State v. Parolin

opinion is to inadvertency reserve the issue for resolution under ¶ Jersey I, the New Constitution. N.J. Const. art. 7. reasons,

For those I dissent. For PORITZ, reversal and remandment —Chief Justice COLEMAN, Justices LaVECCHIA and ZAZZALI —4. STEIN,

For LONG and VERNIERO —3. affirmance —Justices Opposed—None. JERSEY, PLAINTIFF-APPELLANT,

STATE OF NEW PAROLIN, BRIAN DEFENDANT-RESPONDENT. Argued January 200 2Decided March 2002. Incremona, Prosecutor, argued cause E. Richard Assistant (John Prosecutor, Kaye, County attor A. Monmouth appellant for Juliano, Prosecutor, and on ney; Mary R. of counsel Assistant brief). (Waldman respondent & argued T. the cause Andrew Walsh Moriarty, on letter in lieu of attorneys; M. Moriarty, Charles brief). General, Henderson, argued Attorney Assistant

Carol M. (David curiae, Attorney Jersey of New for amicus General cause General, Samson, attorney; Melaney Payne, Attorney S. N. brief). General, Attorney of counsel and on the Deputy opinion of the Court was delivered COLEMAN, J. ineligibil parole requires us to determine whether the

This case (NERA), Early N.J.S.A. ity the No Release Act requirement of 2C:43-7.2, possession of a second-degree conviction for applies to a unlawfully against another with the to use firearm Thomas, 166 In State v. person, a violation of N.J.S.A. 2C:39-4a. (2001), 560, 573, “the we held that when 767 A.2d 459 do not charged against a defendant offense [an] elements NERA any or more of the proof an element one contain as factors, independent act of force or proof be of an there must satisfy physical force to separate threat of immediate violence or a although elements of some hold that the NERA factor.” We firearms, explosive possession sub second-degree unlawful under N.J.S.A. 2C:39-4 do destructive devices offenses stances or factor, acknowledg NERA this case defendant’s not contain a that, unlaw contemporaneously with the plea hearing his ment at rifle, unlawfully he used that rifle ful of a loaded “right ... to girlfriend by pointing it at her against his former his get her to leave to shoot her” to her ... and threatened scare house, a NERA factor. satisfied

I. (1) firearm at his pointing for: a loaded was indicted Defendant fourth-degree under N.J.S.A. 2C:12- girlfriend, a offense former (2) 1b(4); girlfriend, making against his former terroristic threats 2C:12-3b; possession of third-degree under N.J.S.A. a offense a .22 purpose unlawfully caliber rifle with against use it his girlfriend, second-degree former a offense under N.J.S.A. 2C:39- 4a; aggravated and girlfriend by assault on his causing former her, attempting bodily injury to cause serious a second- 2C:12-1b(1). degree offense under N.J.S.A. All of the offenses alleged 23, were to have occurred on October the same place. time and 13, pled guilty

Defendant on March fourth-degree 2000 to pointing assault for girlfriend rifle at his former second-degree possession of a unlawfully against rifle to use girlfriend. his former He during plea was informed hearing “subject that he was to the Graves Act and the State will be also requesting” parole a NERA ineligibility. term of sentencing At a hearing 20, 2000, April conducted on the trial court declined to term, impose a NERA reasoning although required that the facts sentence, Johnson, NERA it was disregard not free to State v. 78, 89, 737 A (App.Div.1999), .2d 1140 holding that possession of a firearm for an qualify unlawful does not for a NERA sentence. initially This Court denied Johnson’s petition 20, January 12, certification on 2000. 163 N.J. (2000). However, 8, A.2d 458 the Court on March 2000 vacated granted petition order and Johnson’s for certification limited to his claim that NERA is unconstitutional. 163 N.J. (2000). The Court modified and affirmed Appellate disposition Division’s February constitutional claim on deciding 2001 without whether second-degree NERA covers pos sessory offenses. 166 N.J. Because the trial court was bound to Appellate follow the Division’s deci Johnson, defendant, sion pursuant sentenced to the Graves Act, 2C:43-6c, possessory N.J.S.A. on the offense to a custodial years term of years five with parole ineligibility, three and a eighteen concurrent term on months the assault. The issue before us concerns the thirty-six difference between the parole ineligibility months of imposed fifty-one and the months required by NERA, if applicable. appeal, On the State’s the Appellate Parolin, Division affirmed. State v. (2001). granted petition the for certifi We State’s (2001),

cation, 169 N.J. and now reverse.

II. Prosecutor, State, County argues through the Monmouth The plea provided guilty the factual basis for his that when defendant possessed he that he and used the loaded rifle to admitted triggered girlfriend, and that that admission threaten his former argues Appellate misap the Division ÑERA. The State also State v. Thomas. Attorney plied this Court’s decision curiae, General, as amicus also contends that because defendant support guilty pleas that admitted in his factual statement in of his by deadly weapon “he used or threatened the immediate use of a her, victim, threatening pointing a loaded firearm at the victim,” causing injury eventually firing weapon, the to the the argues Appellate applying Division erred in not NERA. Defendant and, therefore, illegal the that his non-NERA is not sentence reject authority appeal. defendant’s prosecute lacks this We substantially Appellate for the reasons stated the contention Parolin, 13-14, N.J.Super, supra, Division. State v. A .2d1204.

A. First, second-degree possession we address the elements of purpose unlawfully against another of a firearm with to use it elements. person proofs presented and the to establish those Although second-degree possessory charge is an inchoate the of other offense in the sense that it seeks to deter the commission crimes, legislative is to focus on the intent more serious the intent possession itself. purpose or for the rather than the Brims, 297, 303-04, 774 A.2d 441 State v. Posses a firearm for an unlawful has four elements: sion of 2C:39-1(f); (1) object meaning within was a “firearm” N.J.S.A. possessed 2C:2-1c; was as defined in N.J.S.A. the firearm defendant possessed by against possessing the firearm was to use person defendant’s purpose 228 of the another; defendant intended to use the firearm in a

property manner that was unlawful. (1996).] [State v. Diaz, N.J. 628, 635, 677 A.2d 1120 Proof of the “requires fourth element ‘an identification of the ” purpose purposes suggested by unlawful the evidence.’ State Brims, v. supra, N.J. at State v. (quoting Villar, (1997)). 503, 511, 150 696A.2d 674 purpose

Possession of a firearm for an generally unlawful falls categories into one of two main or a combination thereof. State v. Diaz, supra, 144 N.J. at majority 677 A.2d 1120. In the “ possession cases the charge coupled unlawful charge ‘is awith an accomplished gun.’” act Ibid. State v. with the (quoting Jenkins, 311, 315, 560 A.2d (App.Div.1989)). Under that scenario the criminal act effected with the firearm provides the underpinning factual that demonstrates that the Diaz, possessed firearm was purpose. for an unlawful supra, N.J. 677 A .2d 1120. Under those circum stances, the substantive offense merg committed with the firearm possessory es with the Ibid. The second offense. category into possessory which the offense falls is the one in which the unlawful purpose possessing for the firearm is independently established the commission of a substantive offense. Ibid. The record before us fits within those cases which use of the firearm to commit (here, assault) another offense is used to establish possession unlawfulness of the charge. pleading guilty When possession of the rifle for an unlawful purpose, defendant used underpinning the factual guilty for his plea fourth-degree aggravated assault to required establish the identifiable weapon. accomplish To purpose, following: defendant stated the just just gun A. Your I girl, Well, Honor, took the out to scare the was she driving get gun me I couldn’t her out of crazy. house. I took my out to scare her. That is Iall did. Judge? [DEFENSE ATTORNEY]: I ask some May questions, THE COURT: You Yes. better. [DEFENSE

BY ATTORNEY] gun at her? house, in the did you While were point Q. you just to scare her. Yeah, A. her? to scare But did with the purpose

Q. you trying to scare her. A. I was gun The was loaded?

Q.

A. Yeah. right it at her? You Q. pointed

n A. Yeah. “get out”? And said

Q.

A. Yeah. target getting gun not for practice? was And the

Q. purpose A. No. leaving gun into it to scare her was to at her point Q. right? is that

house, right. That is A. exactly satisfied with the unlawful purpose?

THE COURT: Are you Judge. PROSECUTOR]: [ASSISTANT No, PROSECUTOR]: [ASSISTANT BY gun? with that to shoot her At some threatened

Q. point, you A. Yes. with the barrel of the rifle? hit with the rifle, At some her you

Q. point A. I did not. No, gun? shot that At some

Q. point, you

A. Yes. standing time? house was outside your She

Q.

A. sir. Yes, gun hit off the the bullet ricocheted pavement when shot the And Q. you leg? in the her Judge. That did that, ATTORNEY]: happen. We don’t [DEFENSE dispute no? he answer yes THE COURT: Did I mean— me, it looked to no. No. I mean the way THE DEFENDANT: Judge, disputing it. He he is not ATTORNEY]: clear, so it is Just [DEFENSE didn’t physically— disputing is it. THE COURT: He ATTORNEY]: have seen the Brian, reports? [DEFENSE you leg guess mean, I her in the then. I I hit Well, DEFENDANT: Yeah. THE yes.

yeah, talking Judge, can’t ATTORNEY]: about, they pull what he is [DEFENSE ground. hit the out. the bullet Clearly, in her. But it is a of lead THE COURT: piece ATTORNEY]: not. Maybe, maybe DEFENSE THE COURT: What is it. ATTORNEY]: It could be the cement. We don’t what hit DEFENSE dispute something go

caused into her. injury. we caused Clearly, There is no about but question that, have they never been able to it out. have never pull been able to see it. is They There no about it. question THE COURT: It shows on an up x-ray? ATTORNEY]: Yes.

DEFENSE THE It COURT: sounds like metal. Judge. ATTORNEY]: I don’t really that, DEFENSE dispute

THE COURT: Are satisfied now? you Judge. [ASSISTANT PROSECUTOR]: Now, am, I testimony, view, That clearly our establishes that defendant committed violent crime meaning within the of NERA.

B. Next, we consider whether applicable NERA is to this case. The version of 23, 1998 NERA that inwas effect on October when defendant question committed the offenses in became effec 9, tive June 1997. It mandated that those who commit first- or second-degree “violent crimes” must serve at least 85% of the base term imposed upon provided, conviction. The statute then in pertinent part: imposing

a. A court a sentence of incarceration for a crime of the first or second degree shall fix a during minimum term of 85% of the sentence which the eligible defendant shall not be if the is a parole crime violent as crime defined in subsection d. of this section. d. For the of this “violent purposes section, crime” means in crime which any injury actor causes death, causes serious as in bodily defined subsection b. of N.J.S. or or 2C:11-1, uses threatens the immediate use of a “Violent deadly weapon. crime” also includes sexual any assault or sexual assault in which the actor or threatens uses, the immediate of, use force. physical e. A court shall not ground sentence to this impose pursuant section unless the hearing therefor has been established at a after the convictionof the defendant and ground on written notice to him of the The defendant shall proposed. have the right against to hear and controvert the evidence him and to offer evidence upon the issue.

[N.J.S.A. e. 2C:43-7.2a, d, ] light statutory language, this has concluded In of that Court types covers three of first- and prior that the version of NERA (1) second-degree those in which the actor causes violent crimes: injury; uses bodily those which the actor death or serious deadly weapon; a and those threatens the immediate use of physical actor uses or threatens the immediate use which the categories factors.” State v. force. “Those three are NERA Thomas, 571, Although the supra, 166 N.J. at 767 A.2d 459. second-degree possession of a elements of defendant’s offense — unlawfully against girlfriend not rifle his former to use —did factor, and defendant require proof of a NERA both scare, frighten and threaten the relied on his use of the rifle to of the prove unlawful element victim to the identifiable testimony, possessory Based on defendant’s own sworn offense. and, arguably, NERA factors the third he established the second threatening to shoot her by rifle at the victim and pointing the Indeed, immediately. he fired the she left his house unless injured only frightened, but was as weapon the victim not and was correct when it observed Consequently, the trial court was well. pleas NERA’s violent crime the factual basis for the satisfied requirement. Williams, distinguished present is to be from State case rev’d, (App.Div.2000), 168 N.J. 755 A.2d (2001). There, defendant was convicted a purpose and

jury possession handgun for an unlawful permit. Id. at 755 A.2d 1168. gun without a court, jury, hearing found post-trial the trial not the In a NERA gun public and on a street that defendant had “brandished contemporaneous a verbal others with fired it in the direction of child, bystanders, including a small threat to kill. Pedestrians Id. at danger by of the firearm.” placed in defendant’s use were imposition 361, upheld the Appellate The Division 755 A.2d 1168. decision in After rendered our of a NERA sentence. Ibid. we 543, (2001), Johnson, 523, holding 1126 v. 166 N.J. 766 A.2d State verdicts, jury jury must are based on that when convictions 232 factor, sentencing we

determine the NERA vacated the NERA jury, not Williams judge, sentence in because the made the Williams, 287, N.J. finding. NERA 168 773 A.2d 1152 Williams, Unlike is his defendant’s conviction based on guilty pleas and at least one NERA factor was admitted plea hearing. in defendant his factual statements at the There fore, Williams is distinguishable. foregoing For all of the rea sons, we in hold that the version of NERA that was effect when defendant his applies committed offenses here. To the that extent Johnson, supra, Appellate N.J.Super. holding Division’s 325 78, 1140, opinion, at 737 is A.2d inconsistent with this is overruled.

C. Subsequent entry judgment to the of conviction and appellate case, in this Legislature review amended NERA to specifically second-degree enumerate the first- and offenses to (effective 2001). L. 2001, 29, c. 129 applies. which NERA June changed The response Appellate law was Division Manzie, 267, 276, N.J.Super. State v. decisions in 335 762A.2d 276 (2000) (holding NERA apply does not to murder because separate murder), there aff’d, sentencing is a 168 N.J. scheme for 113, (2001), State v. Mosley, N.J.Super. 144, 149, 335 (2000) (holding 761 A.2d apply that NERA not does to tender denied, years force), physical sexual without assaults certif. Thomas, 633, (2001), N.J. and State v. 772A.2d 934 322 512, (1999) 515-16, (same), aff’d, A.2d 532 (2001). Assembly Committee, Appropriations Statement (June 2001). Assembly Bill No. Legislature repealed d, crime,” both former subsection that defined “violent e, and subsection requirements that outlined the for a NERA amended, sentencing hearing. specifically As now applies NERA following to the and second-degree first- offenses: murder; N.J.S. 2C:11-3, aggravated manslaughter manslaughter; N.J.S. 2C:11-4,

233 N.J.S. homicide; vehicular 2C:11-5, N.J.S. assault; of 2C:12-1, b. aggravated

subsection N.J.S. officer; of a law 2C:12-11, b. enforcement disarming subsection kidnapping; N.J.S. 2C:13 1, — N.J.S. of sexual 2C:14-2, assault;

subsection a. aggravated 2C:14-2 of N.J.S. paragraph c. b. of N.J.S. of subsection subsection assault; sexual 2C:14-2, robbery; N.J.S. 2C:15-1,

section P.L. of 1993, c. 221 (C.2C:15-2), carjacking; of subsection a. N.J.S. paragraph 20.17-1, arson; aggravated burglary; N.J.S. 2C:18-2, a. of N.J.S. 2C:20-5, extortion;

subsection manufacturing subsection b. or distribution section facilities; 1 of P.L. 1997, c. ^[185] (C.2C:35-4.1), booby traps in liability for N.J.S. induced deaths. 2C:35-9, strict drug 2C:43-7.2d (2001).]

[N.J.S.A. applies now catalog to which NERA Because the of offenses second-degree possession of a firearm unlaw does not include the person, question is whether against ful another the use It retroactively to this case. should applied should be amendment clarify applica legislative designed NERA’s intent is not. The and to overturn the tion to murder and certain sexual offenses decisions, interpretation reported NERA Appellate Division’s with the any legislative drafting error. Consistent not correct effect, legislation prospective is to have presumption that criminal Morena, 392, 395, 151, 152, v. 245 S.Ct. U.S. 38 see United States Curiale, (1918); Phillips v. 62 L.Ed. 359 (1992); Gibbons, 515, 522, 432 86 N.J. A.2d 80 A .2d895 Gibbons 578, 580, Maritime, (1981); v. Universal Street Legislature the (App.Div.1997), the stated that amend Moreover, immediately. L. 129. take c. ments would effect apply the NERA modification already has declined to this Court retroactively when Court denied State’s amendments light of those amendments. motion to reconsider Mamie

III. judgment of Appellate Division is reversed. The merge matter is remanded to the Law Division to assault with conviction the conviction for rifle a to unlawfully against person use girlfriend, defendant’s former impose and a NERA sentence.

LONG, J., dissenting. only apply

NERA is meant to to the “most first- violent” and Thomas, second-degree society. offenders in our 767 A.2d Brian simply Parolin is such not person. The he supplied plea hearing facts at his clearly warrant punishment but far establishing fall short of him as a member the class of offenders NERA was enacted That harness. he was never intended to fall within ambit of NERA is under scored the recent amendments to the statute that exclude from only purview its qualifying crime to pled guilty, which Parolin second-degree possession weapon of a an purpose, unlawful N.J.S.A. 2C:43-7 .2d. clarification, view, my light That sheds on original meaning of NERA and should inform our assessment would, therefore, of this case. I judgment affirm the Appellate Division. joins

Justice ZAZZALI in this dissent. For reversal and remand —Chief Justice PORITZ and Justices STEIN, COLEMAN, and LaVECCHIA —4.

For ZAZZALI—2. LONG affirmance —Justices

Case Details

Case Name: State v. Parolin

Court Name: Supreme Court of New Jersey

Date Published: Mar 27, 2002

Citation: 793 A.2d 638

Court Abbreviation: N.J.