On appeal from the Superior Court, Law Division, Essex County.
Furman, Dreier and Stern. The opinion of the court was delivered by Furman, P.J.A.D. Dreier, J.A.D. (dissenting).
By jury verdict defendant was convicted of second degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2, of third degree aggravated assault with a firearm, N.J.S.A. 2C:12-1b(2), of second degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4, and of third degree possession of a firearm without a permit, N.J.S.A. 2C:39-5b, on two counts. His conspiracy conviction was merged into his aggravated assault conviction.
Defendant's sentence for possession of a firearm for an unlawful purpose was to an extended custodial term of 15 years with a five-year term of parole ineligibility, pursuant to the Graves Act, N.J.S.A. 2C:43-6, based upon his prior conviction of a crime involving the use of a firearm. The sentences for his other crimes, included an extended seven-year term for aggravated assault with a firearm, were made concurrent with his sentence for possession of a firearm for an unlawful purpose.
On appeal defendant raises three issues: that his motion for dismissal at the close of the State's case should have been granted; that there was insufficient evidence to convict him; and that his sentence should be vacated or reduced because of
disparity between his sentence and the eleven-year custodial sentence with a three and a half year term of parole ineligibility imposed upon codefendant Dwayne Powell, who fired the firearm in the aggravated assault.
The first two issues raised by defendant are clearly without merit, R. 2:11-3(e)(2). The third issue is broader than set forth by defendant. Codefendant Powell had no prior conviction of a firearm offense; if defendant was subject to a mandatory extended term under the Graves Act, he is not entitled to sentence relief on the ground of disparity between his sentence and that of Powell, who was not subject to a mandatory extended term under the Graves Act.*fn1
Chronologically, defendant committed the crimes on appeal before us in July 1982; he committed a second offense involving use of a firearm in March 1983; judgment of conviction of the second offense was entered in July 1983 upon his plea of guilty; judgment of conviction on appeal before us was entered in December 1984.
The issue to be resolved is whether the mandatory extended term provision of the Graves Act applies to a defendant whose prior conviction of a firearms offense occurred subsequent to the commission of the firearms offense for which he is to be sentenced. This court decided that issue in the negative in State v. Lightfoot, 208 N.J. Super. 475 (App.Div.1986), which overruled State v. Windsor, 205 N.J. Super. 450 (Law Div.1985). The opinion writers of both Lightfoot and Windsor are members of this panel.
The statute to be construed by us is the final paragraph of N.J.S.A. 2C:43-6c, which provides:
A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its ...