On appeal from Superior Court of New Jersey, Law Division, Camden County.
Approved for Publication December 16, 1996. As Amended December 16, 1996.
Before Judges Havey, Brochin and Eichen. The opinion of the court was delivered by Havey, P.j.a.d.
The opinion of the court was delivered by: Havey
The opinion of the court was delivered by
A person who has been convicted under N.J.S.A. 2C:39-4a of possession of a firearm with intent to use it against the person of another is subject to the mandatory provisions of the Graves Act. N.J.S.A. 2C:43-6c. In this case, the trial Judge held that it was his function, as opposed to the jury's, to decide after a Graves Act hearing whether defendant's intention in possessing the firearm was to use it against the person, as opposed to the property, of another. We disagree, and accordingly reverse and remand for further proceedings.
Under a Camden County indictment defendant was charged with fourth-degree aggravated assault, N.J.S.A. 2C:12-1b(4), a Graves Act offense. See N.J.S.A. 2C:43-6c. He was also charged with possession of a firearm with a purpose to use it unlawfully against the person or property of another. N.J.S.A. 2C:39-4a.
Prior to trial, defense counsel requested that a special interrogatory be presented to the jury for it to decide whether defendant's purpose in possessing the firearm was to use it against the person, as opposed to the property, of another. Counsel reasoned that since the Graves Act applied only to a person "convicted" of possessing the firearm with intention to use it against a person, the jury should decide the issue. The trial Judge denied the request, holding that it was his function to decide that issue after a Graves Act hearing was conducted.
Defendant thereupon entered into a negotiated plea agreement to both charges. The parties agreed that in the event the trial Judge determined that defendant's purpose was to use the firearm against the person of another, defendant would receive a seven-year custodial term with a three-year mandatory term pursuant to the Graves Act.
At the plea hearing, the trial Judge reiterated his intention to decide whether defendant intended to use a firearm against the person of another. Defense counsel then explained that after discussing the trial Judge's decision with defendant, defendant intended to enter guilty pleas to both offenses. However, counsel stated, "[defendant] indicated a desire to plead guilty to the proposed plea agreement. He understands the rights he's giving up. We don't have waiver of appeal in this case due to the fact it's a somewhat unusual set of circumstances." (Emphasis added). Thereafter, the Judge received a factual basis for the plea from the defendant. Defendant explained that while attending a party he turned on a stereo. After a woman turned the stereo off, defendant "got p/--ed off" and shot the stereo and a wall with his handgun. He stated, "I never pointed the gun at nobody." Defendant then acknowledged that: (1) he was giving up his rights, including a right to a trial by jury; (2) he understood that he was exposed to a three-year mandatory term as a result of his guilty plea; (3) he was satisfied with the representation of his attorney; and (4) he freely and knowingly answered all questions under the plea agreement.
At sentencing, the trial Judge conducted a Graves Act hearing. See N.J.S.A. 2C:43-6d. Defendant again explained the incident involving use of his handgun. After the hearing, the trial Judge found that defendant intended to use a firearm against the person of another, and thereupon sentenced defendant to a seven-year custodial term with a three-year period of parole ineligibility for the conviction under N.J.S.A. 2C:39-4a. A concurrent eighteen-month term with no parole ineligibility was imposed for the fourth-degree aggravated assault conviction. No immediate notice of appeal was filed by defendant.
Approximately thirteen months after sentencing, defendant moved for post-conviction relief (PCR). At the PCR hearing, defendant argued that he was deprived of his constitutional right to a jury trial on the issue of whether he intended to use a firearm against the person of another. He also claimed that his trial counsel was ineffective because she never explained to him his entitlement to a jury trial on the issue. The trial Judge denied the PCR petition. He concluded first that the application was procedurally barred because the issue could have been raised on direct appeal and had not, and second, he was satisfied that he had the power under the Criminal Code to decide the person/property issue, not the jury.
Thereafter, defendant filed an appeal from the order denying his PCR application. We also granted his motion to file an appeal nunc pro tunc from his judgment of conviction. On appeal, defendant raises the following points:
Point I - Defendant was denied his constitutional right to a fair trial when the trial court advised him that he did not have the right to a jury determination on the issue of whether the handgun was possessed with the intent [to] use it unlawfully against the person of another. U.S. ...