On appeal from the Superior Court, Law Division, Essex County, whose opinion is reported at 186 N.J. Super. 262 (1982).
Matthews, J. H. Coleman and Gaulkin. The opinion of the court was delivered by Gaulkin, J.A.D.
Defendant was found guilty by a jury of armed robbery in violation of N.J.S.A. 2C:15-1. For the reasons expressed in his opinion reported at 186 N.J. Super. 262 (1982), Judge Newman invoked N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d to impose an extended term of imprisonment of 25 years with 8 1/3 years of parole ineligibility. See N.J.S.A. 2C:43-7c. On this appeal from the judgment of conviction, defendant urges only that he is not subject to a mandatory sentence under either N.J.S.A. 2C:43-6c or N.J.S.A. 2C:44-3d.
Defendant's conviction rests upon proofs, unchallenged on this appeal, that he and an unidentified man asked Joseph Mann for a ride in his van. As they were driving, the unidentified person told Mann to "Give up your money, brother." Mann asked defendant "what is going on?" and defendant told him "to shut . . . up" and give over the money. Mann saw that the unidentified man had "a small handgun in his hand." The man took Mann's wallet from his pocket. Defendant then turned the ignition off and took the key, and he and his cohort fled the vehicle. Neither the handgun nor the unidentified man was ever found.
Defendant acknowledges that the evidence sufficed to establish his guilt of armed robbery. N.J.S.A. 2C:15-1. He also does not dispute Judge Newman's finding that the jury had before it "no testimony to contradict the conclusion that the gun was real." 186 N.J. Super. at 267. However, he argues that mandatory sentences may be imposed under N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d only upon a showing of use or possession of a "firearm as defined in 2C:39-1f" and that the definition of "firearm" requires a showing of operability. Since the handgun here was never proved operable, defendant urges, he was not subject to the mandatory sentences.
The contention is unpersuasive. "Firearm" is defined in N.J.S.A. 2C:39-1f to include "any hand gun, rifle, shotgun, machine gun, automatic or semi-automatic rifle. . . ." "Hand gun," in turn, is defined in N.J.S.A. 2C:39-1k:
'Hand gun' means any pistol, revolver or other firearm originally designed or manufactured to be fired by the use of a single hand.
This definition of "hand gun" does not require any showing of present operability but only that the gun was "originally designed or manufactured" to be operable in a particular manner. Given Judge Newman's finding, not disputed by defendant, that the gun here was "real," the conclusion is unavoidable that it was a "hand gun" within the meaning of N.J.S.A. 2C:39-1k, and thus was a "firearm" as defined in N.J.S.A. 2C:39-1f.
Defendant urges that operability must be proved because the definition of "firearm" also includes:
This language, we are satisfied, is intended to describe the many kinds of devices which do not have all of the attributes of "real" guns but which have similar characteristics and dangers. Such "firearms" can best, and perhaps only, be described in terms of their operation. But "hand gun," "rifle," "shotgun" and "machine gun" are all specifically defined in N.J.S.A. 2C:39-1 in terms of their design, not their operability. We find no reason to supplement any of those statutory definitions with ...