What is Unlawful Possession?
Under NJ law, those who “knowingly have in [their] possession a weapon under circumstances not manifestly appropriate for lawful use,” can be found guilty of Unlawful Possession (N.J.S.A. 2C:39-5). This section of the law also applies to individuals who are caught with weapons at Newark Airport.
Put simply, in order to violate N.J.S.A. 2C:39-5 the following criteria must be met:
- a weapon must have existed
- the accused must have possessed that weapon
- the accused must have had knowledge of the nature and character of the instrument (i.e. what it was and how it could be used)
- the circumstances dictated that the object was not manifestly appropriate for lawful use
What are Circumstances Not Manifestly Appropriate for Lawful Use?
Circumstances not manifestly appropriate for lawful use involve a threat of harm to a person or threat of damage to property. Possessing a paintball gun for the purpose of shooting it at a car would be an example of this. A paintball gun can clearly be possessed for appropriate use, but when it is used inappropriately it falls into the category of “circumstances not manifestly appropriate for lawful use.” As a general rule, if the surrounding circumstances dictated that the use was inappropriate, this criterion will be met.
What Are the Penalties for Weapons Possession in New Jersey?
There are numerous specific charges a person can face relating to weapons and the penalties vary. All weapons-related crimes are indictable offenses (felonies).
Unlawful Possession. As mentioned above, this applies to persons who are found in possession of a weapon under circumstances for which such an item is not manifestly appropriate.
- Possession of a firearm—including handguns, rifles, shotguns, machine guns, and assault weapons—without a permit is a third-degree crime, punishable by 3 to 5 years in prison.
- Possession of any other weapon that requires a license or permit is a fourth-degree crime and carries a prison sentence of up to 18 months.
Possession for Unlawful Purposes (N.J.S.A. 2C:39-4). This charge means someone has purchased, owns or was carrying a weapon with the intention of committing a crime. This offense is rarely charged alone, and instead is often charged in conjunction with other offenses, such as burglary or robbery. The severity of this charge depends on other factors.
- It is a second-degree crime to use a gun, fireworks or other explosives on a person or property. A conviction can lead to 5 to 10 years in prison.
- Using any other weapon against someone is a third-degree crime, punishable by 3 to 5 years in prison.
- Even using a toy or non-functional model/replica gun is a fourth-degree crime and can lead to 18 months in prison.
Prohibited Weapons (N.J.S.A. 2C:39-3). Certain weapons are wholly outlawed in New Jersey, meaning there is no legal way to possess them. These are called prohibited weapons (and devices). There are five basic categories of prohibited weapons:
- Destructive (i.e. explosive) devices. Possession is a third-degree crime with a potential sentence of 3 to 5 years in prison.
- Sawed-off shotguns. Also a third-degree crime.
- Silencers. Possession is a fourth-degree crime with a potential sentence of 18 months in prison.
- Defaced firearms. This applies to a weapon that has been altered in any way (except antique firearms) and is a fourth-degree crime.
- Certain other weapons. It is a fourth-degree crime punishable by up to 18 months in prison for possession of any of the following weapons “without any explainable lawful purpose”: gravity knife, switchblade knife, dagger, dirk, stiletto, billy, blackjack, metal knuckle, sandclub, slingshot, cestus or similar leather band studded with metal filings or razor blades imbedded in wood, ballistic knife.
Common Defenses Against Weapons Charges in New Jersey
Due to the seriousness of a weapons charge in New Jersey, a person urgently needs an attorney to help build an effective defense. The exact strategy will depend on the facts of the case and the history of the individual charged.
One common strategy is to examine the circumstances of the search and seizure. If the weapon was found in one’s home, and the police entered without permission or a warrant, it may be possible to dismiss the charges.
Another possibility is to prevent the prosecution from proving “constructive possession.” In legal terms, the person who has constructive possession of a weapon has agency and ownership of the object. For example, if the weapon was not found on one’s person—e.g. in a car with other people besides the defendant—then it is not immediately clear who the weapon belongs to, and this can be used to one’s advantage legally.
Case Law on Weapons Possession in NJ
In State v. Colon, 452 A. 2d 700, the defendant was charged with unlawful possession of a weapon after stabbing another person, following an argument. The two men had been discussing whether or not to cook potatoes when witnesses described hearing a “click” sound distinct to a switchblade or similar folding knife. The defendant contended that the weapon was not unlawfully possessed since it had a lawful purpose of peeling potatoes. The judge disagreed, noting that while many kinds of knives were appropriate for that purpose, the type of knife in question is not used by reasonable people for cooking. As such, it was ruled that the knife was not “manifestly appropriate for lawful use” and the defendant was found guilty.
First Offense Weapons Possession in New Jersey
New Jersey takes a harsh stance against first offense weapons charges. This is due to what is known as the Graves Act, which requires a person who is convicted of a weapons offense to serve a lengthy sentence. For example, a second-degree charge of unlawful possession comes with a sentence of 5 to 10 years in prison. The Graves Act mandates that at least 42 months (3.5 years) of this sentence be served before the individual is eligible for parole (as opposed to one-third of the sentence as is standard in NJ).
Juveniles and Weapons Possession in New Jersey
The possession of firearms by juveniles is illegal under a separate statute (2C:58-6.1) from the one governing adults in NJ. The law expressly forbids anyone under the age of 18 from acquiring, possessing, carrying, or using a weapon. Any juvenile charged with unlawful possession of a firearm or other prohibited weapon faces a fourth-degree offense, which could result in up to 1 year in juvenile detention.
Cases involving juveniles charged with weapons offenses are usually heard in Family Court. In addition to being sentenced to juvenile detention, a minor who is convicted will have to deal with the consequences of a criminal record, which can affect one’s ability to get a job and attend college.
Pre-Trial Intervention for Weapons Possession
A Pre-Trial Intervention (PTI) is a special program that a person with no prior convictions can apply for in order to avoid a trial and conviction. Those who enter and successfully complete a PTI program will have the charges against them dismissed (no conviction, no criminal record).
Not everyone who applies for PTI will be accepted. Even worse, when it comes to weapons offenses is New Jersey, there is a presumption of ineligibility. That does not mean a person will not be accepted. Instead, as established in State v. Nwobu, 652 A.2d 1209, a person must show “compelling reasons” why a person should be admitted. A highly skilled attorney can advise a person as to whether the facts of the case present such extraordinary circumstances that make the petition to enter a PTI a worthwhile endeavor.
Can Weapons Possession Convictions Be Expunged in NJ?
A weapons offense can be expunged in New Jersey if the person is otherwise eligible. In order to be eligible for an expungement, the person cannot have more than one indictable offense conviction—in other words, the weapons offense can be the only indictable offense on the criminal record. In addition, a person cannot have more than three disorderly persons offenses on their record as well. There is one exception to the indictable offense limitation: multiple indictable convictions can be expunged if they were part of a single judgement or were committed as part of a sequence of events in a short period of time.
To apply for an expungement of a weapons conviction, a person must first complete the terms of sentencing, including prison time, parole/supervision, and payment of fines. Once this has happened, the person must wait 6 years and complete a lengthy application. To learn more about expungements in New Jersey, visit our information page.
What is Considered a Weapon in NJ?
A weapon is legally defined as anything readily capable of lethal use or inflicting serious bodily injury. Believe it or not, a great many things could fall into this category, including a person’s fists. The following is just a short list of items that are considered weapons in New Jersey:
- Brass or Metal Knuckles
- Cestis (and other leather bands studded with metal filings or razor blades imbedded in wood)
- Gravity Knives
- Stun Guns
- Switchblade Knives