On certification to the Superior Court, Appellate Division.
For affirmance -- Chief Justice Wilentz and Justices Clifford, Schreiber, Pollock, O'Hern and Garibaldi. For reversal -- Justice Handler. The opinion of the Court was delivered by Schreiber, J. Handler, J., dissenting.
We granted defendant's petition for certification to consider when an accomplice to a crime may be subject to the sentencing requirements of the Graves Act, N.J.S.A. 2C:43-6c. 96 N.J. 287 (1984). We hold that if an accomplice is found guilty of an armed Graves Act offense that was committed with a firearm, he is subject to sentencing under that Act. If an accomplice is convicted only of an unarmed offense, but the trial court finds that the defendant nonetheless knew or had reason to know that his cohort would use or be in possession of a firearm in the course of committing or attempting to commit the crime, including the immediate flight therefrom, the accomplice is likewise subject to Graves Act penalties.
Defendant's convictions resulted from his participation in two separate robberies. The first occurred on June 7, 1981. The jury could reasonably have believed that defendant discussed and planned a robbery of a gas station with Stuart Anderson, Thomas Jones, and George Bland; that they drove to a point near the gas station; that Anderson gave Jones a gun in defendant's presence; and that Jones and Bland, holding the attendants at gunpoint, robbed the gas station. Thereafter all four shared in the proceeds.
The following day, the same four men and defendant's girl friend were together in the same automobile. Defendant had
told Anderson that Keith Norwood had money hidden in his sock. Anderson, using a gun, forced Norwood into the car. They drove for several blocks, stopped the car, and Anderson robbed Norwood.
Defendant was convicted of two conspiracies to commit armed robbery (N.J.S.A. 2C:5-2), three possessions of a handgun without a permit (N.J.S.A. 2C:39-5b), two armed robberies (N.J.S.A. 2C:15-1), three possessions of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4a), and possession of a defaced weapon (N.J.S.A. 2C:39-3d). The trial court sentenced defendant on the armed robbery counts to two concurrent terms of fifteen years with five years of parole ineligibility. Three weapons possession convictions were merged into the armed robbery convictions and concurrent lesser sentences were imposed for all remaining convictions. The trial court recited, pursuant to Rule 3:21-4(e), that "[b]y reason of the application of the Graves Act the defendant must serve at least five years before he is eligible for parole." The court also observed that independent of the Graves Act it would have been "the Court's inclination" to impose the same sentence.
The Appellate Division affirmed. It explained that defendant's culpability as an accomplice was the same as that of the principal who possessed or used the gun and concluded that "[w]here, as here, the accomplice participates in the crime knowing that the principal is armed with a firearm, he 'used or was in possession of a firearm' within the meaning of [the Graves Act,] N.J.S.A. 2C:43-6c."
At the time of defendant's offenses the first paragraph of N.J.S.A. 2C:43-6c read as follows:
A person who has been convicted under 2C:39-4a. 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 as defined in 2C:39-1f., shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one-half of the sentence imposed by the court or 3 years,
whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. [ L. 1981, c. 31, § 1.]*fn1
Under this statute a person who has been convicted of robbery, N.J.S.A. 2C:15-1, and who, in the course of the robbery, "used or was in possession of a firearm" must receive a minimum term of imprisonment. Defendant contends that he was not personally armed at any time during the robberies or their aftermaths and that he is beyond the reach of the statute because of its clear, unambiguous language and purpose. Defendant urges that to hold otherwise would render the Graves Act constitutionally defective for failure to give him fair notice.
The Legislature in the Graves Act sought to deter the possession and use of firearms. In State v. Des Marets, 92 N.J. 62 (1983), the Chief Justice wrote:
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. The intended deterrence can be served only by giving effect to the obviously broad coverage of this law. [ Id. at 68 (footnote omitted).]
In Des Marets the Court held that a showing of possession alone, without any intent to use the firearm, triggered the Act. Id. at 65. In State v. Stewart, 96 N.J. 596, 604 (1984), this Court stated that possession included "not only actual possession but constructive possession that the defendant is able to convert practically immediately to actual possession."
We turn to discuss the role, if any, that the accomplice has within the scheme of the Graves Act. Under the New Jersey Code of Criminal Justice (Code), a person is guilty of an offense if it is committed "by the conduct of another person for which ...