This case presents a novel question concerning the scope of the so-called Graves Act, L.1981, c. 31, N.J.S.A. 2C:43-6c.*fn1
The Graves Act provides for mandatory minimum sentences and parole ineligibility for those committing certain crimes while using or possessing a firearm. The question here is whether the statute applies to an accomplice who did not use or possess the firearm. My holding is that it does.
In March 1981 four persons, including defendant Alexander, agreed to rob Dr. Hazelkorn, a Paterson physician. They accosted the doctor as he left his office. One of the robbers, not Alexander, had a handgun. The doctor threw his briefcase at the robbers. Alexander picked it up and fled. The remaining trio forced the doctor to the ground and robbed him at gun point. They then shoved him into his own car and drove toward New York City. On the way they talked about killing him. At the George Washington Bridge toll booth Dr. Hazelkorn jumped out of the car and escaped.
Alexander admitted to the police and at trial that he had agreed to rob Dr. Hazelkorn. He asserts, however, that he did not know that a gun would be used or that the doctor would be abducted. He also contends that he fled before his confederate
produced the gun. Alexander claims that he was unaware that a gun had been used until he read about the robbery the next day in the newspaper.
Alexander was convicted of armed robbery, a first degree crime. See N.J.S.A. 2C:15-1b. He faces a maximum prison sentence of 20 years. The court could require that up to one-half of that term be served without parole. If the Graves Act were applicable, the court would be required to impose a prison term and to provide that at least one-third and no less than three years of the term be served without parole. N.J.S.A. 2C:43-6c.
The Graves Act applies to a person who "while in the course of committing or attempting to commit [certain crimes], including the immediate flight therefrom, used or was in possession of a firearm. . . .".
The first question is whether Alexander "used" or "possessed" the firearm. At the hearing required by the Graves Act, N.J.S.A. 2C:43-6d, both counsel agreed that further testimony was unnecessary and that the court could find the facts based on the trial testimony.
The State seeks a mandatory minimum sentence and, therefore, has the burden of proof to the "satisfaction" of the court. N.J.S.A. 2C:1-13d(1) and (2). Undisputed is that Alexander was aware that there would be a robbery and that he agreed to and did participate in the robbery; past that, the evidence is susceptible to differing conclusions. However, I am not satisfied that Alexander personally "used" or "possessed" the firearm, or that he was aware before or during the robbery that a firearm would be used in the robbery. (My original analysis of the evidence and my reasons for these and other fact findings are omitted).
Hence, I find that Alexander did not personally use the gun nor was he in actual possession of the gun. Constructive possession requires control, State v. Reyes, 98 N.J. Super. 506 (App.Div.1968),
or the ability to control, State v. Brown, 67 N.J. Super. 450 (App.Div.1961). Neither is present here. Since Alexander did not personally possess or use the gun, he does not come within the literal language of the Graves Act.
Is Alexander liable under the Graves Act as an accomplice? An accomplice is defined under the Code as one who, for the purpose of promoting or facilitating the commission of an offense, aids or agrees or attempts to aid another in planning or committing it. N.J.S.A. 2C:2-6c(1)(b). The evidence in this case overwhelmingly establishes that Alexander was an accomplice. He agreed to and did participate in the robbery. During the robbery he took and fled with the doctor's briefcase.
The jury was charged regarding Alexander's liability as an accomplice, and the jury convicted Alexander of armed robbery. The natural conclusion is that the jury found that Alexander was an accomplice in the robbery.
Alexander argues that the Graves Act be construed to exclude accomplices, pointing out that the statute relates only to one who "used or was in possession of a firearm . . .," and that a criminal statute should be "strictly construed."
However, in State v. Maguire, 84 N.J. 508, 514 (1980), Chief Justice Wilentz pointed out that the new Code of Criminal Justice has "its own principles of construction which do not mention any rule of 'strict construction' but rather, provide that where 'the language (of the Code) is susceptible of differing constructions it shall be interpreted to further the general purposes stated in section 2C:1-2 and the special purposes of the particular provision involved." The task of the court, the Chief Justice said, "is to effectuate the legislative intent in light of the language used and the object sought to be achieved." Ibid.
Moreover, the principle of strict construction of penal statutes has certain limitations. In State v. Provenzano, 34 N.J. ...