On certification to the Superior Court, Appellate Division, whose opinion is reported at 178 N.J. Super. 205 (1981).
For reversal and remandment -- Chief Justice Wilentz and Justices Clifford, Schreiber, Handler and Pollock. For affirmance -- Justices Pashman and O'Hern. The opinion of the Court was delivered by Handler, J. Pashman and O'Hern, JJ., dissenting.
[89 NJ Page 222] This case presents the question whether a defendant can be convicted of first degree robbery under the New Jersey Code of Criminal Justice if he committed the offense by pretending to be carrying a handgun when, in fact, he was unarmed. The Code makes robbery 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 added). The trial court accepted the defendant's
guilty plea to an armed robbery charge and sentenced him as an offender in the first degree. The Appellate Division affirmed, finding that defendant's simulated use of a handgun constituted first degree robbery because he "threatened the immediate use of a deadly weapon," even though he possessed no actual firearm to carry out the threat. We now reverse.
The facts are these. The defendant, Irby Butler, admitted that on December 24, 1979, he approached a woman in the parking lot of the Monmouth Mall, demanded that she turn over her purse, and then took the purse. He further stated that he accomplished this theft by placing his hand in his coat pocket and pretending that he was concealing a handgun. The victim of the crime corroborated this account, relating that, when defendant robbed her, she believed he had a gun.
In 1980 Butler faced trial on this and other charges arising from an unrelated incident. As part of a plea bargaining arrangement, Butler pleaded guilty to three offenses, including the robbery at issue in this case. There is no question that he entered his plea knowingly and voluntarily. In exchange for the plea, the State agreed to drop a number of other charges against the defendant and to recommend a maximum aggregate sentence of not more than 12 years.
On the robbery count, defendant's trial counsel apparently conceded that defendant's conduct constituted a crime of the first degree. Thus, defendant received a 12-year term, to run concurrently with the other sentences imposed on him.*fn1 Defendant could have received a term of "between 10 years and 20 years" for a conviction of a crime of the first degree, N.J.S.A. 2C:43-6(a)(1), while his sentence for a crime of the second degree would have been punishable only by a term of "between
5 years and 10 years." N.J.S.A. 2C:43-6(a)(2). Defendant's subsequent motion for reduction of sentence was denied.
Defendant then appealed, claiming that his offense constituted only robbery in the second degree. The Appellate Division affirmed defendant's conviction and sentence, holding that simulated use of a handgun during a robbery is a crime of the first degree under the Criminal Code. 178 N.J. Super. 205 (1981). The court reasoned that our State's robbery statutes have long emphasized the subjective perception of the victim, that the plain language of the present statute continues to do so, and that changes in the specific wording of the robbery statute were not intended to affect that basic emphasis. The Appellate Division also found no merit in defendant's argument that his sentence was excessive. We granted defendant's petition for certification. 87 N.J. 395 (1981).
On this appeal defendant contends that his 12-year maximum sentence should be modified to a term of no greater than 10 years because he did not actually possess a firearm during the commission of this offense and was therefore guilty only of robbery in the second degree. Defendant concedes that he is guilty of robbery but questions the degree of his offense.
At the outset we note that despite defendant's guilty plea to the crime of armed robbery, he has retained the right on appeal to raise as reversible error the absence of "a factual basis for the plea." R. 3:9-2. See State v. Taylor, 80 N.J. 353, 362 (1979); State v. Nichols, 71 N.J. 358, 361 (1976). We reject the State's contention that by pleading guilty, defendant has waived the right to challenge the factual basis for his plea and his first degree robbery conviction based thereon. The State argues that defendant could well have received a more severe sentence and consecutive terms had he not entered into a plea arrangement and that therefore he should not now be allowed to circumvent that agreement. This argument is without merit because the plea bargain in this case did not obviate the need to establish a sufficient factual basis for the plea. Taylor, 80 N.J. at 362. It
called upon the prosecutor to recommend only a maximum sentence of 12 years for the offense. There was no assurance that the trial court would, in fact, impose that sentence rather than a lesser one. Hence, even though the sentence imposed falls within the terms of the plea bargain, it does not act as a bar to defendant's right to challenge his conviction as a first degree offender, as well as the excessiveness of the sentence. See, e.g., State v. Deutsch, 34 N.J. 190 (1961).
Defendant argues that he cannot be guilty of robbery in the first degree because he possessed no firearm when he committed the offense but merely simulated the use of a handgun. According to the defendant, the Code's language defining robbery as a first degree offense when the assailant "threatens the immediate use of a deadly weapon" establishes an objective standard that focuses on the actual danger to the victim from the presence of a deadly weapon. See State v. Magwood, 177 N.J. Super. 105, 106 (1981) (dictum); State v. Rines, 173 N.J. ...