*1 573 in disсiplinary Goldstein, matters. In the Matter 97 N.J. 545, (1984); 50, Infinito, (1983). In re Mitigat- N.J. ing factors are relevant. Hughes, 32, (1982). In re 90 N.J. Admission of wrongdoing a mitigating is factor. Matter of (1984); Haft, 98 Rosenthal, In re (1982). 90 N.J. In mitigation, the Board Respondent considered that has no prior disciplinary record since his admission to the Bar in 1975. candidly He admitted his expressed misconduct and remorse for his appears actions. This single to be a incident part and not pattern neglect. Respondent’s diligence, moreover, lack of caused client to injury by way sustain penalty for the late filing of the State Inheritance Tax Return. This misconduct adversely reflected integrity on the of the Respondent’s Bar. conduct, however, aggravated by his cooperate failure to with the District Ethics Committee and this Board..
Respondent’s
disregard
cavalier
of his
responsibilities
ethical
only
to his client
profession
but to his
cannot be coun-
tenanced. The Board unanimously concludes that the interest
public
legal
profession
properly
will be
served
suspending Respondent
practice
from
of law for three
Schwartz,
months. See Matter
supra,
STATE PLAINTIFF-RESPONDENT, OF NEW GANTT, OMAR, WILFORD A/K/A DEFENDANT-APPELLANT. Argued January October 1985 Decided 1986. *4 Defender, Harkov, Deputy Assistant Public Anderson D. Smith, Jr., (Thomas Acting argued appellant the cause for S. Defender, and Edward attorney; Anderson D. Harkov Public Defender, of counsel Deputy Public Hannigan, Assistant P. briefs). on the Holl, Deputy General, Attorney argued John G. the cause for (Irwin respondent Kimmelman, I. Attorney General of New Jersey, attorney). opinion Court was delivered
O’HERN, J. granted We certification in this case to determine whether prove the Stаte handgun must that a robbery used in an armed operable may impose before a court a sentence under the requires which mandatory-minimum terms of im- prisonment persons designated convicted of crimes involv- ing the use of a “firearm.” The case in the arises context of an accomplice’s unarmed liability when his armed co-felon is never apprehended and the produced. never recovered or agree We with the proof courts below that gun’s operabili- ty is “firearm,” not inherent in the definition of and therefore is not an imposition essential element in the of a Graves Act sentence. We therefore affirm imposed the sentence under the presented circumstances here.
I The facts of this case are opinion, set forth in the trial court Gantt, (Law Div.1982), repeated need length not be here. A jury conviсted Gantt of a 1981 robbery, armed in violation of In N.J.S.A. 2C:15-1. incident, Gantt and an companion unidentified a co- robbed gunpoint. worker of Although Gantt at himself Gantt unarmed, apparently complicity exposed his in the crime him to robbery conviction armed to the same extent as his armed 2C:2-6(b)(3)(accomplice co-felon. liability). See N.J.S.A. Gantt previously robbery had been convicted of armed under similar noted, circumstances 1974. As never Gantt’s co-felon was apprehended; robbery, nor was the used in the handgun, ever recovered.
578 hearings of sentencing,
At the time the trial court held to (1) mandatory-minimum- determine whether the Act’s Graves provisions applicable sentencing were to unarmed accom- so, plice (2) State, robbery; in an armed if whether the as the requires, by preponderance Graves Act had demonstrated “firearm,” that evidence the unrecovered awas subject mandatory-sen- which would to the defendant act’s tencing provisions; person whether twice convicted as accomplice eligible the unarmed in armed robberies is to be prison sentenced to additional time in under the act’s mandato- ry provisions. The extended-term trial court answered all these questions in the affirmative sentenced defendant to an years mandatory-minimum parole extended term 25 awith sentence, bar of third of that years. one 8Vs question, On the court second ruled that definition of incorporated “firearm” require the Graves Act did not showing question the weapon operable. State v. Gantt, supra, Super. 186 at 266. N.J. The court held alterna tively showing required, if a even were there than was “more sufficient in the to evidence” record invoke an rejected of operability.” “inference at 268. It Id. also defend subject ant’s accomplice contentions that an unarmed to provi neither the Graves nor id. its extended-term sions. at 280. Appellate Id. Division affirmed on all Gantt, (1984). particu issues. In * * * lar, panel appellate handgun concluded “neither a * * * * * * * * * shotgun nor a rifle nor a nor a machine operable qualify need be for that a firearm” purposes imposing a Act Id. at Graves sentence. 118-19 (citations omitted). already
Because we had determined that unarmed accom- plice subject robbery sentencing, an armed Act Graves White, (1984), grant our State v. N.J. we limited single certification issue of whether a firearm must be proven operable may imposed. before a Act sentence (1985).
II (d), 2C:43-6(c) provides generally to The Graves N.J.S.A. committing, possesses or a “firearm” while that one who uses commit, fleeing committing or certain enu- attempting after imprisonment must merated serious offenses be sentenced years parole ineligibili- least for a term includes at three 2C:43-6(c). An made in a ty. exception is the case of N.J.S.A. firearm, involving the fourth-degree crime use of a where the disqualification is parole dropped minimum term of to 18 months. mandating
In minimum terms for firearms- addition to offenses, requires related the Graves Act also extended manda tory-minimum terms for Graves Act second offenders: by person A who convicted of an enumerated this subsection has been offense commission, possessed during attempted used or firearm commis-
and who its flight previously or therefrom and who has been convicted of an offense sion 2C:44-3d., involving possession the use defined in shall be firearm as 2C:43-7c., by by the to an term as authorized sentenced court extended notwithstanding оrdinarily discretionary terms with the that extended are court. 2C:43-6(c).] [N.J.S.A. The extended-term mandated for Graves Act second sentences 2C:43-7(c), incorporates are which by offenders set N.J.S.A. mandatory-extended-parole well a bar: pursuant person term In the case of a sentenced to an extended to 2C:43-6c. 2C:44-3d., ranges by impose permitted the the a sentence within and court shall 2C:43-7a.(2),(3), (5) according degree or nature of crime for to the sentenced, being shall a mini- which the is which sentence include defendant at, mum term which be fixed or between one-third one-half shall discretionary 1 Ordinarily, imposition is an sentence extended-term matter, 2C:43-7(a), dependent request prosecution upon N.J.S.A. see presence certain criteria set forth and the or absence of sentence-enhancement criteria, however, the offender with ‘‘[s]econd 2C:44-3. of those in section One firearm," 2C:44-3(d), discretionary excepted treatment. see is from NJ.S.A. provides specified grounds d. 2C:44-3 subsection “[i]f Section found, [2C:44-3(d) being person are sentenced commission of ] and the is Act], any the court shall sentence the [the the offenses enumerated in act], application by required by [the to an extended term as defendant added). (emphasis required." prosecutor shall not be greater, during sentence court or whichever is imposed by years, which eligible the defendant shall Where the sentence parole. imposed during life the court shall a minimum imprisonment, term impose years eligible which defendant shall not be for parole. 2C:43-7(c).] [N.J.S.A. first-degree For robbery, offense of armed see N.J.S.A. 2C:15-l(b), 2C:43-7(a)(2)provides section an extended-term sen- tencing range twenty-years of between imprisonment. аnd life Hence, under the circumstances a Graves Act second offend- being er robbery, now sentenced for armed obligates the Code impose the trial court at least a twenty-year term with a minimum period parole ineligibility extended of one third of *7 years years. 20 or 6 % is not
This our first encounter with the In Graves Act. State Marets, (1983), upheld v. 92 62 against Des N.J. we the act constitutional challenge challenge as well as a to its ban on sentencing youthful offenders indeterminate terms at the Youth Correctional Complex. Institution See N.J.S.A. 2C:43-5 (diversionary offenders). young-adult treatment for We held Legislature’s that the intent behind the minimum term mandat- by ed the exceptions Graves Act left no room for for those who firearms; commit policies crimes its deterrent overrode the purposes underlying discretionary rehabilitative the sen- tencing provided for our youthful-offender statutes. Des Mаrets, Stewart, supra, 92 atN.J. 74-76. In State v. 96 N.J. (1984), 596 procedure imposing we discussed the for a Graves sentence, Act purpose clarified that the of the act contem- plated imposition possession sentences constructive weapons in weapon circumstances the was immediately where to, of, if not actually available in the hands the criminal offend- Finally, noted, White, er. supra, Id. 604. as in State v. legislative purpose N.J. at held that we the was intended to apply as accomplices guilty well unarmed found under the charge, armed evidentiary feature the when the hearing by sentencing judge conducted the disclosed that the defendant knew should have known firearms were used the commission of the crime. our familiarity We draw on with the our decision the Act to better inform policies underlying Graves in this case.2
Ill begin analysis noting question opera- that by We our the See, e.g., State Har- bility can arise in different contexts. — mon, granted, (App.Div.), certif. — (1985) (whether operability is essential element of substan- Morgan, N.J.Su- offense); firearms-possession tive Annot., (same); per. 863- (App.Div.1972) 28 A.L.R.3d (collecting question operability cases element on offense). Here, only the of substantive we relevance address sentencing. in the context of terms, grounds by requires its mandatory-minimum imposing a sentence be established at a hearing. requires act post-conviction particular, In question “fire- State to demonstrate arm”: may sentencing, prosecutor hearing, time of shall
At which occur at the possessed preponderance used or establish of the evidence making judicial any finding, its the court shall take notice of firearm. In evidence, trial, hearing, plea testimony at the or other or infоrmation adduced presentence report any proceedings other court and shall also consider *8 relevant information. 2C:43-6(d).] [N.J.S.A. agreed Supreme Court to decide two 2We note the United States has that enhancing bearing propriety for the of sentences firearms- this Term on cases — —, cert. Wright, A.2d 494 Pa.
related
In
v.
offenses.
Commonwealth
-,
Pennsylvania,
granted
v.
106 S.Ct.
sub
McMillan
U.S.
nom.
Pennsylvania’s
(1985),
constitutionality of
the Court
review the
L.Ed.2d
will
which,
act,
imposes
mandatory-minimum sentencing
a
like the Graves
possession”
prison
to
in “visible
of
found
be
minimum
term
defendants
will
during
felonies. The Court
also review
commission of certain
firearms
the
whether,
law,
pistol during a
a
who uses an unloaded
under federal
defendant
possessing “dangerous weapon"
larger penalty
robbery
bank
can receive
— U.S.-,
U.S.,
McLaughlin
during
felony.
S.Ct.
the
of a
See
course
certiorari,
unreрorted).
(granting
decision below
Initially, we note that our review of cases in this area agreement question little reveals on the whether “firearm” invariably “operable appear means firearm.” The cases ways: three inoperable weapon divide those that hold an is not firearm; inoperable weapon firearm; those hold an is a question and those where turns on the extent to which weapon may readily operable returned condition. Pelzer, 780, 781, 1261,1263 (1982) (surveying Kan. 640 P.2d cases). Most courts that have resolved the have issue particular weapon concluded that whether a falls within statutory depends definition of firearm on nature statute, purpose of the the intent the Legislature. clear,” Marets, “graphically It is State v. supra, Des guns pose at that the Graves Act is directed real physical dangers potential actual to the In victims crime. Marets, alarming growth Des we reviewed the in the criminal disturbing use firearms and concluded statistics “[t]hese confirm obvious intent of Graves Act deter the use *9 by purpose and of for the of possession firearms criminals by reducing persons injured the of killed or such number weapons.” Assembly Judiciary at 72. As Commit- the legislative discussing goal tee in the of the forerunner to noted the Act: Graves guns the crimes committed with are on rise and deaths from these are Crimes increasing. weapons, easy particularly dangerous also Guns all too to arе use purpose and kill with if used. The this bill is to make criminals think to of guns. going forth to commit crimes armed with
twice before Judiciary, Law, Comm., [Assembly Safety Defense Public and Statement S. 24, (July 1980).] reducing injury The on demon- emphasis death and serious objective prospect the concerned the of strates act is with guns killing.4 capable harm with real of associated however, follow, necessarily It not that because the does guns, only real the Act is concerned statute Graves requires weapon’s operability. Nothing of a we have said proof in terms suggests thus the statute defines a firearm of far Quite contrary appears the operability. true. device’s incorporates Act of “firearm” in definition Graves operability, terms of what the terms of but designed It of firearm contained in adopts to do. the definition 1(f) quoted above. N.J.S.A. 2C:39— Byrne part thought becаuse he 3S. was vetoed Governor in 1980 expansive, part of too and in because the of offenses covered was number judicial Message upon principles See Veto discretion. intrusion traditional Governor, 1071, (1980). Legislature place, the enacted S. its S. at 1-2 In sentencing. subject to Graves Act reduced the number offenses which (d). 2C:43-6(c) ultimately But as we stated became N.J.S.A. S. 3057 Marets, “[although provisions specific supra, Des N.J. at 72 n. * * * disputes fact that the no one Act differ from S. Graves legislation underlying purpose has remained same." analogue persuasive pre-Code 4We it that the closest also find 95, 2C:98-2, 2A:151-5, imposed repealed by c. § L. former N.J.S.A. possession prison was in committed while actor time for crimes additional discharged,” regardless firearm, capable being "whether or not "toy The Graves Act contains no or imitation.” whethеr the language. similar *10 begins by listing types weapons That definition three rifles, readily recognizable handguns, are as firearms: and shotguns. weapons Each of those in separately is defined capability Code not in terms of its discharging projectile, a in design. 2C:39-l(k), (m), (n). but terms of its See N.J.S.A. and “Handgun,” example, “any pistol, is defined as revolver or originally designed other firearm or manufactured to be fired by single 2C:39-l(k). the use of a hand.” obviously N.J.S.A. It is, by design, handgun, follows that if a virtue of its it meaning is also firearm within the of the Graves Act. suggests, however, The “handgun, defendant that the list of rifle, shotgun” is language any modified the later “or [and] * * * gun in the nature of a which may from fired * * * * * ejected any or or missile bullet See N.J.S.A. 2C:39-l(f). imposes require- The contention that this clause unpersuasive. opera- ment demonstrable is “or,” such, word in disjunctive tive the clause is the and as it modify weapons does not the list of defined in their terms of design. clause, original below, We view this as did the courts essentially descriptive and non-restrictive: it with- subsumes in the weapons readily definition firearm those that are not recognizable rifles, handguns, shotguns, as either but that designed produce are nonetheless deadly the same results. stated, Appellate As the Division this class latter of less-famil- best, perhaps only, iar firearms “can be described in terms operation.” N.J.Super. of their at 117. See also State Mieles, (App.Div.1985)(holding that Code’s enough gun firearm). definition is broad to include a BB as a We sentencing are satisfied that Graves Act contem plates present a “firearm” not in operability, terms a device’s in original design. but terms of its agree We therefore Ortiz, the conclusion the court 187 N.J.Super. (App.Div.1982), toy gun 49-50 that a fake or is not a firearm meaning 2C:39-l(f) within of section Graves Act— provеn presently not because the device is inoperable, but designed potentially- fire because the instrument never danger with simple is that the actual deadly missile. The fact present is Act is concerned nowhere when which the Graves toy gun.5 It as well that the fact actor uses a or fake follows unloaded, disrepair, temporarily non- that a real proceedings because is irrelevant Graves Act functional weapon’s original do reflect on the those characteristics *11 Harmon, design. supra, at lethal See State (firearm design in terms of is defined statute proof present require operability). of intended use and does Further, Legislature the we it was reasonable for believe post-conviction design requiring than line rather draw the at find inquiries weapon’s operability. into a We no evidence suggest Act to that its language purpose the of the Graves sentencing of contemplated part a ballistics test as framers effectively application eliminate the process. Such a rule would the defendant has Act in all cases which of the Graves that the weapon. We do not think or secreted discarded requiring Legislature consequence. although For intended that fully the time of the crime proof gun operational that danger, of determin- gauge accurate actual would be most designed force to deliver lethal ing the instrument was whether potential danger. extremely gauge of accurate is an nonetheless conclude Legislature could well that the We therefore believe designed by the use devices, pistols, to be fired particularly safety extraordinary of threat single pose of a hand an "deadly weapon” in N.J.S.A. contained definition of 5We note injury 2C:ll-l(c), weapons capable where and those both actual subsumes capable "reasonably device] to be [the to believe would be led victim bodily injury." The between the defini- producing distinction death or serious producing "deadly weapon” potential for some- has the tions of "firearm" and committing robbery person example, with a For anomalous results. what second-degree first-degree toy subject than for rather is to conviction 2C:15-l(b). "deadly weapon." See robbery N.J.S.A. he is armed with a because not, however, subject Graves Act the defendant to a The conviction would "deadly" weapon not be a involved would sentence because minimum 1(f). under N.J.S.A. firearm 2C:39— citizens, nothing our and that more need be shown than such design in order to invoke sentencing. Graves Act member, concurring Hаndler,
Our Justice questions whether masking we are what he recognition views is our of “the * * * essentiality operability” sheep’s clothing in “the design,” post at suggests that there is no difference design between our focus on preference and his employing presumption “a rebuttable purposes of deter * * * * * mining whether was a ‘firearm’ Post [a] at 596. We think not. Invocation of the fiction legal presumption precisely what the statute seeks to avoid: it invariably would invite assertions of inoperability by defend hopeful gaining ants advantage some in murky waters of law presumptions characteristic of rebuttable and shifting bur proof. dens of Montana, See Sandstrom v. 442 U.S. 516-18, 2450, 2455-56, S.Ct. 61 L.Ed.2d 46-47 (discussing ways the various in which a may factfinder inter pret legal “presumption,” differing and the consequences on production persuasion burden of may result). By its *12 implication converse operаbility is an essential element to —that proven approach concurrence’s would invite as well —the protracted inquiry into Legislature issues that we are sure the , intended, example, never for whether trigger or not a jammed, broken, firing pin barrel or a missing at the time of Hence, the crime. we believe that the use of the device of inferring operability is an artificial and unnecessary step in determining what is a purposes “firearm” for of Graves Act sentencing.
IV Viewing operability as not an essential element of the State’s weapons-related burden the context of offenses is consistent prior with our approach decisional law and with the of other jurisdictions.
587 ques * * * jurisdiction, although phrasing in this Prior cases the creation of “a rational inference tion terms of * * * of proof gun capable is legal tantamount to Hаrmon, N.J.Super. fired,” n. supra, v. 203 at 227 State being Schultheis, N.J.Super. 11, 16 (App.Div.), State v. 113 (quoting 6 denied, (1971)), upon 58 N.J. 390 not insist a demon did certif. weapons-related predicate to operability as a certain stration evi was not recovered where offenses where See, e.g., v. lacking. State operability dence of was otherwise denied, Cole, 138, N.J.Super. (App.Div.1977), 146-47 154 certif. assault, robbery, and 78 (prosecution 415 armed Schultheis, supra, v. offenses); 113 State weapons-possession possession, N.J.Super. weapons (prosecution for unlawful at 16 another, breaking and threatening bookmaking, and the life assault).6 entering with intent to felony-fire- jurisdictions facing questions under similar Other adopted sentencing similar arm statutes and schemes have reasoning.7 law, Jersey’s gun-control deadly-weapons analysis fuller 6For a New Mieles, N.J.Super. generally pre-Code post-Code, v. 199 29 see
both
18,
1976),
Middleton,
(App.Div.
(App.Div.1985),
24
143
and State v.
J.A.D.,
(1977) (Seidman,
dissenting).
aff'd, N.J.
75
47
7See,
Millett,
521,
(Me.1978)
e.g.,
(jury
State v.
A.2d
warranted
527-28
find,
lay testimony describing
projecting
defen
on
basis of
instrument
from
belt,
necessary
state to
was a real
and it
not
dant's
State,
83,
denied,
prove
(Wyo.),
operability);
cert.
U.S.
Benson v.
640 P.2d
2297,
(1982) (absent appellant’s
102 S.Ct.
We find
the realism embraced in the
Supreme
decision of Maine
Judicial Court in State v. Mil
lett,
(Me.1978),
In real judge jury know gun find out if Millett, how to an authentic is involved. In explained jury: trial court to the again, talking gun capable discharging projectile Once we are about a real sort, talking gun, toy talking gun, of some not about a not a water аbout talking plastic gun projectile. talking about a fire a that can’t We are about a real here. at 527.] [Id. jury find,
The Maine Court concluded that so could instructed on the basis of witnesses’ observations that saw “at one belt level handgun sticking the brown handle and hammer of a out clothing,” thought his and another he what “could have been belt, magnum pistol” a 357 projecting from defendant’s that the instrument was authentic gun. and therefore a real “It is not validity essential a finding of such firearm itself in be admitted evidence an as exhibit.” at 527. The Id. * * * 921(a)(3), operational § U.S.C. but need not be as commerce, foreign transported long 'may readily as it so converted' to 863, status."); 865, 364, People Shaffer, A.D.2d 482 N.Y.S.2d 965, (App.Div.1984), modified, 66 N.Y.2d 495 N.Y.S.2d 486 N.E.2d aff'd J., (1985) (Levine, part (New concurring dissenting part) York requires proof Penal Code in order to sustain convictions); State, 227-29, deadly-weapons Md.App. York v. 467 A.2d deniеd, (Ct.Spec.App.1983), 555-56 cert. 299 Md. 472 A.2d (Maryland operability, inoperable defines statute firearm in terms of an but handgun, readily capable being operable, support rendered will conviction firearms). unlawful use *14 dependent upon inference production is not of the * * * may presented continue “until some tending evidence is inoperability to establish the of the involved.” Id. result, prefer While we achieve similar we to state the issue inferring “operability” design, not in terms of from in but straightforward merely inquiring more terms of whether an object designed deadly to deliver force has substantially been so longer qualify altered emphasize as no as such. We that the danger public to the which with the Graves Act is concerned is only absent when there has been a total alteration of the weapon’s design. Compare Morgan, N.J.Super. (“a (App.Div.1972) firearm is no lеss a firearm if it is * * * rendered temporarily inoperable by need of some minor re pair adjustment”) Stevens, People 409 Mich. (1980)(starter N. 2d 120 pistol by design W. incapable of fir ing gun, revolver, and thus pistol). was not a As was stated Morgan, supra: State v. It become a of fact as to whether a device may question particular possesses or retains the characteristics of a firearm as thus defined. Conceivably, although having such it them characteristics, have lost initially possessed may
through destruction or Where there to be a mutilation, disassembly. appears legitimate as to whether such device or retains dispute any possesses * * * essential characteristics be other should resolved as [t]hat question of fact. questions
[121 219.] require Act that the Graves recapitulate, we hold To was a weapon involved prove that the the Stаte ment finding that the a court proof neither nor requires “firearm” only that the satisfied The court need be operable. potentially-lethal designed to deliver originally device was regarding The conclusion hence “real.” projectile and variety of forms on the may based design instrument 2C:43-6(d). In in the Graves N.J.S.A. proof listed design object’s authentic that an addition, particular we note testimony, lay on appearance or based inferred from may be dependent upon empirical it but no case is examination of the weapon.8 “inoperability”
The issue
so-called
should enter the
*15
only
question
if
if
design only
case
it bears on the
and
—
introduced,
when substantial evidence is
from whatever source
come,
may
tending
object
it
to show either that
is of
design,
undergone
innocuous
or that
it has
such substantial
completely
alteration or mutilation that the
has
instrument
permаnently
gun. Only
lost
characteristics of a real
then
must the factfinder determine whether the State has sustained
establishing, by
its
preponderance
overall burden of
a
evidence,
possessed
that
used
the instrument
was a “fire
arm” as defined. That determination
should
resolved
are
questions
other
fact.
8Inferring
authenticity
weapon
appearance
of a
from its
or from the
testimony
lay
entirely
Jersey
prior
witnesses is
consistent
law in
New
holdings
jurisdictions.
Mag
and with a number of
other
v.
from
See State
wood,
105,
denied,
(1981)
N.J.Super.
(App.Div.),
177
107
87
327
certif.
(defendant's prior-inconsistent
weapon
to
was
statement
authorities
real
support armed-robbery
though
was
to
sufficient evidence
conviction even
138,
weapon
Cole,
toy);
N.J.Super.
trial he claimed
was a
State v.
154
146
denied,
(1978)
(App.Div.1977),
(testimony
jury expert testimony weapon could infer aid of without the "firearm”). had tested and to been found be a real
Y to Applying principles to this case leads us affirm the these imposition mandatory-minimum of the extended term. case, scant, although
The in this evidence credible justify an the factfinder that the sufficient inference weapon a “firearm” of an involved was in the sense instrument projectile. weapon designed fire a While the used this recovered, robbery was never the victim testified that armed handgun had “a small accomplice the defendant’s unidentified in his hand.” He said he saw and handle of the the barrel testimony found pistol. trial court “no contradict Gantt, supra, conclusion that the was real.” dispute at 267. The defendant himself did this finding. He offered no that the was either evidence permanently He rested on fake rendered harmless. instead premise prove the mere the State had to *16 operable the court it was real. We before could conclude con disagree. In the absence of evidence to the substantial justified concluding the hand trary, trial court was in that the meaning gun here and therefore firearm within the was real 2C:39-l(f) and the Act. of N.J.S.A. Graves necessary closing may permit in to We note it inauthenticity design to come in out evidence of alteration trial, com guilt phase the of the lest a defendant be side of give incriminating presence at the scene of to evidence of pelled mandatory sentence. to avoid the an offense order Cf. gun permit (possession Ingram, 98 presence jury order to avoid out of may be demonstrated undercutting possession). of no defense
Here, not an essential of the since prove, there was no other and because element the State gun, disprove authenticity of the we tending the evidence sufficient evidence courts that there was agree with the lower minimum this instru- the to determine that at a court before fire designed to object handgun ment met of a the definition —an deadly projectile from the hand—and was a firearm therefore purposes. Act for Graves judgment Appellate of the Division is affirmed.
HANDLER, J., concurring. During course of the our decisional treatment of the issues scope the relating to and content the Graves N.J.S.A. 2C:43-6c, expressed strong I have the differences from views by majority Marets, endorsed the Court. In of the State Des (1983), gave singular this overwhelming N.J. 62 Court emphasis purpose to the deterrent of the Act to Graves launch the coverage” its thesis that Act dictated “broad rather than application. In perception narrow accordance with its of deter- rence, “possession it that the ruled Act included defendants in firearm, of a any without need to demonstrate intent use____” I Although agreed majority Id. at 68. with the “that deterrence,” overriding id. at purpose Graves Act is of the (dissenting opinion), concurring I felt Court that the had gone beyond Legislature by well envisioned bounds accomplish itself under Act in order to needs of penal In my opinion, majority’s reading deterrence. “[t]he simple possession the statute to cover any without intent to use weapon criminally language ... of the statute strain[ed] * * import statutory language Id. at 162. The employed Legislature, conjunction imperative with the ambiguity penal strict construction that arises from the statute, necessary demanded that “intent to use” be deemed component statutory phenomenon “posses- of the critical Accordingly, expressed sion.” I simple view that bare *17 possession in the absence of a demonstrable or intent to inferable use it in the commission of a crime was penal mandatory insufficient invoke the automatic and sanc- tions of Graves 106. the Act. Id. at Stewart, (1984),
In rapprochement N.J. majority possible. acknowledged precedential seemed I authority holding, although I of the Court’s Des Marets re- unpersuaded Accordingly, joined mained as to its soundness. I ruling “possession the Court’s firearm purposes only possession of the Act actual Graves includes possession but constructive that the defendant is able to con- practically immediately possession.” vert to actual State v. Stewart, supra, 96 at 604. I took comfоrt in some strict, interpretation concept Court’s realistic and fair of the “possession” purposes. Act jilted by
I White, was the Court’s decision in State v. 98 N.J. (1984). White, In majority, again marching to its own drummer, deterrence accomplice ruled that if the or “knew had reason to know before the crime part- was committed that his possess ner would or use a firearm while the crime being committed, during flight ...,” the immediate thereafter then, though accomplice unarmed, even was not in actual or possession gun and, indeed, constructive no- gun, where near the the accomplice-defendant could still be guilty of “the same crime as the possessed individual who gun,” and, used by quantum leap, subject would be to the mandatory sentencing provisions of the Graves Act. Id. at White, estimation, 130-31. in my was inconsistent both with requirement the Stewart “ability there must be (96 604), exercise imminent сontrol over the firearm” N.J. at and with the core rule of Des Marets that “intent to use” is not a constituent possession element of Graves Act as defined (Id. Stewart at 609 (concurring opinion)). dissented, I again complaining that the Court’s failure to adhere to the commands statutory strict interpretation penal statutes was at the root of dogmatic its dire and interpretation of the Graves Act. case, in somewhat of a myself
In this I find once more The issue mésalliance with the Court a Graves Act matter. proven to is whether a firearm must be before this Court Act sentence. operable prerequisite imposing a Graves as a isAct the Graves “that Ante, majority concludes 577. *18 594 guns physical dangers real pose
directed at which actual to the potential agree victims of the crime.” Ante at 582. I Graves this. The Act is concerned with those criminal possession guns.” of “real theory This view of the deterrent of Act, encourages the which prior Graves criminals to think twice going guns, forth to commit while crimes armed with serves majority’s holding. as the foundation for the in determining gun” The Court what is a “real states the inquiry present is operability, relevant not “a device’s but ... design.” original According its Ante at 584. to the Court’s “firearm,” meaning definitional formula as to if the the bespeaks design objective capacity firearm itself the potential by firing the weapon projectile, posses- to kill its automatically implicate sion will is Graves Act. This so—at any indicating original least in the absence of evidence design qua permanently has lethal been changed weapon having a result permanently of the become inoperable. If the weapon permanently has been rendered inoperable, it can longer gun.” no considerеd a “real
Curiously the Court a statement operability eschews is in actuality an essential element Graves of a Act approach understanding offense. Hence its a sensible of the term “firearm” I elliptical. fully seems somewhat obscure and recognize that extending rules of strict construction statutes, penal Giroux, such as the 24 Neeld v. (1957); Brenner, 607, (E. 229 132 611 State v. N.J.L. 1944), imputation prohibit meanings & A. do not of distinct to the definition the term “firearm” when used in variant sentencing provision. contexts of substantive offense and a Ponds, Pa.Super. 345 See Commonwealth v. A.2d (“The use of different standards of legislation light for different is not unreasonable in legislation”); People DeWitt, purposes behind different (1955); Taylor 285 A.D. see also N.Y.S.2d State, Dist.1985) (vicarious (Fla.App. posses So. 2d 367 sion, possession while sufficient to sustain conviction for firearm, justify imposition sufficient to of a minimum *19 statute). year period imprisonment three of under the How- ever, principles applied of strict construction should be so margin that in “a of cases where there exists error ... affect- ing penal coverage, margin the breadth of that [a statute’s] language reasonably permits should much be narrowed as as justice applications.” assure fairness and in the law’s individual Marets, supra, at (dissenting Des 92 N.J. concurring opinion). defining justice meaning
Fairness and
in
of a “firearm” in
sentencing provision
the context of an enhanced
demand that
operability
sentencing
be established as an essential element to
under the Graves Act.
Terry,
United States v.
The Court that a reason for a definition “design” proof of firearm of operability based on is that “would effectively application eliminate of the Graves Act in all cases in defendant which the has discarded or secreted weapon.” However, Ante at 585. the burden proving compromises way application in no of the Graves consistently Act. recognized We have various forms evidence may establish whether a has retained the qualities operability. Cole, See State v. (“the
146 (App.Div.1977)
application
opera-
of the inference of
bility
depend
recovery
cannot be
made
on the
court.”);
Schulthesis,
production
its
State v.
113 N.J.Su-
per.
denied,
(App.Div.),
(testi-
58 N.J.
certif.
*20
mony by
eyewitness
gun
gun”
an
that a
awas
“real
legal proof
сapable
being
tantamount to
gun
“that the
fired.”).
Millett,
(Me.1978)
See also State v.
I with this I can to rest differences with the Court on these matters. As Justice Clifford observed respect quandry posed by another case with to the his continu- ing majority colleagues: differences with a of his
The Talmud when are stone a man if, sober, tells are says you you you laugh knock teeth if men drunk, out; his two tell if three you that, them; but go men tell to bed. that, you dissenting.] [Lynch Rubacky, Clifford, J., I sanguine my sodality shall be about the state of current area, with the Court in this trepidation but confess to some as I gathering portentous see may yet on the horizon issues that — upon —, E.g. break us. Wright, Commonwealth v. Pa. 494 A.2d granted Pennsylva cert. sub nom. McMillan v. nia, U.S.-, (1985). 2d S.Ct. L.Ed. 47 Accord ingly, judgment I concur in the of the Court.
HANDLER, J., concurring in the result. WILENTZ, CLIFFORD, For —Chief Justice affirmance HANDLER, POLLOCK, O’HERN, GARIBALDI and STEIN— 7.
For reversal —None. *21 MEIER, TRUSTEE, JUNE H. UNDER TRUST DATED NOVEMBER 25, 1978, COMPANY, INC., AND NORDLING DEAN ELECTRIC PLAINTIFFS-RESPONDENTS, v. NEW JERSEY LIFE INSUR- COMPANY, ANCE DEFENDANT-APPELLANT. Argued September February 1986. 1985 Decided