On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 99-02-0328-I.
Before Judges Wefing, Ciancia and Parrillo.
The opinion of the court was delivered by: Ciancia, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 16, 2001
The significant issue addressed by this opinion is whether a sentence may be imposed pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, upon a defendant who attempts a robbery while armed with a handgun that is operable but unloaded. We find that NERA is applicable in these circumstances and overrule State v. Spahle, 343 N.J. Super. 149 (Law Div. 2001), which holds to the contrary.
Following a jury trial, defendant was found guilty of robbery while armed with a deadly weapon, to wit a handgun, N.J.S.A. 2C:15- 1b; possession of a handgun with the purpose to use it unlawfully against another person, N.J.S.A. 2C:39-4a; and possession of a handgun without having obtained a permit, N.J.S.A. 2C:39-5b.
On the first-degree armed robbery conviction, a ten-year sentence was imposed with a NERA parole disqualification of eight and one-half years. On the second-degree conviction for possessing a weapon for an unlawful purpose, a seven-year term was imposed with a three-year parole disqualifier. The third-degree conviction for possessing a handgun without a permit resulted in a four-year sentence. All sentences were to run concurrently with each other. Defendant's initial contention is that he was denied effective assistance of counsel, "due to counsel's failure to allow the defendant to testify on his own behalf." In this regard, the record reflects only a short colloquy among defendant, defense counsel and the trial judge concerning defendant's decision not to testify. We are satisfied that the record available to us is insufficient to permit a meaningful evaluation of defendant's claim. Many factors come into play when a defense attorney recommends that his client not take the stand. Here, we note that defendant's conduct at the time of the crime was somewhat ambiguous. He approached the victim with the gun drawn, but apparently never said anything to the victim prior to his arrest. The victim turned out to be a police officer wearing a raincoat. Defendant, who is not fluent in English, made a post-arrest statement to the effect that he did not intend to rob the victim, but was going "to do" him until a man defendant was with indicated the victim was a police officer. It is not clear whether defendant had any prior convictions at the time of trial that could have been used to impeach his credibility. We point out these few facts only to emphasize that defense counsel's rationale for any recommendations he made to defendant and defendant's level of comprehension, should both be explored on the record. Accordingly, the need for additional factfinding precludes appellate review and defendant, if he so chooses, may raise this issue on post- conviction relief. State v. Preciose, 129 N.J. 451 (1992).
Defendant's NERA contention is that a NERA sentence should not have been imposed because no post-trial hearing was provided on the NERA predicate facts and because an unloaded gun does not constitute a "deadly weapon" within the meaning of N.J.S.A. 2C:43- 7.2d.
The first contention is easily resolved. The facts at trial and the specific responses of the jury to interrogatories, established beyond a reasonable doubt that defendant threatened the immediate use of a deadly weapon in an effort to effectuate a robbery. The uncontradicted evidence was that defendant approached the victim with the gun drawn. The jury specifically found defendant was "armed with or threatened the immediate use of a deadly weapon, to wit, a handgun in the course of committing the theft." The essential factual predicate was determined through the trial process. An additional hearing was unnecessary. State v. Johnson, 166 N.J. 523, 546 (2001).
This assumes, of course, that an unloaded but operable gun constitutes a deadly weapon within the meaning of NERA. We believe the Legislature so intended. NERA is a penal statute subject to strict construction, but that does not mean that manifestations of the Legislature's intention should be disregarded. State v. Ferencsik, 326 N.J. Super. 228, 231 (App. Div. 1999). The history, structure, and purpose of NERA as well as its relationship, vel non, to other sections of the Code, have been discussed in numerous reported decisions and need not be retraced in their entirety. See e.g., State v. Thomas, 166 N.J. 560 (2001); Johnson, supra, 166 N.J. 523; State v. Mosley, 335 N.J. Super. 144 (App. Div. 2000), certif. denied, 167 N.J. 633 (2001); State v. Cheung, 328 N.J. Super. 368 (App. Div. 2000); State v. Meyer, 327 N.J. Super. 50 (App. Div.), certif. denied, 164 N.J. 191 (2000).
The NERA statute provides in relevant part that a sentence imposed for a violent crime of the first or second degree shall include a minimum parole ineligibility term of eighty-five percent of the sentence imposed. Violent crime is defined to include any crime in which the actor uses or threatens the immediate use of a deadly weapon. For purposes of NERA, "deadly weapon" is defined to include any firearm "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." State v. Austin, 335 N.J. Super. 486, 489 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). Based upon that definition of deadly weapon, we held in Austin that an inoperable firearm used to threaten a victim, there a BB gun, "is not itself capable of producing death or serious bodily injury [and] it may not be regarded as a deadly weapon for NERA sentencing purposes." Ibid.
We found it significant that NERA, unlike the Graves Act, N.J.S.A. 2C:43-6c, does not incorporate the definition of "firearm" as found in N.J.S.A. 2C:39-1f, a definitional statute otherwise applicable only to chapters 39 and 58 of the Code. While the Graves Act's specific inclusion of the chapter 39 definition supports a finding that possession of an inoperable firearm violates that act, State v. Gantt, 101 N.J. 573, 584-585 (1986), the absence of such inclusion in the NERA statute negates any similar rationale for such a finding. Moreover, the NERA definition of deadly weapon tracks the definition of deadly weapon found in N.J.S.A. 2C:11-1c, but leaves off the phrase, "or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury," -- i.e., the perceived-weapon definition. Accordingly, in Austin we held that to come within the NERA definition of deadly weapon, the firearm must be operable. Austin, supra, 335 N.J. Super. at 493. We did not question, however, "the proposition that an operable firearm encompassed by the definition of N.J.S.A. 2C:39-1f does meet NERA requirements [citations omitted]." Ibid. Viewing the present issue from that perspective, the question becomes whether the legislative exclusion from NERA of inoperable firearms extends to unloaded guns that are otherwise operable. Inevitably, this is a matter of line drawing and the legislative history of NERA sheds little light on the specific question. We assume as a matter of statutory construction that the Legislature was aware of relevant, related statutes and case law in enacting NERA. State v. McCall, 14 N.J. 538, 547 (1954).
The operability and inoperability of firearms are concepts that do not lend themselves to explicit definition. A firearm with the safety on is inoperable, in a sense, as is a firearm that is loaded but without a cartridge in the chamber. No one would seriously contend that such forms of inoperability preclude NERA applicability, because the deficiency is easily remedied. Thus, in State v. Morgan, 121 N.J. Super. 217 (App. Div. 1972), we found that a revolver with the firing pin filed down was not inoperable because the weapon could easily be made to fire by inserting a thin piece of metal or even a piece of paper between the pin and the cartridge. We there stated:
Courts of other jurisdictions interpreting similar firearm statutes have generally concluded that a firearm is no less a firearm if it is rendered temporarily inoperable because of a missing and easily replaceable ...