[186 NJSuper Page 263] The matter before the court, the sentencing of Wilford Gantt, presents three novel questions involving interpretation of the Graves Act, N.J.S.A. 2C:43-6 c, d.*fn1 First, can the State, pursuant
to that act, show by a preponderance of the evidence that a weapon is a firearm when the weapon has not been recovered. Second, is the act unconstitutional as applied to Gantt. Third, is an accomplice who has been convicted twice of armed robbery and who never actually possessed the firearm in question eligible to be sentenced to a mandatory extended term pursuant to the Act.
The facts before the court are as follows: Gantt entered a guilty plea in October 1974 to an armed robbery of a grocery store committed the previous July. His role in the armed robbery was that of wheelman; he never used or physically possessed the gun. On March 4, 1982, Gantt was tried and convicted of armed robbery, again as an accomplice. In the present case Gantt and the other robber gained entry into the victim's car because Gantt knew the victim through his former employment. Once in the car, the other robber then drew a gun and demanded money from the driver. After taking the money, Gantt and the other robber fled. Gantt never used or was in actual physical possession of the firearm in either of these robberies. In the most recent armed robbery, the other robber was never identified or apprehended and the weapon was never recovered.
I. Has the State shown by a preponderance of the evidence that the weapon used in both armed robberies was a firearm ?
The first issue to be dealt with is whether a weapon can be shown to be a firearm by a preponderance of the evidence pursuant to N.J.S.A. 2C:43-6(d) where the weapon has not been recovered. The statute provides:
The court shall not impose a mandatory sentence pursuant to subsection c. of this section, 2C:43-7c or 2C:44-3d, unless the ground therefor has been established at a hearing. At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.
The State and defendant concur that operability must be shown before a weapon can be considered to be a firearm. The parties rely on the definition of firearm in N.J.S.A. 2C:39-1 f to support their contention that a weapon must be operable in order to qualify as a firearm. The definition of firearm reads:
"Firearm" means any hand gun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectible ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eights of an inch in diameter, with sufficient force to injure a person.
Neither party cites other authority for the proposition that this definition requires a showing of operability.
We do not agree that the definition of firearm implies operability. The language which suggests operability is: "from which may be fired or ejected any solid projectible ball, slug, pellet, missile or bullet . . ." This clause does not modify the specific types of weapons listed at the beginning of the definition which unquestionably are firearms, namely, "hand gun, rifle, shotgun, machine gun, automatic or semi-automatic rifle. . . ."
This list of types of guns, readily identifiable as firearms, is separated from the remainder of the definition by the conjunction "or," and the types are specifically defined in N.J.S.A. 2C:39-1 k, m, n, and i.
The definition continues by including as firearms
This clause is generally descriptive, and modifies "any gun, device or instrument in the nature of a weapon. . . ." The language is necessary to qualify a less recognizable type of weapon as a firearm. It is grammatically separated from the first part of the definition, and does not serve to modify "handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle. . . ." which are known to fire ammunition without being so described.
Quite significantly, the definition of firearm contains no language such as "readily capable of firing" or "capable of firing with minor adjustments." In the absence of authority to the contrary, it must be concluded that the definition of firearm does not require that the firearm be operable.*fn2
At a Graves Act hearing the prosecutor is required to show by a preponderance of the evidence that "the weapon used or possessed was a firearm." N.J.S.A. 2C:43-6 d then states that the court can take judicial notice of evidence and testimony at trial, as well as presentence reports and other relevant information, in order to make the required finding. While the weapon
was not recovered, or in evidence at defendant's armed robbery trial, there was testimony at trial that the victim saw someone's hand wrapped around a small gun, and that he saw the barrel. There was no testimony to contradict the conclusion that the gun was real. In defendant's 1974 conviction defendant acknowledged in his own statement that a .25-caliber revolver was used by one of his codefendants to commit the holdup.
Nor is the present case one in which defendant should be surprised at his receiving exposure to an armed robbery sentencing. Defendant was indicted for committing a robbery while armed with a deadly weapon, a handgun. The jury was instructed that Gantt had committed a robbery while armed with, and threatening use of, a deadly weapon, a handgun, and the accomplice charge was given. A guilty verdict was returned by the jury for first degree robbery even though second degree robbery was presented for their consideration. When all of these factors are presented to the court, it can be demonstrated beyond a reasonable doubt, let alone the lesser standard of preponderance of the evidence, that a firearm was utilized in both armed robberies.*fn3
To summarize, there is sufficient evidence in the trial testimony of the 1982 conviction and in the statements of defendant surrounding the 1974 guilty plea as well as the plea to robbery and being armed to show by a preponderance of the evidence that the weapons used in both crimes were firearms.
II. Is the extended mandatory sentencing called for by the Graves legislation unconstitutional as ...