Graves Act Has Significant Mandatory Minimum Sentences for Unlawful Possession of a Firearm

State v. Rodriguez

Appellate Docket No.: A-3586-19T4

Decided January 25, 2021

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In a recent published opinion, the Appellate Division of New Jersey reviewed a prosecutor’s denial of a Grave’s Act waiver and a trial court’s reversal of that decision, granting the waiver.

In State v. Rodriguez, a search warrant was issued for defendant’s residence. Prior to executing the warrant, defendant entered into another person’s car, leading them on a chase and attempting to throw various bags of cocaine out the window. When defendant was apprehended, the search warrant for the residence was executed finding more cocaine and a .22 rifle with hollow point bullets.

Defendant was charged in a Middlesex County indictment with eight counts:5 third-degree possession of CDS, N.J.S.A. 2C:35-10(a)(1); second degree possession of CDS with intent to distribute, N.J.S.A. 2C:35-5(a)(1) and (b)(2); third-degree possession of CDS with intent to distribute on or near school property, N.J.S.A. 2C:35-7; fourth-degree tampering with evidence, N.J.S.A. 2C:28-6(1); third-degree financial facilitation of criminal activity (money laundering), N.J.S.A. 2C:21-25(a); second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); second-degree possession of a firearm while in the course of committing a drug distribution/possession with intent to distribute crime, N.J.S.A. 2C:39-4.1; and third-degree receiving stolen property, N.J.S.A. 2C:20-7.

By letter, defendant asked the prosecutor to file a motion for a waiver of the mandatory minimum under the Graves Act, otherwise known as the “escape valve.”  In support of that request, defendant attached character reference letters from his employer, family, and friends.  The prosecutor, in a written response, rejected defendant’s request for a waiver, outlining the charges and recounting the circumstances that led to the arrest.

Defendant moved before the trial court to overrule the State’s rejection of the Graves Act waiver.  The State filed a brief amplifying its reasons.  The Court found that the prosecutor had patently and grossly abused its discretion in refusing to grant the request based on defendant’s lack of criminal history and connection with the gun to the crime.

The State appealed and the Appellate Division found that the trial court had failed to appropriately defer to the prosecutor’s decision.  So long as the prosecutor’s denial is of sound reason, the Court should have deferred to the decision to deny the waiver, as it was no a patent and gross abuse of discretion.

As shown above, the Graves Act carries significant mandatory minimum sentences for unlawful possession of a firearm.  This waiver, or “relief valve” allows the prosecutor, at his or her discretion, to decide whether to grant a waiver of the minimum sentence or not.  A Court can only overrule this waiver upon a finding of patent and gross abuse of discretion – a very high standard.  Therefore, there are limited circumstances for cases for a waiver.  If you believe your circumstances meet this requirement, contact an experienced criminal defense lawyer at Hark & Hark today.

At Hark & Hark, we represent clients in Superior Court for criminal matters like the present case. We vigorously defend our clients by fighting to uphold their constitutional rights, and ensure law enforcement follow proper procedures to legally make an arrest.


We offer payment plan options to clients financially incapable of providing full payment upfront. If you are facing criminal charges similar to this circumstance, please call us to discuss the matter. At Hark & Hark, we represent clients for any case in any town in New Jersey including Bloomingdale, Clifton, Haledon, Hawthorne, Little Falls, North Haledon, Passaic, Paterson, Pompton Lakes, Prospect Park, Ringwood, Singac, Totowa, Wanaque, Wayne, West Milford, and Woodland Park.




Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

Leave a Comment