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State v. Marets

Decided: January 26, 1983.


On certification to the Superior Court, Appellate Division (A-68). On certification to the Superior Court, Law Division, Burlington County (A-93).

For affirmance -- Chief Justice Wilentz and Justices Clifford, Pollock, O'Hern and Garibaldi. Dissenting in part and concurring in part -- Justices Schreiber and Handler. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., dissenting in part and concurring in part. Justice Schreiber joins in this opinion.


These cases present two questions concerning permissible sentencing for Graves Act offenses. N.J.S.A. 2C:43-6(c); L. 1981, c. 31. May the trial court impose an indeterminate term at a youth correctional institution? May the trial court impose the mandatory three year imprisonment sentence and then suspend it?

The Graves Act provides, generally, that one who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of, certain serious offenses specified in that Act shall be mandatorily sentenced to prison for a term that includes at least three years of parole ineligibility.*fn1 If trial courts retain the power to suspend sentence of those guilty

of Graves Act offenses or to sentence to an indeterminate term at a youth correctional institution, the three year mandatory imprisonment of the Graves Act would not be imposed, and the deterrent impact on gun-related crimes sought by the Legislature would be lost. We hold that our courts have no such power.

We also hold that the sentence that includes the three year parole ineligibility term may not be to a youth correctional institution, but rather requires imprisonment, although those in charge of the State prison may, if they see fit, administratively transfer prisoners to such institutions (N.J.S.A. 30:4-85), and that the "possession" of a firearm need not be possession with intent to use in order to make the Graves Act applicable.

We therefore affirm the Appellate Division in Des Marets and the trial court in Appleton, which we certified directly before the Appellate Division heard the matter.

We do not pass on the wisdom of this legislation's mandatory three year imprisonment term or the wisdom of its imposition on

the offenses covered. That is a matter solely for the Legislature to decide. Once the Legislature has made that decision, and has made it within constitutional bounds, our sole function is to carry it out. Judges have no business imposing their views of "enlightened" sentencing on society, 92 N.J. at 91 (Handler, J., dissenting), including notions of discretionary, individualized treatment, when the Legislature has so clearly opted for mandatory prison terms for all offenders. It may be that the Legislature is more enlightened than the judges.*fn2 Our clear obligation is to give full effect to the legislative intent, whether we agree or not. We have endeavored to do so here.*fn3

Des Marets


On March 23, 1981, defendant Robert Des Marets committed two separate acts of burglary. During the first of these incidents, defendant stole two unloaded handguns.*fn4

Pursuant to a plea bargain, defendant entered a plea of guilty to two charges of burglary in violation of N.J.S.A. 2C:18-2, two

charges of theft in violation of N.J.S.A. 2C:20-3, and one charge of possession of a handgun without a license in violation of N.J.S.A. 2C:39-5(b). In return, the State agreed to recommend that defendant, then 18 years of age, be placed on probation after serving a custodial term of 90 days. Defendant had a juvenile record, but had never been incarcerated.

On the day of sentencing, the court refused to accept the plea bargain agreement because of the provisions of the Graves Act. As noted above, the Act mandates a three year imprisonment term in connection with a burglary conviction where the defendant "while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm . . . ." Although acknowledging Des Marets never evinced any intent to use the weapon and did not arrive armed at the burglary during which the guns were taken, the court nonetheless concluded his actions fell within the statute's coverage. Defendant chose not to withdraw his pleas of guilty.

The judge then stated that although it was his preference to sentence defendant to an indeterminate term provided for by the youthful offender statute, N.J.S.A. 2C:43-5, he felt his normal sentencing discretion foreclosed by the Graves Act. He sentenced Des Marets to the New Jersey State Prison for four years with a mandatory minimum of three years.

On May 5, 1982, the Appellate Division affirmed defendant's conviction. The court rejected defendant's contention that the Act was not intended to apply to a situation in which defendant steals a gun at the scene rather than arming himself in advance of the crime. It held further that the state did not have to prove intent to use the weapon; possession was sufficient. The court also ruled that the Legislature was within its rights in eliminating the judicial power to suspend sentences in Graves Act cases.

We granted certification, 91 N.J. 254 (1982).


Defendant Des Marets argues that no relationship existed between his possession of a firearm and the crime committed. Although physically in possession of a weapon, the gun was unloaded at all times and defendant never used it or demonstrated any intent to use it. Des Marets maintains "possession" for the purposes of the Graves Act should be interpreted as possession with intent to use and that he, accordingly, falls outside the law's coverage.

While it is theoretically debatable whether the Graves Act contemplates merely the physical act of possession of a firearm or possession with intent to use, the Act's purpose clearly resolves the issue.

The intent of the Act is manifest: at the very least, to ensure incarceration for those who arm themselves before going forth to commit crimes. The Act is a direct response to a substantial increase in violent crime in New Jersey. The history of the legislation makes it clear that its focus is deterrence and only deterrence; rehabilitation plays no part in this legislation.*fn5 The intended deterrence can be served only by giving effect to the obviously broad coverage of this law.

A holding that the Graves Act sanctions apply upon a showing of possession of a firearm, without any need to demonstrate intent to use, should not surprise defendants subject to its provisions.*fn6 The statute itself requires "possession" and no

more. The use of that unqualified word, especially as part of the phrase "used or was in possession of a firearm" strongly suggests that the actor's state of mind was meant to be irrelevant. The inclusion of N.J.S.A. 2C:39-4a as a Graves offense is also persuasive. That section of the Code covers possession of a firearm with intent to use it unlawfully. No more is required for a Graves Act offense to occur, neither murder, manslaughter, aggravated assault nor any of the other offenses thereafter listed in the Act. That part of the Act, therefore (practically all of it), covering conviction of certain crimes where defendant "was in possession of a firearm," would be largely superfluous if intent to use was also required to be proven, for, by virtue of the inclusion N.J.S.A. 2C:39-4a, Graves Act consequences would always follow upon such proof regardless of the commission or non-commission of such crimes.

The foregoing conclusion becomes graphically clear when the Act is read in its present form, including the amendment of 1982 (not in effect at the time of Des Marets' offense):

A person who has been convicted under 2C:39-4a. of possession of a firearm with intent to use it against the person of another, or of a crime under any of the following sections: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, who while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm . . . . [ N.J.S.A. 2C:43-6c. (emphasis represents 1982 amendment, L. 1982, c. 119)].

The express inclusion of a requirement of intent to use in the first instance persuasively suggests its absence in all others.

There are policy considerations that weigh in favor of extending the law to encompass Des Marets. Even if a criminal has no

intent to use his gun, the possession of a firearm presents definable dangers. It invites gun use by police or third parties, with attendant risks to all involved. More obviously, while an individual may have no intent to use a gun when he embarks upon a course of criminal conduct, this resolution could change under the pressure of ensuing events.

It is the mere presence of guns at the scene of crimes that this statute seeks to end.*fn7

Defendant Des Marets was thus in possession of a firearm within the meaning of the Graves Act.*fn8


It is further claimed that the court incorrectly concluded that it was not permitted to sentence defendant as a youthful offender to an indeterminate term at the Youth Correctional Institution Complex, despite the minimum term mandated by the Graves Act. Analysis of this claim requires further examination of the legislative intent embodied in both the Graves Act and in the statutes authorizing indeterminate sentencing for youthful offenders. N.J.S.A. 2C:43-5; N.J.S.A. 30:4-148.

Rehabilitation has long been central to this state's treatment of youthful offenders. Our laws concerning youthful offenders reflect the long-standing philosophy that "correction and rehabilitation, rather than retribution," are the preferred approaches to the problem. State v. Horton, 45 N.J. Super. 44, 46 (App.Div.1957).

N.J.S.A. 2C:43-5 embodies this approach. It provides that:

Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex in accordance with R.S. 30:4-146 et seq. in the case of men, and to the Correctional Institution for Women, in accordance with R.S. 30:4-153 et seq., in the case of women, instead of the sentences otherwise authorized by the code.

N.J.S.A. 30:4-148 provides in part that courts in sentencing pursuant to N.J.S.A. 2C:43-5 "shall not fix or limit the duration of sentence . . . ."

Indeterminate sentencing to a youth correctional facility, rather than to State prison, is one of the primary means by which rehabilitation is accomplished. The theory behind such sentencing is to allow discretion to the custodial authorities to terminate a sentence if an offender is successfully rehabilitated, thus greatly increasing the incentive for rehabilitation. See State v. Hopson, 114 N.J. Super. 146 (App.Div.) (Halpern, J.A.D., dissenting), rev'd on dissent, 60 N.J. 1 (1971). Accordingly, these statutes allow only indeterminate sentences, which may not include periods of parole ineligibility. State v. Groce, 183 N.J. Super. 168 (App.Div.1982).

The result is that youthful offenders who receive indeterminate sentences pursuant to N.J.S.A. 2C:43-5 may have their sentences terminated at any time. N.J.S.A. 30:4-123.51(f). Theoretically, this could occur very shortly after sentencing. Certainly many youthful offenders who were convicted of Graves Act offenses, for which a three-year minimum term is mandated, would be released long before this time had elapsed if they received indeterminate sentences.

The Graves Act represents a different philosophy. Instead of an approach to crime that looks to rehabilitation through the promise of release, the Graves Act approach is deterrence through the promise of imprisonment.*fn9 Furthermore, its spirit

is totally contrary to the belief that all of the circumstances of both the offender and the offense must be considered if justice is to be done, and that one of the most important aspects of our system of criminal justice is the discretionary nature of punishment.

A court's preference between these two approaches to the problem of crime is irrelevant here, for our task, as always, is to seek the legislative intent. It is not difficult to divine.

We begin by looking at violent crime statistics. Recent statistics indicate violent crime in New Jersey jumped by 21 percent between 1979 and 1980 and 5 percent between 1980 and 1981. Uniform Crime Reports, Crime in New Jersey 1980 at 18; Uniform Crime Reports, Crime in New Jersey 1981 at 16. The role of firearms in violent crime is likewise alarming. In 1979, for example, firearms were involved in 63.3 percent of all murders, 39.7 percent of all robberies, and 23 percent of all aggravated assaults that occurred nationwide. Federal Bureau of Investigation Uniform Crime Reports of 1979 at 10, 18, 20.

These disturbing statistics confirm the obvious intent of the Graves Act to deter the use and possession of firearms by criminals for the purpose of reducing the number of persons killed or injured by such weapons. As the Assembly Judiciary Committee noted in discussing the legislative goal of the forerunner to the Graves Act:

Crimes committed with guns are on the rise and deaths from these crimes are also increasing. Guns are particularly dangerous weapons, all too easy to use and to kill with if used. The purpose of this bill is to make criminals think twice before going forth to commit crimes armed with guns. [Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to S.1071, July 24, 1980.]*fn10

It is clear that the Legislature had in mind very specific means to carry out its intent. It sought to deter the use of firearms by establishing mandatory minimum terms of imprisonment to ensure certainty of punishment. The Senate version of the Graves Act was accompanied by the following statement: "This bill provides for mandatory minimum sentences for individuals convicted of certain specified violent crimes where they possess or use a firearm during the commission of the crime." Senate Law, Public Safety and Defense Committee Statement to S.3057 (emphasis added).

Enforcing the certainty of imposition of this punishment upon conviction of a Graves Act offense was central to the intent of the drafters. Thus, the Senate Report on the Graves Act explicitly stated that those convicted would be ineligible for parole, and that suspensions and non-custodial dispositions would not be permitted. The efficacy and perhaps even the wisdom of this approach may not be clear to some, but the message intended by the Legislature could hardly be clearer: if you are convicted of a crime against a person while using or possessing a firearm, you will go to prison for at least three years. Period. The Graves Act aims at deterrence through the eventually widespread knowledge that one who is convicted of using or possessing a firearm while committing any one of a number of crimes cannot, and will not, escape a mandatory minimum imprisonment of at least three years.

That deterrence is as permissible a legislative goal as rehabilitation when dealing with the problems of youthful offenders is unquestioned. See State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 334-36 (1982). The legislative legitimacy of attempting to deter youthful offenders is underscored by the stark facts of youthful crime. In New Jersey in 1981, persons under 25 years of age were arrested for 225 of 447 arrests for murder, 32 of 62 manslaughters, 698 of 1,237 rapes, 4,740 of 6,169 robberies, 5,662 of 10,252 aggravated assaults, and 14,761 of 18,244 burglaries. Uniform Crime Reports, Crime in New Jersey 1981 at 41-42. Firearms play a role in a significant proportion

of these crimes. The concern of the Legislature in deterring crimes involving firearms legitimately extends to both youthful and adult offenders; indeed, youth involvement is apparently shockingly high.

We are thus faced with an inescapable conflict between the Graves Act and the youthful offender statutes. The essence of the Graves Act is that anyone convicted of possessing or using a firearm during the course of enumerated crimes will face a certainty of at least three years imprisonment, that certainty achieved by a clear statement that proscribes parole eligibility, suspension of sentence and non-custodial dispositions.*fn11 In contrast, indeterminate sentencing is perhaps the central feature of the youthful offender statutes under consideration, and the plain consequence of such sentences is that they may be legitimately terminated at any point. This is the antithesis of certainty.

This is not the first time that our courts have concluded that there is a conflict between these youthful offender statutes and mandatory minimum sentencing provisions. State v. Brozi, 125 N.J. Super. 485 (App.Div.1973), certif. den., 64 N.J. 501 (1974); State v. Hopson, supra; State v. Lavender, 113 N.J. Super. 576 (App.Div.1971); State v. Pallitto, 107 N.J. Super. 96 ...

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