On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County.
Dreier and Brochin. The opinion of the court was delivered by Brochin, J.s.c. (temporarily assigned).
The defendant in this case pleaded guilty to three counts of burglary contrary to N.J.S.A. 2C:18-2 and three counts of theft of movable property valued in excess of $500.00 contrary to N.J.S.A. 2C:20-3a. Each of these counts also charged the defendant with accomplice liability. These guilty pleas were entered pursuant to a plea agreement by which the State agreed to recommend concurrent sentences on all of the counts and dismissal of other charges against the defendant.
The six counts of the indictment to which defendant pleaded guilty charged that he and his accomplices had committed theft and burglary at each of three separate residences. Two of those counts charged that the property taken from one of those residences included a rifle and a shotgun. The State contended in the Law Division that the defendant's guilty pleas to those counts required that he be sentenced to a period of parole ineligibility pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). In accordance with a right reserved in his plea agreement, the defendant argued to the contrary.
A hearing was held at which testimony was presented on the issue of the applicability of the Graves Act. The trial judge held that the statute was applicable. He sentenced the defendant to concurrent five year terms for all of the counts of the indictment to which the defendant had pleaded guilty. On the counts which charged the defendant with theft and burglary of a rifle and shotgun, the court imposed concurrent three-year terms of parole ineligibility pursuant to the Graves Act. This
appeal is taken solely from that imposition of parole ineligibility.
In its brief to this court, the State concedes, correctly, that the imposition of Graves Act parole ineligibility on the count of the indictment charging defendant with theft in violation of N.J.S.A. 2C:20-3a is error because that "crime . . . does not trigger the Graves Act." The State suggests that since the trial court could have imposed a discretionary parole disqualifier pursuant to N.J.S.A. 2C:43-6b, this court "should amend the Judgment of Conviction to reflect a parole disqualifier of two and one half years on this count." That would not be appropriate, however, because the latter statute confers discretion upon the trial court to determine, in accordance with the statutory criteria, whether a period of parole ineligibility should be imposed and what should be the duration of any such period up to the statutory maximum. Since a remand is required in any event, the trial judge will have the opportunity to determine what, if any, minimum period of incarceration should be imposed on the theft count.
Defendant's guilty plea to the burglary count which charges a violation of N.J.S.A. 2C:18-2 does, of course, trigger Graves Act sentencing if the other statutory prerequisites are proved.
One of the theft counts to which the defendant pleaded guilty establishes that, either as a principal or as an accomplice, he "did unlawfully take the movable property of [the victim], that is, one rifle, shotgun. . . ." At the Graves Act hearing, a State's witness testified that the defendant admitted to him that the defendant himself carried the rifle out of the victim's house. That testimony, if credited by the judge below, would be ample basis to support his conclusion that the defendant was subject to sentencing under the Graves Act. Insofar as pertinent, that statute reads:
"A person who has been convicted . . . of a crime under any of [the enumerated statutory sections] . . . who while in the course of committing . . . the crime, including the immediate flight therefrom. . . was in possession of a firearm . . . shall be sentenced to a term of imprisonment by the court. The term of
imprisonment shall include the imposition of a minimum term . . . during which the defendant shall be ineligible for parole." ...