On appeal from the Superior Court, Appellate Division.
For affirmance -- Chief Justices Wilentz, and Clifford, Pollock, O'Hern and Garibaldi. For reversal -- Justices Handler and Stein. The opinion of the Court was delivered by Clifford, J. Stein, J., dissenting. Handler, J., joins in this opinion.
At issue on this appeal, here as of right because of a dissent below, see Rule 2:2-1(a)(2), are the mandatory extended-term provisions of the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d. The precise question is whether those provisions apply to a defendant whose first Graves Act offense is the subject of his second Graves Act conviction.
The majority in the Appellate Division, in an opinion reported at 214 N.J. Super. 430 (1986), upheld the trial court's imposition of an extended term, a result consistent with State v. Windsor, 205 N.J. Super. 450 (Law Div.1985). The dissenter below held that enhanced punishment was not mandated, given the chronology of offenses and convictions, a determination foreshadowed by the overruling of Windsor in State v. Lightfoot, 208 N.J. Super. 475, 479 (App.Div.1986). (Lightfoot was authored by the dissenting member of the panel that heard this case. The author of Windsor was another member of the same panel.)
We agree with the majority below that one of the primary purposes of the Graves Act is "[d]eterrence against second or multiple crimes involving use or possession of a firearm," 214 N.J. Super. at 434-35, and that that purpose is served not only by exposing to a mandatory extended term the offender who commits a firearms offense after a prior conviction of a firearms offense, id. at 435, but also by "exposing to a mandatory extended term anyone guilty of multiple firearms offenses, whatever the chronology of his convictions." Ibid. (emphasis added). Hence we affirm.
The Graves Act provides, generally, that "one who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of, certain serious offenses specified in the Act shall be mandatorily sentenced to prison for a term that includes three years of parole ineligibility." State v. Des Marets, 92 N.J. 62, 64 (1983) (footnote omitted); N.J.S.A. 2C:43-6c. The cited statutory section further provides:
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.
The "extended term" referred to in N.J.S.A. 2C:43-6c must be imposed on any defendant who is at least eighteen-years old and has previously been convicted of any of the offenses enumerated in N.J.S.A. 2C:44-3d. Finally, the definition of "prior conviction of a crime" is contained in N.J.S.A. 2C:44-4b:
An adjudication by a court of competent jurisdiction that the defendant committed a crime constitutes a prior conviction, although sentence or the execution thereof was suspended, provided that the time to appeal has expired and that the defendant was not pardoned on the ground of innocence.
Defendant, Ernest Hawks, has twice been convicted of Graves Act offenses. His second Graves Act offense was committed in March 1983, during the course of an armed
robbery in which he participated while on bail for his first Graves Act offense. On entry of a guilty plea Hawks was convicted in July 1983 of first-degree armed robbery, N.J.S.A. 2C:15-1, for this second Graves Act offense. Consequently, the court sentenced defendant to fifteen years in prison, subject to a five year Graves Act parole disqualifier pursuant to N.J.S.A. 2C:43-6c.
In October 1984 a second judgment of conviction was entered against Hawks, this time for criminal activities that had occurred in July and September of 1982 and, as such, represented defendant's first Graves Act offense. Specifically, Hawks was convicted of second-degree conspiracy to commit aggravated assault, N.J.S.A. 2C:5-2; second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), into which the conspiracy charge was merged; third-degree unlawful possession of a firearm without a permit, N.J.S.A. 2C:39-5b; and second-degree possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4a.
For his conviction of possession of a firearm for an unlawful purpose, the court sentenced Hawks in December 1984 to an extended custodial term of fifteen years, subject to five years parole ineligibility. This sentence was based on the court's conclusion that defendant was a second offender under the Graves's Act extended-term provisions, contained in N.J.S.A. 2C:43-6c and quoted above. Hawks's sentences of lesser duration for the other crimes were to run concurrently with the sentence ...