Possession of a Gun for Unlawful Purpose and New Jersey

Unlawful PurposeWeapons charges are extremely serious in the State of New Jersey especially those involving the use of one for an unlawful purpose under the Graves Act. Before getting to that crime it’s important to understand that similar to Pennsylvania weapons charges don’t merge for the purposes of sentencing. This means that a person can be convicted of the possession of a gun or firearm without a permit or registration and the possession of that same firearm for an unlawful purpose.

In the Garden State the possession of a weapon for an unlawful purpose is a crime of the second degree if that weapon is a firearm, explosive or destructive device and the prosecution establishes that the defendant used it against property or the person of another.

If the weapon isn’t a firearm but nonetheless still used for an unlawful purpose against the person or property of another, it’s a crime of the third degree. In these cases, the prosecution must establish beyond a reasonable doubt the following 4 elements:

  1. The item was a firearm or other weapon or explosive or destructive device;
  2. The defendant possessed it (constructive or actual);
  3. The defendant had a purpose to use it against the person or property of another;
  4. It was going to be used unlawfully.

While a gun or a firearm used against the person or property of another are both graded as crimes of the second degree, there’s an important distinction between property and person. Under New Jersey’s Graves Act, there’s mandatory parole ineligibility if the crime is committed with a gun and against a person as opposed to property. With regards to the unlawful purpose element of this criminal offense, the prosecution doesn’t have to prove a specific purpose or plan to act unlawfully.

The prosecution (aka “the State”) only has to present enough evidence for the judge or jury to draw a legitimate inference as to that unlawful purpose. The shooting of a BB gun, for instance, would permit that inference. This criminal purpose only has to exist at the time that the offense occurred. The test for unlawful purpose isn’t whether the defendant’s belief was reasonable but rather whether it was an honest belief that he/she needed the weapon for self-defense for instance. The belief therefore can be honest but unreasonable and still be sufficient to negate the mental state required for conviction. If the weapon, gun or firearm is used in the commission of a crime (robbery, burglary, and aggravated assault) it merges with that principal act. The gun charge wouldn’t merge, however, if the prosecution proves that the defendant had a “broader unlawful purpose”.

For more information on gun charges in New Jersey I encourage you to subscribe to my monthly newsletter, read my blog, or call our office. Check out one of my other articles on New Jersey’s Gun Laws right now. While Pennsylvania and New Jersey share border and bridges, they handle gun crime differently. Never assume that compliance with Pennsylvania gun laws equals compliance with New Jersey’s often stricter laws.