WWE Wrestler Sonya Deville arrested for Unlawful Possession of a Handgun in Atlantic City. What is the mandatory minimum prison sentence and what are her options?    

What happened to WWE star Sonya Deville in Atlantic City, New Jersey

Recently, a WWE superstar Sonya Deville (legal name – Daria Berenato) was arrested at the Borgata Casino in Atlantic City for Unlawful Possession of Handgun (Section 2C:39-5.)  While Deville currently lives in Florida, she is originally from Burlington County, NJ. 

At the time of the arrest, she maintained a permit to carry the handgun from Florida and legally purchased the gun.  New Jersey, however, does not recognize out of state permits to carry.  Deville remains free on bail following her arrest but faces a mandatory minimum state prison sentence if convicted.

How serious is an unlawful possession of handgun charge in New Jersey against Sonya Deville?

New Jersey maintains some of the nation’s toughest gun laws regarding the unlawful possession of a handgun or firearm. The Garden State even maintains very strict regulations with regards to the lawful carrying of firearms within its boundaries. Unlike Pennsylvania, New Jersey maintains mandatory minimum sentencing for the unlawful possession of a handgun.

New Jersey, like New York is a may issue state. Pennsylvania is a “shall issue state” and I encourage you to read my article on this issue for more information on it.   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.   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.

Is there a way a person charged with unlawful possession of a handgun in New Jersey could avoid the mandatory minimum state prison sentence? 

I’ve written previous articles on the Graves Act, the unlawful possession of a gun or firearm, and the mandatory minimum sentences that come with that conviction under the Act. Despite this mandatory minimum, the prosecution is still permitted to agree to a waiver of this requirement and even pre-trial intervention (PTI) in certain circumstances for out of state visitors who unlawfully possess a weapon in the Garden State.

Before getting to these requirements in Jersey, it’s important to understand that the prosecution won’t give a break if that person comes to New Jersey and has a prior conviction or some other issue that wouldn’t allow them to carry the weapon in the first place

What will the prosecutor consider in Pre-Trial Intervention Application or Graves Act Waiver for Sonya Deville

What factors will the prosecution will consider the following with regards to a waiver of the Graves Act Waiver and a PTI application:

• Minimal exposure of the firearm to persons in New Jersey

This means that the prosecution will consider whether the gun or firearm was kept in the car or motor vehicle at all times and whether the Defendant carried, or planned, to carry the firearm or gun on or about his person and outside of the vehicle. Further, traveling through the state on an interstate highway for example with few or any stops presents less of a danger than a longer visit with multiple visits and likely interactions with non-motorists in the state.

A loaded firearm is also looked at much differently than an unloaded firearm which obviously presents less of an immediate risk to persons with whom the defendant interacted with during their time in the state.

• The defendant is otherwise a law abiding person.

This is a huge part of the PTI process for a Graves Act offense. The prosecution will consider the nature and severity of the other crime or offense which led to the police’s discovery of the gun or firearm. These would include a traffic stop, an ordinance violation, a disorderly person’s offense, or some other crime.

Obviously if a person is charged with another indictable crime (in addition to the gun) this would go against the person’s possible PTI application. The prosecution will also consider a person’s other pending cases, prior criminal record, and juvenile record in or out of the state.

• The defendant informed police of the presence of the firearm in response to a question (i.e. Is there anything the car that I should know about?).

o Volunteering information about the presence of a gun or firearm is especially important because it tends to confirm that a person didn’t realize that possession of the firearm was unlawful in the State.

• Circumstances which lead to the confusion about New Jersey’s law regarding guns and firearms.

While everyone is presumed to know the law (ignorance isn’t a legal defense), a claim of ignorance is viewed with greater skepticism if the person was on actual notice that carrying a weapon outside of his home state could be considered a crime (i.e. Does a person’s out of state carry permit advise them that carrying is limited to that particular state?).

The bottom line is that there is no exact formula that the prosecution will use to accept or deny a PTI Application for an out of state person who carries a gun or a firearm in New Jersey. The prosecution will weigh the above mitigating aggravating circumstances and make a determination as to whether there are compelling reasons to justify a person’s admission into this special program. In closing, it’s important to consider that even if a person isn’t accepted into PTI the prosecutor can still invoke a “safety valve” to the Graves Act pursuant to NJSA 2C:43-6.2 which will allow a person to serve a non-custodial (no jail) sentence.

Based on my understanding of the Sonya Deville case, it is likely that she will be approved for PTI.  Her celebrity status will probably help her.  In the event that she is not eligible for PTI, I believe that she would qualify for Graves Act Waiver. 

What is a Graves Act Waiver and what does it do for a person facing a mandatory minimum sentence like Sonya Deville

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.

The following are considered aggravating factors in New Jersey:

1. The nature and circumstances of the offense
2. The gravity and seriousness of the harm inflicted on the victim
3. Risk that the defendant will commit another crime
4. A lesser sentence will depreciate the seriousness of the defendant’s offense because it involved the breach of public trust
5. The likelihood that the defendant is involved in organized crime
6. The extent of the defendant’s prior criminal history
7. The defendant committed the crime pursuant to some agreement for money or other incentive
8. The defendant committed the crime against law enforcement
9. The need to deter defendants’ and others from violating the law
10. The crime involved fraud or deception
11. The person committed the crime against a person who the defendant knew or should of known was over the age of 60
12. The act involved domestic violence

The following are considered mitigating factors in New Jersey:

1. The defendant did not cause or threaten serious harm
2. The defendant did not contemplate that his conduct would cause or threaten serious harm
3. The defendant acted under strong provocation
4. There were substantial grounds to excuse or justify the defendant’s conduct, while failing to establish an actual legal defense
5. The defendant has compensated or will compensate the victim or will participate in a program or community service
6. The defendant has no prior criminal history
7. The defendants’ conduct was the result of circumstances unlikely to reoccur
8. The character and attitude of the defendant indicate that he is unlikely to commit another offense
9. The defendant will respond well to probation
10. Imprisonment of the defendant would entail an excessive hardship to himself or dependents
11. The willingness of the defendant to cooperate with law enforcement or authorities
12. The conduct of the youthful defendant was substantially influenced by a person more mature than the defendant

For more information on the Graves Act, I encourage you to call our office and speak to me about your case.

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