On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Botter, King and McElroy. The opinion of the court was delivered by King, J.A.D.
This case presents the issue of whether the simulated use of a handgun during a robbery is a crime of the first or second degree under the Code of Criminal Justice, effective September 1, 1979. The pertinent statute states:
Robbery is a crime of the second degree, except that it is a crime of the first degree if in the course of committing the theft the actor attempts to kill anyone or purposely inflicts or attempts to inflict serious bodily harm, or is armed with or uses or threatens the immediate use of a deadly weapon. [ N.J.S.A. 2C:15-1(b); emphasis supplied]
A crime of the first degree is punishable by a term of "between 10 years and 20 years." N.J.S.A. 2C:43-6(a)(1). A crime of the second degree is punishable by a term of "between 5 years and 10 years." N.J.S.A. 2C:43-6(a)(2).
In this case defendant pleaded guilty to an accusation charging him with "robbery upon Lisa Lusardi while threatening to use a deadly weapon." In exchange for the guilty plea the State agreed to recommend not more than a 12-year maximum term. At entry of the guilty plea defendant said he had his hand in his pocket simulating a handgun when he held up the victim and took her purse at the parking lot of the Monmouth Mall. In the presentence report the victim describes her perception of the criminal episode:
Lisa stated that she was doing last minute Christmas shopping and the mall was quite empty because it was late. She had parked her car on the lot and was walking towards Alexander's when she noticed this guy who seemed to be coming toward her. She said she tried to avoid him but it was impossible. He
then came up to her, grabbed her arm with one hand and had his other hand under his coat and she was frightened because she believed he had a gun.
Defendant's counsel in the Law Division apparently conceded that defendant's conduct constituted a crime of the first degree. Defendant received a 12-year term, concurrent with other prison terms not pertinent to the present question.
On this appeal defendant contends that his 12-year maximum sentence was illegal and should be modified to a 10-year maximum because he was not guilty of a crime of the first degree. Despite his guilty plea we conclude that plaintiff has a right on appeal to raise the absence of "a factual basis for the plea" as reversible error. R. 3:9-2; see State v. Taylor , 80 N.J. 353, 362 (1979); State v. Nichols , 71 N.J. 358, 361 (1976).
A reported opinion of the Law Division has reached the conclusion that the use of a toy pistol to effectively simulate a deadly weapon is not a crime of the first degree under N.J.S.A. 2C:15-1(b). State v. Rines , 173 N.J. Super. 140 (1980).*fn1 Under our criminal laws in effect prior to September 1, 1979 the use of a toy weapon capable of being mistaken for a real firearm or the simulation of the use of a handgun by gesture was sufficient to convict for armed robbery, thereby enhancing the potential punishment for the crime of robbery. N.J.S.A. 2A:151-5; State v. Brewer , 142 N.J. Super. 70, 76 (App.Div.1975), aff'd o.b. 70 N.J. 329 (1976); State v. Cooper , 140 N.J. Super. 28, 33 (Law Div.1976), rev'd on other grounds 165 N.J. Super. 57, 67 (App.Div.), app. dism. 81 N.J. 261 (1979). The statute which enhanced punishment for commission of armed felonies prior to September 1, 1979 specifically enumerated many different types of ...