Articles Posted in Gun Charges

State v Benjamin is a currently pending decision by the New Jersey Supreme Court, in which the defendant was denied a Graves Act sentencing waiver that would have reduced his sentence by 30 months. Under normal circumstances, when convicted of unlawfully carrying a firearm in violation of N.J.S.A. 2C:35-5b, the mandatory minimum sentence is 42 months in state prison. However, some individuals may qualify for a waiver of this mandatory sentence and be sentenced to a 1 year mandatory minimum sentence or probation with the consent of the prosecutor.

The prosecutor may refuse to sign off on this waiver, also known as an “escape valve” for a number of reasons including a significant prior record, the nature and circumstances of the offense, or gang affiliation (to name a few). But what happens when the defendant feels that they do fall within a category of defendant that deserves this waiver or escape valve but is denied by the prosecutor’s office?

The defense has the burden of proof in making an “Alvarez motion” which is the name of the motion that must be made to the court in order for the defendant to be granted a waiver under the Graves Act minimum mandatory sentencing guidelines. The defense must demonstrate to the court “that the prosecutor arbitrarily or unconstitutionally discriminated against a defendant in determining whether the interest of justice warrant reference to the Assignment Judge for sentencing under the escape valve.” State v. Mastapeter, 290 N.J. Super. 56, 65 (App. Div.) (citation omitted), certif. denied, 146 N.J. 569 (1996).

NJ Criminal Defense LawyersThe U.S. Supreme Court has refused to hear an appeal that challenged the New Jersey Handgun Permit Law that requires a person prove “justifiable need” to carry a handgun outside of the home.

The high court was wary to embroil itself in the Second Amendment case brought by four individual New Jersey gun owners who were denied carry permits and two gun rights groups (The National Rifle Association and Gun Owners Foundation). They claimed that federal and state courts were split on the issue whether the right to carry a handgun also extends to public places.

The New Jersey Law is strict and requires that gun owners prove that “specific threats or previous attacks demonstrating a special danger to applicant’s life that cannot be avoided by other means” in order to obtain an open carry permit.”