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Lustberg Law Offices, LLC Protecting Your Freedom and Your Future.
Facing an unlawful gun possession charge in New Jersey can involve several types of firearms. N.J.S.A. Section 2C:39-5 addresses unlawful possession of machine guns, handguns, rifles and shotguns, and assault firearms. Depending on the firearm and the circumstances, a charge may involve the lack of a required permit or identification card, possession outside a statutory exemption, or possession of a firearm restricted by law. Assault firearm possession remains one part of this broader statute and can carry second-degree penalties and Graves Act exposure.
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 covers unlawful gun possession charges in New Jersey, including handgun, rifle, shotgun, and assault firearm offenses, potential penalties, and Graves Act consequences. It also addresses “substantially identical” weapon criteria, registration and possession exemptions, unlawful police searches, and other legal defenses. If you are facing a firearm charge, call Lustberg Law Offices, LLC at (201) 880-5311 to discuss the facts of your case and your defense options.
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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.
New Jersey law creates different unlawful possession offenses based on the type of firearm involved. A person may face charges for possessing a handgun without the required permit, for possessing a rifle or shotgun without the required firearms purchaser identification card, or for unlawfully possessing other regulated firearms such as machine guns or assault firearms.
The requirements and potential penalties differ by firearm type and by the circumstances in which the weapon was possessed or transported. Statutory exemptions may also apply in some situations.
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’s assault firearm and large-capacity magazine restrictions remain in effect while constitutional litigation continues. On July 17, 2026, the en banc Third Circuit held the assault firearm provisions unconstitutional as applied to the full class of semi-automatic rifles and held the large-capacity magazine provisions unconstitutional. On August 4, 2026, the court stayed that ruling while New Jersey seeks U.S. Supreme Court review, so the existing restrictions remain enforceable while the stay is in place.
Penalties for unlawful gun possession in New Jersey depend on the firearm and the specific subsection charged. Unlawful possession of certain firearms, including handguns and assault firearms, can result in second-degree charges, while other firearm-possession offenses may carry different degrees and penalties. These offenses differ from N.J.S.A. Section 2C:39-4, which addresses possession of a weapon for an unlawful purpose.
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(1)) | Second degree | 5 to 10 years | $150,000 | Yes, under the Graves Act |
Unlawful possession of a machine gun (2C:39-5a) | Second degree | 5 to 10 years | $150,000 | Yes, under the Graves Act |
Unlawful possession of a rifle or shotgun without a firearms purchaser identification card (2C:39-5c(1)) | Third degree | 3 to 5 years | $15,000 | No |
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 many covered firearm offenses, including certain violations of N.J.S.A. Section 2C:39-5. However, unlawful possession of a rifle or shotgun without a firearms purchaser identification card under Section 2C:39-5(c)(1) is excluded from the mandatory Graves Act sentence. Under N.J.S.A. Section 2C:43-6(c), the minimum term is one-half of the sentence imposed or 42 months, whichever is greater, or 18 months for a fourth-degree crime. 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.
For a defendant who has not previously been convicted of a Graves Act offense, N.J.S.A. Section 2C:43-6.2 allows the prosecutor to move before the assignment judge for probation or a reduced one-year period of parole ineligibility when the standard mandatory minimum would not serve the interests of justice. 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. Suppressing the firearm can significantly weaken the State’s ability to prove unlawful possession, depending on what other admissible evidence remains.
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. Depending on the charge, law enforcement may examine the firearm’s make, model, operability, serial number, magazine capacity, and other characteristics. In an assault firearm case, the examination may also focus on the physical features used to classify the weapon.
The prosecutor may file a motion for pretrial detention. A second-degree firearm charge does not by itself create a presumption of detention. For certain Graves Act offenses, a Pretrial Services recommendation of no release may constitute evidence sufficient to overcome the presumption of release when the statutory conditions are met. If a detention motion is filed after the first appearance, the hearing generally must be scheduled within three working days, subject to permitted continuances.
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.
The available defenses depend on the specific firearm charge and the facts of the case. A defense attorney may challenge the search that produced the weapon, contest whether the State can prove knowing possession, determine if a statutory exemption applies, or dispute the firearm’s legal classification when classification is at issue.
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 applicable statutory definition. If the firearm does not appear on the specific list in N.J.S.A. Section 2C:39-1w, the prosecution may rely on the “substantially identical” provision or another category within the statutory definition. When the State relies on substantial identity, the applicable feature test can become a disputed issue. 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 may challenge an unlawful gun possession charge by contesting the search, disputing knowing possession, establishing an applicable exemption, or challenging the firearm’s legal classification when relevant.
New Jersey law provides exemptions that can permit firearm possession or transportation in specific circumstances. The availability of an exemption depends on factors such as the type of firearm, where it was possessed, the purpose of the possession, and how it was transported.
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 firearm possession and transportation exemptions appear in N.J.S.A. Section 2C:39-6, while separate licensing provisions appear in 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 can turn on technical proof, including the firearm’s classification and how police obtained the evidence. Adam M. Lustberg reviews ballistics reports and seizure records before a case reaches a grand jury. Identifying classification or search issues early can help shape the defense before indictment.
Pretrial detention hearings can significantly affect the early stages of a firearm case. A defendant held in custody before trial may face practical challenges when 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.
Seeking a Graves Act waiver may involve presenting a written request and supporting materials to the prosecutor. If the prosecutor moves for or consents to a waiver, the assignment judge can impose probation or reduce the mandatory minimum under N.J.S.A. Section 2C:43-6.2. 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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An unlawful firearm charge can move quickly, and the available defenses may depend on the type of firearm, the circumstances of possession, and how police obtained the evidence. 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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Under New Jersey’s statutory definition, AR-15 type rifles are listed as assault firearms. In July 2026, however, the Third Circuit held the assault firearm provisions unconstitutional as applied to semi-automatic rifles. The court stayed that ruling on August 4 while New Jersey seeks U.S. Supreme Court review, so the restrictions remain in effect while the stay continues.
Yes. Knowingly possessing a handgun without the required permit to carry can result in a second-degree charge under N.J.S.A. Section 2C:39-5(b)(1), unless a statutory exemption applies.
Yes. Unlawful possession of a handgun under N.J.S.A. Section 2C:39-5(b)(1) is generally a second-degree crime, while unlawful possession of a rifle or shotgun under Section 2C:39-5(c) is generally a third-degree crime. Statutory exemptions may apply depending on the circumstances.
Unlawful possession under N.J.S.A. Section 2C:39-5 focuses on possessing a weapon without the required legal authorization or under prohibited circumstances. N.J.S.A. Section 2C:39-4 separately addresses possessing a weapon with a purpose to use it unlawfully against another person or property.
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.
No. Lawful purchase or ownership in another state does not by itself make possession lawful in New Jersey. New Jersey’s permit, licensing, assault firearm, and transportation rules may still apply, although a statutory exemption may apply depending on the facts.