On certification to the Superior Court, Appellate Division, whose opinion is reported at 186 N.J. Super. 517 (1982).
For modification and remandment -- Chief Justice Wilentz, and Justices Clifford, Schreiber, Handler, Pollock, O'Hern and Garibaldi. Opposed -- None. The opinion of the Court was delivered by Wilentz, C.J. Handler, J., concurring. Justice Schreiber, who joined the dissent in Des Marets, joins in this concurring opinion.
This case raises questions concerning the scope of the mandatory sentencing provisions known as the Graves Act, N.J.S.A. 2C:43-6, L. 1981, c. 31,*fn1 and the proper procedures to be followed in sentencing a criminal defendant under the Act. Specifically, we are asked to determine what constitutes possession of a firearm for purposes of the Graves Act. Further, we must define the procedure trial courts should use to decide the question of possession or use of a firearm, the critical fact in determining whether the Act applies. We also apply our holding in State v. Des Marets, 92 N.J. 62 (1983), which makes clear that possession of a weapon without intent to use it suffices to trigger the Graves Act.
This case stems from a robbery of William Hampton that occurred in Atlantic City on May 25, 1981. At trial, Hampton testified that he had been standing on a corner waiting for a bus when defendant, Robert Stewart, leaped out of the pickup truck in which Stewart had been a passenger, stuck a flare gun in Hampton's side, and robbed him of $50.
Defendant's version of the case was quite different. Stewart testified that on May 25 he and two friends, Timothy Longnecker and David Blewitt, drove by truck to Atlantic City to go gambling. At the time of the robbery, defendant was seated in the truck's cab between Blewitt and Longnecker. A flare gun was sitting on the dashboard and two air rifles were behind the seat.
When the truck stopped for a red light, Hampton, who was standing on a corner, pulled out a bag of marijuana and offered it for sale. When the light changed, defendant snatched the bag. As the truck drove away, Hampton alerted the police. Aware that the truck was being followed, Stewart threw the exposed flare gun behind the seat, out of view.
When the police pulled the truck over, the flare gun and the two air rifles were found in the well behind the seat of the truck.
Defendant was indicted on June 9, 1981, and charged with conspiracy to commit robbery, N.J.S.A. 2C:5-2; armed robbery, N.J.S.A. 2C:15-1; possession of a weapon (the flare gun) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); possession of two rifles without the necessary permits, N.J.S.A. 2C:39-5(c)(1); and possession of a flare gun for unlawful purposes, N.J.S.A. 2C:39-4(d). The court dismissed the charges of possession of a rifle without the necessary permits.
The jury acquitted defendant of the conspiracy to commit robbery, armed robbery, and weapons possession charges, but convicted him of second degree (unarmed) robbery.
To determine whether to apply the Graves Act, the court gave the jury the following interrogatory to answer if it found defendant guilty of robbery: "If so, in the course of committing or attempting to commit the crime including the immediate flight therefrom did he use or was he in possession of a firearm?" The jury answered "Yes." Accepting this finding, the court sentenced defendant to a term of five years, three of
which were to be served without parole eligibility pursuant to the Graves Act.
On appeal, the Appellate Division vacated defendant's sentence and remanded the matter to the trial court for resentencing, finding defendant was not in possession of a firearm within the meaning of the Graves Act. 186 N.J. Super. 517.*fn2 According to the court, the Graves Act required proof of intent to use a firearm as well as possession. The court also held that only actual possession of a firearm can trigger application of the Graves Act. Id. at 525.
Subsequently, we decided State v. Des Marets, 92 N.J. 62 (1983), and held that mere possession of a firearm, without a showing of intent to use, was a sufficient ground for application of the Graves Act.
The State petitioned for certification, which was granted on February 7, 1983. 93 N.J. 271 (1983).
The Graves Act provides that anyone who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of certain designated crimes shall be sentenced to prison for a mandatory minimum term prescribed by the Act. As we stated in Des Marets, 92 N.J. at 68, the intent of the Graves Act is clear: "[A]t the very least to insure incarceration for those who arm themselves before going forth to commit crimes." It seeks to deter crime, not to rehabilitate criminals. Guided by this purpose, we found that the Act applied to ...