Attorney Allain Marain

Graves Act

Frank X. Graves, Jr. was a Democratic politician who served at various times during his life as a member of the Paterson City Council, Mayor of Paterson, member of the Passaic County Board of Chosen Freeholders, and New Jersey State Senator. He died on March 4, 1990. It was as a senator that Graves drafted the bill that bears his name.

The Graves Act is contained in N.J.S. 2C:43-6. What that Act specifies is that persons convicted of particular crimes involving possession of firearms are to be sentenced to terms of imprisonment. The court is required to specify periods of that imprisonment during which the person will be ineligible to be released on parole. Those periods are half of the term of imprisonment, or forty-two months, whichever is greater. When sentencing a person for a second Graves Act conviction, the judge is required to impose an extended term, with commensurate parole ineligibility. Generally speaking, sentences for extended terms are double the length, or more, of the sentences of “ordinary” terms.

In due course, the New Jersey Legislature discerned that the Graves Act required some flexibility. Responding to that realization, the Legislature enacted N.J.S. 2C:43-6.2. Under that modification, the judge can place the convicted person on probation, or lower the period of parole ineligibility to one year. In order to obtain the benefit of N.J.S. 2C:43-6.2, the following conditions must exist:

  • N.J.S. 2C:43-6.2 may be considered only for first time offenders
  • The prosecutor must make the application; it cannot be the defendant who initiates the application. The sentencing judge may also make this application, but only with the approval of the prosecutor.
  • Only the assignment judge of the county may consider the application
  • To grant the application, the assignment judge must find that the mandatory minimum term of imprisonment that would otherwise be required “does not serve the interests of justice.”

In various cases where the Graves Act previously applied (and, technically, still applies), it has become irrelevant. The reason for its irrelevancy is that its harsh conditions have been superseded by a later-enacted and even more draconian law. That later law is the No Early Release Act, “NERA”. We discuss NERA elsewhere.

It will be the rare situation that a person charged with a Graves Act offense can receive Pretrial Intervention (PTI). One recurring situation exists where PTI applications do get serious consideration. That situation is where an out-of-state person who can legally possess a firearm in their home state brings it into New Jersey, unaware that in doing so, they are commiting an illegal act (let alone a Graves Act offense). This situation was the subject of a directive by the New Jersey Attorney General. Even where the qualifying conditions exist, however, PTI is far from a certainty, and the defendant is in for an ordeal.

Allan Marain and Norman Epting, Jr. are New Jersey Graves Act lawyers. All have successfully handled numerous Graves Act matters. All are skilled, dedicated, and resourceful. Their combined experience exceeds ninety years. All are available to review Graves Act charges, and to provide skillful and experienced legal representation.

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