While the simple answer is “yes,” the way to do it is far from simple. While winning your case at trial is always a way to avoid prison time for a gun case, that may not always be a viable option. So, for purposes of this explanation, we are going to focus on ways to secure a probationary sentence or PTI through plea negotiations.
The first step is securing what is known as a “Graves waiver,” which is a process that allows the defense attorney to petition the county prosecutor to exercise their authority based on extraordinary circumstances and relax the mandatory minimum sentencing requirements.
The New Jersey Attorney General’s Office published two separate memorandums outlining procedures and factors the prosecutor should consider in different circumstances when granting a Graves waiver and the recommended sentence that should follow. These memos were issued in an attempt to have uniform results throughout the state and try to stop the drastic differences in sentencing in each county.
For instance, prior to the memorandums, you may have gotten a probationary sentence in Hudson County but would have received state prison in a different county. Each county may still do things their own way, and results can differ depending on which prosecutor office you’re dealing with, but the memorandums can definitely be used as a helpful outline.
If the prosecutor’s office will not agree to give you a Graves waiver or will not agree to depart completely from a state prison sentence, you can still appeal to the Presiding Judge in the County to exercise “the escape valve” exception cited in N.J.S.A. 2C:43-6(c) at the time of sentencing. This allows the sentencing judge to overrule the prosecutor and sentence you outside the mandatory state prison range.