CASE STUDY NO. 2
N J.S. 2C:39-5(b) Unlawful Possession of a Handgun—2nd degree crime
N.J.S. 2C:43-6(c) Graves Act—Minimum term of Imprisonment and Parole Ineligibility
N.J.S. 2C:20-3 Theft—3rd degree
In January 2013,1 undertook representation of a 23 year old male who had been charged by Brick Township Police with theft of a glock model 23 .40 caliber handgun in violation of 2C:20-3, and unlawful possession of a handgun, in violation of 2C:39-5(b). He had no significant prior criminal history.
My client and a friend were employed by a retired police officer to clean up the basement of a residential unit. During the course of his employ my client and friend innocently found a glock handgun underneath a piece of furniture stored in said basement. What young man can resist playing with a gun? My client put the handgun in his pocket and took it home. He learned the following day that the police knew of the disappearance of the handgun and were pressuring his friend for information. He panicked and disposed of the gun by selling it to somebody that he did not know well. That individual turned out to have a serious violent criminal history. Police ultimately tracked down my client, then located the purchaser and the handgun. There were no injuries, no additional crimes committed with the handgun.
The problem with the case was that a (then) new addition to the Graves Act, made by the Legislature, required a judge finding any individual guilty of possessing a handgun without a (firearms purchaser i.d. card issued by the State of New Jersey), e.g., a license, to mete out a sentence imposing mandatory jail time of not less than five (5) years and without possibility of parole for an extended period of time. The Attorney General’s Office issued a Memorandum to all county prosecutors requiring that they not offer pleas on 2C:39-5(b) cases that did not include mandatory prison terms of five (5) years and jail at least (three) years without possibility of parole.
I felt that was excessive under the circumstances. I researched the Legislative History of the Graves Act and learned that the Legislative Intent of the Act was originally designed to protect senior citizens from gang violence and crimes with weapons. I felt very strongly that my client was not a hardened criminal and that an extended jail term in State prison would ruin his life.
I was able to obtain a sentence of 5 years over 1 year, which meant that for both offenses together, instead of doing a minimum of 5 years jail time and a possible maximum of 10 (ten) years, he would now only be required to actually do only 1 (one) year jail time before eligible for parole.
Further, I was able to get both Hon. James M. Blaney, J.S.C., Ocean County, and the Ocean County prosecutor to agree he would be eligible to apply for ISP (intensive supervision program) at the end of the year. (See annexed redacted plea agreement)
I still don’t feel that justice was served—but it turned out “less bad” than it likely could have been.