On certification to the Superior Court, Appellate Division, whose opinion is reported at 195 N.J. Super. 114 (1984).
For affirmance -- Chief Justice Wilentz, and Clifford, Handler, Pollock, O'Hern, Garibaldi and Stein. For reversal -- None. The opinion of the Court was delivered by O'Hern, J. Handler, J., concurring. Handler, J., concurring in the result.
We granted certification in this case to determine whether the State must prove that a handgun used in an armed robbery was operable before a court may impose a sentence under the Graves Act, which requires mandatory-minimum terms of imprisonment for persons convicted of designated crimes involving the use of a "firearm." The case arises in the context of an unarmed accomplice's liability when his armed co-felon is never apprehended and the weapon is never recovered or produced. We agree with the courts below that proof of a gun's operability is not inherent in the definition of "firearm," and therefore is not an essential element in the imposition of a Graves Act sentence. We therefore affirm the sentence imposed under the circumstances presented here.
The facts of this case are set forth in the trial court opinion, State v. Gantt, 186 N.J. Super. 262, 264 (Law Div.1982), and need not be repeated at length here. A jury convicted Gantt of a 1981 armed robbery, in violation of N.J.S.A. 2C:15-1. In the incident, Gantt and an unidentified companion robbed a co-worker of Gantt at gunpoint. Although Gantt himself was apparently unarmed, his complicity in the crime exposed him to conviction for armed robbery to the same extent as his armed co-felon. See N.J.S.A. 2C:2-6(b)(3) (accomplice liability). Gantt had previously been convicted of armed robbery under similar circumstances in 1974. As noted, Gantt's co-felon was never apprehended; nor was the weapon used in the robbery, a handgun, ever recovered.
At the time of sentencing, the trial court held hearings to determine (1) whether the Graves Act's mandatory-minimum-sentencing provisions were applicable to the unarmed accomplice in an armed robbery; (2) if so, whether the State, as the Graves Act requires, had demonstrated by a preponderance of the evidence that the unrecovered weapon was a "firearm," which would subject the defendant to the act's mandatory-sentencing provisions; and (3) whether a person twice convicted as the unarmed accomplice in armed robberies is eligible to be sentenced to additional time in prison under the act's mandatory extended-term provisions. The trial court answered all these questions in the affirmative and sentenced defendant to an extended term of 25 years with a mandatory-minimum parole bar of one third of that sentence, or 8 1/3 years.
On the second question, the court ruled that the definition of "firearm" incorporated in the Graves Act did not require a showing that the weapon in question was operable. State v. Gantt, supra, 186 N.J. Super. at 266. The court held alternatively that even if a showing of operability were required, there was "more than sufficient evidence" in the record to invoke an "inference of operability." Id. at 268. It also rejected defendant's contentions that an unarmed accomplice was subject to neither the Graves Act, id. at 275, nor its extended-term provisions. Id. at 280. The Appellate Division affirmed on all issues. State v. Gantt, 195 N.J. Super. 114 (1984). In particular, the appellate panel concluded that "neither a handgun * * * nor a rifle * * * nor a shotgun * * * nor a machine gun * * * need be operable for that weapon to qualify as a firearm" for purposes of imposing a Graves Act sentence. Id. at 118-19 (citations omitted).
Because we had already determined that the unarmed accomplice in an armed robbery is subject to Graves Act sentencing, State v. White, 98 N.J. 122, 126 (1984), we limited our grant of certification to the single issue of whether a firearm must be proven operable before a Graves Act sentence may be imposed. 101 N.J. 220 (1985).
The Graves Act, N.J.S.A. 2C:43-6(c) to (d), provides generally that one who uses or possesses a "firearm" while committing, attempting to commit, or fleeing after committing certain enumerated serious offenses must be sentenced to imprisonment for a term that includes at least three years of parole ineligibility. N.J.S.A. 2C:43-6(c). An exception is made in the case of a fourth-degree crime involving the use of a firearm, where the minimum term of parole disqualification is dropped to 18 months.
In addition to mandating minimum terms for firearms-related offenses, the Graves Act also requires extended mandatory-minimum terms for Graves Act second offenders:
A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.
[ N.J.S.A. 2C:43-6(c).]*fn1
The extended-term sentences mandated for Graves Act second offenders are set by N.J.S.A. 2C:43-7(c), which incorporates as well a mandatory-extended-parole bar:
In the case of a person sentenced to an extended term pursuant to 2C:43-6c. and 2C:44-3d., the court shall impose a sentence within the ranges permitted by 2C:43-7a.(2), (3), (4) or (5) according to the degree or nature of the crime for which the defendant is being sentenced, which sentence shall include a minimum term which shall be fixed at, or between one-third and one-half of the
sentence imposed by the court or 5 years, whichever is greater, during which the defendant shall not be eligible for parole. Where the sentence imposed is life imprisonment, the court shall impose a minimum term of 25 years during which the defendant shall not be eligible for parole.
For the first-degree offense of armed robbery, see N.J.S.A. 2C:15-1(b), section 2C:43-7(a)(2) provides an extended-term sentencing range of between twenty-years and life imprisonment. Hence, under the circumstances of a Graves Act second offender now being sentenced for armed robbery, the Code obligates the trial court to impose at least a twenty-year term with a minimum extended period of parole ineligibility of one third of 20 years or 6 2/3 years.
This is not our first encounter with the Graves Act. In State v. Des Marets, 92 N.J. 62 (1983), we upheld the act against constitutional challenge as well as a challenge to its ban on sentencing youthful offenders to indeterminate terms at the Youth Correctional Institution Complex. See N.J.S.A. 2C:43-5 (diversionary treatment for young-adult offenders). We held that the Legislature's intent behind the minimum term mandated by the Graves Act left no room for exceptions for those who commit crimes with firearms; its deterrent policies overrode the rehabilitative purposes underlying the discretionary sentencing provided for in our youthful-offender statutes. Des Marets, supra, 92 N.J. at 74-76. In State v. Stewart, 96 N.J. 596 (1984), we discussed the procedure for imposing a Graves Act sentence, and clarified that the purpose of the act contemplated imposition of sentences for constructive possession of weapons in circumstances where the weapon was immediately available to, if not actually in the hands of, the criminal offender. Id. at 604. Finally, as noted, in State v. White, supra, 98 N.J. at 126, we held that the legislative purpose was intended to apply as well to unarmed accomplices found guilty under the armed feature of the charge, or when the evidentiary hearing conducted by the sentencing judge disclosed that the defendant knew or should have known firearms were to be used in the commission of the crime. We draw on our familiarity with the
policies underlying the Graves Act to better inform our decision in this case.*fn2
We begin our analysis by noting that the question of operability can arise in different contexts. See, e.g., State v. Harmon, 203 N.J. Super. 216 (App.Div.), certif. granted, N.J. (1985) (whether operability is essential element of substantive firearms-possession offense); State v. Morgan, 121 N.J. Super. 217 (App.Div.1972) (same); Annot., 28 A.L.R. 3d 845, 863-65 (1969) (collecting cases on question of operability as element of substantive offense). Here, we address only the relevance of operability in the context of sentencing.
The Graves Act, by its terms, requires that the grounds for imposing a mandatory-minimum sentence be established at a post-conviction hearing. In particular, the act requires the State to demonstrate that the weapon in question was a "firearm":
At the hearing, which may occur at the time of sentencing, the prosecutor shall establish by a preponderance of the evidence that the weapon used or possessed was a firearm. In making its finding, the court shall take judicial notice of any evidence, testimony or information adduced at the trial, plea hearing, or other court proceedings and shall also consider the presentence report and any other relevant information.
The Graves Act incorporates the definition of "firearm" contained in our Gun Control Law, L. 1966, c. 60, as amended, N.J.S.A. 2C:39-1 to ...