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State v. Austin

December 13, 2000

STATE OF NEW JERSEY,
PLAINTIFF-RESPONDENT,
V.
GILBERT AUSTIN,
DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, 329-98.

Before Judges Pressler, Kestin and Alley.

The opinion of the court was delivered by: Pressler, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted November 28, 2000

This appeal once again raises an issue respecting the scope of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. More specifically, the question now before us is whether an inoperable BB gun used in the commission of a robbery is a deadly weapon as defined by N.J.S.A. 2C:43-7.2d. Although we acknowledge that an inoperable BB gun constitutes a deadly weapon for purposes of elevating a robbery to first-degree status pursuant to N.J.S.A. 2C:15-1b and that it constitutes a firearm for purposes of so-called Graves Act mandatory sentencing under N.J.S.A. 2C:43-6c, we are nevertheless persuaded that it does not constitute a deadly weapon for NERA purposes.

Pursuant to a plea agreement, defendant pleaded guilty to an accusation charging him with first-degree robbery under N.J.S.A. 2C:15-1 in that he "knowingly and purposely, in the course of committing a theft threaten[ed] the immediate use of a deadly weapon." At the plea proceeding, defendant admitted that he had entered a store for the purpose of theft and displayed a BB gun to the person behind the counter from whom he took cash. The prosecutor stipulated that the BB gun was inoperable at the time of the theft. *fn1 The State's undertaking was to recommend a sentence of ten years subject to NERA's eighty-five percent parole ineligibility period, namely eight and a half years. We further note that in explaining the plea agreement to the court and its NERA component, the prosecutor was under the stated mis-impression that because the weapon was inoperable, the crime did not qualify for Graves Act sentencing. In any event, the negotiated NERA sentence was thereafter imposed, and defendant appeals, arguing that the inoperability of the weapon took this crime out of NERA's ambit.

Our agreement with defendant's argument is based on the text of N.J.S.A. 2C:43-7.2d, which provides in full as follows:

For the purposes of this section, "violent crime" means 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 the 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.

We focus on the second unnumbered paragraph, which defines a "deadly weapon" that will render a first- or second-degree offense a violent crime subject to NERA. For NERA purposes, "deadly weapon" is defined as "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." The interpretive question is whether the phrase "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" qualifies only "other weapon, device, instrument, material or substance" (hereafter "other weapon") or whether that modifying phrase also qualifies "any firearm." We are persuaded that the text of this section, considering both its grammatical construction and punctuation, does not clearly point to either interpretation. Since the answer does not, therefore, lie in the plain meaning of the statute, we must resort to other constructional aids including legislative intent, applicable canons of construction, and both the text and judicial interpretation of other cognate and relevant legislation. Relying on these constructional aids, we conclude that both "any firearm" and "other weapon" are subject to the qualification. Hence, since an inoperable firearm used to threaten a victim is not itself capable of producing death or serious bodily injury, *fn2 it may not be regarded as a deadly weapon for NERA sentencing purposes.

We have been guided in reaching this conclusion first by the canon of statutory interpretation that mandates strict construction of a criminal statute. See generally State v. Galloway, 133 N.J. 631, 658-659 (1993); State v. Valentin, 105 N.J. 14, 17 (1987); State v. Carbone, 38 N.J. 19, 23-24 (1962). That canon has been, moreover, applied to NERA. State v. Thomas, 322 N.J. Super. 512, 518 (App. Div. 1999), certif. granted, 162 N.J. 489 (1999). It is in the light of that overarching principle that we address the relationships among the complex of relevant statutes and parse their legislatively intended meanings, considering, in this context, the import of N.J.S.A. 2C:11-1c, which defines deadly weapon; N.J.S.A. 2C:15-1b, which elevates robbery to a first-degree crime if a deadly weapon is used or its use is immediately threatened; N.J.S.A. 2C:43-6c, the so-called Graves Act, which mandates a parole ineligibility term of between one-third and one-half of the base term if a firearm, as defined by N.J.S.A. 2C:39-1f, is used or possessed during the commission of stated crimes; and, finally, the firearm definition of N.J.S.A. 2C:39-1f.

Our initial step in constructing this analytical framework is N.J.S.A. 2C:39-1f, which defines firearm as any handgun, rifle, shotgun, machine gun, automatic or semi-automatic rifle, or any gun, device or instrument in the nature of a weapon from which may be fired or ejected any solid projectable ball, slug, pellet, missile or bullet, or any gas, vapor or other noxious thing, by means of a cartridge or shell or by the action of an explosive or the igniting of flammable or explosive substances. It shall also include, without limitation, any firearm which is in the nature of an air gun, spring gun or pistol or other weapon of a similar nature in which the propelling force is a spring, elastic band, carbon dioxide, compressed or other gas or vapor, air or compressed air, or is ignited by compressed air, and ejecting a bullet or missile smaller than three-eighths of an inch in diameter, with sufficient force to injure a person.

This definition has been construed as excluding a toy or fake firearm but as including a device designed as a firearm although inoperable at the time of its use in committing a crime. State v. Gantt, 101 N.J. 573, 584-585 (1986). It is thus clear that not only a BB gun but also an inoperable BB gun is a firearm as defined by N.J.S.A. 2C:39-1f. But that conclusion does not impel the further conclusion that it is also a firearm for NERA purposes.

In considering that proposition, we turn next to the Graves Act. N.J.S.A. 2C:43-6c prescribes two bases for imposition of its mandatory parole ineligibility term. The first is a conviction under N.J.S.A. 2C:39-4a of possession of a firearm with intent to use it against the person of another. It is plain that "firearm," as used in that prescription, incorporates the definition of N.J.S.A. 2C:39-1f since N.J.S.A. 2C:39-1 begins with the explanation that all its definitions govern Chapter 39. The second basis for imposition of a Graves Act sentence is defendant's conviction of one of the group of specified crimes if, during its attempt, commission or flight therefrom, he was "in possession of a firearm as defined by N.J.S.A. 2C:39-1f...." This explicit reference to N.J.S.A. 2C:39-1f leaves, of course, no doubt of the congruity between the Graves Act and the Chapter 39 definition in respect ...


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