On certification to the Appellate Division, Superior Court.
The opinion of the Court was delivered by O'Hern, J.
[107 NJ Page 397] We granted certification primarily to consider defendant's contention that the imposition of a Graves Act sentence following his conviction as an accomplice to robbery violated
principles of due process because the issue of eligibility for the mandatory sentence was not submitted separately to the jury. Defendant was convicted of first degree robbery, in violation of N.J.S.A. 2C:15-1b, because the principal was "armed with, or use[d] or threaten[ed] the immediate use of a deadly weapon." We find no want of due process in a sentencing procedure when, as here, the factual predicate for the Graves Act sentence essentially has been established by the jury's verdict.
This was one of the first cases presented to the trial court for sentencing under the then newly-enacted Graves Act, N.J.S.A. 2C:43-6, L. 1981, c. 31. Defendant's assertion that the trial court impermissibly based the Graves Act sentence on consideration of a statement of his confederate that was not admitted in defendant's trial is not supported by the record. The trial court specifically stated that it was sentencing "in light of what I now have." The court satisfied itself that it had a jury finding of "robbery in the first degree, robbery while armed with a weapon," and that the only admitted evidence before the jury of a weapon indicated that the weapon was a gun. The court concluded: "I have no difficulty finding that by a preponderance of the evidence, it has been established that the defendant in this case, Mr. Weeks was an accomplice in an armed robbery with a weapon, which weapon was a firearm." Hence, there is no occasion here to consider the ramifications of other factual predicates recently considered by the United States Supreme Court. See McMillan v. Pennsylvania, 447 U.S. , 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
Our review of the case, however, leads us to focus on the standard for determining the scope of an accomplice's liability for a criminal offense committed by another. The issue is of special relevance in the context of Graves Act sentencing because an unarmed accomplice who is convicted of an underlying offense predicated upon the possession of a firearm is treated as though in possession of the firearm. In plain words, if someone is convicted as an accomplice to armed robbery
involving a firearm, that person goes to prison for the term mandated by the Graves Act.
The defendant was charged as an accomplice to the robbery of a bakery. The alleged principal, Godfrey, was tried separately at about the same time defendant was tried. Defendant had been seen driving, with a passenger in his car, away from the area where the robbery occurred. When defendant was arrested soon after the robbery, he was alone and had only $12 in his possession. He maintained that both he and his wife were steadily employed, and hence he would have no reason to commit a robbery. But despite his claim that he did not know that his passenger planned a robbery, much less one with a weapon, defendant was convicted of first degree robbery because the evidence showed that he was an accomplice to a robbery committed with a gun. The trial court denied defendant's motion for a new trial, and sentenced him to a term of fifteen years in prison with a five year period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6d.
On appeal to the Appellate Division, defendant argued that 1) the verdict was against the weight of the evidence; 2) the trial court abused its discretion in permitting examination about defendant's prior conviction for armed robbery and the principal's indictment for an alleged prior bank robbery; 3) the Graves Act was unconstitutional because the issue of sentence eligibility was not submitted separately to the jury; and 4) the trial court imposed a manifestly excessive sentence. In an unreported opinion, the Appellate Division affirmed the conviction and sentence. We granted defendant's petition for certification. 105 N.J. 533 (1986).
We find that an erroneous instruction on the necessity for shared purpose to commit the underlying crime, and an impermissibly broad introduction of evidence of other criminal conduct by the principal, combined to taint the defendant's conviction as an accomplice to robbery in the first degree, N.J.S.A.
2C:15-1b. Accordingly, we reverse the judgment of conviction below.
In State v. White, 98 N.J. 122 (1984), we interpreted the Graves Act to apply to the accomplice of an armed robbery under conditions outlined therein. We held that the Legislature would not have intended that the mastermind of an armed robbery could avoid a Graves Act sentence by having a confederate carry the gun. We said: "Surely, the Legislature intended that when an accomplice is guilty of a robbery that is held to be a crime of the first degree because one perpetrator used or possessed a firearm, the Graves Act would apply in sentencing the accomplice." Id. at 130.
Because the trial court sentenced defendant on a conviction of armed robbery, it did not have to consider the aspect of State v. White, supra, 98 N.J. at 13, that "[i]t is possible for an accomplice to be guilty of robbery and for his compatriot to be guilty of armed robbery." But the accomplice still may be eligible for Graves Act sentencing "if the accomplice, though found guilty only of robbery, knew or had reason to know before the crime was committed that his partner would possess or use a firearm while the crime was being committed * * *." Ibid.
In this case, defendant was found guilty of robbery, which was elevated to the first degree under N.J.S.A. 2C:15-1b because "in the course of committing the theft the [principal] * * * [was] armed with * * * a deadly weapon." Because of the serious consequences of this conviction as an accomplice, a clearer understanding of the scope of accomplice liability under the Code of Criminal Justice, N.J.S.A. 2C:2-6, must be imparted to the jury.
Accomplice law deviates from traditional legal rules in the sense that crimes are defined as if the accomplice actually committed the acts that constitute the offense. For example, the murderer "kills" and the rapist "intentionally has sexual intercourse with" or "carnally knows" the victim. The accomplice does none of these things, yet * * * is convicted of murder or rape, not of "aiding a murder" or "aiding a rapist."
[Dressler, "Reassessing the Theoretical Underpinnings of Accomplice Liability: New Solutions to an Old Problem," 37 Hastings L.J. 91, 92 n. 3 (1985).]
The author notes that early common law of accomplice liability was intricate and frequently illogical. "Felony law distinguished between 'principals,' who were either of the first degree or of the second degree, and 'accessories,' who were either 'before the fact' or 'after the fact.'" Id. at 94-95 (footnotes omitted). Distinctions were drawn between accomplices at the scene and perpetrators. The consequences of being labeled an accessory as opposed to an accomplice before the fact or after the fact were frequently crucial to the defendant's culpability. Id. at 95.
Legislative reform sought to clarify the distinctions between principals and all accessory or accomplice liability, with the result that accomplices are judged and punished as if they were the actual criminal offenders. Id. at 96-97. Because of a moral intuition about holding one accountable for the wrongdoing of another, id. at 108, the extent of accomplice liability has been defined carefully in our Code of Criminal Justice. We restate the summary made by Justice Schreiber in State v. White, supra:
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 he is legally accountable * * *." N.J.S.A. 2C:2-6a. Legal accountability exists when a person "is an accomplice of such other person in the commission of an offense." N.J.S.A. 2C:2-6b(3). The Code defines a person as the accomplice of another when:
[w]ith the purpose of promoting or facilitating the commission of the offense; he
(a) Solicits such other person to commit it;
(b) Aids or agrees or attempts to aid such other person in planning or committing it; or
(c) Having a legal duty to prevent the commission of the offense, fails to make proper effort so to do. [ N.J.S.A. 2C:2-6c(1) (emphasis supplied).]
By definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice. II The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission 57 (1971) observes that "one is 'legally accountable' for the conduct of another when he is an 'accomplice' of the other person 'in the offense.' By 'the offense' is meant that
offense charged for which guilt is in question under § 2C:2-6a." ...