Successful Graves Act Waiver / Mandatory Incarceration Avoided

    By on October 23, 2012.

    Keith Oliver, an associate in my office, recently represented an individual who was charge with unlawful possession of a weapon, in violation of N.J.S.A. 2C:39-5 and possession of a controlled dangerous substance, in violation of N.J.S.A. 2C:35-10A(4). The defendant was also under investigation for potential burglary and receiving stolen property charges, as certain items found inside the car were stolen from a home invasion the day prior. The defendant was facing up to five years in a New Jersey State Prison on the unlawful possession of  weapon charge alone and pursuant to the Graves Act the defendant must serve at least three years before he can be eligible for parole.

    The aforementioned charges stemmed from a motor vehicle stop. The arresting officer made a routine traffic stop of the defendant’s vehicle and in doing so the officer claimed that he smelled the odor of raw marijuana emanating from inside the vehicle. The owner of the vehicle (not the defendant)  signed a consent to search form, which allowed the officers to lawfully search the car without a valid search warrant. Prior to searching the said vehicle, the officers asked the defendant, who was seated in the passenger seat at the time, if there was anything they should know about inside the vehicle. At this point in time the defendant alleges that he alerted the officer to the fact that he had a BB Gun located in a locked box underneath his seat. The officers police report differed from the defendants version, as he claims that the said BB Gun was discovered during the search of the car and that the lock box was not locked at the time. It is important to note here that since the defendant was coming from a shooting range and heading directly home that if it was determined that the gun was in fact in a locked lock box, the transportation of the gun would not be illegal. In addition, the search also revealed several items of jewelry which were reported missing from an alleged home invasion the day prior.

    Mr. Oliver prepared what is known as a graves act wavier. This wavier, if successful, will allow the defendant to avoid the mandatory three years in a state prison before he can become eligible for parole pursuant to the graves act. The waiver must be presented to the County Prosecutor and then signed off on by the Assignment Judge. Based on the defendant’s extenuating circumstances, we were able to obtain the necessary approval and then convince the Assignment Judge to grant the graves act waiver. The Assignment Judge is afforded the discretion to either reduce the mandatory jail time from three years (3) to one (1) year or in the alternative avoid all incarceration.

    As stated above, since Mr. Oliver was able to convince the Assignment Judge to grant the full waiver, the defendant was able to avoid all prison time.  As a result, the defendant’s plea agreement called for one year of probation. Further, as a condition of entering the said plea, the drugs charges were  dismissed and the potential burglary and receiving stolen property charges were dropped.

    • Akbar Najee ullah

      Does this imply that first offenders are still subject the Graves Act? Also is there no presumption of Probation for first offenders for simple possesion of a handgun?

      • Keith G. Oliver

        Yes, even as a first time offender, a defendant will be subject to the harsh penalties of the Graves Act. There is absolutely no presumption of probation for first time offenders who are charged with the unlawful possession of a weapon. If you have any further questions please contact me directly at 1.800.685.3807

        • Jonathan F. Marshall

          There is no presumption of probation when the Graves Act applies whether it is your first offense or not. You need a formal waiver to avoid jail or the absolute minimum term is 3 years in prison with one year of parole ineligibility. You need to retain a good lawyer at your earliest convenience. Our fee would be $6,000 to handle the case.

          – Jonathan F. Marshall

      • Jonathan F. Marshall

        There is no presumption of non-incarceration/probation. The Graves Act triggers mandatory incarceration unless a formal waiver is granted.

        -Jonathan F. Marshall

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