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What if a Have a Gun or Other Weapon while Committing a Drug Crime in NJ?

Possession of a Weapon while Committing a Drug Crime NJSA 2C:39-4.1

Possession of a Gun During Commission of a Drug Offense in Freehold and Monmouth County, NJ 

It is well known by now that New Jersey has some of the strictest gun laws in the Country. It is also no secret that New Jersey takes drug distribution allegations very seriously. So one can imagine how aggressively an individual will be prosecuted if it is determined that they were in possession of a weapon during the commission of a drug offense. When an individual is believed to have possessed a weapon during the commission of a drug distribution case in New Jersey they will be facing a slew of felony offenses. Some of those offenses include: unlawful possession of a weapon, possession of a weapon for an unlawful purpose, possession of CDS and possession of CDS with the intent to distribute. These are all very serious indictable (felony) offenses that could very easily lead to an individual spending the next decade in a New Jersey State Prison. If you have unfortunately found yourself in this type of situation, we strongly urge that you speak to an experienced criminal defense attorney about your options. Proetta, Oliver & Fay is an experienced Monmouth County based criminal defense firm. Our attorneys have been defending those accused of serious felony offenses like possession of a firearm during the commission of a crime for more than a decade in Monmouth County. We serve all of Monmouth County, including towns like Freehold, Hazlet, Holmdel, Asbury Park, Long Branch, Neptune, Wall Township, Ocean Township and Englishtown.

What You Should Know About Gun & Drug Offenses in New Jersey

As indicated above, if a Defendant is accused of possessing a weapon during the commission of certain drug offenses they will be facing an additional felony charge. That charge is Possession of Weapon During the Commission of a Drug Offense. This offense is governed by NJSA 2C:39-4.1. Depending on the facts of the case, there are three different subsections that a Defendant could be charged under. Each subsection will require the prosecution to prove different elements. For the most part, which subsection a Defendant is charged under will depend directly upon what the weapon in question is. With that being said, regardless of what subsection a Defendant is charged under, they will be facing a second degree indictable offense. Here is a breakdown of the three potential subsections that a Defendant could find themselves facing.

Possession of a Firearm During the Commission of a Drug Offense in New Jersey : NJSA 2C:39-4.1(a)

  • This subsection specifically seeks to prosecute those accused of possessing a firearm during the commission of a distribution offense. Unlike the other subsections below, which require different levels of intent, this section only seeks to prosecute the intent to possess the firearm.  Here is what the prosecution must prove beyond a reasonable doubt in order to obtain a conviction under this subsection:
    • That item in question is in fact a firearm;
    • That the Defendant possessed the firearm in question; &
    • That while possessing the firearm in question the Defendant was in the course of committing, attempting to commit or conspiring to commit a violation of: N.J.S.2C:35-3 (Leader of Drug Trafficking Network); N.J.S. 2C:35-4 (Maintaining a Drug Manufacturing Facility) or N.J.S.2C:35-5 (Manufacturing, Distributing or Possession with the Intent to Distribute)

Possession of a Weapon with the Intent to Use it Unlawfully During the Commission of a CDS Offense in New Jersey : NJSA 2C:39-4.1(b)

  • This subsection is directed at prosecuting those who are not only in possession of a weapon other than a firearm during the commission of a drug offense but those that also have a purpose to use that weapon unlawfully against another. Here is what the prosecution must establish in order to secure a conviction under this subsection:
    • That item in question is classified as was a weapon;
    • That the Defendant actually possessed the weapon in question;
    • That the Defendant possessed the weapon with the purpose to use it against another person or the property of another;
    • That while possessing the weapon in question the Defendant was in the course of committing, attempting to commit or conspiring to commit a violation of: N.J.S.2C:35-3 (Leader of Drug Trafficking Network); N.J.S. 2C:35-4 (Maintaining a Drug Manufacturing Facility) or N.J.S.2C:35-5 (Manufacturing, Distributing or Possession with the Intent to Distribute)

Possession of a Weapon During the Commission of a Drug Offense in New Jersey : NJSA 2C:39-4.1(c)

  • This subsection is geared towards prosecuting those who possess certain weapons other than a firearm during the commission of a drug offense provided they were possessed under circumstances not manifestly appropriate for such lawful use. To be convicted under this subsection, the prosecution must establish the following elements:
    • That item in question is classified as was a weapon;
    • That the Defendant actually possessed the weapon in question;
    • That the Defendant possessed the weapon under circumstances not manifestly appropriate for a lawful use;
    • That while possessing the weapon in question the Defendant was in the course of committing, attempting to commit or conspiring to commit a violation of: N.J.S.2C:35-3 (Leader of Drug Trafficking Network); N.J.S. 2C:35-4 (Maintaining a Drug Manufacturing Facility) or N.J.S.2C:35-5 (Manufacturing, Distributing or Possession with the Intent to Distribute)

Possession of a Firearm During Commission of Drug Distribution is a 2nd Degree Felony in NJ

Possession of a gun during the commission of a drug crime is a second degree indictable (felony) offense in New Jersey. That means, that if convicted, the Defendant would be facing anywhere from five to ten years in a New Jersey State Prison. To make matters worse, since this offense  requires that the Defendant also be convicted of a drug distribution, since it is an element of this offense, the legislature chose to make it clear that this offense cannot merger with the drug distribution offense. If that was not bad enough, a conviction for possession of a weapon during the commission of a drug offense must run consecutively, to any drug distribution sentence. This aspect makes this offense crippling to a Defendant.

What is the Bail For a Possession of a Gun when You Commit a Drug Crime in NJ?

Anyone charged under NJSA 2C:39-4.1 will almost certainly be subject to New Jersey’s Bail Reform Act. Anyone who is subject to New Jersey’s Bail Reform Act must be taken from the local police station to the Monmouth County Jail so that Pretrial Services can conduct their risk assessment. The prosecutor’s office will take that assessment into consideration when they determine whether they will be agreeing to release the Defendant on bail. If they agree to release the Defendant on bail it will take place at their Central Judicial Processing Hearing. If they do not agree to release the Defendant they must file for a formal detention motion. At that hearing the Judge will hear arguments from both sides and it will ultimately be up them to determine if the Defendant should be granted bail or whether they must be detained in the County jail, without bail, pending trial. For more information on detention hearings in Freehold, please click the link.

Speak to a Freehold Lawyer about Gun & Drug Charges Today – (732)-858-6959

Possession of a weapon during the commission of a drug offense is one of the most crippling charges in New Jersey. The fact that any sentence must be stacked on top of any other sentence imposed makes this one of the more unforgiving statutes. If you or a loved one has found themselves facing this offense or any other offense like heroin possession, cocaine distribution, possession of a weapon or drug distribution in Monmouth County, the Law Office of Proetta, Oliver & Fay can help. Our attorneys are well aware of what a conviction like this can do to one’s life. As such, we are dedicated to aggressively defending these types of allegations in order to help secure a favorable outcome for our clients. If you would like to set up a free initial consultation today, please contact our office at 732-858-6959.

Here is some other articles that can prove helpful when dealing with a Drug Offense in New Jersey:

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