Our Philadelphia Criminal Defense Law Firm represents persons who face criminal charges in Pennsylvania and New Jersey. We have had incredible success in these cases where people are often charged with crimes where they face substantial state prison sentences. While the majority of Pennsylvania illegal gun and firearm crimes (Uniform Firearms Act) do not trigger mandatory minimum state prison sentences, New Jersey maintains several mandatory minimum state sentences for the illegal possession and use of guns and firearms. I encourage you to read my previous articles on New Jersey’s Graves Act for more information on this topic.
We receive so many questions from clients and their families; many sadly fail to understand that the two states treat illegal guns and firearms different. Some are surprised to find that their Pennsylvania hand gun permit isn’t valid in the Garden State. Our criminal defense law firm, with offices in Pennsylvania and New Jersey strives to provide information that will provide immediate value for our clients.
Here are the top 5 ways New Jersey and Pennsylvania are different when it comes to guns and firearms?
- Unlike Pennsylvania, it is extremely difficult and nearly impossible to obtain a permit to carry a handgun in New Jersey as it is a “may issue” jurisdiction.
Unlike Pennsylvania, most individuals can’t obtain a license to carry a handgun in New Jersey. New Jersey is a “may issue” state similar to New York, Delaware, Massachusetts, and Connecticut. Pennsylvania, however, is a “shall issue” state. Any person who wants to carry in the State must make an application to the New Jersey State Police or local law enforcement. In addition to this application, the person must submit the names of 3 “reputable persons” who have known the applicant for 3 years and who can certify that the person is of “good moral character and behavior.”
Finally, the applicant must show a justifiable need to carry a handgun. The applicant must indicate this need in a written certification under oath. The need must show in detail the following:
- An urgent necessity for self- protection
- specific threats or previous attacks which demonstrate a special danger to the applicant’s life that can’t be avoided by other than the issuance of permit to carry
- Possible corroboration of threats/violence – Police Reports of previous incidents
Bonus Tip – New Jersey Firearm Possession Requirements – Purchaser Identification Card & Permits
In New Jersey, a person can’t purchase any firearm without a purchaser identification card. A person who obtains a firearm without obtaining either a permit to purchase and/or a purchaser identification card violates 2C: 39-5 – Unlawful Possession of a Weapon.
- Unlike Pennsylvania, New Jersey requires a permit to even purchase an Assault Rifles or Handgun – Permit to Purchase Required
While firearms such as rifles and shotguns require that a person first obtain a firearm purchaser identification card, anyone who wants to obtain a handgun must first obtain a permit to purchase the handgun. The permit is only valid for 90 days and is required for the purchase of each handgun. Further, New Jersey limits the number of handguns that a person may purchase at a time (one handgun within a 30 day period)
With regards to assault rifles, New Jersey requires a separate permit under 2C: 58-5. Any person in New Jersey who wants to possess an assault rifle must apply for a license to do so by filing an application in the Superior Court in the county in which he resides or conducts his business. This process is similar to a permit to carry a handgun under 2C: 58-4.
Handguns in New Jersey
For a handgun however, a person must submit an application to either the chief of police for that municipality in New Jersey or the State Trooper Superintendent. Once the application is submitted, the applicant will only receive an approval if he or she can demonstrate that he is familiar with the safe operation of the weapon and has a justifiable need to carry it. If the application for the permit to carry a handgun is denied then that applicant may file an appeal with the Superior Court with the county that he made the application.
- Unlike Pennsylvania, the prosecution will never offer a probation sentence as New Jersey’s general position on illegal guns and firearms is state prison or jail!
While Pennsylvania isn’t exactly soft guns, a probation sentence is sometimes a possibility under certain circumstances. Read more about the most common gun offenses in Pennsylvania. New Jersey’s approach to illegal handguns and firearms is the “promise of imprisonment”, rather than rehabilitation. In 1983, the New Jersey Supreme Court in State v. Des Martes, stated if a person is convicted of a crime against another while using or possessing a firearm in state, that person will go to prison for at least 3 years.”
The law now in New Jersey calls for a mandatory 42 month state prison. The New Jersey Legislature amended the Graves Act in 2013 to increase the mandatory minimum term to the greater of one half or one third of the base term which equals 42 months. The goal of the Graves Act is deterrence through widespread knowledge that one who is convicted of using or possessing a firearm while committing a crime will not escape a mandatory minimum jail sentence!
The Expanded Graves Act
While the decision is Des Martes was initially limited to the imposition of a mandatory minimum term in those situations where a person carried a firearm for an unlawful purpose or used it to commit a “enumerated crime” the New Jersey legislature, in 2008, expanded the scope of the Graves Act. The 2008 amendment imposed the mandatory minimum 42 month sentence on the mere unlawful possession of certain firearms. Despite the mandatory minimum sentencing in New Jersey there is a possibility that a person charged with an illegal gun or firearms offense is eligible for a waiver of the mandatory minimum sentence.
Graves Act Waiver – Probation For a Gun Could Still Be An Option
Under NJSA 2C:43-6.2, an individual charged under the Act is eligible for full waiver to a probationary term rather than a custodial sentence where the mitigating factors, as defined by NJSA 2C:44-1, substantially outweigh the aggravating factors. Even if a person isn’t eligible for a full waiver, he or she may be eligible for a partial waiver which would reduce mandatory 42 month prison sentence to a one year term. For a partial waiver, the prosecutor must only determine that the aggravating factors applicable to the offense and the offender himself do not outweigh the applicable mitigating circumstances.
Pennsylvania Does Have Mandatory Minimum Gun Crimes
Unlike New Jersey, the majority of Pennsylvania Uniform Firearm’s Act, none of them carry with them a mandatory minimum sentence except section 6111(g)(2)—the illegal sale or transfer of a gun or firearm to an unauthorized or unqualified person.
Under Section 6111 (g)(2), any person, licensed dealer, licensed manufacturer or licensed importer who knowingly or intentionally sells, delivers or transfers a firearm under circumstances intended to provide a firearm to any person, purchaser or transferee who is unqualified or ineligible to control, possess or use a firearm under this chapter commits a felony of the third degree and shall in addition be subject to revocation of the license to sell firearms for a period of three years.
6111(h)(1) explains the penalty for a violation of section 6111(g)(2) and the mandatory minimum sentencing portion of it. This section was created following the death of Police Officer Bradley Fox and is sometimes referred to as the “Brad Fox Law.” Specifically, for all second or subsequent violations the person faces a 5 year mandatory minimum for each transfer
- Unlike Pennsylvania, an Accomplice Liability Theory will still expose you to a Mandatory Minimum Jail Sentence Under New Jersey Graves Act
In New Jersey, the prosecution must only prove that the defendant knew or had reason to know that his co-conspirators would use or be in possession of a firearm in the course of committing, or attempting to commit, the crime. Remember that the purpose of the Graves Act is not rehabilitation, but deterrence. Legally, an accomplice is a person who acts with a purpose of promoting or facilitating the commission of an offense. Under the law, an accomplice of an armed robbery commits the same crime and is therefore subject to the same mandatory minimum Graves Act offense.
Keep in mind that in New Jersey the Graves Act defines a firearm according to its original design and not by its operability. This means that as long as a weapon has been designed to deliver a lethal bullet it does not need to be operable to subject the person to the mandatory minimum sentence. Inoperability is only an issue if the gun has been changed to such a degree that it has lost its characteristics as a real gun.
Graves Act Extended Terms
A person who’s convicted under the Graves Act as the principle actor or accomplice of any of the following offenses, which involve the possession of a firearm, is subject to a mandatory minimum of ½ of the sentence imposed or 42 months, whichever is greater. In addition to criminal penalties for these offenses, a person who commits any of the following offenses is subject to a potential extended term of incarceration.
These offenses include:
- Murder—NJSA 2C:11-3
- Manslaughter—NJSA 2C: 11-4
- Aggravated Assault—NJSA 2C: 12-1(b)
- Kidnapping—NJSA 2C: 13-1
- Aggravated Sexual Assault—NJSA 2C: 14-2
- Aggravated Criminal Sexual Conduct—NJSA 2C: 14-3
- Robbery—NJSA 2C: 15-1
- Burglary—NJSA 2C: 18-2
A criminal court in New Jersey will impose an extended term of incarceration under the Graves Act if a person commits any of the above offenses and has a prior conviction for committing these same offenses. See NJSA 2C: 44-3(d). This extended term, which could include a parole disqualifier, is 1/3-1/2 of the sentence imposed or 5 years, whichever is greater. The prosecution must seek this extended term and prove by a preponderance of the evidence that the weapon used or possessed was a firearm.
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