’s Juvenile Justice Clinic. Since that time, he has represented clients at every stage of the criminal justice system, from arraignment through trial by jury, and has argued in more than 30 detention hearings under New Jersey’s criminal justice reform system.
Adam M. Lustberg holds a 10 out of 10 rating on Avvo, has been named to the Super Lawyers Rising Stars list for six consecutive years, was recognized as one of Bergen’s Best Lawyers by (201) Magazine, and was named to The National Trial Lawyers Top 100 Trial Lawyers list. He is an active member of the American Bar Association, the New Jersey State Bar Association, the Bergen County Bar Association, the Hudson County Bar Association, and the Association of Criminal Defense Lawyers of New Jersey.
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New Jersey courts have imposed strict rules on plea bargaining in Graves Act cases. Under Supreme Court Directive #10-80, a court cannot accept a plea deal that dismisses a Graves Act charge unless one of the following conditions is met:
Any sentence imposed in violation of these limitations is considered illegal and can be corrected by the court at any time. This means that even after sentencing, a non-compliant plea deal can be overturned.
These restrictions make it essential to work with an attorney who understands how to navigate the narrow pathways available in Graves Act cases. Lustberg Law Offices, LLC in New Jersey has the experience to identify which strategies may apply in your situation and how to present your case within these strict procedural boundaries. Call (201) 880-5311.
While the Graves Act imposes serious mandatory minimums, the prosecution must still prove each element of the underlying firearms charge beyond a reasonable doubt. Several defense strategies may apply depending on the facts of your case.
Many firearms are discovered during traffic stops or searches of vehicles, homes, or personal belongings. Under the Fourth Amendment and the New Jersey Constitution, law enforcement must have probable cause or a valid warrant to conduct a search. If the police recovered the firearm through an illegal search, the evidence may be suppressed, meaning the prosecution cannot use it at trial. Without the gun as evidence, the case may be dismissed entirely.
New Jersey law requires the prosecution to prove that you knowingly possessed the firearm. If the gun was found in a shared vehicle, a common area, or a location accessible to multiple people, the prosecution must establish that you were aware of its presence and had the ability and intent to control it. Constructive possession cases are often weaker than those involving a firearm found directly on the defendant.
If law enforcement violated your constitutional rights during the investigation or arrest, your attorney may be able to have evidence excluded or the charges reduced. This includes violations of your Miranda rights, improper interrogation techniques, or unlawful detention.
Key Takeaway: The prosecution must prove you knowingly possessed the firearm, and the search that led to its discovery must comply with constitutional requirements. If police violated your rights, the evidence may be suppressed. Adam M. Lustberg of Lustberg Law Offices, LLC evaluates every detail of the arrest and search in Bergen County and New Jersey gun cases. Call (201) 880-5311.
Many Graves Act cases in New Jersey involve residents of other states who legally own firearms in their home state but do not hold a New Jersey firearms identification card or permit. New Jersey does not recognize out-of-state gun permits, so carrying a firearm into the state without a valid New Jersey license can result in a second-degree unlawful possession charge, even if the weapon is properly registered elsewhere.
The 2014 Attorney General’s Clarification specifically addresses this situation. Prosecutors are encouraged to exercise discretion when dealing with otherwise law-abiding out-of-state gun owners who did not realize they were violating New Jersey law. In appropriate cases, this can lead to enrollment in PTI, a Graves Act waiver, or reduced charges.
However, this discretion is not guaranteed. Each county prosecutor applies the directive according to their own interpretation, and some counties are more receptive to waiver applications than others. Working with an attorney who understands how specific New Jersey counties handle these cases can make a significant difference in the outcome. Lustberg Law Offices, LLC represents out-of-state gun owners facing Graves Act charges throughout New Jersey. Call (201) 880-5311.
A Graves Act conviction carries consequences that extend well beyond the prison sentence. A felony conviction on your record can affect nearly every aspect of your life after release.
A Graves Act conviction results in a permanent felony record that can lead to the revocation of professional licenses and the loss of housing or employment opportunities. Most significantly, a conviction under the Act triggers a permanent ban on firearm ownership under both New Jersey law and federal law (18 U.S.C. § 922(g)), which cannot be restored through standard channels.
Under New Jersey law, a person convicted of certain firearms offenses loses the right to possess any firearm in the future. Federal law under 18 U.S.C. § 922(g) similarly prohibits convicted felons from possessing firearms or ammunition. These restrictions are permanent unless pardoned or expunged under limited statutory provisions.
Key Takeaway: A Graves Act conviction results in a permanent felony record, loss of firearm rights, and lasting barriers to employment, housing, and immigration status. The stakes make it critical to mount the strongest possible defense. Contact Adam M. Lustberg in New Jersey at (201) 880-5311.
Adam M. Lustberg of Lustberg Law Offices, LLC represents clients facing Graves Act charges in Bergen County, including Hackensack, Teaneck, Fort Lee, Englewood, Paramus, Ridgewood, Garfield, Lodi, and Fair Lawn. We also handle firearms cases in Hudson County, Passaic County, Essex County, and courts throughout New Jersey.
Graves Act cases in Bergen County are prosecuted by the Bergen County Prosecutor’s Office and heard in the Bergen County Superior Court in Hackensack. Cases originating in Passaic County are handled at the Passaic County Superior Court in Paterson, while Hudson County cases proceed through the Hudson County Superior Court in Jersey City.
Facing a Graves Act charge is one of the most serious situations in New Jersey criminal law. The mandatory minimum sentences leave little room for error, and the consequences of a conviction will follow you for years. You need someone who understands how these cases are prosecuted, how waiver applications are evaluated, and how to identify weaknesses in the prosecution’s case.
Adam M. Lustberg has handled firearms cases in New Jersey for over two decades, including cases at the Bergen County Superior Court in Hackensack and courts across the state. His approach focuses on challenging the evidence, identifying constitutional violations, and building the strongest possible case for leniency when a waiver is appropriate.
Call Lustberg Law Offices, LLC at (201) 880-5311 or visit our Hackensack office at 1 University Plaza Dr #212, Hackensack, NJ 07601.
For second-degree and third-degree firearms offenses, the mandatory minimum is the greater of 42 months or one-third to one-half of the sentence imposed. For fourth-degree offenses, the mandatory minimum is 18 months. These terms represent the minimum time you must serve before becoming eligible for parole, and they cannot be reduced through good behavior credits.
It is possible but difficult. First-time offenders with no prior criminal record may be eligible for a Graves Act waiver, which requires the county prosecutor to file a motion with the court. If the waiver is granted, the judge can impose probation, reduce the parole ineligibility term to one year, or allow entry into Pretrial Intervention. The outcome depends on the specific facts of your case and the mitigating factors you can demonstrate.
Yes. New Jersey law does not distinguish between loaded and unloaded firearms for purposes of the Graves Act. The prosecution is not even required to prove that the gun was operable. Constructive possession, meaning the weapon was within your reach or control, also satisfies the possession element.
New Jersey does not recognize firearms permits issued by other states. If you carry a legally purchased and registered firearm into New Jersey without a valid New Jersey permit, you can be charged with a second-degree crime, carrying a mandatory minimum of 42 months in prison. The 2014 Attorney General’s directive encourages prosecutors to consider PTI or waiver applications for otherwise law-abiding out-of-state residents, but this discretion varies by county.
You can be subject to the Graves Act sentencing even if you did not personally possess the firearm. If you were involved in a crime and your co-defendant used or possessed a gun, the prosecution may argue that you knew or had reason to know about the weapon. New Jersey courts have upheld Graves Act liability for accomplices under the theory that the parties shared a common criminal purpose.
Expungement of Graves Act convictions is extremely limited under New Jersey law. Indictable offenses generally require a waiting period of at least six years after completion of the sentence, probation, or parole. Certain firearms offenses may be ineligible for expungement altogether. Consult an attorney to determine whether your specific conviction qualifies.