On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 99-03-0575.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Gilroy.
On December 22, 1998, defendant and three confederates committed an armed robbery in Red Bank. Defendant grabbed the victim from behind on the street and put a knife to his chin.
Defendant and his confederates then robbed the victim of his wallet and CD player.
Defendant was apprehended shortly after the crime. Defendant gave an inculpatory statement to the police in which he admitted committing the robbery but denied having used a knife. Defendant did not testify at his trial. The jury found defendant guilty of armed robbery. On December 10, 1999, the trial court sentenced defendant to an eighteen-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by NERA.
On his direct appeal, we affirmed defendant's conviction and sentence. State v. Coleman, A-3114-99T4 (Dec. 13, 2001).
One of the arguments defendant presented in the direct appeal was that "N.J.S.A. 2C:43-7.2 [the No Early Release Act] is unconstitutional for all the reasons currently urged before the State Supreme Court in State v. Martel Johnson, No. 48,749 (not raised below)." Under another point heading, defendant argued that he was entitled to a hearing before a sentence under NERA was imposed because the jury verdict did not support such a sentence:
Defense counsel objected to the fact that none of the possible weapons in the case -- i.e., "the little tiny knife in the shape of a duck," the "shiny object" nor the can of mace -- qualified as per se deadly weapons under NERA and that a hearing was required. The judge disagreed, holding that the jury verdict by its very language found that all three were indeed deadly weapons. In doing so, the judge clearly misapplied NERA, ignoring a critical aspect of that statute -- that the definition of "deadly weapon" is not the same in the robbery statute as it is for NERA.
[The trial judge] ignored this distinction. In his jury charge he plainly (and properly) allowed for the broader 2C:11-1c definition to be used by the jury to determine if an armed robbery with a deadly weapon was committed, but in doing so he necessitated the need for a NERA hearing when the possible "deadly weapons" were "a little tiny knife in the shape of a duck," a "shiny object" and a can of mace, none of which are per se deadly weapons, but all of which may have been found by the jury to have been used in a manner which caused the victims to believe they were deadly weapons -- a finding which would satisfy N.J.S.A. 2C:11-1c, but not NERA. Clearly, the matter should be remanded for a NERA hearing to determine if a deadly weapon, as defined in NERA, not in N.J.S.A. 2C:11-1c, was used. [Citations omitted.]
In rejecting these arguments, we stated:
State v. Johnson, 166 N.J. 523 (2001), upheld an Eighth Amendment cruel and unusual punishment challenge to NERA.
. . . There was no need for a NERA hearing, in view of the verdict sheet which clearly indicated that the jury found beyond a reasonable doubt the NERA-required element that the knife was a dangerous weapon. [Slip op. at 8.]
We also observed in the course of our opinion that "the verdict sheet anticipated the Apprendi ruling by having the jury make a specific finding of guilt beyond a reasonable doubt that a deadly weapon was used in the commission of the robbery. Apprendi v. New ...