On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 98-3-328, whose opinion is reported at
Before Judges Stern, Eichen and Lintner.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 5, 2002
Tried to a jury, defendant was convicted of armed robbery, N.J.S.A. 2C:15-1, possession of a firearm for an unlawful purpose, N.J.S.A. 2C:39-4(a), and possession of the firearm without a permit, N.J.S.A. 2C:39-5(b). The trial judge merged the possessory offenses into the armed robbery conviction and imposed a seventeen year sentence to the custody of the Commissioner of Corrections with an 85% ineligibility term under the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. The State does not challenge the merger of the permit violation into the armed robbery.
On this appeal, defendant argues:
POINT ITHE TRIAL COURT ERRED IN ITS JURY INSTRUCTIONS BY GIVING AN IMPROPER FLIGHT CHARGE.
POINT II DEFENDANT WAS ENTITLED TO JUDGMENTS OF ACQUITTAL, AND HIS CONVICTIONS ARE AGAINST THE WEIGHT OF THE EVIDENCE. (Not raised below)
POINT III DEFENDANT WAS NOT ELIGIBLE FOR SENTENCING UNDER THE NO EARLY RELEASE ACT, AND HIS SENTENCE WAS MANIFESTLY EXCESSIVE.
In his pro se supplemental brief, defendant contends:
THE COURT'S FAILURE TO INSTRUCT THE JURY ON THE AFFIRMATIVE DEFENSE OF JUSTIFICATION BASED ON NECESSITY, PURSUANT TO N.J.S.A. 2C:3-2A, DEPRIVED DEFENDANT [OF] DUE PROCESS OF LAW UNDER THE FOURTEENTH AMENDMENT AND OF HIS RIGHT TO A FAIR TRIAL UNDER THE STATE CONSTITUTION. (U.S. CONST. AMEND. XIV; N.J. CONST. (1947), ART. I, PARA. 21) [Partially Raised Below]
We find that none of the challenges to the conviction have merit or warrant discussion in this opinion (see R. 2:11-3(e)(2)) which must otherwise be published because of the publication of the trial court's opinion which upheld the application of NERA. See State v. Perez, 331 N.J. Super. 497 (Law Div. 2000).
The trial court's published opinion was overruled in State v. Austin, 335 N.J. Super. 486, 494 (App. Div. 2000), certif. denied, 168 N.J. 294 (2001). Particularly given the need for uniformity and clarity in this area, and because the difficult issues relating to NERA have now been resolved by L. 2001, c. 129, effective June 29, 2001, with respect to cases occurring on or after that date, we adhere to Austin. See State v. Andino, 345 N.J. Super. 35, 40 (App. Div. 2001); State v. Allen, 337 N.J. Super. 259, 271 (App. Div. 2001), certif. denied, __ N.J. __ (2002) (adhering to prior NERA case law). See also State v. Jules, 345 N.J. Super. 185, 189-90 (App. Div. 2001), certif. denied, __ N.J. __ (2002) (regarding inoperable firearm under NERA).
The State, nevertheless, contends that the NERA sentence in this case should be upheld because the Supreme Court, in State v. Johnson, 166 N.J. 523, 545-46 (2001), upheld the NERA sentence by virtue of its review of the proofs at the jury trial. In this case, however, the proofs included the undisputed fact that the firearm was "inoperable" at the time of offense.*fn1 Thus, the NERA sentence cannot be sustained. See Austin, supra.
Accordingly, the matter must be remanded for resentencing. In State v. Watson, __ N.J. Super. __, __ (App. Div. 2002) (slip op. at 17), we recently held that State v. Johnson does not apply to the Graves Act. We nevertheless suggested that cases be tried as if Johnson did so apply until the Supreme Court addressed the issue. Ibid. Whether or not Johnson, or some similar principle, is ultimately held applicable to Graves Act convictions, in this case the defendant was also convicted by the jury of offenses involving the simultaneous possession of a "firearm," as found in the merged counts.*fn2 As a result, the jury did find that defendant used or possessed a "firearm" during the armed robbery, cf. State v. Meyer, 327 N.J. Super. 50, 58 (App. Div.), certif. denied, 164 N.J. 191 (2000) (plea of guilty to N.J.S.A. 2C:39- 5(b) acknowledged possession of "firearm"),*fn3 and, unlike NERA, the fact the firearm was inoperable is immaterial for purposes of ...