Before Judges King, P.G. Levy and Carchman.
The opinion of the court was delivered by: King, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
In this case defendant entered into a plea agreement with alternative sentencing options. In return for a plea of guilty to first-degree robbery, N.J.S.A. 2C:15-1, the State agreed to dismiss the remaining six counts of a seven-count indictment. The plea agreement left open for the judge to decide the applicability of the sentencing provisions of the "No Early Release Act," (NERA or the Act), N.J.S.A. 2C:43-7.2, L. 1997, c. 117, § 2, effective June 9, 1997. This Act requires service of 85% of the maximum or base sentence if defendant "uses or threatens the immediate use of a deadly weapon" in the commission of a violent crime. Under the plea agreement, if the Act did not apply, the State would recommend an eleven-year maximum with a three-and-one-half year term of parole ineligibility. If the Act applied, the judge would impose a ten-year flat term and invoke the Act's 85% parole ineligibility minimum, or eight-and-one-half years.
After conducting a plenary hearing, the judge found that NERA did not apply and imposed an eleven-year sentence with a parole ineligibility term of three-and-one-half years. The judge stayed the sentence but revoked bail pending this appeal by the State. We find that the judge's factual conclusion that defendant did not use or threaten the use of a deadly weapon was reasonably grounded in the evidence and affirm. State v. Locurto, 157 N.J. 463 (1999); State v. Johnson, 42 N.J. 146 (1964).
NERA requires that persons who are sentenced to prison terms for committing crimes of the first and second degree involving violence serve at least 85% of the term of incarceration before eligibility for parole. State v. Ainis, 317 N.J. 127, 130 (Law. Div. 1998). At least twenty-seven states and the District of Columbia have enacted legislation similar to N.J.S.A. 2C:43-7.2, which has uniformly withstood constitutional challenge. See State v. Meyer, ___ N.J. Super. ___ (App. Div. 2000) (decided January 3, 2000); State v. Johnson, 325 N.J. Super. 78, 89 (App. Div. 1999). NERA provides that
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined in subsection d. of this section. [2C:43-7.2(a).]
For purposes of this section, "violent crime" is defined as any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.
For purposes of this section, "deadly weapon" means any firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury. [2C:43-7.2(d) (emphasis supplied).]
Without dispute, defendant neither caused death nor serious bodily injury. The only way the statute can be applied to this defendant is if he used or threatened the immediate use of a deadly weapon during the commission of the robbery.
Judge Neustader's plenary sentencing hearing to resolve this factual issue revealed these facts. On September 24, 1997 defendant robbed two employees in Bernie Robbins jewelry store located in Somers Point, Atlantic County. The State presented four witnesses, the two employees of the jewelry store, Steven Jaffe and Stewart Schupler, and two law enforcement officers, Sergeant Robert Somers and Investigator James McGarry. In addition to their testimony, the judge viewed a videotape of the crime in progress from a surveillance camera in the store. We also have reviewed the videotape.
According to Schupler, on the afternoon of September 24, 1997 at about 4 p.m., a young white male wearing white pants and a dark jacket, later identified as defendant, entered the Bernie Robbins jewelry store in Somers Point. Defendant approached Schupler and asked to see the store's selection of Rolex and Piaget watches. Schupler first showed defendant the watches in the Rolex case and then showed him the watches in the Piaget case nearby. After seeing the Piaget watches, defendant asked Schupler to see the Rolex watches again. Upon looking at the Rolex watches again, defendant told Schupler he wanted to purchase one for his girlfriend. From behind the Rolex counter, Schupler walked a few steps to obtain the warranty papers. He then returned to retrieve the Rolex box located underneath the Rolex case. Schupler turned away from defendant as he retrieved the box. When he turned back, Schupler said that defendant appeared to be "getting a little nervous at that point." When Schupler approached defendant with the Rolex box, defendant "lifted his shirt up" and "pulled out a pair of gloves." At the same time, Schupler said he saw "something metal in [defendant's] pants." Schupler said that "when I saw something metal and it was gray, I'm thinking gun." Defendant told Schupler to "get back" and not to push any buttons. Schupler said that "as [defendant] went to pull the hammer or that object out, at that point I still wasn't sure what it was." Schupler explained that defendant "started going forward a little bit, and he pulled it out I thought I was going to get hit." At this point, Schupler said he thought he was going to be hit with the hand-held hammer.
Schupler saw defendant prepare to swing the hammer. Schupler stepped back about two or three feet from the show-case. When asked whether he thought the hammer was "coming at him" he said "[a]t that point I wasn't sure, and then he made contact with the case, so . . . " Defendant swung the hammer and smashed the Rolex case between Schupler and defendant. Defendant hit the front of the Rolex case, not the top. Schupler said that when defendant was about to swing the hammer, he "didn't know if it was going to be the case or my head." After viewing the surveillance tape, Schupler agreed that defendant did not raise the hammer above his waist when he broke the Rolex case.
Steven Jaffe testified that he was waiting on a customer across the room ÄÄ about fifteen to twenty feet away ÄÄ "when I happened to look up and I saw the hammer in [defendant's] hands coming down and I heard the glass break." Jaffe said after the glass broke, defendant started to reach into the Rolex case and take the ...