The Graves Act in New Jersey: Mandatory Minimums and Waivers

Reviewed by William A. Proetta, Esq. · Updated October 2026

The Graves Act, N.J.S.A. 2C:43-6(c), requires a state prison sentence for anyone convicted of a listed offense who used or possessed a firearm, and it sets a period of parole ineligibility equal to one-half of the sentence or 42 months, whichever is greater (18 months for a fourth-degree crime). It reaches simple possession of a handgun without a carry permit, a second-degree crime, so a person with no record and no intent to hurt anyone can face three and a half years before parole eligibility.

The only statutory escape is a waiver under N.J.S.A. 2C:43-6.2, which the prosecutor, not the defendant, must request. So the early months, when the suppression motion, the waiver or Pretrial Intervention request and the plea offer are all in play, usually decide a Graves case. William Proetta Criminal Law defends gun cases throughout New Jersey, and in more than 15 years of trial work I have watched Graves cases turn on what the prosecutor was shown before any judge ruled.

Which Offenses Trigger the Graves Act?

Subsection (c) lists the offenses by statute. If the person used or possessed a firearm while committing one of them, or while fleeing, the mandatory term applies.

Weapons offenses on the list:

• N.J.S.A. 2C:39-5(a), (b), (c) and (f): unlawful possession of a machine gun, a handgun, a rifle or shotgun, or an assault firearm (subject to the exclusions below)
• 2C:39-4(a): possession of a firearm for an unlawful purpose
• 2C:39-4.1(a): possession of a firearm while committing certain drug offenses
• 2C:39-3(b) and (d): a sawed-off shotgun or a defaced firearm
• 2C:39-7(a) and (b)(2) and (b)(3): certain persons offenses
• 2C:39-9(a), (b), (e) and (g): specified manufacturing and disposition offenses

Violent and property offenses on the list, when a firearm is involved: murder, manslaughter, aggravated assault under 2C:12-1(b), kidnapping, aggravated sexual assault, aggravated criminal sexual contact, robbery, burglary, escape, and, since P.L.2024, c.83, home invasion burglary and residential burglary.

Two features of the list surprise people. Second-degree certain persons under 2C:39-7(b)(1) is not on it; that subsection carries its own fixed five-year parole bar. And a gun that is lawful to own can still produce a Graves charge once it is carried outside the statutory exemptions.

What counts as a “firearm”

The mandatory term depends on a firearm as defined in N.J.S.A. 2C:39-1(f): a handgun, rifle, shotgun, machine gun or other weapon that fires a projectile by means of a cartridge, shell or explosive. The definition also sweeps in air, spring and gas guns, but only those that eject a projectile smaller than three-eighths of an inch in diameter with enough force to injure a person. A gun counts even if it is unloaded. At sentencing, N.J.S.A. 2C:43-6(d) requires the prosecutor to prove at a hearing, by a preponderance of the evidence, that the weapon was a firearm.

What the Graves Act excludes

N.J.S.A. 2C:43-6(d)(2) bars a Graves sentence for three possession offenses even though 2C:39-5 is on the list:

• possessing an air, gas or spring handgun under 2C:39-5(b)(2)
• possessing a rifle or shotgun without a firearms purchaser identification card under 2C:39-5(c)(1)
• possessing a loaded rifle or shotgun under 2C:39-5(c)(2) when the gun is an air gun

A pellet pistol or an unloaded hunting rifle carried without an FID card therefore remains an ordinary third-degree crime, with no mandatory minimum.

Common Graves Charges and Their Minimums

On a third-degree Graves conviction, the 42-month floor consumes most of the five-year maximum. On a fourth-degree conviction, the 18-month minimum equals the top of the ordinary range. Our overview of New Jersey degrees of crimes explains the ordinary ranges and fines.

How the 42-Month Rule Works

The judge picks a sentence within the degree’s range, then sets the parole bar at the greater of one-half or 42 months. On a five-year second-degree sentence, half is 30 months, so 42 months controls. On an eight-year sentence, half is 48 months, so half controls. In State v. Taylor, A-20-24 (N.J. Aug. 6, 2025), the defendant’s plea sentence for second-degree unlawful possession was five years with three and a half years of parole ineligibility, the lowest Graves sentence available for a second-degree conviction without a waiver.

Before P.L.2013, c.113, the floor was three years. Pages that still quote three years are out of date. Five years is the bottom of the second-degree range, and that degree carries a presumption of prison even apart from Graves.

Repeat Graves offenders

A person with a prior firearm conviction, as defined in N.J.S.A. 2C:44-3(d), who is convicted of another Graves offense must receive an extended term under N.J.S.A. 2C:43-7(c). For a second-degree crime that range is 10 to 20 years, with a parole bar fixed between one-third and one-half of the sentence or five years, whichever is greater; a fourth-degree extended Graves term is a fixed five years.

Machine guns and assault firearms in other crimes

Under N.J.S.A. 2C:43-6(g), using or possessing a machine gun or assault firearm during a listed crime raises the minimum to 10 years for a first- or second-degree crime, five years for third degree and 18 months for fourth degree. New Jersey’s assault-firearm ban is being challenged in federal court and this area can change quickly, so get current advice.

The Graves Waiver Under N.J.S.A. 2C:43-6.2

The waiver statute is short. When the mandatory term “does not serve the interests of justice,” the prosecutor may move before the assignment judge, who may then:

1. place the defendant on probation, or
2. reduce the parole bar to one year.

The sentencing judge may refer a case only with the prosecutor’s approval. A defendant with a prior conviction under 2C:43-6(c) is not eligible. (The same statute also allows a waiver of the five-year minimum for transferring a firearm to a person under 18, 2C:39-10(e), for a defendant with no prior chapter 39 conviction.) The defense’s job is to persuade: a written request backed by proof of lawful purchase, work history, character and the facts of the stop.

The AG’s guidance and standard offers

The Attorney General’s 2008 directive on uniform enforcement of the Graves Act, whose safeguards the Supreme Court in Taylor described as already in place, sets a standard initial plea offer for eligible defendants: a waiver motion seeking a one-year parole bar. A prosecutor may depart from that offer when the defendant has a prior Graves conviction, a substantial likelihood of involvement in organized criminal activity, aggravating factors that outweigh the mitigating ones, or a risk that a waiver would undermine another case. The analysis must be documented in the file.

When a waiver is denied, the defendant is entitled to a statement of reasons under State v. Benjamin, 228 N.J. 358 (2017), and may seek review.

The 2014 clarification for out-of-state visitors

In September 2014, the Attorney General clarified the directive for visitors from states where their conduct would have been lawful: a person whose gun was lawfully acquired and lawfully possessed at home, who believed it could be carried in New Jersey, and who is charged only with simple unlawful possession. For that person, the guidance says PTI may be appropriate absent aggravating circumstances, and otherwise there is a rebuttable presumption of an initial offer allowing probation. Factors include an isolated offense, volunteering the gun to police, surrendering it unloaded, and confusion between states’ laws. The Appellate Division described this guidance in State v. Waters, 439 N.J. Super. 215 (App. Div. 2015), as a statement of current policy; it does not change the PTI criteria or compel a prosecutor to consent.

Judicial review after State v. Taylor

Before 2025, courts reviewed a waiver denial only for a “patent and gross” abuse of discretion, the PTI standard. In State v. Taylor, the Supreme Court held that because a waiver concerns sentencing, a judicial function, the denial is reviewed for ordinary abuse of discretion. The standard is still deferential: the defendant carries a heavy burden, and the assignment judge may not substitute personal judgment for the prosecutor’s.

Pretrial Intervention in a Graves Case

PTI ends in dismissal of the charge. For a first- or second-degree charge, or any offense carrying a mandatory minimum, the prosecutor must consent before the application is even considered under Rule 3:28-1, and under N.J.S.A. 2C:43-12(g)(3) a first- or second-degree defendant admitted to PTI must enter a guilty plea that is held while the program runs. On a third- or fourth-degree charge, admission depends on the prosecutor’s recommendation. The application must be filed no later than the Initial Case Disposition Conference after arraignment (R. 3:28-2), so delay can forfeit it.

Graves, NERA and the 2026 Sentencing Laws

The Graves Act and the No Early Release Act are different rules. NERA requires 85% of the sentence for a closed list of first- and second-degree crimes. From the weapons chapter, the only NERA offense is firearms trafficking under 2C:39-9(i). A gun possession charge is a Graves case, not a NERA case. When a gun is used in a NERA crime such as robbery, both apply and the longer parole bar controls.

The 2026 restoration of one-degree-lower sentencing in N.J.S.A. 2C:44-1(d)(2), by P.L.2026, c.30, lets a judge sentence a first- or second-degree conviction in the next lower range when the statutory test is met. The law does not mention the Graves Act. In our practice it has not changed the 42-month floor: prosecutors and courts still treat the Graves minimum as mandatory. Do not plan a case around a downgrade avoiding it.

Pretrial Detention, Consequences and Expungement

• Detention. P.L.2022, c.43 requires a no-release recommendation for some Graves firearm offenses, but excludes the common ones, including handgun possession under 2C:39-5(b)(1) and unlawful purpose under 2C:39-4(a); the prosecutor can still move to detain.
• Firearm rights. A conviction for any crime disqualifies a person from a New Jersey firearms purchaser card or handgun permit under 2C:58-3(c), and federal law separately bars possession after a conviction punishable by more than a year.
• Immigration. A firearm conviction can be its own ground for removal under federal law. A non-citizen should get immigration advice before any plea.
• Expungement. None of the weapons offenses on the Graves list is on the bar list in N.J.S.A. 2C:52-2(b) (robbery, kidnapping, homicide and aggravated sexual assault are), so a weapons conviction can generally be expunged after the ordinary waiting period, and a PTI dismissal much sooner.

Defending Against a Graves Sentence

The mandatory term follows a conviction, so the best defense avoids one or moves it off the list.

• The search. Most gun cases start with a car stop or a frisk; a motion to suppress that removes the gun usually ends the case.
• The exemptions. N.J.S.A. 2C:39-6 allows a firearm at home or a business and transport, unloaded and cased, for listed purposes.
• Knowledge and possession. In a shared car or room, the State must prove the defendant knowingly possessed the gun.
• The negotiation. A plea to an offense off the list, a waiver or PTI consent depends on what the prosecutor sees early.

For county practice, see our Middlesex County weapons offenses section and our Hudson County weapons offenses section.

Talk to a New Jersey Gun Charge Lawyer

A Graves case should be prepared for a waiver or PTI request from the first week, not after indictment. You can read about William A. Proetta, then call William Proetta Criminal Law at (201) 793-8018, 24 hours a day, for a free and confidential case review, or contact us.