(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for
the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please
note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued November 3, 1997 -- Decided March 25, 1998
STEIN, J., writing for a majority of the Court.
The issue in this case is whether a jury or the sentencing court determines whether a defendant
intended to use a firearm against a person, rather than property. The issue is significant because the Graves
Act, N.J.S.A. 2C:43-6c, provides that a person who has been convicted under N.J.S.A. 2C:39-4a of possession
of a firearm with intent to use it against the person of another shall be sentenced to a minimum parole
ineligibility term.
On November 16, 1991, Franklin Camacho, defendant, went to a party at the apartment of Alice
Ramirez, a friend of Camacho's cousin. Camacho turned on the stereo. When Ramirez turned off the
stereo, Camacho became angry, pulled out a handgun, and shot at the stereo and walls.
Camacho was indicted on several counts of aggravated assault and weapons offenses, including one
count of second degree possession of a firearm for an unlawful purpose with intent to use it against the
person of another, in violation of N.J.S.A. 2C:39-4a. Prior to trial, the State moved to amend the latter
count to state that defendant intended to use the firearm unlawfully against the person or property of
another. By its express terms, N.J.S.A. 2C:39-4a makes it a crime to possess a firearm for either purpose.
Defense counsel requested that if the case went to trial, a special interrogatory be submitted to the jury
concerning whether defendant intended to use the firearm either against the person or against the property
of another.
Camacho entered into an agreement to plead guilty to fourth degree aggravated assault in violation
of N.J.S.A. 2C:12-1b(4), and the second degree possession of a firearm for an unlawful purpose with intent to
use it against the person of another. The State agreed to recommend a seven-year term of imprisonment
with the court holding a hearing to determine the applicability of the Graves Act. Before Camacho entered
his plea, the trial court ruled that defendant's intent with respect to the firearm was not a question for the
jury, and therefore the issue would not be presented to the jury. The court thereafter took Camacho's plea.
On January 14, 1994, the court held a Graves Act hearing prior to sentencing defendant. Defense
counsel stated that Camacho consented to a hearing by the trial court to decide whether this was a Graves
Act offense. Relying on the Grand Jury testimony of Ms. Ramirez and other witnesses that Camacho had
aimed the gun at her and others and threatened to kill them, the trial court found that Camacho's purpose in
using the gun was to frighten and terrorize people. He concluded that this constituted an intent to use the
firearm against the person of another. Camacho was sentenced to an aggregate term of seven years, three to
be served without parole.
Although Camacho requested that an appeal be filed, defense counsel did not do so. In February
1995, Camacho filed a PCR petition, alleging ineffective assistance of counsel because his lawyer advised him
that he did not have a right to a jury determination on the applicability of the Graves Act. The court denied
the PCR petition.
On appeal, the Appellate Division held that whether Camacho possessed a firearm with an intent to use it unlawfully against the person, as opposed to the property, of another was a question for the jury to decide. The Appellate Division reversed and remanded to permit Camacho to vacate his plea and proceed
to trial.
The Supreme Court granted the State's petition for certification.
HELD: It is the role of the sentencing court, not the jury, to determine whether defendant's purpose is to use
the firearm against the person, as opposed to the property, of another.
1. The Graves Act originally provided that a person convicted under N.J.S.A. 2C:39-4a would be subject to a
minimum term of parole ineligibility without regard to whether it was the defendant's purpose to use the
firearm against the person or against the property of another. The Act was amended in 1982 to apply to
persons convicted under 2C:39-4a of possession of a firearm with intent to use it only against the person of
another. Camacho argues, as some lower courts have held, that the 1982 amendments have transformed the
person/property distinction into an element of the substantive offense under N.J.S.A. 2C:39-4a. But the
distinction is not included in the description of the forbidden conduct in the offense -- either purpose will
lead to a conviction. The distinction is made in the Graves Act only, suggesting that it is relevant for
sentencing purposes, not for obtaining a conviction. In addition, the Graves Act mandates that the
sentencing court conduct a hearing to determine whether the Act applies to a specific conviction under
N.J.S.A. 2C:39-4a. The trial court's determination on this issue is not limited by a jury's findings. (pp. 9-26)
The judgment of the Appellate Division is REVERSED.
JUSTICE O'HERN, dissenting, is of the view that the majority has avoided the central question in
the case -- how, in the language of the Graves Act, one is "convicted under 2C:39-4a of possession of a
firearm with intent to use it against the person of another." He stresses that only a jury, and not a judge
may "convict" a defendant of an offense when a jury trial has been demanded.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, and COLEMAN join in
JUSTICE STEIN's opinion. JUSTICE O'HERN has filed a separate, dissenting opinion, in which
JUSTICE POLLOCK joins.
SUPREME COURT OF NEW JERSEY
A-
41 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRANKLIN CAMACHO,
Defendant-Respondent.
Argued November 3, 1997 -- Decided March 25, 1998
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
295 N.J. Super. 585 (1996).
Linda A. Shashoua, Special Deputy Attorney
General, Acting Assistant Prosecutor, argued
the cause for appellant (Lee A. Solomon,
Acting Attorney General, Acting Camden County
Prosecutor, attorney).
Timothy P. Reilly argued the cause for
respondent.
Nancy Peremes Barton, Deputy Attorney
General, argued the cause for amicus curiae,
Attorney General of New Jersey (Peter
Verniero, Attorney General, attorney).
The opinion of the Court was delivered by
Stein, J.
Pursuant to N.J.S.A. 2C:39-4a, possession of “any firearm with a purpose to use it unlawfully against the person or property of another” is a second degree offense. The Graves Act, see N.J.S.A. 2C:43-6c, provides that a person who has been convicted under N.J.S.A. 2C:39-4a of possession of a firearm with
intent to use it against the person of another shall be sentenced
to a minimum parole ineligibility term of between one-third and
one-half of the sentence imposed by the court or three years,
whichever is greater. Defendant Franklin Camacho pleaded guilty
to possession of a firearm with the intent to use it unlawfully,
in violation of N.J.S.A. 2C:39-4a.
After conducting a Graves Act hearing, the trial court
determined that defendant had possessed a firearm with the
purpose to use it against the person of another, and imposed a
Graves Act sentence on that count of seven years with three years
of parole ineligibility. On appeal from the denial of
defendant's post-conviction relief application, the Appellate
Division reversed, holding that the question whether defendant
possessed the firearm with the purpose of using it against the
person of another was a jury issue, remanding the matter for
trial. State v. Camacho,
295 N.J. Super. 585, 594 (1996).
We must determine whether intent to use a firearm unlawfully
against the person, as opposed to the property, of another is an
element of N.J.S.A. 2C:39-4a, thus entitling defendant to a jury
trial on that issue, or whether the distinction between intent to
use a firearm against a person, rather than property, is an issue
to be determined by the sentencing court at a Graves Act hearing.
On November 16, 1991, defendant went to a party at the apartment of Alice Ramirez in Camden, New Jersey. Several people
were at Ms. Ramirez's apartment, including defendant's cousin,
Ramon Rodriguez, who is the father of Ms. Ramirez's children.
Defendant turned on the stereo. When Ms. Ramirez turned off the
stereo, defendant became angry, pulled out a handgun that he had
on his person, and shot at the stereo and the walls.
In September 1992, defendant was indicted by a Camden County
Grand Jury on the following charges: second degree aggravated
assault against Alice Ramirez, in violation of N.J.S.A. 2C:12-1b(1) (Count One); second degree aggravated assault against Ramon
Rodriguez, in violation of N.J.S.A. 2C:12-1b(1) (Count Two);
third degree aggravated assault against Alice Ramirez, in
violation of N.J.S.A. 2C:12-1b(2) (Count Three); third degree
aggravated assault against Ramon Rodriguez, in violation of
N.J.S.A. 2C:12-1b(2) (Count Four); fourth degree aggravated
assault against Alice Ramirez, in violation of N.J.S.A. 2C:12-1b(4) (Count Five); fourth degree aggravated assault against
Ramon Rodriguez, in violation of N.J.S.A. 2C:12-1b(4) (Count
Six); second degree possession of a firearm for an unlawful
purpose with intent to use it against the person of another, in
violation of N.J.S.A. 2C:39-4a (Count Seven); and third degree
unlawful possession of a handgun, in violation of N.J.S.A. 2C:39-5b (Count Eight).
Prior to trial, the State made a motion to amend Count Seven
to state that defendant was charged with second degree possession
of a firearm with an intent to use it unlawfully against the
person or property of another. Defense counsel responded that
she would not object to the motion but, if the case went to
trial, she requested that a special interrogatory be submitted to
the jury concerning whether defendant intended to use the firearm
either against the person or against the property of another.
In September 1993, defense counsel and the prosecutor
informed the trial court that they had reached an agreement
whereby defendant would plead guilty to fourth degree aggravated
assault against Ramon Rodriguez (Count Six) and second degree
possession of a firearm for an unlawful purpose with intent to
use it against the person of another (Count Seven). All other
counts would be dismissed, and the State would recommend a seven
year term of imprisonment. The court would hold a hearing to
determine the applicability of the Graves Act and, if it
determined that the Graves Act did apply, the State would
recommend that the court impose a Graves Act parole ineligibility
period of three years.
The next day defendant appeared before the trial court to
plead guilty pursuant to the plea agreement. Before defendant
entered his plea, the trial court ruled on the State's motion to
amend Count Seven and on whether defense counsel's requested
interrogatory should be submitted to the jury if the case went to
trial. The trial court held that the issue whether defendant
possessed the firearm with the intent to use it unlawfully
against the person, rather than the property, of another was not
a question for the jury, and therefore the jury would not receive
an interrogatory concerning that distinction. Rather, the court
would make that determination at a Graves Act hearing, pursuant
to N.J.S.A. 2C:43-6d. On the State's motion, and with the
consent of defense counsel, the court amended Count Seven to
charge defendant with second degree possession of a firearm with
intent to use it against the person or the property of another.
As a factual basis for his plea, defendant stated that he
had gone to Ms. Ramirez's apartment and turned on the stereo.
When Ms. Ramirez turned off the stereo defendant became angry.
He took out the gun that he carried for “self defense” and shot
the stereo and the wall. Defendant stated that Mr. Rodriguez was
standing next to him when he shot the stereo. Defendant admitted
that he knew there were people in the room on the other side of
the wall at which he shot, but stated that he did not shoot at
the wall because the people were on the other side of it. The
court accepted defendant's guilty plea to Counts Six and Seven.
On January 14, 1994, the court held a Graves Act hearing
prior to sentencing defendant. At the beginning of the hearing
the court asked defense counsel whether defendant “consented to a
hearing to let [the court] decide the issue as to whether this is
a Graves Act offense or not.” Defense counsel said that he did.
The court then asked, “And, he's willing to give up the right to
a trial by jury on that issue; is that right?” Defense counsel
answered, “Right.” The court then asked defendant if that was
correct. Defendant answered, “Yes.”
The State presented the Grand Jury testimony of Ms. Ramirez
and Mr. Rodriguez, and introduced photographs of the crime scene
that showed bullet holes in the walls and ceiling of Ms.
Ramirez's apartment. In addition, pictures showed that a bullet
had passed through the wall behind the stereo and entered a room
where defendant had conceded that he knew people had been.
After the State presented its case, defense counsel informed
the court that defendant wanted to give a statement to express
“his remorse,” and that defense counsel did not wish to ask him
questions. The prosecutor stated that if defendant's statement
would be relevant to the applicability of the Graves Act, the
prosecutor reserved the right to cross-examine defendant. The
court determined that defendant should be under oath, and
defendant was duly sworn. Defense counsel decided to interrogate
defendant, in response to which defendant stated that he never
intended to use the gun against anyone at the apartment.
Contrary to his statements when he entered his guilty plea,
defendant said that he did not know there were people on the
other side of the wall at which he shot. On cross-examination,
defendant admitted that when he shot the stereo, people were
sitting on the sofa not far from him.
The court noted that Mr. Rodriguez stated that, before
defendant shot the stereo, he had threatened Ms. Ramirez, saying,
“Alice, I'll blast you Alice, I'll blast you, don't (deleted)
with me, I'll blast you.” The court observed that Ms. Ramirez
stated that defendant had “aimed the gun at everybody that was
sitting in the living room,” threatened to kill them, and that
one of defendant's shots was toward her. In light of those
statements and defendant's testimony in support of his guilty
plea, the court found that defendant's testimony at the Graves
Act hearing was not credible. The court held that the Graves Act
applied to Count Seven because defendant's purpose in using the
firearm was to “frighten and terrorize the people” at the Ramirez
apartment. That constituted a purpose to use a firearm against
the person of another pursuant to N.J.S.A. 2C:43-4a. The court
sentenced defendant on Count Six to eighteen months without
parole. On Count Seven, the court imposed a concurrent sentence
of seven years, with three years to be served without parole.
Although defendant requested that an appeal be filed,
defense counsel did not file the appeal. In February 1995,
defendant filed a motion for post-conviction relief (PCR),
alleging that he had received ineffective assistance of counsel
because his lawyer advised him that he did not have a right to
have a jury determine whether he intended to use the firearm
against the person, as opposed to the property, of another. The
court denied defendant's PCR motion on two grounds: the argument
should have been made on direct appeal, and the applicability of
the Graves Act is a sentencing issue rather than an element of
the offense. The court held that the elements of the offense of
possession of a firearm for an unlawful purpose are met if the
jury finds that a defendant possessed a firearm with the purpose
to use it unlawfully against the person or the property of
another.
On appeal, defendant argued that he was denied his
constitutional right to a fair trial by the trial court's
decision that he did not have the right to a jury determination
on the issue whether the firearm was possessed with the intent to
use it unlawfully against the person of another. The Appellate
Division held that whether defendant possessed a firearm with an
intent to use it unlawfully against the person, as opposed to the
property, of another, was a question for the jury to decide.
Camacho, supra, 295 N.J. Super. at 590-91. Additionally, the
court held that a jury's determination that a defendant possessed
a firearm with the intent to use it unlawfully against the person
of another would obviate the need for a hearing under the Graves
Act. Id. at 592. The court reversed and remanded the case to
permit defendant to vacate his plea and proceed to trial. Id. at
594.
This Court granted the State's petition for certification.
State v. Camacho,
149 N.J. 36 (1997).
The Graves Act provides that one who uses or possesses a firearm during the commission, attempt, or flight from certain serious offenses, or one who is convicted under N.J.S.A. 2C:39-4a of possession of a firearm with the intent to use it against the person of another, shall receive a mandatory prison sentence that includes at least three years of parole ineligibility. State v.
Des Marets,
92 N.J. 62, 64 (1983). The relevant section of the
Graves Act is N.J.S.A. 2C:43-6c, which provides in part:
A person who has been convicted under
2C:39-4a. of possession of a firearm with
intent to use it against the person of
another, or of a crime under any of the
following sections: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1,
2C:18-2, 2C:29-5, who, while in the course of
committing or attempting to commit the crime,
including the immediate flight therefrom,
used or was in possession of a firearm as
defined in 2C:39-1f., shall be sentenced to a
term of imprisonment by the court. The term
of imprisonment shall include the imposition
of a minimum term. The minimum term shall be
fixed at, or between, one-third and one-half
of the sentence imposed by the court or three
years, whichever is greater, or 18 months in
the case of a fourth degree crime, during
which the defendant shall be ineligible for
parole. (Emphasis added.)
In Des Marets, supra, Chief Justice Wilentz observed that
the intent underlying the Graves Act was “to ensure incarceration
for those who arm themselves before going forth to commit crimes.
The Act is a direct response to a substantial increase in violent
crime in New Jersey. . . . The intended deterrence can be served
only by giving effect to the obviously broad coverage of this
law.” 92 N.J. at 68 (footnote omitted). “Implicit in the
policies underlying the Graves Act is a recognition that the use
of firearms in the commission of a crime poses a grave threat to
public safety.” State v. Towey,
114 N.J. 69, 83 (1989).
Originally, the Graves Act provided that a person convicted
under 2C:39-4a (“Any person who has in his possession any firearm
with a purpose to use it unlawfully against the person or
property of another is guilty of a crime of the second degree”),
would be subject to a minimum term of parole ineligibility
without regard to whether it was the defendant's purpose to use
the firearm against the person or against the property of
another
. L. 1981, c. 31, § 1 (codified as N.J.S.A. 2C:43-6c).
The Act was amended by L. 1982, c. 119 (codified as 2C:43-6c) to
apply to persons convicted under N.J.S.A. 2C:39-4a of possession
of a firearm with intent to use it only against the person of
another. The amendment was intended to “remove from Graves Act
coverage those persons convicted under 2C:39-4a, but having no
intent to use the firearm against other persons.” Cannel, N.J.
Criminal Code Annotated, comment 1 on N.J.S.A. 2C:43-6c (1997).
Defendant argues that he is entitled to have a jury determine whether he intended to use the firearm against the person, as opposed to the property, of another. He contends that the 1982 amendment to the Graves Act transformed the person/property distinction into an element of N.J.S.A. 2C:39-4a, and that a jury must answer a special interrogatory indicating that the State proved that element beyond a reasonable doubt before a defendant may be sentenced pursuant to the Graves Act. Therefore, because the trial court made the determination in this case, defendant contends that he was deprived of his constitutional right to a trial by jury.
The State argues that the person/property distinction is not an element of the substantive offense under N.J.S.A. 2C:39-4a ; rather, the distinction is relevant only to sentencing and therefore it is the role of the sentencing court, not the jury, to determine whether defendant's purpose was to use the firearm against the person, as opposed to the property, of another. This Court first discussed the pre-amendment Graves Act in Des Marets, supra, 92 N.J. 62. In Des Marets, the defendant pled guilty to two counts each of burglary and theft and one count of possession of a handgun without a license. Id. at 66-67. During one of the burglaries, the defendant had stolen two unloaded handguns. Id. at 66. The defendant claimed that he should not be sentenced under the Graves Act because there was no evidence that he intended to use the weapons during the commission of the crime. Id. at 68. We disagreed, holding that a person may be subject to a Graves Act sentence “upon a showing of possession of a firearm, without any need to demonstrate intent to use.” Ibid. The Act's use of the word “possession,” especially “as part of the phrase 'used or was in possession of a firearm' strongly suggests that the actor's state of mind was meant to be irrelevant.” Id. at 69. The Court emphasized that the 1982 amendment to the Act strengthened that conclusion, finding that “[t]he express inclusion of a requirement of intent to use” the firearm against the person of another in N.J.S.A. 2C:39-4a “persuasively suggests its absence” in the case of the other
enumerated offenses was deliberate. Ibid. (citing L. 1982, c.
119, § 1).
We expanded our holding in Des Marets in State v. Stewart,
96 N.J. 596 (1984). In Stewart, which also involved the pre-1982
Graves Act, the defendant and his companions robbed a pedestrian.
Id. at 599. The victim testified that during the robbery the
defendant had pointed a flare gun at him. Ibid. The defendant
conceded that there was a flare gun and two air rifles in the
truck that he was using at the time of the robbery, but he denied
having pointed them at the victim. Id. at 600. The defendant
was convicted of second degree (unarmed) robbery, but was
acquitted of first degree (armed) robbery and weapons possession.
Ibid. On appeal, the defendant claimed that the Graves Act was
inapplicable, contending that he was not in possession of a
firearm for purposes of the Graves Act because he was not in
possession of a firearm during the commission of the offense.
Id. at 601. We disagreed, holding that “possession” of a firearm
for purposes of the Graves Act “includes not only actual
possession but [also] constructive possession that the defendant
is able to convert practically immediately to actual possession.”
Id. at 604.
We also discussed the Graves Act requirement that a hearing
be held before a mandatory sentence may be imposed. The trial
court had not held a hearing but did submit an interrogatory to
the jury asking, if the defendant was guilty of robbery, whether
“in the course of committing or attempting to commit the crime
including the immediate flight therefrom . . . he use[d] or was
. . . in possession of a firearm.” Id. at 600. Because the jury
answered in the affirmative, the trial court sentenced the
defendant to a three-year parole ineligibility period pursuant to
the Graves Act. Id. at 600-01. We held that the trial court
failed to follow the procedures set forth in the Graves Act,
N.J.S.A. 2C:43-6d, which requires that a hearing be held before a
Graves Act sentence may be imposed. Id. at 605. We observed
that N.J.S.A. 2C:43-6d provides:
The court shall not impose a mandatory
sentence pursuant to subsection c. of this
section . . . unless the ground therefor has
been established at a hearing. At the
hearing, which may occur at the time of
sentencing, the prosecutor shall establish by
a preponderance of the evidence that the
weapon used or possessed was a firearm. In
making its finding, the court shall take
judicial notice of any evidence, testimony or
information adduced at the trial, plea
hearing, or other court proceedings and shall
also consider the presentence report and any
other relevant information.
Although the jury had acquitted the defendant of the weapons charges, the Court found that it was not unfair for the sentencing court to decide whether he had possessed a weapon
during the crime. Id. at 605. The Court observed that the
Legislature had included in the list of offenses to which the
Graves Act applied “some crimes for which possession or use of a
firearm is not always a necessary element to be proved.” Ibid.
Also, because the trial court is required to make an independent
determination concerning whether the Graves Act applies at a
hearing at which evidence not produced at trial may be admitted,
the fact “[t]hat the jury's findings may have been insufficient
to establish grounds for applying the Graves Act does not limit
the court.” Id. at 607. Finally, we determined that “[t]he
jury's verdicts of acquittal are not irreconcilable with the
finding of possession under the Graves Act.” Ibid. The Court
noted that the jury, in acquitting the defendant, could have
found that he possessed a weapon but lacked the mental state
required to find him guilty of the possession and armed robbery
charges. Id. at 607 n.7.
Four months after our decision in Stewart the Appellate
Division decided State v. Latimore,
197 N.J. Super. 197 (App.
Div. 1984), certif. denied,
101 N.J. 328 (1985). In Latimore,
the defendants had left a sawed-off shotgun and two handguns in a
hedge after being asked by police officers to leave the area.
Id. at 208-09. The defendants were convicted of multiple
offenses, including possession of weapons with a purpose to use
them unlawfully in violation of N.J.S.A. 2C:39-4a. On appeal,
defendant Payne challenged his sentence, including his extended
term and the Graves Act parole ineligibility term imposed on the
basis of his conviction under N.J.S.A. 2C:39-4a.
Although
Latimore involved offenses and sentencing that occurred before
the 1982 amendment to the Graves Act, the Appellate Division held
that because N.J.S.A. 2C:43-6.1 allows persons sentenced pursuant
to the Graves Act for violating N.J.S.A. 2C:39-4a to have their
sentences reviewed in light of the 1982 amendment, “retroactive
application of the amendment . . . seems appropriate.” Id. at
222.
The Appellate Division determined that the defendant could
not be sentenced under the Graves Act because
the evidence presented in support of [the
charges of possession of a firearm for an
unlawful purpose] does not indicate the
presence of any persons in the area at the
time that defendants possessed the guns, so
there was no proof of an intent to use those
guns unlawfully against the “person” of another,
except by the inference that some person may
appear during the course of a criminal act.
[I]t now appears that to [apply a Graves Act
period of parole ineligibility] it will be
necessary to obtain, by special interrogatory,
a finding by the jury as to whether or not a
conviction under N.J.S.A. 2C:39-4a is for
possession of a firearm with intent to use it unlawfully against either the person or the
property of another, or both.
Consistent with his position that the person/property distinction is an element of the substantive offense of N.J.S.A. 2C:39-4a, defendant contends that the Graves Act does not authorize the sentencing court to consider defendant's subjective intent in committing the crime or in possessing the firearm because that is an issue for the jury to determine. However, we have expressly allowed trial courts to determine whether defendants exhibited the necessary state of mind to cause them to
be subject to the Graves Act. State v. White,
98 N.J. 122
(1984).
In White, the defendant was convicted of first degree armed
robbery and possession of a weapon for an unlawful purpose. Id.
at 127. The defendant claimed that because he was merely an
accomplice to the armed robbery and did not possess a firearm
himself, he should not have been subject to the Graves Act. Id.
at 126. We held, however, that “if an accomplice is found guilty
of an armed Graves Act offense that was committed with a
firearm,” he is subject to the Graves Act. Ibid. Additionally,
we stated:
If an accomplice is convicted only of an
unarmed offense, but the trial court finds
that the defendant nonetheless knew or had
reason to know that his cohort would use or
be in possession of a firearm in the course
of committing or attempting to commit the
crime, including the immediate flight
therefrom, the accomplice is likewise subject
to Graves Act penalties.
See State v. Weeks,
107 N.J. 396, 405 (1987)(reaffirming that for
accomplice to be subject to Graves Act sentence, he must be
accomplice to Graves Act offense and have shared purpose to
commit offense with firearm). Thus, in appropriate cases this
Court has required the trial court to evaluate a defendant's
state of mind to determine whether the Graves Act applied after
the defendant has been convicted of an enumerated offense by the
jury. See State v. Wooters,
228 N.J. Super. 171, 178 (App. Div.
1988)(holding defendant subject to Graves Act if he had mental
state necessary to be convicted of armed offense as accomplice).
Additionally, the Legislature provided that any defendant
who, at the time of the 1982 amendment, was serving a Graves Act
period of parole ineligibility solely as a result of his
conviction under N.J.S.A. 2C:39-4a for the possession of a
firearm with the intent to use it against the property of another
could “have his sentence reviewed by the sentencing court. For
good cause shown, the court may impose any sentence which would
have otherwise been available for such person.” N.J.S.A. 2C:43-6.1.
Thus, with respect to defendants seeking review of their
pre-1982 amendment sentences, the Legislature intended for the
person/property distinction to be made by the sentencing court,
not a jury.
We have outlined the elements of N.J.S.A. 2C:39-4a in
previous opinions. In order to obtain a conviction under
N.J.S.A. 2C:39-4a, the State must prove beyond a reasonable doubt
that: (1) the item possessed was a firearm within the meaning of
N.J.S.A. 2C:39-1f; (2) the defendant possessed the firearm, which
under N.J.S.A. 2C:2-1c requires knowledge or awareness of his
control over the item; (3) the defendant's purpose or conscious
objective was to use it against the person or property of
another; and (4) the defendant intended to use it in a manner
that was proscribed by law. State v. Diaz,
144 N.J. 628, 635
(1996); State v. Harmon,
104 N.J. 189, 212 (1986). Thus, in
resolving guilt or innocence of defendants prosecuted under
N.J.S.A. 2C:39-4a, a jury need not distinguish between whether a
defendant intended to use a firearm against the person, as
opposed to the property, of another.
As defined in the Criminal Code, “element of an offense”
means:
(1) such conduct or (2) such attendant
circumstances or (3) such a result of conduct
as
(a) Is included in the description of
the forbidden conduct in the definition
of the offense;
(b) Establishes the required kind of
culpability;
(c) Negatives an excuse or justification
for such conduct;
(d) Negatives a defense under the statute
of limitations; or
(e) Establishes jurisdiction or venue . . . .
conscious objective was to use a firearm against the person or
property of another. A
jury need not indicate whether it found
that a defendant's purpose was to use a firearm either against a
person, or against property, or both. Rather, the distinction is
made in the Graves Act only, which suggests that the distinction
is relevant for sentencing purposes, not for obtaining a
conviction. See also State v. Lopez,
276 N.J. Super. 296, 307
(App. Div.)(holding that because type of deadly weapon is not
element of robbery and is relevant only to Graves Act
applicability, type of deadly weapon need not be specified in
indictment and is irrelevant to jury deliberations), certif.
denied,
139 N.J. 289 (1994).
Neither State v. Petties,
139 N.J. 310 (1995)
, nor State v.
Diaz, supra,
144 N.J. 628, is at all inconsistent with this
analysis. In Petties, supra, we held that for the purpose of
resolving issues of merger of weapons offenses with other
substantive charges, a trial court may use a special verdict to
obtain a jury determination whether the weapons possession was
solely for the purpose of using the weapon against the victim of
the substantive offense, or for a broader purpose. 139 N.J. at
320-21. In Diaz, supra, we explained that our holding in Petties
did not mandate the use of special verdicts in all cases in which
a defendant is charged both with possession of a weapon for an
unlawful purpose as well as another substantive offense, noting
that mandatory use of special verdicts would unnecessarily
restrict a sentencing court's discretion on merger issues.
144 N.J. at 642-43. Neither Petties nor Diaz specifically
addressed the use of special verdicts for Graves Act purposes.
In Stewart, supra, this Court held that the trial court could not submit an interrogatory to the jury to determine a defendant's Graves Act eligibility, but rather must determine that eligibility after a hearing in accordance with N.J.S.A. 2C:43-6d. 96 N.J. at 605. Because N.J.S.A. 2C:43-6d does not provide for any exceptions to the hearing requirement, a literal
reading of that section suggests that before a defendant may be
sentenced pursuant to the Graves Act the court must conduct a
hearing to determine whether the Act applies to a specific
N.J.S.A. 2C:39-4a conviction.
State v. Jefimowicz,
119 N.J. 152, 155 (1990), involved a
defendant who was convicted of armed robbery and possession of a
weapon for an unlawful purpose. The defendant was sentenced to
an extended term under the Graves Act because “[t]he trial court
concluded that such sentencing was required because defendant had
been convicted of armed robbery, a Graves Act offense, and
defendant's criminal record alone established a prior conviction
for a Graves Act offense.” Id. at 154.
This Court disagreed with the Appellate Division's holding
that the defendant was entitled to an additional hearing at which
he could challenge the validity of his prior conviction. Id.
154-55. We distinguished State v. Martin,
119 N.J. 10, 17
(1988), which held that, pursuant to N.J.S.A. 2C:43-6d, “where
the underlying record is unclear with respect to the nature of a
prior conviction, a hearing is required at which the basis for an
extended Graves Act term must be established.” Jefimowicz,
supra, 119 N.J. at 156. Because the basis for the defendant's
prior conviction was a “plea of guilty as an accomplice to an
aggravated assault, by knowingly pointing a firearm,” an
enumerated Graves Act offense, the Court found that the record
raised “no uncertainty with respect to the use of a firearm in
the commission of the [prior] offense.” Id. at 157. Although
the Court did not specifically indicate whether the trial court
reached its conclusion after a hearing,
the Court did state that
“[b]ecause the record clearly establishes defendant's prior
Graves Act conviction, no further hearing was required to clarify
or elucidate the nature of that conviction.” Id. at 161
(emphasis added). F
airly read, that statement implies that the
standard sentencing hearing was adequate to determine whether the
record supported the assertion that the defendant was previously
convicted of a Graves Act offense.
Because the record clearly
indicated that the defendant had been previously convicted of a
Graves Act offense, any additional hearing in that circumstance
would have been superfluous.
whether a defendant committed an offense enumerated by the Graves
Act does not limit the court in its resolution of whether the
Graves Act applies to that defendant. Stewart, supra, 96 N.J. at
607. Additionally, a court properly may consider whether a
defendant exhibited the state of mind required for imposition of
a Graves Act period of parole ineligibility. White, supra, 98
N.J. at 126.
As a practical matter, our holding facilitates the Law
Division's disposition of cases in which defendants are charged
with violating N.J.S.A. 2C:39-4a. If the theory of the State's
case is that a defendant intended the use of a weapon only
against the person of another, the jury verdict necessarily will
establish that fact. To that extent, we have no disagreement
with our dissenting colleague's assertion that if the State's
prosecution is based on proof of intent to use a weapon against
the person of another, a jury determination of that fact is
mandatory. Post at ___ (slip op. at 3). However, when such
cases proceed to trial based on proofs that a defendant intended
to use a weapon against the person or property of another, a jury
need not resolve the person/property distinction in order to
determine a defendant's guilt. Thus, any concern about unanimity
on that issue becomes academic. See State v. Brown,
138 N.J. 481, 511 (1994)(stating that jury need not be unanimous to
support verdict that defendant was guilty of murder not committed
by his own conduct). In the case of defendants who choose to
plead guilty, there is no need to impanel a jury to decide the
person/property distinction; that is an issue for the sentencing
court, not for the jury. As a matter of judicial administration,
our legal conclusion is consistent with the efficient disposition
of indictments charging violations of N.J.S.A. 2C:39-4a.
To the extent that portions of the Appellate Division's
opinion in State v. Latimore, supra, 197 N.J. Super. at 221, are
inconsistent with our disposition of this matter, that opinion is
disapproved. Contrary to the observation of the Appellate
Division in this case, 295 N.J. Super. at 592, we hold that the
statutory mandate that grounds for a Graves Act sentence be
established at a hearing, N.J.S.A. 2C:43-6d, shall be adhered to
in all cases. We also request that the Committee on Model Jury
Charges, Criminal, revise the Model Criminal Jury Charge for
N.J.S.A. 2C:39-4a in accordance with this opinion.
The judgment of the Appellate Division is reversed.
CHIEF JUSTICE PORITZ and JUSTICES HANDLER, GARIBALDI, and
COLEMAN join in JUSTICE STEIN's opinion. JUSTICE O'HERN has
filed a separate dissenting opinion in which JUSTICE POLLOCK
joins.
SUPREME COURT OF NEW JERSEY
A-
41 September Term 1997
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRANKLIN CAMACHO,
Defendant-Respondent.
O'HERN, J., dissenting.
By reframing the question and selectively applying our prior
precedent on the Graves Act, N.J.S.A. 2C:43-6c, the majority
reverses the judgment of the Appellate Division. It holds that a
judge, not a jury, may determine whether a defendant possessed a
weapon for the purpose of using it against the person of another.
In doing so, it disapproves long-standing precedent that has
served to advance the efficient administration of the Graves Act.
The result of the Court's reasoning will be more work for lawyers
and judges and less efficient administration of the Graves Act.
The question that the majority asks is whether a conviction of N.J.S.A. 2C:39-4a (possession of a weapon for an unlawful purpose) may be based on either the intent to injure the person or the property of another. The answer to that question is simple. It may be either. Hence, the majority reasons that the
intent to injure the person of another is not an essential
element of the offense.
That, however, is not the question in this case. The
question in this case is how, in the language of the Graves Act,
is one "convicted under 2C:39-4a of possession of a firearm with
intent to use it against the person of another." By its framing
of the issue, the majority avoids this central point in the case.
That point is that the Graves Act, in setting forth the criteria
for its applicability, creates a symmetry between N.J.S.A. 2C:39-4a and the other nine crimes, conviction of which brings the
Graves Act into play. That symmetry is created by the first
sentence of N.J.S.A. 2C:43-6(a). That sentence provides that a
minimum jail term will be imposed on
(a) a person who has been convicted
under 2C:39-4a of possession of a firearm
with intent to use it against the person of
another or of a crime under any of [nine
enumerated criminal statutes] while in the
course of committing or attempting to commit
the crime, including the immediate flight
therefrom, used or was in possession of a
firearm.
The reason for the distinct treatment of 2C:39-4a is to harmonize it with the nine other predicate offenses for Graves Act sentencing so that each essentially involves the common feature of a crime against a person. In order to convict a defendant under 2C:39-4a, a jury must conclude that a defendant possessed a weapon, but a jury need not consider the use or possession of a weapon or firearm in order to convict under any
of the other nine crimes (murder, manslaughter, aggravated
assault, kidnapping, aggravated sexual assault, aggravated
criminal sexual contact, robbery, burglary, or escape) that bring
the Graves Act into play. Although burglary and escape are not
always crimes against the person, the attendant danger to persons
is surely the wellspring of concern for Graves Act sentencing.
To repeat, the question is not whether one must commit a
crime against a person in order to be convicted under N.J.S.A.
2C:39-4a. Rather, the question is how is one "convicted" of a
crime against the person of another. Our State and Federal
Constitutions guarantee criminal defendants the right to have
juries decide whether those defendants deserve to be convicted.
U.S. Const. amend. VI; N.J. Const. art. 1, para. 10. The
majority should not waste the Appellate Division's efforts, both
in this case and in State v. Latimore,
197 N.J. Super. 197, 221
(1984)
, to uphold those rights.
Because a jury would ordinarily not have to resolve possession or use of a firearm in convicting a defendant of one of the other nine enumerated offenses, the Court held in State v. Stewart, 96 N.J. 596 (1984), that N.J.S.A. 2C:43-6c permits sentencing courts to determine whether a defendant used or possessed a weapon while committing one of those nine crimes. Stewart involved a robbery prosecution. As noted above, robbery
is a predicate to the Graves Act. It is one of the predicate
crimes that does not necessarily involve the possession of a gun
but most often does involve a person as a victim. N.J.S.A.
2C:15-1. Robert Stewart argued that because a jury had acquitted
him of armed robbery and weapons charges and only convicted him
of unarmed robbery, it would be fundamentally unfair to allow the
sentencing court to decide the Graves Act issue of whether
Stewart used or possessed a firearm in the course of the robbery.
Stewart, supra, 96 N.J. at 605. We rejected his argument. We
interpreted N.J.S.A. 2C:43-6d as placing in the trial judge's
hands the determination of whether a defendant used or possessed
a weapon while committing one of the nine person-threatening
crimes. Stewart, supra, 96 N.J. at 605-06. We did not give the
trial judge the power to determine whether a defendant threatened
a person.
Nor does State v. White,
98 N.J. 122 (1984), lend any
support to the majority's position. That case extended Graves
Act sentencing to accomplices who have constructive knowledge
that their co-felons will use or possess a firearm. Id. at 131.
The Court emphasized that the defendant did not dispute that "he
was properly found guilty of armed robbery upon the State's
proofs that he knew, and indeed planned, that each of the
robberies would be effected with the use of the handgun." Id. at
132. In short, while the White Court allowed the sentencing
judge to determine whether the defendant constructively possessed
a gun for Graves Act purpose, the enumerated predicate offense
was established by the conviction.
State v. Des Marets,
92 N.J. 62 (1983), is also unhelpful to
the majority. Robert Des Marets pled guilty to two charges of
burglary. Because he had stolen two handguns in the course of
one of the burglaries, the sentencing court read the Graves Act
to mandate a minimum three-year term of imprisonment. Des Marets
contended that the Graves Act should not apply because he never
demonstrated any intent to use either of the firearms. The Court
undertook a straightforward reading of N.J.S.A. 2C:43-6c and held
that intent to use a firearm was not a prerequisite to Graves Act
applicability. Mere possession of a firearm would trigger the
minimum sentence provisions. Des Marets, supra, 92 N.J. at 68-69. However, the statute just as clearly states that mere
possession of a gun will not trigger the Graves Act for a
defendant convicted under N.J.S.A. 2C:39-4a. The statute states
that such defendants must be convicted of having an intent to use
their firearm against a person. The Des Marets Court did not say
that a sentencing judge could determine whether a defendant had
that intent. In fact, Des Marets explicitly emphasized that the
express inclusion of a requirement of intent to use the firearm
against the person of another in N.J.S.A. 2C:39-4a argued against
that as a jury requirement in the case of the nine other
enumerated offenses. 92 N.J. at 69.
To repeat, the use or possession of a gun that triggers a
Graves Act sentence is often not an essential element of the
offense for which a Graves Act sentence may be imposed. For
example, one may commit a rape with or without a gun; one may
commit a robbery with or without a gun. Sometimes the sentencing
court has to decide whether the weapon brandished was in fact a
real gun and not a toy. Only if the actor uses a real gun will
the Graves Act minimum eligibility term be imposed. State v.
Gantt,
101 N.J. 573, 584 (1986). But whether the gun is real or
not is irrelevant to whether the actor may have committed first-degree robbery. In such a setting, there is no real potential
for a conflict between a jury verdict and the sentencing decision
because a jury considering a robbery prosecution need not even
consider the defendant's choice of weapon. In prosecutions under
N.J.S.A. 2C:39-4a, however, the potential for conflict exists. A
jury may convict a defendant under that statute based on an
intent to fire at the victim's TV set. At a sentencing hearing,
a judge under today's ruling may then convict the same defendant
of intending to shoot the victim.
Because only a jury and not a judge may convict a defendant of an offense when a jury trial has been demanded, I disagree with the disapproval of the special verdict form approved for use in State v. Latimore, 197 N.J. Super. 197 (App. Div. 1989). The majority criticizes the Latimore opinion for ignoring this Court's decision in Stewart. The criticism is misplaced.
Stewart never held that a court may convict of the offense that
is predicate to a Graves Act sentence. Latimore involved a
prosecution under N.J.S.A. 2C:39-4a whereas Stewart involved a
prosecution for robbery, one of the nine other crimes enumerated
in the Graves Act. The Latimore court did not follow Stewart
because, unlike the majority, it recognized the distinction under
the Graves Act between N.J.S.A. 2C:39-4a and the other nine
enumerated crimes.
Although it is true that a conviction under 2C:39-4a for
possession of a weapon with intent to use it unlawfully may be
obtained without specifying whether the defendant intended to use
the weapon against the person or property of another, it does not
follow that the defendant does not have a right to request that
the jury specify for what purpose the weapon was used. A jury
need not always agree unanimously on every fact that establishes
the essential elements of an offense. See State v. Parker,
124 N.J. 628, 633-35 (1991). When, however, there is a possibility
of a patchwork verdict because some jurors may believe the
defendant guilty on one basis and others on another, a jury may
be required to specify its findings. Id. at 637. Our law has
long required that "a jury instruction on a charge of gun
possession for unlawful purpose must include an identification
[by the court] of such unlawful purposes as may be suggested by
the evidence." State v. Jenkins,
234 N.J. Super. 311, 316 (App.
Div. 1989). Thus, the Model Jury Charge currently in use
requires the court to set forth the State's contention concerning
the defendant's unlawful purpose in possessing the firearm.
Model Jury Charges (Criminal) § 2C:39-4a, Possession of a Firearm
with a Purpose to Use It Unlawfully Against the Person or
Property of Another (Mar. 30, 1993). If a hypothetical defendant
were charged with having possessed a gun for the purpose of
shooting Smith's car and threatening to shoot Jones, it is
inescapable to me that a court may not refuse to have the jury
indicate for which of the two purposes (or both) it found the
defendant had unlawfully possessed the gun.
Writing for the Court in State v. Diaz,
144 N.J. 628 (1996),
Justice Coleman recently "reaffirm[ed] the propriety of using the
type of written special verdict sheets recommended in State v.
McAllister[,
211 N.J. Super. 355, 365-37 (App. Div. 1986)]." The
special verdict sheet in McAllister specifically referred to
"possession of a weapon with the purpose of using it unlawfully
against a person." 211 N.J. Super. at 365 (emphasis added).
Hence, although the majority seems to believe that its decision
will simplify things, the decision will likely result in more
work for lawyers and judges, and more trials rather than fewer in
most instances. Competent counsel will not permit patchwork
verdicts in cases in which the conviction predicate to a Graves
Act sentence is in doubt.
As an aside, this conviction is quite sustainable on the
basis that the defendant waived his right to trial by jury. If
he insists on repleading, the State should be free to reinstate
the aggravated assault counts. I doubt the defendant really
wants that.
Justice Pollock joins in this opinion.
NO. A-41 SEPTEMBER TERM 1997
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
FRANKLIN CAMACHO,
Defendant-Respondent.
DECIDED March 25, 1998
Chief Justice Poritz PRESIDING
OPINION BY Justice Stein
CONCURRING OPINION BY
DISSENTING OPINION BY Justice O'Hern