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Lustberg Law Offices, LLC Protecting Your Freedom and Your Future.
Facing an assault firearm possession charge in New Jersey is serious even if the person believed they were acting within the law. Under N.J.S.A. Section 2C:39-5, possessing an unregistered assault firearm is a second-degree crime that carries 5 to 10 years in state prison. Many people charged under this statute purchased their firearm legally in another state or believed a cosmetic modification brought their weapon into compliance. Even a simple mistake can result in severe penalties, as the Graves Act requires mandatory minimum prison sentences.
Defending against these charges requires an experienced gun crime attorney in New Jersey who understands state gun laws and Superior Court procedures. Adam M. Lustberg has defended criminal cases across New Jersey since 2004, including weapons offenses that carry mandatory minimum sentences. When handling gun charges, Lustberg Law Offices, LLC contests the “substantially identical” feature classifications of seized weapons. Our firm argues on behalf of clients at pretrial detention hearings, scrutinizes search warrants, challenges unconstitutional seizures, and contests lab reports early in the process to build a strong defense.
This guide explains how New Jersey defines an assault firearm, outlines the potential penalties, and details how a Graves Act waiver application can prevent a mandatory prison sentence. It also covers the “substantially identical” weapon criteria, registration exemptions, and the legal defenses used to challenge unlawful police searches. If you are facing these charges, call Lustberg Law Offices, LLC at (201) 880-5311 to discuss the facts of your case and begin building a defense.
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We have years of experience in courts through NJ and NY and a proven track record of success in criminal cases.
Under N.J.S.A. Section 2C:39-1w, an assault firearm includes any weapon named on the statutory list and any firearm manufactured under a different designation that is substantially identical to a listed weapon. The statute names more than thirty specific models of semi-automatic rifles, shotguns, and pistols, including AR-15 and AK-47 type rifles, the Uzi, the Intratec TEC-9, and the Street Sweeper shotgun.
The law also classifies weapons by their function rather than just their name. A semi-automatic shotgun with a magazine capacity exceeding six rounds falls within the definition, alongside any part or combination of parts designed to convert a standard firearm into an assault firearm.
The catch-all provision for substantially identical weapons drives most litigation over these charges. A firearm sold under a completely different name can still be charged as an assault firearm if it matches a listed model in all material respects. Cosmetic differences, such as color, receiver markings, or stock material, will not exempt a weapon from this definition.
New Jersey strictly enforces these bans despite recent Supreme Court rulings expanding Second Amendment rights. Gun owners often assume federal decisions cancel out state laws, but judges will not automatically drop a pending charge. Prosecutors continue to pursue these second-degree cases. Contesting an arrest on constitutional grounds means filing formal pretrial motions to challenge the state law directly.
Possession of an assault firearm carries some of the most severe penalties for illegal firearm possession in New Jersey, classified as a second-degree crime carrying 5 to 10 years in state prison and a fine of up to $150,000. New Jersey imposes a presumption of imprisonment for second-degree offenses, meaning a judge will impose a prison sentence even on defendants with no prior criminal record. This charge under N.J.S.A. Section 2C:39-5 penalizes the mere unlawful possession of a weapon. It differs entirely from N.J.S.A. Section 2C:39-4, which involves possessing a weapon with the specific intent to use it unlawfully against a person or property and is prosecuted separately.
Prosecutors frequently file related weapons charges alongside the primary count. A defendant can face a separate fourth-degree charge for each prohibited large-capacity magazine recovered during a search. The State can also add a Certain Persons charge under N.J.S.A. 2C:39-7 if the individual has a disqualifying prior criminal conviction.
| Charge | Degree | Prison Exposure | Maximum Fine | Mandatory Minimum |
|---|---|---|---|---|
| Possession of an assault firearm (2C:39-5f) | Second degree | 5 to 10 years | $150,000 | Yes, under the Graves Act |
| Unlawful possession of a handgun (2C:39-5b) | Second degree | 5 to 10 years | $150,000 | Yes, under the Graves Act |
| Possession of a large capacity magazine (2C:39-3j) | Fourth degree | Up to 18 months | $10,000 | No |
Key Takeaway: Possessing an unregistered assault firearm in New Jersey is a second-degree crime punishable by 5 to 10 years in prison, unless a statutory licensing or registration exception applies.
The Graves Act requires a period of parole ineligibility for most firearm offenses, including assault firearm possession. Under N.J.S.A. Section 2C:43-6, the court must impose a minimum term of one-third to one-half of the sentence imposed, or 42 months, whichever is greater. During that period, the defendant is not eligible for parole.
This structure removes probation as an option in most cases, even for a defendant who would otherwise be a strong candidate for a non-custodial sentence.
New Jersey law provides one specific method to avoid this standard mandatory minimum. Under N.J.S.A. Section 2C:43-6.2, the prosecutor may move before the county assignment judge to permit a sentence of probation or a reduced one-year period of parole ineligibility. Securing this waiver requires the defense to present compelling facts early in the process. Favorable factors include a lack of prior convictions, lawful acquisition of the firearm in another state, the absence of violence, and proof the individual never carried the weapon in public.
Waiver requests are decided on a case-by-case basis, and prosecutors in Bergen County and elsewhere evaluate them against the Attorney General’s directive governing Graves Act sentencing. Building that record before the case reaches a plea posture produces better results than raising it at sentencing.
Key Takeaway: The Graves Act imposes a mandatory prison term with no early parole for a set minimum period, meaning a conviction blocks probation in almost all assault firearm cases.
Contact our law office today at (201) 880-5311 to speak with our skilled expungement attorneys regarding having your criminal records expunged.
A semi-automatic firearm is substantially identical to a listed assault firearm when it meets a two-feature test established in the 1996 Attorney General guidelines. This test differs by weapon type, and the analysis turns on the physical configuration of the firearm as recovered rather than the model name on the box. Prosecutors rely on these criteria to charge weapons that appear nowhere on the statutory list, making the feature count a highly contested issue.
A semi-automatic rifle qualifies if it accepts a detachable magazine and has at least two of the following features:
A semi-automatic pistol falls within the definition if it accepts a detachable magazine and has at least two of the following features:
A semi-automatic shotgun qualifies if it has at least two of the following characteristics:
A tenacious litigator who won’t back down. Prepared to challenge the evidence against you and will fight to protect your rights.
Police need a warrant to search a home or property for firearms unless a recognized exception applies. The Fourth Amendment and Article I, Paragraph 7 of the New Jersey Constitution govern these searches. New Jersey courts interpret the state provision to provide broader privacy protections than federal law for situations involving automobile searches and consent.
Prosecutors frequently rely on exceptions like consent, plain view, exigent circumstances, search incident to a lawful arrest, and the protective sweep. Each exception carries strict legal limits. Consent must be voluntary, and officers must advise a person of their right to refuse a search. Plain view requires the officer to stand in a lawful position when observing the item. A protective sweep permits a brief visual inspection for people rather than a thorough search of closed containers, gun safes, or storage areas.
How the police find a firearm often determines the outcome of a case. If a search of a residence, vehicle, or storage unit exceeded the scope of a warrant or of a valid exception, a motion to suppress can remove the firearm and everything derived from it from evidence. Without the weapon, the State cannot prove unlawful possession.
Key Takeaway: Evidence obtained through an unlawful search of a home, vehicle, or storage unit can be suppressed, which often weakens or eliminates the prosecution’s case.
If firearms were seized during a search of your property, contact Lustberg Law Offices, LLC before speaking with investigators.
After an arrest, police seize the firearm alongside magazines, ammunition, and other property like phones or gun safes. Law enforcement sends the weapon to the State Police ballistics laboratory or a county facility for examination, where a forensic examiner documents the specific physical features that support the assault firearm classification.
The prosecutor then decides whether to file a motion for pretrial detention. Second-degree firearm offenses carry a presumption of detention under New Jersey law, and a judge factors the Public Safety Assessment score, the nature of the seizure, and any prior criminal record into the final release decision. The court holds a detention hearing within three to five days of the first appearance, making early legal intervention critical for the defendant.
If the case proceeds, it moves to a pre-indictment conference, presentation to a grand jury, arraignment in the Criminal Division, and then pretrial motions. Discovery includes the lab report, body camera footage, search warrant affidavits, and chain of custody records for the firearm. A defense attorney can challenge each of these components to suppress evidence and weaken the prosecution’s case.
Adam M. Lustberg graduated from the Seton Hall University School of Law in 2004 and passed the New Jersey and New York bar examinations that summer. He is admitted to practice in both states and dedicates his entire practice to criminal defense. His work in the field began as a law student with the Essex County Public Defender’s Office through Seton Hall’s Pro Bono Program and Juvenile Justice Clinic. He represents clients at every stage of a case, from arraignment through jury trial, defending against charges ranging from municipal court offenses to homicide, aggravated assault, and unlawful possession of firearms.
Mr. Lustberg has argued for defendants at more than 30 detention hearings under New Jersey’s criminal justice reform system, a critical stage where many second-degree gun cases take shape. He works directly with clients, prosecutors, and the court on every file, using meticulous preparation as the foundation of his defense strategy. He holds a 10.0 rating on Avvo, recognized as a Super Lawyers Rising Star for six consecutive years, received a recognition from (201) Magazine, and was selected for the National Trial Lawyers Top 100 Trial Lawyers list in 2014. 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.
Three primary defenses apply to assault firearm cases. A defense attorney can challenge the search that produced the weapon, dispute the legal classification of the firearm, or contest whether the State can prove knowing possession.
A motion to suppress attacks the legality of a police search. A defense attorney can review the warrant application for a lack of probable cause or material omissions, examine if consent was voluntary and properly obtained, and test if officers exceeded their permitted scope once inside a property. When the prosecution relies on exigent circumstances, the court must determine if the situation was genuinely urgent or if officers had time to obtain a telephonic warrant.
The State must prove the weapon meets the exact statutory definition. If the firearm does not appear on the specific list in N.J.S.A. Section 2C:39-1w, the prosecution has to establish that it is substantially identical to a listed model under the strict two-feature test. A defense examination can reveal that the weapon has only one qualifying feature, that a fixed magazine prevents it from accepting a detachable magazine, or that the forensic lab report counted a feature the firearm lacks.
Unlawful possession requires proof of both knowledge and control. A defense attorney can contest the State’s constructive possession theory if police found the firearm in a shared residence, a vehicle owned by someone else, or a locked container the defendant could not access. Proof that the weapon belonged to a roommate, relative, or prior tenant, combined with an absence of fingerprints or DNA, directly undercuts the prosecution’s case.
Key Takeaway: A defense attorney can fight an assault firearm charge by challenging how police found the weapon, disputing if it legally qualifies as a banned firearm, or proving the defendant did not knowingly possess it.
Assault firearms lawfully acquired before May 1, 1990, and registered with the State remain legal to possess. The registration window closed years ago, so the exemption applies only to owners who completed it, and official documentation of that registration serves as the primary defense in court.
Other exemptions exist under N.J.S.A. Section 2C:39-5 and the licensing provisions of N.J.S.A. Chapter 58. An individual holding a license issued by a Superior Court judge to possess an assault firearm falls outside the criminal prohibition. Law enforcement officers, licensed dealers, and individuals transporting firearms in compliance with statutory exceptions for target ranges or lawful transfers can also claim exemption. Owners who rendered a firearm inoperable or transferred it to a licensed dealer within the required timeframe fall outside the reach of the offense.
Establishing an exemption depends on specific documents. Essential evidence includes registration certificates, permits, purchase paperwork, and correspondence with the New Jersey State Police Firearms Investigation Unit. Contact Lustberg Law Offices, LLC today at (201) 880-5311 to have your documentation reviewed.
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Certain actions after an arrest create evidence the State can use in court. The most damaging mistakes often occur during the first few days following an arrest.
A defendant facing firearm charges must avoid several critical actions:
Assault firearm cases turn on technical proof, and the difference between a dismissal, a Graves Act waiver, and a prison sentence often depends on work done in the first month. Adam M. Lustberg reviews ballistics reports and seizure records before a case reaches a grand jury. Identifying a classification error or defective search warrant early creates strong leverage long before indictment.
Pretrial detention hearings carry as much weight in these matters as a trial. A defendant held in custody before trial faces reduced leverage during negotiations and greater difficulty assisting with defense preparation. Mr. Lustberg has argued more than 30 of these detention hearings and handles them personally rather than delegating them to associates.
Securing a Graves Act waiver requires a detailed written application submitted to the prosecutor and the county assignment judge. This application documents the defendant’s background, the origin of the firearm, and the specific circumstances surrounding the possession. Lustberg Law Offices, LLC prepares these applications with comprehensive supporting exhibits rather than relying on informal verbal requests at plea conferences, representing clients in Superior Court in Hackensack and in courthouses throughout New Jersey.
Lustberg Law Offices, LLC represents people charged with firearm offenses throughout Bergen County, including cases prosecuted in Hackensack at the Bergen County Justice Center. We appear regularly in the Criminal Division in Hackensack and in municipal courts across Bergen County, and we handle weapons cases statewide.
Our firm accepts assault firearm and other weapons cases in all 21 New Jersey counties. These include Atlantic, Bergen, Burlington, Camden, Cape May, Cumberland, Essex, Gloucester, Hudson, Hunterdon, Mercer, Middlesex, Monmouth, Morris, Ocean, Passaic, Salem, Somerset, Sussex, Union, and Warren.
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A second-degree firearm charge moves quickly, as detention motions are decided within days, discovery deadlines follow, and suppression motions must be filed within strict timeframes set by the Criminal Division. Securing legal counsel early preserves defense options that can close as the case progresses.
Since 2004, Adam M. Lustberg has defended clients facing a wide range of criminal charges in New Jersey Superior Court, including serious weapons offenses, unlawful possession of firearms, and cases subject to mandatory minimum sentencing. He handles classification challenges, motions to suppress, detention hearings, and Graves Act waiver applications while keeping clients informed at every stage of proceedings.
Call Lustberg Law Offices, LLC at (201) 880-5311 to schedule a consultation. Our office is located at 1 University Plaza Dr #212, Hackensack, NJ 07601, and we represent clients charged with firearm offenses throughout the state.
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Yes. AR-15 type rifles appear by name on the statutory list in N.J.S.A. Section 2C:39-1w, and rifles sold under other model names can also qualify if substantially identical to a listed weapon. Whether a specific rifle qualifies depends on its physical configuration when seized, which a defense attorney can contest in court.
Avoiding prison as a first-time offender is possible but not automatic, as a judge must impose a mandatory prison sentence unless the defense secures a Graves Act waiver under N.J.S.A. Section 2C:43-6.2. Securing this waiver requires presenting mitigating factors, such as a clean criminal record and proof of lawful out-of-state purchase, to convince the prosecutor to recommend probation or a reduced parole ineligibility period.
An assault firearm charge targets the weapon itself as a second-degree crime carrying 5 to 10 years in prison. A large-capacity magazine charge penalizes possessing a magazine capable of holding more than ten rounds, which is a fourth-degree crime carrying up to 18 months. Prosecutors frequently file both counts together following a single seizure.
Yes. New Jersey enforces its firearm laws regardless of where the weapon was purchased or its legal status in the owner’s home state. Lawful ownership in another state does not serve as a defense to the possession charge, though it can support a Graves Act waiver application.
A charge can be reduced through negotiated resolutions, which may involve a plea to a lesser weapons offense, a reduced parole ineligibility term, or dismissal of the primary count in exchange for a plea to a related charge. The outcome depends on the strength of the search argument, the physical evidence, and the defendant’s prior record.
Most second-degree weapons cases require several months to over a year from arrest to final resolution. Pre-indictment negotiations, grand jury presentations, forensic testing, suppression motions, and Graves Act waiver applications all extend the timeline, while cases proceeding to trial take even longer.