Unlawful Possession of a Weapon in New Jersey

N.J.S.A. 2C:39-5 · Weapons & Firearm Offenses

What the law says

The section prohibits knowingly possessing specified firearms and other weapons without required licenses, permits, identification cards, or written authorization, and prohibits possessing certain weapons in educational institutions. It also sets out circumstances in which temporary possession is not unlawful and circumstances that increase the degree of the crime or require a minimum parole-ineligibility term.

Depending on how it's graded, this offense is either an indictable crime, prosecuted in the Superior Court in the county where it happened, or a disorderly persons offense heard in municipal court. Indictable charges go through grand jury review. Prosecutors sometimes downgrade them to municipal court.

What the State must prove

To convict, the prosecutor must prove each element beyond a reasonable doubt. Under N.J.S.A. 2C:39-5, that means:

• Knowingly possess a machine gun or an instrument or device adaptable for use as a machine gun without being licensed as provided in N.J.S.2C:58-5.
• Knowingly possess a handgun, including an antique handgun, without first obtaining a permit to carry it as provided in N.J.S.2C:58-4; the subsection also covers specified air guns, spring guns, and similar weapons that eject a bullet or missile smaller than three-eighths of an inch in diameter with sufficient force to injure a person.
• Knowingly possess a rifle or shotgun without first obtaining a firearms purchaser identification card in accordance with N.J.S.2C:58-3, or knowingly possess a loaded rifle or shotgun unless otherwise permitted by law.
• Knowingly possess any other weapon under circumstances not manifestly appropriate for such lawful uses as it may have.
• Knowingly possess specified firearms, weapons, weapon components, or an imitation firearm in or upon the buildings or grounds of an educational institution without the required written authorization; the imitation-firearm provision also applies while on any school bus.
• Knowingly possess an assault firearm, unless it is licensed pursuant to N.J.S.2C:58-5, registered pursuant to section 11 of P.L.1990, c.32 (C.2C:58-12), or rendered inoperable pursuant to section 12 of P.L.1990, c.32 (C.2C:58-13).
• For the first-degree classification under subsection j., violate subsection a., b., c. or f. while having a prior conviction of a crime enumerated in subsection d. of section 2 of P.L.1997, c.117 (C.2C:43-7.2).

How the charge is graded

• Subsection a.: a crime of the second degree.
• Subsection b.(1): a crime of the second degree.
• Subsection b.(2): a crime of the third degree.
• Subsection c.(1) and c.(2): a crime of the third degree.
• Subsection d.: a crime of the fourth degree.
• Subsection e.(1): a crime of the third degree.
• Subsection e.(2): a crime of the fourth degree.
• Subsection e.(3): a disorderly person.
• Subsection f.: a crime of the second degree, except if the assault firearm is licensed pursuant to N.J.S.2C:58-5; registered pursuant to section 11 of P.L.1990, c.32 (C.2C:58-12); or rendered inoperable pursuant to section 12 of P.L.1990, c.32 (C.2C:58-13).
• Subsection j.: a first degree crime.

Penalties in the statute

• If the court finds that the aggravating circumstance set forth in paragraph (5) of subsection a. of N.J.S.2C:44-1 applies, the person shall be sentenced to a term of imprisonment that includes a minimum term during which the defendant is ineligible for parole; the minimum term of parole ineligibility shall be fixed at five years.

General sentencing ranges

Unless a statute sets a different penalty, New Jersey's general sentencing laws (N.J.S.A. 2C:43-6, 2C:43-8, and 2C:43-3) set these maximums:

Other rules that can matter

• Temporary possession of a handgun, rifle, or shotgun under section 1 of P.L.1992, c.74 (C.2C:58-3.1) is not unlawful possession under subsection b. or c.
• Temporary possession of a firearm under section 1 of P.L.1997, c.375 (C.2C:58-3.2) is not unlawful possession under this section.
• For subsection e.(1), the prohibition applies irrespective of whether the person possesses a valid permit to carry the firearm or a valid firearms purchaser identification card.
• For subsection e.(2), the prohibition covers any weapon enumerated in paragraphs (3) and (4) of subsection r. of N.J.S.2C:39-1, components which can readily be assembled into a firearm or other weapon enumerated in subsection r. of N.J.S.2C:39-1, and any other weapon under circumstances not manifestly appropriate for such lawful use as it may have.
• For subsection e.(3), the prohibition applies irrespective of whether the person possesses a valid permit to carry a firearm or a valid firearms purchaser identification card.
• A person convicted under subsection a., b., f. or j. is ineligible for participation in any program of intensive supervision. This provision does not apply to a subsection b. crime involving only the specified air gun, spring gun, pistol, or similar weapon that ejects a bullet or missile smaller than three-eighths of an inch in diameter with sufficient force to injure a person.
• For the five-year minimum parole-ineligibility term, the sentencing court shall make a finding on the record as to whether the aggravating circumstance in paragraph (5) of subsection a. of N.J.S.2C:44-1 applies.
• The court shall presume that there is a substantial likelihood that the defendant is involved in organized criminal activity if there is a substantial likelihood that the defendant is a member of an organization or group that engages in criminal activity. At the sentencing hearing, the prosecution has the initial burden of producing evidence or information concerning the defendant's membership in such an organization or group.

Common defense strategies

Every case turns on its facts, but defenses we often explore include:

• Motions to suppress firearms found in unlawful searches
• Proving lawful possession, permits, or a statutory exemption
• Challenging knowing possession when a weapon was in a shared space
• Graves Act waivers and prosecutor referrals under N.J.S.A. 2C:43-6.2 where available

What to do right now

1. Don't discuss the facts with police, the alleged victim, or anyone on a jail phone or social media.
2. Write down everything you remember, including names, times, and locations.
3. Keep every document you received, such as the complaint, summons, and release conditions.
4. Follow all release and no-contact conditions exactly.
5. Call a New Jersey criminal defense lawyer before your first court date.

How we help

Edward G. Appel has defended New Jersey clients since 1988 in municipal and Superior Courts in all 21 counties. We review the discovery, look for weaknesses in the State's case, file motions where they're warranted, and push for dismissals, downgrades, or diversion before you face a trial. Call 856-856-2373 for a free, confidential consultation about your Unlawful Possession of a Weapon charge.

Related charges

• Possession of a Weapon for an Unlawful Purpose →
• Prohibited Weapons and Devices →
• Certain Persons Not to Have Weapons →

Disclaimer: This page is general information about New Jersey law, not legal advice, and doesn't create an attorney-client relationship. Prior results don't guarantee a similar outcome.