On appeal from Superior Court, Law Division, Gloucester County.
King, R.s. Cohen and Stern. The opinion of the court was delivered by Stern, J.A.D.
This case requires us to consider the constitutionality of N.J.S.A. 2C:43-6.2 which embodies the so called "escape valve" to the mandatory sentence requirements otherwise embodied in the Graves Act, N.J.S.A. 2C:43-6c. We construe the statute to be constitutional, but remand for further sentencing proceedings consistent with this opinion.
Defendant was convicted of fourth degree aggravated assault, N.J.S.A. 2C:12-1(b)(4) (count one); fourth degree possession of a prohibited weapon, N.J.S.A. 2C:39-3(f) (count two); third degree possession of a handgun without a permit, N.J.S.A. 2C:39-5(b) (count three), and second degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count four). Defendant was sentenced to concurrent sentences aggregating seven years, with three years before parole eligibility being imposed as a result of count four. The three year ineligibility term was prescribed by the Graves Act, N.J.S.A. 2C:43-6c. The sentence was imposed on May 19, 1989, just over one month after the effective date of N.J.S.A. 2C:43-6.2, April 14, 1989. See L. 1989, c. 53.
After imposition of sentence, defendant moved before the Assignment Judge for reconsideration of the sentence pursuant to N.J.S.A. 2C:43-6.2. The prosecutor opposed the application, stating that "[t]he State does not feel that the sentence imposed is such as to thwart the interest of justice." As the prosecutor did not join in the motion or consent to it, we are told that the Assignment Judge declined to entertain the application. On this appeal defendant argues:
POINT I THE COURT ERRED IN FAILING TO CONDUCT A HEARING UPON DEFENDANT'S MOTION TO SUPPRESS EVIDENCE OF A WARRANTLESS
SEARCH AND IN ADMITTING THE OUT-OF-COURT IDENTIFICATION.
POINT II THE COURT ERRED IN ITS APPLICATION OF THE GRAVES ACT IN THAT THE OPERABILITY AND POSSESSION OF THE FIREARM WAS NOT PROVEN.
POINT III N.J.S.A. 2C:43-6.2 VIOLATES DUE PROCESS AND EQUAL PROTECTION OF THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND NEW JERSEY CONSTITUTION, AS APPLIED BY THE COURT.
POINT IV THE COURT ERRED IN ITS CHARGE TO THE JURY BY DIRECTING A VERDICT.
We find that the claims embodied in Points I, II and IV are clearly without merit and do not warrant further discussion. R. 2:11-3(e)(2). Upon consideration of the matter as originally submitted to us, however, we felt that disposition of Point III also required consideration of the "separation of powers" doctrine and the appropriate remedy to be applied should the statute be found to be ...