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State v. Camacho

March 25, 1998

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT,
v.
FRANKLIN CAMACHO, DEFENDANT-RESPONDENT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 295 N.J. Super. 585 (1996).

The opinion of the court was delivered by: Stein, J.

A-41 September Term 1997

Argued November 3, 1997

Pursuant to N.J.S.A. 2C:39-4a, possession of "any firearm with a purpose to use it unlawfully against the person or property of another" is a second degree offense. The Graves Act, see N.J.S.A. 2C:43-6c, provides that 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 shall be sentenced to a minimum parole ineligibility term of between one-third and one-half of the sentence imposed by the court or three years, whichever is greater. Defendant Franklin Camacho pleaded guilty to possession of a firearm with the intent to use it unlawfully, in violation of N.J.S.A. 2C:39-4a.

After conducting a Graves Act hearing, the trial court determined that defendant had possessed a firearm with the purpose to use it against the person of another, and imposed a Graves Act sentence on that count of seven years with three years of parole ineligibility. On appeal from the denial of defendant's post-conviction relief application, the Appellate Division reversed, holding that the question whether defendant possessed the firearm with the purpose of using it against the person of another was a jury issue, remanding the matter for trial. State v. Camacho, 295 N.J. Super. 585, 594 (1996).

We must determine whether intent to use a firearm unlawfully against the person, as opposed to the property, of another is an element of N.J.S.A. 2C:39-4a, thus entitling defendant to a jury trial on that issue, or whether the distinction between intent to use a firearm against a person, rather than property, is an issue to be determined by the sentencing court at a Graves Act hearing. I

On November 16, 1991, defendant went to a party at the apartment of Alice Ramirez in Camden, New Jersey. Several people were at Ms. Ramirez's apartment, including defendant's cousin, Ramon Rodriguez, who is the father of Ms. Ramirez's children. Defendant turned on the stereo. When Ms. Ramirez turned off the stereo, defendant became angry, pulled out a handgun that he had on his person, and shot at the stereo and the walls.

In September 1992, defendant was indicted by a Camden County Grand Jury on the following charges: second degree aggravated assault against Alice Ramirez, in violation of N.J.S.A. 2C:12-1b(1) (Count One); second degree aggravated assault against Ramon Rodriguez, in violation of N.J.S.A. 2C:12-1b(1) (Count Two); third degree aggravated assault against Alice Ramirez, in violation of N.J.S.A. 2C:12-1b(2) (Count Three); third degree aggravated assault against Ramon Rodriguez, in violation of N.J.S.A. 2C:12-1b(2) (Count Four); fourth degree aggravated assault against Alice Ramirez, in violation of N.J.S.A. 2C:12-1b(4) (Count Five); fourth degree aggravated assault against Ramon Rodriguez, in violation of N.J.S.A. 2C:12-1b(4) (Count Six); second degree possession of a firearm for an unlawful purpose with intent to use it against the person of another, in violation of N.J.S.A. 2C:39-4a (Count Seven); and third degree unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b (Count Eight).

Prior to trial, the State made a motion to amend Count Seven to state that defendant was charged with second degree possession of a firearm with an intent to use it unlawfully against the person or property of another. Defense counsel responded that she would not object to the motion but, if the case went to trial, she requested that a special interrogatory be submitted to the jury concerning whether defendant intended to use the firearm either against the person or against the property of another.

In September 1993, defense counsel and the prosecutor informed the trial court that they had reached an agreement whereby defendant would plead guilty to fourth degree aggravated assault against Ramon Rodriguez (Count Six) and second degree possession of a firearm for an unlawful purpose with intent to use it against the person of another (Count Seven). All other counts would be dismissed, and the State would recommend a seven- year term of imprisonment. The court would hold a hearing to determine the applicability of the Graves Act and, if it determined that the Graves Act did apply, the State would recommend that the court impose a Graves Act parole ineligibility period of three years.

The next day defendant appeared before the trial court to plead guilty pursuant to the plea agreement. Before defendant entered his plea, the trial court ruled on the State's motion to amend Count Seven and on whether defense counsel's requested interrogatory should be submitted to the jury if the case went to trial. The trial court held that the issue whether defendant possessed the firearm with the intent to use it unlawfully against the person, rather than the property, of another was not a question for the jury, and therefore the jury would not receive an interrogatory concerning that distinction. Rather, the court would make that determination at a Graves Act hearing, pursuant to N.J.S.A. 2C:43-6d. On the State's motion, and with the consent of defense counsel, the court amended Count Seven to charge defendant with second degree possession of a firearm with intent to use it against the person or the property of another.As a factual basis for his plea, defendant stated that he had gone to Ms. Ramirez's apartment and turned on the stereo. When Ms. Ramirez turned off the stereo defendant became angry. He took out the gun that he carried for "self defense" and shot the stereo and the wall. Defendant stated that Mr. Rodriguez was standing next to him when he shot the stereo. Defendant admitted that he knew there were people in the room on the other side of the wall at which he shot, but stated that he did not shoot at the wall because the people were on the other side of it. The court accepted defendant's guilty plea to Counts Six and Seven.

On January 14, 1994, the court held a Graves Act hearing prior to sentencing defendant. At the beginning of the hearing the court asked defense counsel whether defendant "consented to a hearing to let [the court] decide the issue as to whether this is a Graves Act offense or not." Defense counsel said that he did. The court then asked, "And, he's willing to give up the right to a trial by jury on that issue; is that right?" Defense counsel answered, "Right." The court then asked defendant if that was correct. Defendant answered, "Yes."

The State presented the Grand Jury testimony of Ms. Ramirez and Mr. Rodriguez, and introduced photographs of the crime scene that showed bullet holes in the walls and ceiling of Ms. Ramirez's apartment. In addition, pictures showed that a bullet had passed through the wall behind the stereo and entered a room where defendant had conceded that he knew people had been.

After the State presented its case, defense counsel informed the court that defendant wanted to give a statement to express "his remorse," and that defense counsel did not wish to ask him questions. The prosecutor stated that if defendant's statement would be relevant to the applicability of the Graves Act, the prosecutor reserved the right to cross-examine defendant. The court determined that defendant should be under oath, and defendant was duly sworn. Defense counsel decided to interrogate defendant, in response to which defendant stated that he never intended to use the gun against anyone at the apartment. Contrary to his statements when he entered his guilty plea, defendant said that he did not know there were people on the other side of the wall at which he shot. On cross-examination, defendant admitted that when he shot the stereo, people were sitting on the sofa not far from him.

The court noted that Mr. Rodriguez stated that, before defendant shot the stereo, he had threatened Ms. Ramirez, saying, "Alice, I'll blast you Alice, I'll blast you, don't (deleted) with me, I'll blast you." The court observed that Ms. Ramirez stated that defendant had "aimed the gun at everybody that was sitting in the living room," threatened to kill them, and that one of defendant's shots was toward her. In light of those statements and defendant's testimony in support of his guilty plea, the court found that defendant's testimony at the Graves Act hearing was not credible. The court held that the Graves Act applied to Count Seven because defendant's purpose in using the firearm was to "frighten and terrorize the people" at the Ramirez apartment. That constituted a purpose to use a firearm against the person of another pursuant to N.J.S.A. 2C:43-4a. The court sentenced defendant on Count Six to eighteen months without parole. On Count Seven, the court imposed a concurrent sentence of seven years, with three years to be served without parole.

Although defendant requested that an appeal be filed, defense counsel did not file the appeal. In February 1995, defendant filed a motion for post-conviction relief (PCR), alleging that he had received ineffective assistance of counsel because his lawyer advised him that he did not have a right to have a jury determine whether he intended to use the firearm against the person, as opposed to the property, of another. The court denied defendant's PCR motion on two grounds: the argument should have been made on direct appeal, and the applicability of the Graves Act is a sentencing issue rather than an element of the offense. The court held that the elements of the offense of possession of a firearm for an unlawful purpose are met if the jury finds that a defendant possessed a firearm with the purpose to use it unlawfully against the person or the property of another.

On appeal, defendant argued that he was denied his constitutional right to a fair trial by the trial court's decision that he did not have the right to a jury determination on the issue whether the firearm was possessed with the intent to use it unlawfully against the person of another. The Appellate Division held that whether defendant possessed a firearm with an intent to use it unlawfully against the person, as opposed to the property, of another, was a question for the jury to decide. Camacho, supra, 295 N.J. Super. at 590-91. Additionally, the court held that a jury's determination that a defendant possessed a firearm with the intent to use it unlawfully against the person of another would obviate the need for a hearing under the Graves Act. Id. at 592. The court reversed and remanded the case to permit defendant to vacate his plea and proceed to trial. Id. at 594.

This Court granted the State's petition for certification. State v. Camacho, 149 N.J. 36 (1997).

II.

The Graves Act provides that one who uses or possesses a firearm during the commission, attempt, or flight from certain serious offenses, or one who is convicted under N.J.S.A. 2C:39-4a of possession of a firearm with the intent to use it against the person of another, shall receive a mandatory prison sentence that includes at least three years of parole ineligibility. State v. Des Marets, 92 N.J. 62, 64 (1983). The relevant section of the Graves Act is N.J.S.A. 2C:43-6c, which provides in part:

A person who has been convicted under 2C:39-4a. of possession of a firearm with intent to use it against the person of another, or of a crime under any of the following sections: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, who, while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in 2C:39- 1f., shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term. The minimum term shall be fixed at, or between, one-third and one- half of the sentence imposed by the court or three years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. (Emphasis added.)

In Des Marets, supra, Chief Justice Wilentz observed that the intent underlying the Graves Act was "to ensure incarceration for those who arm themselves before going forth to commit crimes. The Act is a direct response to a substantial increase in violent crime in New Jersey. . . . The intended deterrence can be served only by giving effect to the obviously broad coverage of this law." 92 N.J. at 68 (footnote omitted). "Implicit in the policies underlying the Graves Act is a recognition that the use of firearms in the commission of a crime poses a grave threat to public safety." State v. Towey, 114 N.J. 69, 83 (1989).

Originally, the Graves Act provided that a person convicted under 2C:39-4a ("Any person who has in his possession any firearm with a purpose to use it unlawfully against the person or property of another is guilty of a crime of the second degree"), would be subject to a minimum term of parole ineligibility without regard to whether it was the defendant's purpose to use the firearm against the person or against the property of another. L. 1981, c. 31, § 1 (codified as N.J.S.A. 2C:43-6c). The Act was amended by L. 1982, c. 119 (codified as 2C:43- 6c) to apply to persons convicted under N.J.S.A. 2C:39-4a of possession of a firearm with intent to use it only against the person of another. The amendment was intended to "remove from Graves Act coverage those persons convicted under 2C:39-4a, but having no intent to use the firearm against other persons." Cannel, N.J. Criminal Code Annotated, comment 1 on N.J.S.A. 2C:43-6c (1997).

A.

Defendant argues that he is entitled to have a jury determine whether he intended to use the firearm against the person, as opposed to the property, of another. He contends that the 1982 amendment to the Graves Act transformed the person/property distinction into an element of N.J.S.A. 2C:39-4a, and that a jury must answer a special interrogatory indicating that the State proved that element beyond a reasonable doubt before a defendant may be sentenced pursuant to the Graves Act. Therefore, because the trial court made the determination in this case, defendant contends that he was deprived of his constitutional right to a trial by jury.

The State argues that the person/property distinction is not an element of the substantive offense under N.J.S.A. 2C:39-4a; rather, the distinction is relevant only to sentencing and therefore it is the role of the sentencing court, not the jury, to determine whether defendant's purpose was to use the firearm against the person, as opposed to the property, of another.This Court first discussed the pre-amendment Graves Act in Des Marets, supra, 92 N.J. 62. In Des Marets, the defendant pled guilty to two counts each of burglary and theft and one count of possession of a handgun without a license. Id. at 66-67. During one of the burglaries, the defendant had stolen two unloaded handguns. Id. at 66. The defendant claimed that he should not be sentenced under the Graves Act because there was no evidence that he intended to use the weapons during the commission of the crime. Id. at 68. We disagreed, holding that a person may be subject to a Graves Act sentence "upon a showing of possession of a firearm, without any need to demonstrate intent to use." Ibid. The Act's use of the word "possession," especially "as part of the phrase `used or was in possession of a firearm' strongly suggests that the actor's state of mind was meant to be irrelevant." Id. at 69. The Court emphasized that the ...


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