On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-07-01439.
Judges Skillman, Conley and Wecker.
The opinion of the court was delivered by: Skillman, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 14, 2001
The issue presented by this appeal is whether the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applies to a sentence for second-degree possession of a weapon for an unlawful purpose if the conviction was based on conduct that involved the use or threat of immediate use of a deadly weapon.
Defendant was indicted for second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1), second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39- 3a, terroristic threats, in violation of N.J.S.A. 2C:12-3a or 3b, and fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4). Defendant entered into a plea bargain under which he agreed to plead guilty to possession of a weapon for an unlawful purpose and fourth-degree aggravated assault, and the State agreed to dismiss the second-degree aggravated assault and terroristic threats charges. The State also agreed to recommend a five year term of imprisonment. Defendant stipulated that the Graves Act, N.J.S.A. 2C:43-6c, would apply to his sentences for both offenses. In addition, the State reserved the right to argue that NERA was applicable to defendant's sentence for possession of a weapon for an unlawful purpose.
At the plea hearing, defendant admitted that he had pointed a loaded gun at the victim. Defendant stated that his purpose in brandishing the gun was to scare the victim so she would get out of his house. Defendant also admitted that after the victim left the house, he fired the gun, the bullet ricocheted off the pavement, and either the bullet or a piece of pavement became lodged in the victim's leg.
At sentencing, neither the State nor defendant offered any evidence, in addition to defendant's version of the offense provided at the time of his plea, relating to imposition of a NERA parole disqualifier. The trial court refused to impose a NERA sentence, concluding that under our decision in State v. Johnson, 325 N.J. Super. 78, 89-90 (App. Div. 1999), aff'd on other grounds, ___ N.J. ___ (2001), a purely possessory offense, such as possession of a weapon for an unlawful purpose, does not qualify for NERA sentencing. The court then sentenced defendant in accordance with the Graves Act to a five year term of imprisonment, with three years of parole ineligibility, for possession of a weapon for an unlawful purpose, and a concurrent eighteen month term without parole eligibility for aggravated assault.
The State appeals from the trial court's determination that NERA does not apply to defendant's sentence. Defendant's answering brief argues that the State has no right to appeal. In the alternative, defendant argues that the trial court correctly concluded that NERA does not apply to his sentence.
We conclude that the State may appeal a sentence on the ground that the trial court failed to impose the period of parole ineligibility mandated by NERA. We also conclude that the trial court correctly held that NERA does not apply to defendant's sentence for possession of a weapon for an unlawful purpose.
Initially, we consider defendant's argument that the State has no right to appeal the trial court's ruling that NERA does not apply to his sentence.
It is firmly established that a court may correct an illegal sentence at any time, even if such corrective action results in an increase in a defendant's term of imprisonment. State v. Horton, 331 N.J. Super. 92, 97-102 (App. Div. 2000); State v. Baker, 270 N.J. Super. 55, 74-76 (App. Div.), aff'd o.b., 138 N.J. 89 (1994). A corollary of this principle is that the State may appeal an illegal sentence without express authorization in the criminal code or rules of court. State v. Sheppard, 125 N.J. Super. 332, 336-39 (App. Div.), certif. denied, 64 N.J. 318 (1973); see also State v. Mercadante, 299 N.J. Super. 522, 529 (App. Div.), certif. denied, 150 N.J. 26 ...