On appeal from Superior Court of New Jersey, Law Division, Camden County.
Brody, Gaynor and Baime. The opinion of the court was delivered by Brody, J.A.D.
Defendant appeals his sentence. He and a co-defendant were hired to kill a witness in a federal investigation. As defendant drove past the witness's house, his accomplice fired a handgun into the witness's automobile. The witness and his son had just entered the car and were about to drive to work. Both victims survived the shooting but they were seriously wounded. Defendant has an extensive criminal record, including a conviction of assault with a revolver.
Pursuant to a plea agreement, the trial judge imposed concurrent Graves Act mandatory extended prison sentences of 15 years with a minimum term of 5 years for each of four second-degree crimes: conspiracy to commit murder (N.J.S.A. 2C:5-2), aggravated assault of the father (N.J.S.A. 2C:12-1(b)(1)), aggravated assault of the son (N.J.S.A. 2C:12-1(b)(1)) and possession of a weapon for an unlawful purpose (N.J.S.A. 2C:39-4). The judge ordered that defendant serve the sentences concurrently with a 25-year federal prison sentence that had resulted from the same episode. The judge dismissed counts charging second-degree attempted murder (N.J.S.A. 2C:5-1 and N.J.S.A. 2C:11-3) and third-degree possession of a handgun without a permit (N.J.S.A. 2C:39-5(b)).
Defendant argues that (1) three of the extended prison sentences are illegal because N.J.S.A. 2C:44-5(a)(2) prohibits imposition of more than one extended prison term when multiple prison sentences are imposed, (2) N.J.S.A. 2C:1-8(a)(2) requires that the conspiracy and aggravated assaults merge and (3) N.J.S.A. 2C:44-3(d) does not permit imposition of a mandatory extended prison term for conspiracy to commit murder because
conspiracy is not a Graves Act crime. The State concedes defendant's last point.
Extended prison terms serve two different functions in the Code. They offer the sentencing judge an option, which he may take on request of the prosecuting attorney, to impose a longer prison sentence than is ordinarily available. When performing this function, an extended prison term may be imposed in the exercise of sound judicial discretion where the defendant is a persistent offender, a professional criminal or a party to a crime committed for hire. N.J.S.A. 2C:44-3(a), (b) and (c).
Extended prison terms also serve as the mandatory sentence for a defendant who has committed any of the crimes enumerated in N.J.S.A. 2C:44-3(d) (Graves Act crimes) in the course of which he used or possessed a firearm, if he had previously been convicted of a Graves Act crime involving the use or possession of a firearm. Ibid. When performing that function, an extended prison term is the ordinary sentence for the crime.
These two distinct functions of extended prison terms are explicitly stated in the Code. N.J.S.A. 2C:43-6(c) provides in part:
A person who has been convicted of [one of the Graves Act crimes] 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 . . . shall be sentenced by the court to an extended term . . . notwithstanding that extended terms are ordinarily discretionary with the court.
When multiple Graves Act prison sentences are imposed on a second Graves Act offender, the sentence for each Graves Act crime must lie within the extended prison sentence range.
Defendant relies on N.J.S.A. 2C:44-5(a)(2), which provides in part:
When multiple sentences of imprisonment are imposed on a defendant for more than one offense . . . [n]ot more than one sentence for ...