Unlawful Possession of a Weapon, N.J.S.A. 2c:39-5

Poetic Injustice

unlawful possession of a weaponIn November cops charged Josh Huff after a stop in New Jersey on the Walt Whitman Bridge, per the news. Consequently, charges against the former Philadelphia Eagles Wide Receiver include, among other crimes, second degree unlawful possession of a weapon.

The law prohibiting unlawful possession of a weapon provides,

Any person who knowingly has in his possession any handgun, including any antique handgun, without first having obtained a permit to carry the same as provided in N.J.S.A. 2C:58-4, is guilty of a crime of the third degree if the handgun is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. Otherwise it is a crime of the second degree. N.J.S.A. 2c:39-5(b).

Unlawful Possession of a Weapon, Definitions

Under New Jersey law a “weapon,” as defined by N.J.S.A. 2c:39-1(r), is “anything readily capable of lethal use or of inflicting serious bodily injury. The term includes

  1. firearms, even though not loaded or lacking a clip or other component to render them immediately operable;
  2. components which can be readily assembled into a weapon;
  3. gravity knives, switchblade knives, daggers, dirks, stilettos, or other dangerous knives, billies, blackjacks, bludgeons, metal knuckles, sandclubs, slingshots, cesti or similar leather bands studded with metal filings or razor blades imbedded in wood; and
  4. stun guns; and any weapon or other device which projects, releases, or emits tear gas or any other substance intended to produce temporary physical discomfort or permanent injury through being vaporized or otherwise dispensed in the air.”

New Jersey law defines a “handgun” as “any pistol, revolver or other firearm originally designed or manufactured to be fired by the use of a single hand.” N.J.S.A. 2c:39-1(k).

The statute defines a “firearm” as

any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person. N.J.S.A. 2c:39-1(f).

Unlawful Possession of a Weapon, Penalties

Prison Sentence

Unlawful possession of a weapon may be either a second degree or third degree crime. A second degree crime carries a presumption of imprisonment. But a third degree crime generally carries a presumption of non-imprisonment for a first offender. N.J.S.A. 2c:44-1(e).

Ordinarily, conviction for a second degree crime carries five to ten years New Jersey State Prison. N.J.S.A. 2c:43-6(a)(2). And a third degree crime ordinarily carries a sentence of three to five years State Prison. N.J.S.A. 2c:43-6(a)(3).

Parole Ineligibility

Unlawful possession of a weapon carries a mandatory minimum sentence under the Graves Act. Accordingly, the law requires a minimum term of parole ineligibility at or between one-third and one-half of the sentence, or three years, whichever is greater. N.J.S.A. 2c:43-6(c). Furthermore, if the sentencing judge finds a substantial likelihood of involvement in organized criminal activity, then the law requires a mandatory minimum sentence of five years. N.J.S.A. 2c:39-5(i); N.J.S.A. 2C:44-1(a)(5).

Nevertheless, the prosecutor may move before the assignment judge that the mandatory minimum term does not serve the interests of justice for a defendant with no prior conviction of a Graves Act offense. If so, the assignment judge must sentence the defendant to probation, or reduce the mandatory minimum term to one year. The sentencing judge may also refer a case to the assignment judge, with the prosecutor’s approval, if the sentencing court believes a mandatory minimum term would not serve the interests of justice. N.J.S.A. 2c:43.6.2.

Intensive Supervised Program Ineligibility

A sentence for second degree unlawful possession of a handgun is ineligible for any program of intensive supervision. This restriction does not apply, however, to third degree unlawful possession of a handgun.

Fines

A person convicted of a second degree crime faces fines not exceeding $150,000.00. The fine for a third degree crime shall not exceed $15,000.00.

Mandatory minimum penalties include:

  • Victims of Crime Compensation Office Assessment, $50
  • Safe Neighborhood Services Fund, $75
  • Law Enforcement Officers Training and Equipment Fund, $30
  • DNA Sample
  • Court costs

New Jersey Trial Lawyer Michael Smolensky, Esq., knows how to protect his clients. Mr. Smolensky can provide consultations on all cases involving Weapon Possession. Call Now—(856) 812-0321.