*1 JERSEY, PLAINTIFF-APPELLANT, STATE OF NEW CAMACHO, v. FRANKLIN DEFENDANT-
RESPONDENT. Argued November 1997 Decided March 1998. *2 General, Shashoua, Attorney Acting Deputy Special A Linda (Lee appellant A Prosecutor, for argued the cause Assistant General, County Acting Prose- Solomon, Attorney Camden Acting cutor, attorney). respondent.
Timothy Reilly, argued P. the cause Barton, General, Attorney argued the Deputy Nancy Peremes (Peter Jersey curiae, Attorney General of New for amicus cause Vemiero, General, Attorney attorney). opinion of the Court was delivered
STEIN, J. “any possession of to N.J.S.A.
Pursuant unlawfully property of against the purpose to use it *3 Act, see degree offense. The Graves is a second another” 2C:43-6c, has been convicted provides that a who N.J.SA intent to possession of a firearm with N.J.S.A. 2C:39-4a of under to a against person of another shall be sentenced use it one-third and one- parole ineligibility term of between minimum by years, three whichev imposed the court or half of the sentence pleaded guilty to Franklin Camacho greater. er is Defendant unlawfully, in the intent to use it possession of a firearm with violation of N.J.S.A 2C:39-4a. hearing, trial court deter conducting Act
After a Graves purpose with the that defendant had a firearm mined imposed a against person of Graves use it years years parole that count of seven with three sentence on post- ineligibility. appeal from the denial defendant’s On reversed, Appellate Division hold application, conviction relief question possessed the firearm ing that whether defendant using against person of another was purpose with Camacho, issue, trial. remanding the matter for (1996). 585, 594, N.J.Super. 685A.2d unlawfully to use a firearm must determine whether intent We property, another is an against person, opposed to the entitling element thus to a issue, trial on that or whether the distinction between intent to use against person, property, rather than is an issue to be by hearing. determined court at a
I On November party defendant went to a apartment Camden, of Alice Ramirez in Jersey. New Several people apartment, were at Ms. including Ramirez’s defendant’s cousin, Rodriguez, Ramon who is the father of Ms. Ramirez’s children. Defendant turned on the stereo. When Ms. Ramirez stereo, angry, turned off the pulled defendant became out a handgun person, that he had on his and shot at the stereo and the walls. September defendant was indicted a Camden Coun
ty Jury following charges: Grand on degree aggravat second Ramirez, against ed assault Alice violation of N.J.S.A. 2C:12- 1b(1) (Count One); degree aggravated second against assault 2C:12-1b(1) (Count Rodriguez, Ramon in violation of N.J.S.A Two); degree aggravated against Ramirez, third assault Alice 2C:12-1b(2) (Count Three); violation of N.J.S.A. degree third aggravated against Rodriguez, assault Ramon in violation of (Count 2C:12-1b(2) Four); degree aggravated fourth Ramirez, 2C:12-1b(4) assault Alice in violation of N.J.S.A. (Count Five); degree aggravated fourth assault Ramon 2C:12-1b(4) (Count Rodriguez, Six); in violation of N.J.S.A. sec degree possession ond of a firearm for an unlawful *4 against person intent it in violation of (Count Seven); degree 2C:39-4a and third unlawful (Count handgun, in violation of N.J.S.A 2C:39-5b Eight). trial,
Prior to the State made a motion to amend Count Seven to charged degree state that defendant with second unlawfully against person-or firearm with an intent to use it ;property responded of another. Defense counsel that she would trial, she but, if the case went motion object to the interrogatory special be submitted that a
requested either to use the firearm intended concerning defendant whether of another. against property person or against the in- prosecutor counsel and September defense agreement an they had reached trial court formed the degree aggravat- guilty to fourth plead whereby defendant would Six) (Count and second Rodriguez against Ramon assault ed intent purpose with for an unlawful possession of a firearm degree Seven). (Count All other person of another use it dismissed, recommend a and the State would counts would be hold a hear- imprisonment. The court would seven-year term of and, if it Act applicability of the Graves ing to determine recom- apply, the State would that the Act did determined period parole ineligibility impose a Graves mend that the court years. of three plead trial court to day appeared before the defendant
The next Before defendant entered plea agreement. guilty pursuant to the to amend on the State’s motion trial court ruled plea, his interrog- requested counsel’s and on whether defense Count Seven jury if to trial. the case went atory should submitted the issue whether defendant trial court held that unlawfully against person, it the intent to use the firearm with question for the property, of another was not a than the rather interrogatory not receive an jury, therefore the would Rather, the court would make concerning that distinction. hearing, pursuant to N.J.S.A. at a Graves determination motion, the consent of defense and with 2C:43-6d. On the State’s counsel, charge defendant with Seven to the court amended Count intent to use degree possession of a firearm with second or the of another. that he had plea, for his defendant stated As a factual basis (cid:127) turned on the stereo. apartment and gone to Ms. Ramirez’s angry. turned off the stereo became Ms. Ramirez When “self defense” and shot gun that he carried for He took out the *5 and Rodriguez stereo the wall. Defendant that Mr. stated standing next himto when he shot the stereo. Defendant admit- that people ted he knew there room the were on other side shot, of the wall at which he but stated that he did not shoot at the people wall on because were the other side of it. The court accepted guilty plea defendant’s to Counts Six and Seven. January hearing
On court prior held a Graves Act to beginning hearing defendant. At the of the asked court defense counsel whether defendant “consented to hearing to let decide the as to [the court] issue whether this is offense or not.” counsel that Defense said he did. asked, “And, court willing give right The then he’s to up the to issue; by jury right?” trial on that is that Defense counsel answered, “Right.” The if court then asked defendant that was answered, correct. Defendant ‘Tes.” presented The Jury testimony the Grand Ms. Ramirez Rodriguez, Mr. photographs and and introduced of the crime scene that ceiling showed bullet holes the walls and Ms. addition, apartment. Ramirez’s pictures that a showed bullet passed through had the wall behind the stereo and entered a room where defendant had that people conceded he knew had been. case, presented
After the State its defense counsel informed the that give express court defendant wanted statement “his remorse,” that counsel defense did wish ask him prosecutor questions. if stated that defendant’s statement Act, applicability would be relevant the Graves prosecutor right reserved the to cross-examine defendant. The oath, court determined defendant should be under and defen- duly dant was sworn. interrogate Defense counsel decided to defendant, response to which defendant stated that he never gun against anyone apartment. intended to use the at the Con- trary to his guilty plea, statements when he his entered defendant people said he did not know there were on other side of cross-examination, the wall at which he On shot. stereo, sitting were on the people he
admitted that when shot *6 far from him. sofa not that, Rodriguez defen- that Mr. stated before
The court noted
stereo,
Ramirez, saying,
he
Ms.
dant shot
the
had threatened
(deleted)
me,
Alice,
you,
“Alice,
don’t
with
you
I’ll
I’ll blast
blast
Ms. Ramirez stated that
you.” The court observed that
I’ll blast
sitting
everybody that
in the
gun
had
the
at
was
defendant
“aimed
them,
room,”
that
kill
and
one of defendant’s
living
threatened to
and
light
her.
In
of those statements
defen-
was toward
shots
the
found that
testimony
support
plea,
of his
court
dant’s
hearing
not
testimony at
Graves Act
was
credible.
defendant’s
the
applied
the
court
that
Graves Act
to Count Seven
The
held
using
“frighten
purpose in
firearm
to
because defendant’s
the
was
That
people”
apartment.
the Ramirez
consti-
and terrorize the
against
person
a
the
of another
purpose
a
to use
firearm
tuted
on
N.J.S.A 2C:43-4a.
pursuant
to
The court sentenced defendant
Seven,
parole.
to
Count
eighteen
Count Six
months without
On
years,
imposed a
of seven
with
the court
concurrent
sentence
parole.
years to
served without
three
be
filed,
Although
requested
appeal
that an
defense
defendant
February
the
filed
appeal.
counsel did not file
defendant
(PCR), alleging that he had
post-conviction
a motion for
relief
lawyer
of
his
ad-
received ineffective assistance
counsel because
right
jury
him
not
a
to have
determine
vised
that he did
have
against
person,
to
whether he intended
use the firearm
to
denied
opposed
property,
of another.
court
defen-
argument
grounds:
on
should have
dant’s PCR motion
two
appeal,
applicability
made on direct
and the
of
been
issue rather
than an element of the offense.
Act is
offense of
The court held that
elements
purpose
jury
are
if the
finds that a
firearm for an unlawful
met
possessed
it
defendant
a firearm with the
to use
unlawful-
ly
another.
against
person
his
appeal,
argued that he was denied
constitu-
On
defendant
right
tional
to a fair trial
the trial court’s decision
he did
right
to a have the
determination on the issue whether
possessed
unlawfully
the firearm
with
the intent
it
use
person
The Appellate
another.
Division held that
possessed
whether
defendant
firearm with an intent
it
to use
unlawfully against
person,
as opposed
property,
Camacho,
question
was a
for the
to decide.
supra,
590-91,
N.J.Super.
Additionally,
This Court petition the State’s for certification. State *7 Camacho, (1997). 36, v. 149 N.J. A.2d
II
provides
The Graves
possesses
that one who
uses or
commission,
during
firearm
or
attempt,
flight from certain
offenses,
serious
or one who is convicted under
2C:39-4a
possession
of
against
of a firearm
it
with the intent
to
use
person
another,
mandatory
of
shall
prison
receive
sentence that
years
parole
includes
least three
of
ineligibility. State v. Des
Marets,
(1983).
92 N.J.
(Emphasis
Marets,
that the
Wilentz observed
supra,
In Des
Chief Justice
underlying
Act was “to ensure incarceration
the Graves
intent
going forth to commit crimes.
arm themselves before
those who
in violent
response to a
increase
The Act is a direct
substantial
can
served
Jersey____
The intended deterrence
be
crime New
coverage
obviously
of this law.”
only by
broad
giving effect
omitted).
(footnote
68,
“Implicit
N.J.
Originally, provided person that a convicted the Graves Act possession any (“Any person has his under who 2C:39-4a unlawfully against person or purpose firearm degree”), guilty of a crime of the second property of another is ineligibility subject parole term of without to a minimum would it was to use the regard to whether the defendant’s L. person against of another. 2C:43-6c). (codified 31, § 1 The Act was c. as 2C:43-6c) (codified apply by L. c. amended under persons convicted N.J.S.A 2C:39-4a only against intent to use it of another. firearm with from Act cover The amendment was intended “remove having no age persons those convicted under but intent Cannel, persons.” Criminal to use the firearm other Annotated, (1997). comment 1 on N.J.S.A 2C:43-6c Code
A *8 argues to a that he is entitled have determine Defendant against person, to the as whether he intended use the firearm opposed property, of another. He contends that 1982 person/property amendment to the Graves Act transformed the and that a into an element of N.J.S.A distinction interrogatory indicating that the State special must answer beyond a reasonable doubt before defen- proved that element
68 Therefore, pursuant dant sentenced Graves be Act. case, trial because the court made the in this determination deprived right defendant contends that he was of his constitutional jury. to a trial argues person/property
The State that the distinction is not an 2C:39-4a; element of the substantive offense rath- under er, only sentencing distinction relevant and therefore it is court, jury, the role of the to determine whether defendant’s was to use the firearm person, opposed to property, of another. pre-amendment
This Court first
in
discussed
Graves Act
Marets,
62,
Marets,
supra,
Des
92 N.J.
In Des
A.2d 1074.
pled
burglary
to two counts each of
theft
and
handgun
one count of
of a
without a license. Id. at 66-
67,
burglaries,
During
We our Des Marets (1984). Stewart, A.2d 300 which also involved the Act, pre-1982 companions the defendant and his robbed pedestrian. Id. at The victim 300. testified *9 gun him. pointed a flare at robbery the had during the defendant gun two there a flare and Ibid. The defendant conceded that was robbery, using at the of the that he was time air rifles the truck 600, 477 Id. at pointed victim. having them at the but he denied (un- degree was convicted of second A.2d 300. defendant The (armed) armed) robbery acquitted degree robbery, of first but was Ibid. appeal, claimed the defendant weapons possession. and On contending he not inapplicable, that was that the Graves Act was purposes of the Act because possession a firearm for Graves of during a the commission of possession he not in disagreed, holding that Id. at A.2d We 300. offense. Act “includes “possession” purposes firearm for of the Graves that possession but constructive only [also] not actual immediately practically to actual is able to convert defendant possession.” Id. at 300. requirement hearing a be that
We also discussed the Graves
may
imposed.
trial
mandatory
be
The
held
a
sentence
before
hearing
interrogatory
an
but did submit
court had
held
robbery,
jury asking,
if the defendant was
whether
committing
attempting to
the crime
“in
or
commit
the course
...
flight
... he
or was
including
use[d]
the immediate
therefrom
600,477
Id.
A.2d
Because the
of a firearm.”
at
300.
affirmative,
in the
the trial court sentenced
answered
three-year parole ineligibility period pursuant
600-01,
the Graves Act. Id.
mm
*10
Although the defendant
contended that
section
the
allowed
sentencing
only
court to
weapon
determine
whether the
at issue
firearm,
“interpret[ed]
was
the
requiring
Court
this section as
sentencing
the
court
to determine whether defendant used or
possessed weapon as
weapon
well whether that
is a firearm.”
605-06,
Id.
at
Although
the
acquitted
weapons
had
the defendant of the
charges,
the Court found that it was
not unfair for the
possessed
court to decide
weapon during
whether he had
the
Id. at
605,
crime.
Four months
our
in
Appellate
after
decision
Divi-
Latimore,
sion decided N.J.Super.
A.2d
denied,
(App.Div.1984),
(1985).
101 certif.
Latimore,
shotgun
defendants had left a sawed-off
and two
handguns
hedge
being
by police
in a
after
asked
officers
leave
208-09,
Id. the area.
Consistent with his
that
person/property
distinction
an
is
element of the substantive offense of do,es
contends
the Graves Act
not authorize the
subjective
court to consider defendant’s
intent
com
mitting
possessing
the crime or in
the firearm because that is an
However,
issue for the
to determine.
expressly
we have
allowed trial courts to determine whether defendants exhibited the
necessary state of
subject
mind to cause them to be
to the Graves
White,
(1984).
98 Act.
484 A.2d691
White,
the defendant
degree
was convicted of first
armed
robbery
Id.
purpose.
for an unlawful
that the defendant nonetheless knew or had reason to know that his cohort would committing attempting use or be in of a firearm in the course of including flight commit the crime, the immediate therefrom, *12 accomplice subject likewise to Graves Act penalties. added).] (emphasis [Ibid, accomplice We observed that may “[a]n be of armed robbery though personally even he did not possess or use the firearm in the robbery,” course of the commission of long the as as accomplice “the purpose promote had the or facilitate that crime, namely, robbery Id. with the use of a firearm.” A.2d 691. Legislature We concluded that intended that an robbery degree other
accomplice
guilty of first
because
found
possessed a
the course of the
perpetrator used or
Act.
robbery
pursuant to the Graves
Ibid. See
would be sentenced
(reaffirm-
(1987)
Weeks,
A.2d 1077
107 N.J.
sentence,
subject
he
accomplice
to Graves Act
ing that for
to be
pur-
and
Act offense
have shared
accomplice
must be
firearm). Thus,
appropriate
cases
pose
offense with
to commit
a defendant’s
required the trial court
evaluate
this Court has
applied
the Graves Act
after
state of mind to determine whether
by
offense
has been convicted
an enumerated
the defendant
Wooters,
171, 178,
Additionally, the amendment, serving a Graves Act at the time of the solely period parole ineligibility as a result of his conviction possession of a 2C:39-4a for the firearm with the under N.J.S.A another could “have his property intent to use it by good sentencing court. For cause sentence reviewed shown, any impose sentence which would have court person.” available for such N.J.S.A 2C:43-6.1. otherwise been Thus, seeking pre-1982 respect to defendants review of their sentences, Legislature per intended for amendment court, son/property to made not a distinction jury.
We have
the elements of N.J.S.A 2C:39-4a
outlined
previous opinions. In
to obtain a conviction under
order
N.J.S.A
beyond
prove
must
a reasonable doubt that:
the State
(1)
meaning
possessed
the item
was a firearm within the
(2)
firearm,
2C:39-1f;
the defendant
which
requires knowledge or
of his
under N.J.SA 2C:2-lc
awareness
(3)
item;
over the
the defendant’s
or conscious
control
another;
objective
was to use
(4) the
it in a manner that was
defendant intended
*13
proscribed by
Diaz,
628, 635,
law.
v.
144 N.J.
As defined the Criminal “element of an offense” means: (1) (2) (3) such conduct or such attendant circumstances or such a result of conduct as (a) Is included in the of the forbidden conduct in description the definition of the
offense; (b) Establishes the kind of required culpability; (c) Negatives justification an excuse or for such conduct; (d) Negatives a defense under the statute of or limitations; (e) jurisdiction venue____ Establishes or
[N.J.S.A 2C:l-14h.]
above,
As indicated
the distinction between whether defendant
against
intended to use a
person,
firearm
opposed
property,
is not “included in the description of the
forbidden conduct in the definition of the offense.” The substan-
tive
requires only
offense
purpose
defendant’s
or con-
objective
scious
was to use a
or
of another. A
need not indicate whether it found
that a
defendant’s
was to use a
firearm either
person,
against property,
Rather,
or both.
the distinction is
made in
only,
the Graves Act
suggests
which
that the distinction is
relevant
purposes,
obtaining
not for
a conviction.
See also State
Lopez,
v.
276 N.J.Super.
B
that
court
Although
specifically
the Graves Act
states
“[t]he
impose mandatory
shall not
sentence
unless
[under
Act]
ground
hearing,”
has
established at a
therefor
been
2C:43-6d,
Appellate
opinion concluded
if a defen
Division
that
possession
it
dant is
of
of a
with intent to use
convicted
another,
hearing
necessary
of
no Graves Act
Camacho,
mandatory provision
trigger
in order
of the Act.
N.J.Super,
follows, however,
supra, at
involved a defendant who robbery was convicted of armed purpose. an unlawful The defendant was sentenced to an extended term under the Graves Act because “[t]he trial court required concluded such because defendant had been robbery, convicted of armed a Graves offense, and defendant’s criminal record alone established a prior conviction for a Graves Act offense.” Id.
428. disagreed Appellate
This Court
with the
holding
Division’s
the defendant was
hearing
entitled to an additional
at which he
challenge
validity
154-55,
could
Id. at
prior
of his
conviction.
Martin,
distinguished
Ill
person/property
is not
conclude that the
distinction
We
only
but
for
an element of N.J.S.A
rather is relevant
noted,
purposes. As
defendant
be convicted
on
pursuant
proof
to N.J.S.A
based
of a
2C:39-4a
person
it either
firearm with
intent
to use
69, 707
It is
Supra
of another.
A.2d at 462.
prescribes
period
parole ineligibility
Act that
that a
is
Graves
mandatory only
offense
for those defendants convicted of that
who
Thus,
intended to use
of another.
Act itself
clear that
the Graves
makes
the distinction
relevant
sentencing.
findings
only
jury’s
relating
A
to whether a
committed an offense enumerated
the Graves Act
not limit the court in its resolution of
the Graves Act
does
whether
Stewart,
supra,
applies to that
96 N.J. at
defendant.
Additionally,
properly may
court
consider
A.2d 300.
whether
required
imposition
defendant exhibited the state of mind
White,
period
parole ineligibility.
supra,
98 N.J.
126,
As a our facilitates the Law Division’s *16 disposition charged violating of cases in which defendants are with theory If of case is N.J.S.A 2C:39-4a. the State’s that a person weapon only against intended the use of another, jury necessarily will that fact. To verdict establish extent, dissenting disagreement that we no our col- have league’s prosecution proof if is based on assertion that the State’s another, person jury weapon of intent to use of mandatory. 75, 707 determination that fact is Post at A.2d at However, proceed 465. proofs when such cases to trial on based weapon against person that a defendant to use a intended jury person/property need not resolve the Thus, guilt. any distinction order to determine a defendant’s unanimity concern about on that issue becomes academic. See Brown, (1994) (stating State v. 138 N.J. A.2d that support need not be unanimous to verdict that defendant was conduct). of murder not committed his own In the case plead guilty, of defendants who choose there is no need to impanel distinction; person/property decide the that is court, an jury. issue for the not for the As a matter of judicial administration, legal our conclusion is consistent with the disposition efficient charging of indictments violations of N.J.S.A. 2C:39-4a. portions
To the extent that Appellate opinion Division’s Latimore, supra, N.J.Super. 484 A.2d are matter, disposition opinion inconsistent with our of this disapproved. Contrary Appellate to the observation of the Divi- case, N.J.Super. sion in this hold that we statutory grounds mandate that for a Graves Act sentence be 2C:43-6d, hearing, established at a N.J.S.A shall be adhered to in request all Jury cases. We also the Committee on Model Criminal, Charges, Jury Charge revise the Model Criminal opinion. N.J.S.A 2C:39-4a in accordance with this judgment Appellate of the Division is reversed. O’HERN, J., dissenting.
By reframing question selectively applying prior our Act, precedent 2C:43-6c, majority on the Graves judgment Appellate reverses the Division. It holds that a judge, jury, may not a determine whether a defendant using for the it of another. so, doing disapproves long-standing precedent that has served to advance the efficient administration of the Graves Act. *17 lawyers reasoning more work for -willbe of the Court’s
The result Act. of the Graves judges efficient administration and less I Question Presented The a conviction of majority asks is whether question that the pur- weapon for an unlawful (possession of a 2C:39-4a injure person or the on the intent pose) may be based either simple. It question The answer to property of another. Hence, majority reasons that the intent to be either. of the is not an essential element injure person of another offense. question in
That, however, question in this case. The is not the Act, how, is one language in the Graves this case is possession of a firearm with intent “convicted under 2C:39-4a issue, By framing of its against person of another.” point is point in the case. That majority avoids this central Act, applicabili- setting the criteria for its forth that the Graves N.J.S.A. 2C:39-4a and the other ty, symmetry creates a between crimes, play. Act into brings nine conviction which Graves first sentence of N.J.S.A. 2C:43- symmetry That is created 6(a). jail will provides that a minimum term That sentence imposed on (a) of a firearm has convicted under 2C:39-4a of possession who been person [nine of another or of a crime under any
with intent to use it committing attempting statutes] while in the course of enumerated criminal flight including used or was in therefrom, the immediate crime, commit aof firearm. added).] (emphasis [N.J.S.A. 2C:43-dc is to harmon- the distinct treatment of 2C:39-4a The reason for predicate nine other offenses ize it with the essentially the common feature of that each involves so convict a defendant under person. In order to a crime a defendant must conclude that the use or weapon, need not consider but *18 any weapon or firearm in order to under of the other nine convict (murder, assault, manslaughter, aggravated kidnapping, crimes assault, contact, aggravated aggravated sexual criminal sexual robbery, burglary, escape) bring play. or the Graves Act into Although burglary escape always and are not crimes danger persons surely wellspring person, the attendant is sentencing. concern for Graves Act question repeat, To is not whether one must commit a crime against person a in order to be convicted under N.J.S.A 2C:39-4a. Rather, question is one of a crime how “convicted” person of another. Our State and Federal Constitutions guarantee right juries criminal defendants the to have decide whether those defendants deserve to be convicted. U.S. Const. Const, VI; 1, majority para. amend. art. 10. The should not N.J. efforts, in Appellate waste the Division’s both this case and Latimore, (1984), N.J.Super. 197 uphold rights. those
II The Precedent Involved ordinarily Because a would not have to resolve convicting a defendant of one of the other or use Stewart, offenses, enumerated held in State v. 96 nine the Court (1984), permits A.2d N.J. 477 300 N.J.S.A 2C:43-6e sentencing courts to determine whether a defendant used or possessed weapon committing while one of those nine crimes. above, robbery prosecution. robbery Stewart involved a As noted predicate predicate is a to the Graves Act. It is one of the crimes necessarily gun that does not involve the but most does involve a Rob- often as victim. 2C:15-1. argued acquitted him of ert Stewart that because a had robbery weapons charges only him of armed and convicted robbery, fundamentally unfair to unarmed it would be allow sentencing court to decide the Graves Act issue of whether possessed robbery. used or a firearm the course of the Stewart 76
Stewart,
rejected
supra, N.J.
at
unhelpful
majority.
pled
Robert Des
Marets
two
burglary.
handguns in
charges of
he had
two
Because
stolen
burglaries,
sentencing
course of one
court read the
three-year
imprison
Act to
minimum
Graves
mandate a
term
that
Act should
ment. Des Marets contended
Graves
apply
any
he
to use either
because
never demonstrated
intent
straightforward reading
the firearms. The
undertook a
Court
N.J.S.A. 2C:43-6c and held
that intent to
use a firearm was not a
prerequisite
applicability.
possession
of a
Graves
Mere
Des
trigger
provisions.
firearm would
the minimum
sentence
Marets,
However,
68-69,
supra,
To the use or an of the offense for Act sentence is often not essential element may imposed. example, be For one which a Graves sentence may may rape gun; one commit a commit with without sentencing robbery gun. or without a Sometimes the court has to decide whether the brandished was fact a real gun toy. Only gun if a real will the and not a the actor uses Gantt, eligibility imposed. minimum term Graves Act (1986). gun 101 N.J. But whether the actor have committed real or not is irrelevant whether setting, potential first-degree robbery. In such a there is no real verdict and the decision for a conflict between jury considering robbery prosecution not even need because weapon. prosecutions under consider the choice of defendant’s 2C:39-4a, however, A potential for conflict exists. jury may on an convict a defendant under that statute based sentencing hearing, a to fire at the victim’s set. At a intent TV judge today’s ruling may the same defendant of under then convict intending to shoot the victim.
Ill Special a Form in Such Cases The Need for Verdict only jury judge may convict a defendant of Because a and not a demanded, jury disagree I with a trial has been an offense when special approved for use in disapproval of the verdict form Latimore, (App.Div. N.J.Super. 1984). majority opinion ignoring for criticizes the Latimore misplaced. The criticism decision Stewart.
this Court’s that is may of the offense that a court convict never held Stewart prosecu a Latimore involved Act sentence. predicate to Graves prosecu involved a Stewart 2C:39-4a whereas tion under N.J.S.A. in the robbery, the nine other crimes enumerated for one of tion' because, Stewart court did not follow Act. The Latimore under the Graves majority, recognized the distinction unlike other nine enumerated and the N.J.S.A. 2C:39-4a between crimes. posses- under 2C:39-4a for
Although it is true that a conviction
unlawfully may be obtained
weapon
intent to use it
sion of a
with
intended to use the
specifying
the defendant
whether
without
another, it does not
property of
weapon against the
or
request
right
defendant does not have
follow
jury
used. A
need
jury specify
purpose
for what
every
unanimously on
fact that establishes
always agree
Parker, 124
v.
of an offense. See State
essential elements
(1991). When, however,
628, 633-35,
is a
A.2d 228
there
jurors may
some
believe
possibility
patchwork verdict because
jury
guilty on one basis and others on
the defendant
findings.
79 Diaz, A.2d 677 in Writing the Court for propriety (1996), recently “reaffirm[ed] the Justice Coleman sheets recommended special verdict using type of written 365-67, N.J.Super. [211 State v. McAllister specifi- special sheet McAllister verdict (App.Div.1986)].” purpose of “possession of a cally referred to 365, 511 N.J.Super. unlawfully against person.” using it added). Hence, majority seems although the (emphasis A.2d will simplify things, the decision will that its decision to believe trials lawyers judges, and more and likely in more work result Competent counsel will in most instances. fewer rather than predi the conviction in cases which permit patchwork verdicts inis doubt. Act sentence cate to Graves aside, quite on the basis conviction is sustainable As an this jury. If insists on right he his to trial waived the defendant aggravated to reinstate should be free repleading, the State really wants that. I the defendant counts. doubt assault joins opinion. in this POLLOCK Justice HANDLER, and Justices Justice PORITZ For reversal —Chief GARIBALDI, STEIN COLEMAN —5. and POLLOCK —2.
Dissenting O’HERN —Justices