On appeal from the Superior Court, Law Division, Camden County.
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Matthews, P.J.A.D.
[194 NJSuper Page 194] Defendant was convicted of fourth degree aggravated assault under the First and Second Counts of an indictment. He was also convicted under the Third Count of possession of a gun for unlawful purposes. Under the First and Second Counts, the trial judge downgraded the fourth degree assault convictions to disorderly persons offenses. Defendant was sentenced on those two counts to six months in the county jail. On the Third Count he was sentenced to a term of eight years with three years of parole ineligibility. The trial judge concluded
that possession of a weapon for unlawful purposes constituted a Graves Act offense.
Defendant contends that the Third Count did not charge a Graves Act offense and that the evidence was insufficient to warrant a conclusion that the shotgun in question was loaded. We find both contentions to be without merit. In addition, we find that there was substantial evidence from which the jury could have concluded that defendant was guilty on all three counts. Defendant claims that the Third Count should have merged with the two counts of aggravated assault. The Third Count involving possession of the shotgun for unlawful purposes refers to the purpose for which it was possessed, and not how it was used. Under the facts adduced here, the possession of the shotgun was a distinct offense whose time and scope exceeded that of the aggravated assault; there could have been no merger.
With respect to defendant's argument as to the failure to send the shells marked in evidence into the jury room, the trial judge was obviously following safety precautions. We find no error.
The remaining contentions raised by defendant we find to be clearly without merit. R. 2:11-3(e)(2).
The State has cross-appealed arguing that it was improper for the judge to downgrade the two fourth degree aggravated assault charges to simple assault. The trial judge determined that objective danger, and not the victim's perception of danger, was paramount when determining whether the offense was aggravated or simple assault; accordingly, he reasoned that the jury must find that the gun was loaded because only a loaded gun is actually dangerous enough to cause injury.
When the Legislature initially proposed the Penal Code, it was determined that the character of both the individual and offense must be considered and that, because crimes involving firearms were more dangerous than crimes committed without
firearms, they deserved special rules as well as some type of enhanced punishment. The New Jersey Penal Code, Final Report of the New Jersey Criminal Law Revision Commission (1971), Vol. II: Commentary, proposed § 2C:12-2 at 179, proposed § 2C:43-7 at 318-319, and proposed § 2C:44-3 at 329-332. When the Code was enacted, however, neither the special rule proposed in N.J.S.A. 2C:12-2 or an enhanced sentencing section was included. The subsequent enactment of the Graves Act (L. 1981, c. 31) met this need and clearly supports the view that crimes committed with firearms are more serious offenses. Without question, the intent of the Graves Act is to punish perpetrators more severely if they commit specifically enumerated crimes with firearms. State v. Des Marets, 92 N.J. 62, 68, 72 (1983). One of the enumerated crimes is aggravated assault. N.J.S.A. 2C:43-6c. Because of the recent escalation of crimes threatening physical violence, we think it is clear that the Legislature intended to deter their commission by insuring incarceration for those persons who arm themselves with firearms before going forth to commit crimes. State v. Des Marets, 92 N.J. at 68.
To contend that a person who assaults another with a firearm is guilty of a disorderly persons offense solely because the gun is not actually loaded ignores the established legislative intent to punish crimes committed with firearms more severely than crimes committed without firearms. Hence, we cannot read the language in N.J.S.A. 2C:12-1b(4), "whether or not the actor believes [the gun] to be loaded," as requiring that the gun used in the assault actually be loaded.
The trial judge below relied on State v. Diaz, 190 N.J. Super. 639 (Law Div.1983). Diaz held that N.J.S.A. 2C:12-1b(4) required that the gun used must have been loaded. In reaching that holding the court determined that N.J.S.A. 2C:12-1b(4) establishes an objective standard because of the holding in State v. Butler, 89 N.J. 220 (1982), ...