There May Be Ways to Escape the Mandatory Minimums by Seeking a Graves Act Waiver, But Only Certain Individuals Are Eligible

State v. Lamborn

Appellate Docket No.: A-740-19

Decided February 25, 2022

Submitted by New Jersey New Jersey Criminal Lawyer, Jeffrey Hark

In a recent unpublished opinion, the Appellate Division of New Jersey reversed the probationary sentence imposed on defendant Kevin M. Lamborn on the State’s motion for a Graves Act, N.J.S.A. 2C:43-6(c), waiver, following defendant’s guilty plea to second-degree unlawful possession of a handgun and fourth-degree unlawful possession of hollow nose bullets.

In State v. Lamborn, Defendant is a commercial truck driver, who resides in Delaware. Following a 2019 incident in Monroe in which the open door of another trailer reportedly dinged defendant’s tractor-trailer parked along the drive leading into Costco, defendant was charged with second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b)(1); second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); fourth-degree aggravated assault by pointing a handgun, N.J.S.A. 2C:12-1(b)(4); third-degree terroristic threats, N.J.S.A. 2C:12-3(a); fourth-degree possession of hollow nose bullets, N.J.S.A. 2C:39-3(f); and fourth-degree possession of a large-capacity magazine, N.J.S.A. 2C:39-3(j). Defendant was also charged in a complaint-summons with two disorderly-persons offenses, possession of marijuana, N.J.S.A. 2C:35-10(a)(4), and possession of drug paraphernalia, N.J.S.A. 2C:36-2. He was forty-two at the time.

Defendant waived indictment and entered a negotiated guilty plea to an accusation charging him with second-degree unlawful possession of a handgun and fourth-degree unlawful possession of hollow nose bullets in exchange for the State’s agreement to seek a Graves Act waiver and recommend an aggregate three-year prison term with one year of parole ineligibility pursuant to N.J.S.A. 2C:43-6.2, and dismissal of all other charges. Defendant’s presentence report reflected assault convictions in 1996 and 2011, and a 1996 CDS conviction. As permitted by the plea agreement, defendant urged several mitigating factors and argued for imposition of a non-custodial probationary sentence.

The Judge at sentencing found aggravating factor three and nine, and mitigating factors eight and ten. Finding the aggravating and mitigating factors were in equipoise, the judge sentenced defendant to five years’ probation on the gun charge,1 conditioned on 180 days in the county jail and to a concurrent one-year probationary term for possession of the hollow nose bullets. He dismissed the remaining charges and imposed all appropriate penalties.

The State appealed and the Appellate Division found that the trial court failed to consider the presumption of incarceration associated with the second-degree unlawful possession of a handgun charge. Without having first considered this, and deciding “the character and condition of the defendant, . . . that [his] imprisonment would be a serious injustice which overrides the need to deter such conduct by others,” the Court could not impose a probationary sentence. Defendant’s matter was remanded for this consideration.

This case is important to understand that certain charges – 1st degree and 2nd degree specifically – carry a presumption of incarceration upon conviction, even without a criminal background. A second-degree unlawful possession of a handgun charge carries additional penalties as part of the Graves Act along with mandatory minimum periods of incarceration. There may be ways to escape the mandatory minimums by seeking a Graves Act waiver, but only certain individuals are eligible.

If you or someone you know have been charged with any indictable offense or disorderly persons involving a search and/or questioning of police, or you have questions regarding firearm charges or Graves Act waivers, contact the experienced attorney at Hark & Hark to ensure you are adequately defended, otherwise you could have negative impacts on your case like the defendant above.

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 county in New Jersey including Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington ,Haddon Heights ,Pine Hill ,Bellmawr ,Haddon Township , Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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