Graves Act Release Valve Not a Break Free from Prison Card

Submitted by New Jersey Criminal Lawyer, Jeffrey Hark.

In State v. Holloway, the defendant found a handgun but did not turn it over to authorities because he had pending charges in Somerset County. He then proceeded to accidentally shoot himself in the foot at the home of his girlfriend and the gun was found during a search consented to by the parents of the girlfriend whom owned the home. The defendant was indicted with second-degree unlawful possession of a handgun and pled guilty.

The State agreed to seek a waiver in the plea agreement to include the Graves Act escape valve. This allowed for a three year sentence with one year of parole ineligibility rather than a mandatory extended term under the Graves Act. Ultimately the defendant was only sentenced to three years of noncustodial parole and the State appealed. The Graves Act requires a prison term of at least three years or between 1/3 and 1/2 of the sentence imposed by the Court–whichever is greater.

However, the Legislature later recognizes that trial courts should have great discretion over the sentencing of individual defendants and allowed for a Graves Act escape valve. The escape valve was designed for defendants like the one in this case that did not display a particularly dangerous criminal history or risk but nevertheless fell under the Act. Nevertheless mandatory probation ineligibility of one year is a key component of the escape valve and prosecutorial consent is necessary (See N.J.S.A. 2C:43-6.2). Because this was a Graves Act case it was illegal to sentence the defendant only to probation. However, it should be noted that plea agreements are agreements between the defendant and the State, not between the defendant and the Court. Plea agreements are recommendations not contracts and the Court may choose to ignore them but this does not happen often. This case was remanded for resentencing. The resentencing court will be imposing a sentence under have the discretion to determine the length of imprisonment.

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