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State v. Tims

Decided: July 22, 1974.


Kolovsky, Fritz and Crane. The opinion of the court was delivered by Fritz, J.A.D.


Defendant appeals from his conviction on the entry of a guilty plea to robbery (N.J.S.A. 2A:141-1) while armed (N.J.S.A. 2A:151-5). For this plea to these two counts of a six-count indictment the State recommended dismissal of two counts charging a different robbery while armed with a knife and dismissal of two counts charging a third robbery while armed with a bottle.*fn1

Other than a complaint of the excessiveness of the sentence of five to seven years for the robbery and a consecutive

two to four years for the armed feature, the only ground urged on this appeal, raised here for the first time, is that the Legislature did not intend N.J.S.A. 2A:151-5 to include a bottle within the weaponry for which enhanced punishment is provided. We find the argument without merit.

The precise question appears never to have been decided before in New Jersey.

At the outset we acknowledge several propositions sufficiently basic to statutory construction as to be beyond dispute. If the legislative language is plainly expressed, there is no need to resort to construction, and effect is to be given to the plain meaning. Watt v. Mayor, etc., of Franklin, 21 N.J. 274, 277 (1956). In any event, the search is for the intent of the Legislature as expressed in the statutory language, and it is that intent which is to be given meaning. State v. Madden, 61 N.J. 377, 389 (1972). The purpose for which the statute was enacted and the evil at which it is aimed are essential stepping stones on the pathway to the determination of intent. Seatrain Lines, Inc. v. Medina, 39 N.J. 222, 226 (1963). Criminal statutes, involving as they do a penalty, are to be strictly construed, but such construction "must not be unduly narrow or artificial or disregard manifest legislative intention." State v. Rucker, 46 N.J. Super. 162, 167 (App. Div. 1957), certif. den. 25 N.J. 102 (1957). A concise and articulate expression of purpose may be found in State v. Angelo's Motor Sales, 125 N.J. Super. 200 (App. Div. 1973), aff'd sub nom. State v. Parmigiani, 65 N.J. 154 (1974):

The rule of strict construction does not prohibit a court from reading a statute in relation to the mischief and evil sought to be suppressed, State v. Meinken, 10 N.J. 348, 352 (1952), and while a penal statute cannot be extended by implication and intendment, its clear implication and intendment is not to be denied. State v. Brenner, 132 N.J.L. 607, 611 (E. & A. 1945). Construction which would have the effect of placing it in the power of a transgressor to defeat the object and purpose of the law by evasion is not to be favored. State v. Gratale, 26 N.J. Super. 581, 585 (App. Div. 1953). [125 N.J. Super. at 207.]

The statute reads:

Any person who commits or attempts to commit an assault, robbery, larceny, burglary, breaking and entering, rape, murder, mayhem, arson, abduction, extortion, kidnapping, sodomy or treason, or who is a fugitive from justice, when armed with or having in his possession any firearm, whether or not capable of being discharged or dangerous instrument of any kind, usually known as a blackjack, sling shot, slung shot, billy, sandclub, sandbag, bludgeon, metal knuckles, dagger, dirk, dangerous knife or knife as defined in chapter 5 of the laws of 1952 (C. 2A:151-62), razor, stiletto, cestus, or similar band studded with metal for fitting on the knuckles, loose wool imbedded with metal filings, razor blades imbedded in wood slivers, handcuffs, iron claws, grenade, bomb or other explosive or any object or device, whether toy or imitation, having an appearance similar to or capable of being mistaken for any of the foregoing, shall, in addition to the punishment provided for the crime, be punished on a first conviction by imprisonment for not less than one nor more than 10 years; upon a second conviction by imprisonment for not less than 3 nor more than 15 years; upon a third conviction by imprisonment for not less than 5 nor more than 20 years; and upon a fourth or subsequent conviction, by imprisonment for not less than 10 years nor more than for life, in the discretion of the court. No such additional punishment shall be imposed unless the indictment shall have averred that the person was armed with or had in his possession any such instrument and conviction was had thereon.

It seems clear that the evil contemplated by the statute is the possession of any object, during the commission of one of the enumerated crimes, which, if it were to be purposefully used, contains a substantial potential for the infliction of harm or, much less, a capacity for the mere threatening of harm. Legislative concern for the latter capability is demonstrated by the statutory provision that a proscribed firearm need not be capable of being discharged and a toy or imitation of the enumerated devices comes within the statute.

Such an intention is manifested by the delimiting inclusion of "dangerous instrument of any kind." Our view is fortified by the word "usually" which immediately follows, whereby even the generic descriptions may be seen to be exemplary rather than perimetric. Cf. State v. ...

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