On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 97-8-1338-I.
Before Judges Stern, Lintner and Parker.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2001
State v. Johnson, 166 N.J. 523 (2001), held that a jury must decide, by proof beyond a reasonable doubt, factors which relate to a mandatory parole ineligibility term under the No Early Release Act ("NERA"). In this case we must decide the application of Johnson to the Graves Act, N.J.S.A. 2C:43-6c.*fn1 Johnson's holding was a matter of statutory interpretation, based on concerns flowing from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), which held that a jury must decide sentencing factors, other than the fact of prior convictions, when a sentence maximum can be enhanced. Apprendi did not overrule McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), which upheld a judge-imposed parole disqualifier like those required by NERA and the Graves Act. Given our Supreme Court holdings construing and upholding the constitutionality of the Graves Act, including our Supreme Court's references to those Graves Act cases in its Apprendi opinion, we affirm this conviction. However, as we hereinafter develop, we urge trial judges to try all Graves Act cases as if Johnson applied until the Supreme Court reviews the issue.
Defendant and co-defendant William Chalmers were indicted for possession of "a 9 mm Parabellum (Luger) Browning Arms Company semi-automatic pistol . . . with the purpose to use it unlawfully against the person or property of another," N.J.S.A. 2C:39-4a (count one), possession of hollow nose bullets, N.J.S.A. 2C:39-3f (count two), and possession of the 9 millimeter semi- automatic pistol and a .177 pellet BB caliber Marksman Spring Air pistol" without a permit, N.J.S.A. 2C:39-5b (counts three and four).
At the motion to suppress the trial judge concluded that co-defendant Chalmers' "statements made at the scene [of the stop of the Jeep defendant was driving] are admissible [because] he was not in custody at the time," but that defendants' statements once placed into custody "cuffed [and] brought to headquarters" were inadmissible. The judge further ruled that items found in and near a black duffel bag at a location where Chalmers and the Jeep were observed shortly before the stop were admissible. The judge also ruled that rubber gloves found in the glove compartment of the vehicle after the stop were admissible because defendant advised the police that "his credentials were in the glove compartment." However, the judge suppressed the BB gun because it was found in the vehicle during an "inventory" of the car two and-a-half weeks after the arrest without a warrant or "exigent circumstances." The judge thereafter dismissed count four as the BB gun had been suppressed.
Following a jury trial, both defendants were convicted on counts one and three. They were found not guilty on count two. In the special verdict with respect to count one, the jury found defendant guilty of:
knowingly and unlawfully possess[ing] a certain weapon, to wit: a 9 mm Parabellum (Luger) Browning Arms Company semi-automatic pistol, serial number 245NM22731, with the purpose to use it unlawfully against the person or property of another . . . .
After defendant's motion for a new trial was denied, the trial judge found that the proofs established that "[d]efendants possessed the handgun with the purpose to utilize it in restraining [a security guard at Chalmers' place of former employment near where he and the vehicle were first observed]" and that "the firearm was intended to be used against a person." Therefore, defendant was sentenced on count one pursuant to the Graves Act, N.J.S.A. 2C:43-6c. The judge also declined to refer the case to the Assignment Judge for an "escape valve" hearing, pursuant to N.J.S.A. 2C:43-6.2.
Defendant was sentenced to five years in the custody of the Commissioner of Corrections on count one, with three years to be served before parole eligibility. A concurrent three year term was imposed on count three. The Assignment Judge subsequently denied defendant's motion to find that the prosecutor abused his discretion by not moving for waiver of the mandatory Graves Act sentence.
Defendant appeals to us and argues:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE AS A). THE STOP OF THE DEFENDANT'S VEHICLE IN THIS CASE WAS INVALID[;] B). THE WARRANTLESS SEARCH OF THE MOTOR VEHICLE WAS INVALID AND THE STATE FAILED TO ESTABLISH ANY CONNECTION BETWEEN THE ITEMS FOUND AT THE SCENE AND THE DEFENDANT.
A). The trial court erred in denying defendant's motion to suppress evidence as the stop of the motor vehicle in this case was invalid
B). The warrantless search of the motor vehicle was invalid and the State failed to establish any connection between the items found at the scene and the defendant
POINT II THE TRIAL COURT ERRED IN ALLOWING INTO EVIDENCE THE STATEMENTS MADE AT THE SCENE BY THE DEFENDANTS AS THEY WERE NEVER ADVISED OF THEIR MIRANDA RIGHTS
POINT III THE TRIAL COURT'S DENIAL OF DEFENDANT'S REQUEST FOR A WADE HEARING AMOUNTED TO AN ABUSE OF DISCRETION AS THE DEFENDANT DID PROFFER EVIDENCE OF IMPERMISSIBLE SUGGESTIVITY
POINT IV THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE INDICTMENT AS THERE WAS NO EVIDENCE WHATSOEVER THAT DEFENDANT POSSESSED A WEAPON AND THAT HE POSSESSED A WEAPON FOR AN UNLAWFUL PURPOSE
POINT V THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ADEQUATELY WITH RESPECT TO FLIGHT DEPRIVED THE DEFENDANT OF DUE PROCESS OF LAW. (U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, PAR. 1)
POINT VI THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL MADE AT THE END OF THE STATE'S CASE BECAUSE THE STATE FAILED TO ESTABLISH A PRIMA FACIE CASE WITH RESPECT TO THESE CHARGES
POINT VII THE TRIAL JUDGE ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL AS THE JURY VERDICT IN THIS MATTER WAS AGAINST THE WEIGHT OF THE EVIDENCE
POINT VIII THE TRIAL COURT ERRED IN
A). DETERMINING THAT THE GRAVES ACT APPLIED ...