(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 October 25, 1999 -- Decided February 28, 2000
O'HERN, J., writing for a unanimous Court.
The central issue in this appeal is the constitutionality of New Jersey's Three-Strikes Law. N.J.S.A. 2C:43
7.1a. That Law, entitled the Persistent Offender Accountability Act, mandates a life sentence without parole for any
person convicted on three separate occasions of certain violent crimes.
The facts are set forth in the reported opinion of the Law Division,
298 N.J. Super. 538 (Law Div. 1996).
On December 10, 1995, Gregory Oliver and James Fisher entered an abandoned apartment located in Paterson.
Leon Johnson, the victim, was in the apartment. As Fisher engaged Johnson in conversation, Oliver struck Johnson
in the head with a four-foot metal pipe. Oliver stole $100 and crack cocaine from Johnson. The brutal assault
caused a blood clot in Johnson's brain and fractures of the skull. Johnson was in a coma for four days and has
permanent brain damage. A jury convicted defendant of robbery in the first-degree and aggravated assault.
Following the conviction, the prosecutor moved for imposition of a life sentence pursuant to the Three-Strikes Law.
Oliver's criminal record displayed a history of violent offenses. In 1973, he was convicted of robbery under
N.J.S.A. 2A:141-1. The trial court determined that this crime constituted a “first-strike,” because the sentence was
equivalent to that for first-degree robbery as defined in the current code at N.J.S.A. 2C:15-1. The Appellate Division
reversed, finding that the offense did not demonstrate the use of force or involve a deadly weapon. The State did not
cross-appeal from this holding.
In 1979, defendant was convicted of robbery under N.J.S.A. 2A:141-1 and atrocious assault under N.J.S.A.
2A:90-1. Although defendant argued otherwise, both the trial court and Appellate Division agreed that this
constituted a strike, since the crimes were “substantially equivalent” to a N.J.S.A. 2C:15-1b. In 1986, defendant was
convicted on three separate counts of first-degree robbery. This conviction was considered an unquestioned strike.
Including the 1979 conviction, defendant's present conviction for robbery counts as a third-strike.
The trial court considered defendant's constitutional objections in a thorough and comprehensive opinion
and found the Three-Strikes Law to be constitutional. The court sentenced defendant on the first-degree robbery
offense to a term of life imprisonment with no eligibility for parole. The Appellate Division affirmed the conviction
and sentence, and upheld the constitutionality of the Three-Strikes Law substantially for the reasons stated by the
Law Division.
The Supreme Court granted Oliver's petition for certification.
HELD: New Jersey's Three-Strikes Law is constitutional, and its application to this defendant is appropriate.
1. Oliver argues that the Three-Strikes Law violates several constitutional principles: double jeopardy, separation of
powers, ex post facto prohibition, prohibition against cruel and unusual punishment, and equal protection. The Court
rejects all of these arguments and finds the law constitutional. (Pp. 5-12)
2. Oliver further contends that because of its effect on his sentence, the State should have been required to prove the
existence of the prior strikes by clear and convincing evidence. The Court disagrees, and finds the appropriate
standard to be preponderance of the evidence. (Pp. 12-16)
3. The question is whether defendant's 1979 convictions, which were committed under the prior criminal code,
should be counted as a strike because they were “substantially equivalent” to the crime of first-degree robbery. The
State presented evidence to show that in the 1979 robbery, Oliver had struck his female victim on the head from
behind with an unidentified object, causing a wound that required five stitches. The Court finds that a robbery
involving the use of an object that caused lacerations of the skull falls within the substantive definition of first-degree
robbery.
The judgment of the Appellate Division is AFFIRMED.
JUSTICES GARIBALDI, STEIN, COLEMAN, and LONG join in JUSTICE O'HERN's opinion.
CHIEF JUSTICE PORITZ and JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
72 September Term 1998
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY OLIVER, a/k/a "RED",
Defendant-Appellant.
Argued October 25, 1999-- Decided February 28, 2000
On certification to the Superior Court,
Appellate Division, whose opinion is reported
at
316 N.J. Super. 592 (1998).
Robert L. Sloan, Assistant Deputy Public
Defender, argued the cause for appellant
(Ivelisse Torres, Public Defender, attorney).
Gary H. Schlyen, Chief Assistant Prosecutor,
argued the cause for respondent (Ronald S.
Fava, Passaic County Prosecutor, attorney).
Wendy Alice Way, Deputy Attorney General,
argued the cause for amicus curiae, Attorney
General of New Jersey (John J. Farmer, Jr.,
Attorney General, attorney; Bennett A.
Barlyn, Deputy Attorney General, on the
brief).
The opinion of the Court was delivered by
O'HERN, J.
In 1993, Richard Allen Davis, a six-time offender, on parole
for his most recent offense, a sexual assault, broke into the
Petaluma, California home of Polly Klaas, a twelve-year-old
child. She and her friends had had a slumber party. Davis
kidnaped, raped and killed Polly. A year and a half earlier,
eighteen-year-old Kimber Reynolds had been murdered by a repeat
offender in Fresno, California. Polly's murder was the turning
point in the efforts of Kimber's father, Mike, to prevent the
premature release from prison of dangerous criminals. Both
victims' fathers became heavily involved in the legislative
reaction to such shocking murders by paroled offenders. The
efforts focused on various proposals. One proposal was for a
“Three Strikes” law. A “Three Strikes” law is a shorthand
expression for a law providing mandatory life imprisonment for
certain third-time criminal offenders.See footnote 11 When President Clinton
signed the Violent Crime Control and Law Enforcement Act of 1994
containing the federal version of three-strikes legislation, that
act encouraged many states to follow suit. See Violent Crime
Control and Law Enforcement Act of 1994, Pub. L. No. 103-322,
108 Stat. 1796 (1994); Michael G. Turner, et al., Three Strikes and
You're Out Legislation: A National Assessment, Fed. Probation,
Sept. 1995, at 16. In 1995, the New Jersey Legislature passed a
three-strikes bill entitled the Persistent Offender
Accountability Act. N.J.S.A. 2C:43-7.1a. That law mandates a
life sentence without parole for any person convicted on three
separate occasions of certain violent crimes, such as murder,
manslaughter, aggravated assault, kidnaping, sexual assault,
robbery, or illegal possession of a firearm or explosive. The
central issue in this appeal is the constitutionality of that
legislation.
Defendant's criminal record displayed a history of violent offenses. In 1973, defendant was convicted of robbery under N.J.S.A. 2A:141-1. The trial court determined that this crime was considered a “first-strike,” because defendant's sentence was equivalent to that for first-degree robbery as defined in the current criminal code at N.J.S.A. 2C:15-1. In 1979, defendant was again convicted of robbery under N.J.S.A. 2A:141-1 and atrocious assault and battery under N.J.S.A. 2A:90-1. Although the Appellate Division reversed the trial court's determination that the 1973 crime was a “first-strike” because the offense did not demonstrate the use of force or involve a deadly weapon, the court agreed that the 1979 crimes were “substantially equivalent” to a N.J.S.A. 2C:15-1b conviction. In 1986, defendant was convicted on three separate counts of first-degree robbery. This conviction was considered an unquestioned “strike.” Depending on the analysis of the 1979 conviction, the defendant's present conviction for robbery counts as either a “second” or “third” strike under New Jersey's Three-Strikes Law. See N.J.S.A. 2C:43 7.1a.
The trial court considered the constitutional objections raised by defendant and in a thorough and comprehensive opinion, found the Three-Strikes Law to be constitutional. 298 N.J. Super. at 566. The court sentenced the defendant on the first-degree robbery offense to a term of life imprisonment with no eligibility for parole. On appeal, the Appellate Division affirmed the conviction and sentence and upheld the constitutionality of the Three-Strikes Law substantially for the reasons stated by the Law Division. 316 N.J. Super. 592 (App. Div. 1998). We granted defendant's petition for certification. 158 N.J. 74 (1999).
II
We first consider Oliver's general constitutional challenges
to the Three-Strikes Law. The statute provides, in relevant
part:
A person convicted of a crime under any of
the following: N.J.S. 2C:11-3; subsection
a. of N.J.S. 2C:11-4; a crime of the first
degree under N.J.S. 2C:13-1, paragraphs (3)
through (6) of subsection a. of N.J.S.
2C:14-2; N.J.S. 2C:15-1; or section 1 of
P.L. 1993, c. 221 (C. 2C:15-2), who has on
two or more prior and separate occasions been
convicted of a crime under any of the
foregoing sections or under any similar
statute of the United States, this state, or
any other state for a crime that is
substantially equivalent to a crime under any
of the foregoing sections, shall be sentenced
to a term of life imprisonment by the court,
with no eligibility for parole.
Oliver argues that the Three-Strikes Law violates several constitutional principles: double jeopardy, separation of powers, ex post facto prohibition, prohibition against cruel and unusual punishment, and the guarantees of equal protection of the law, and of due process of law. For convenience, we generally adopt the format of the Law Division's opinion that accurately stated the relevant legal principles. We simply abbreviate the discussion.
A. Double Jeopardy
Oliver contends that the Three-Strikes Law violates the
double jeopardy clause of state and federal constitutions because
the law imposes multiple punishments for the same offense. He
argues that he has already served his punishment for his previous
strikes; he cannot be punished again for them by counting them
against him in the sentence for the December 1995 assault.
Although the double jeopardy clause protects against the
imposition of two punishments for the same offense, the Supreme
Court has held that recidivist statutes that enhance punishment
based on prior offenses do not violate double jeopardy guarantees
because “the enhanced punishment imposed for the later offense
'is not to be viewed as either a new jeopardy or additional
penalty for earlier crimes,' but instead as a 'stiffened penalty
for the latest crime, which was considered to be an aggravated
offense because it is a repetitive one.'” Witte v. United
States,
515 U.S. 389, 400,
115 S. Ct. 2199, 2206,
132 L. Ed.2d 321, 364 (1995) (citing Gryger v. Burke,
334 U.S. 728, 732,
68 S.
Ct. 1256, 1258,
92 L. Ed.2d 1683 (1948)).
B. Separation of Powers
Oliver contends that the Three-Strikes Law violates the
principle of separation of powers because it impermissibly
increases the discretionary power of prosecutors while stripping
the judiciary of all discretion to craft sentences. Defendant
contends that suspension of sentences is an inherent judicial
power protected by our Constitution from legislative
interference. See N.J. Const. art. III, ¶ 1 and art. IV, § I, ¶
1. In order to avoid constitutional difficulties, he urges us to
construe the statute to permit judges to apply the statute at
their discretion.See footnote 33
The Supreme Court has held under federal law that “Congress
has the power to define criminal punishments without giving the
courts any sentencing discretion.” Chapman v. United States,
500 U.S. 453, 467,
11 S. Ct. 1918, 1928,
114 L. Ed.2d 524, 539
(1991) (citing Ex Parte United States, 242 U.S. 27, 37 S. Ct. 72,
61 L. Ed. 129 (1916)). We considered the same issue in State v.
Des Marets,
92 N.J. 62, 80-81 (1983), and held:
This issue of legislative power to preclude
judicial suspension of sentences may be
thought of as subsumed in the larger issue of
power to enact mandatory sentencing laws in
the first place. As suggested above, that
latter power would not amount to much if it
did not include the former. A recent
confirmation of the power to mandate
imprisonment is found in our dictum in State
v. Bausch,
83 N.J. 425, where we noted that
“the judiciary has no power . . . to lessen
or reduce a sentence where the Legislature
has provided a mandatory penalty . . . .
C. Ex Post Facto
Oliver contends that the Three-Strikes Law violates the Ex
Post Facto Clause because it changes the legal consequences of
his prior bad acts. See U.S. Const., art. I, § 10, cl. 1; N.J.
Const., art. IV, § 7, ¶ 3. The Supreme Court has held that
recidivist statutes do not violate the Ex Post Facto Clause if
they were on the books at the time the triggering offense was
committed. See, e.g., Gryger v. Burke, 334 U.S. 728, 732, 68 S.
Ct. 1256, 1258,
92 L. Ed.2d 1683 (1948) (holding that sentence as
a habitual criminal is not viewed as a new jeopardy or additional
penalty for earlier crimes; rather it is a stiffened penalty for
the latest crime, which is considered to be an aggravated offense
because it is a repetitive one). The Three-Strikes Law was
enacted in June of 1995 and Oliver committed this offense in
December of that year.
D. Cruel and Unusual Punishment
Oliver argues that his sentence amounts to cruel and unusual
punishment in violation of the Eighth Amendment of the
Constitution and N.J. Const., art. I, ¶ 12. We have generally
avoided entering the debate among the several members of the
Supreme Court concerning the Eighth Amendment's proscription
against cruel and unusual punishment. Harmelin v. Michigan,
501 U.S. 957,
111 S. Ct. 2680,
115 L. Ed.2d 8306 (1991), in which a
life sentence without possibility of parole for possession of
cocaine was upheld, produced five separate opinions. We have
stated simply that
[t]he State and Federal Constitutions require
a three part inquiry in determining whether
punishment is unconstitutionally cruel and
unusual: First, does the punishment for the
crime conform with contemporary standards of
decency? Second, is the punishment grossly
disproportionate to the offense? Third, does
the punishment go beyond what is necessary to
accomplish any legitimate penological
objective?
[State v. Maldonado,
137 N.J. 536, 556
(1994)(citing State v. Ramseur,
106 N.J. 123,
169 (1987)].
A comparison of statutes from this state and from other
jurisdictions indicates that New Jersey's Three-Strikes Law is
consistent with contemporary standards of decency. The federal
government and at least twenty-four other jurisdictions have
enacted statutes in various forms that in varying degrees impose
life sentences for three-time violent offenders. See John Clark,
et. al., “Three Strikes and You're Out”: A Review of State
Legislation (NCJ 165369, U.S. Dep't. of Justice, Office of
Justice Statistics, 1997) (reporting that twenty-four states and
the federal government enacted such laws between 1993-1995). New
Jersey has more finely tuned its law by limiting the number and
types of violent offenses that fall within the purview of the
statute. Thus, one cannot be sentenced to life in prison under
New Jersey's Three-Strikes Law for passing a bad check or
stealing a loaf of bread.
Second, the punishment is not grossly disproportionate to
the offense. As a three-time offender, the defendant was already
subject to New Jersey's Habitual Offender Act, N.J.S.A. 2C:43-7.
Under the provisions of that Act, defendant could have been
sentenced to life imprisonment with 25 years parole ineligibility
for the first-degree robbery offense. N.J.S.A. 2C:43-7(a)(2) and
(b). Often a court will be authorized to impose a consecutive
sentence for other unmerged offenses.
Third, the punishment does not go beyond that which is
necessary to accomplish any legitimate penological objective.
The statute was a response to a genuine legislative concern that
repeat offenders pose a unique danger to society such that
society could not be protected without the provisions of this
Act. The punishment does not endure long after any need to deter
will have passed. The statute contains a provision that after 35
years of imprisonment and attaining age 70 a person shall be
deemed eligible for parole if the person does not pose a danger
to society. N.J.S.A. 2C:43-7.1e.
E. Equal Protection
Initially, we note that New Jersey's Three-Strikes Law is
not subject to challenge on the basis that it vests arbitrary
discretion in a prosecutor to decide whether to charge a
defendant as a three-strikes defendant. See State v. Lagares, 127
N.J. 20 (1992) (requiring that Attorney General adopt guidelines
to assist prosecutorial decision-making with respect to enhanced
drug sentences). The Three-Strikes Law is mandatory once the
offender falls within the scope of the Act. N.J.S.A. 2C:43-7.1a.
As the trial court acknowledged in its separation of powers
analysis, prosecutorial guidelines are unnecessary under the Act
because the Legislature has set the penalty and refused to
provide prosecutorial veto power of a trial judge's decision.
298 N.J. Super. at 550-51. Finally, there has been no showing
that the Three-Strikes Law has a disparate impact on minorities.
III
Having held the Three-Strikes Law to be generally
constitutional, we reach Oliver's contention, that even if the
sentencing law is generally constitutional he has only two valid
“strikes” against him and that insufficient procedural
protections were afforded to him. (The Law Division treated this
latter point under its Due Process analysis.) We consider that
procedural argument first.
“The function of the standard of proof, as that concept is embodied in the Due Process Clause and in the realm of fact finding, 'is to instruct the fact finder concerning the degree of confidence our society thinks he [or she] should have in the correctness of factual conclusions for a particular type of adjudication.'” Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed.2d 323, 329 (1979) (citations and internal quotation marks omitted). In the analogous context of our sex offender notification laws, the Third Circuit has imposed a standard of clear and convincing proof as a predicate to employment of sex offender notification laws. E.B. v. Verniero, 119 F.3d 1077 (3rd Cir. 1997).
The trial court reasoned that the Code provisions adequately met such constitutional requirements:
N.J.S.A. 2C:1-13d provides guidelines for ascertaining the burden necessary to prove a fact which is not an element of the offense. This statute provides:
d. When the application of the code depends upon the finding of a fact which is not an element of an offense, unless the code otherwise provided:
(1) The burden of proving the fact is on the prosecution or defendant, depending on whose interest or contention will be furthered if the finding should be made; and
(2) The fact must be proven to the satisfaction of the court or jury, as the case may be.
[N.J.S.A. 2C:1-13d.]
This subsection is an independent
provision, dealing exclusively with fact
issues that are collateral to the basis
criminal case. It is only when the
application of the Code depends upon a
finding of fact unrelated to an element of an
offense that the Code allocates burdens under
this subsection in accordance with the
interest to be furthered. See State v.
Ingram [John Terra],
98 N.J. 489, 493,
488 A.2d 545 (1985).
Therefore, the proper standard of proof
is 'to the satisfaction' of the court or
jury. It is an ambiguous standard, but is at
least proof by a preponderance of the
evidence; beyond that, the issue is left open
to the courts.
[298 N.J. Super. at 560 (emphasis added).]
Given the necessary flexibility required by the Code, we are satisfied that trial courts will exhibit under the preponderance standard “the degree of confidence our society thinks he [or she] should have in the correctness of [its] factual conclusions....” Addington, supra, 441 U.S. at 423, 99 S. Ct. at 1808, 60 L. Ed. 2d at 329. In McMillan, the Court observed that the sentencing factor, visible possession of a firearm in the commission of the charged crime, was a fact that could be readily ascertained “within the case context.” United States v. Kaluna, 192 F.3d 1188, 1205 (1997) (citing McMillan v. Pennsylvania, 477 U.S. 79, 84, 106 S. Ct. 2411, 2415 (1986)). Although the sentencing factors here, commission of two prior designated crimes, are not within the “case context” of the third strike, those sentencing factors can almost always be readily determined from the face of prior sentencing records. For example, the 1986 judgment of conviction of first-degree robbery under N.J.S.A. 2C:15-1b conclusively established a prior strike. The difficulty in this case arises because two of the prior convictions were “2A” crimes committed under the prior criminal code.
B.
Defendant's conviction of first-degree robbery in this case
represented his sixth conviction for a robbery offense. 298 N.J.
Super. at 563. Because this robbery offense fell within a ten
year period from the date of his last release from confinement,
the Act applied to defendant's crime. N.J.S.A. 2C:43-7.1c. As
noted, the 1986 conviction was an unquestioned strike. Because
the sentencing factor was not apparent from the face of the “2A”
judgments, the trial court analyzed the records of the relevant
prior convictions, and investigative pre-sentence reports to
determine whether, in fact, defendant had committed the predicate
three strikes. Based on its analysis, the court held that
defendant's 1973 and 1979 pre-Code robbery convictions under
N.J.S.A. 2A:141-1 were each “for a crime that is substantially
equivalent to a crime” of first-degree robbery, and therefore
should be counted as strikes.See footnote 44 Id. at 565. The court stated:
Under N.J.S.A. 2A:141-1 the maximum term
of imprisonment for a robbery conviction was
15 years. In connection with his 1979
robbery conviction, defendant received a
minimum term of imprisonment of 9 years and a
maximum term of imprisonment of 12 years.
Thus, defendant was exposed to a sentence
within the 10 to 20 year range for his 1973
and 1979 pre-Code robbery convictions.
Moreover, the actual sentence received by the
defendant for the 1979 robbery conviction
fell within the Code's first degree
sentencing range.
In addition, the facts of defendant's
1979 conviction resemble the facts in this
case. With respect to the 1979 conviction,
the victim there was walking toward the
building located at 124 Hamilton Avenue in
Paterson, on December 8, 1978, when she was
approached from the rear by two individuals
who struck her about the head with a hard
object. They then proceeded to take $70 from
her pocket. The victim knew one of her
assailants who she later identified as
Oliver. She was then taken to St. Joseph's
Hospital Emergency Room and was treated for
injuries to her head.
In the present case, defendant was
convicted of striking the victim from the
rear on the head with a pipe and taking cash
and drugs. Thus, this court finds the nature
and extent of the 1979 and 1995 crimes to be
"substantially equivalent" to each other.
[298 N.J. Super. at 565-566 (footnotes
omitted).]
Defendant argues that the 1979 robbery conviction did not require
that any degree of force be attendant to the conviction and that
his plea of guilty to “2A” robbery was not at all tantamount to a
plea to “2C” robbery in the first-degree that requires that the
actor “purposefully inflicts or attempts to inflict serious
bodily injury, or is armed with, or uses or threatens the
immediate use of a deadly weapon.” N.J.S.A. 2C:15-1b.
The statute underlying defendant's 1973 and 1979 robbery
convictions, N.J.S.A. 2A:141-1, provided:
Any person who forcibly takes from the person
of another, money or personal goods and
chattels, of any value whatever, by violence
or putting him in fear, is guilty of a high
misdemeanor and shall be punished by a fine
of not more than $5000, or by imprisonment
for not more than 15 years, or both.
A separate statute, N.J.S.A. 2A:151-5 provided that a person
committing various offenses including robbery,
when armed with or having in his possession
any firearm, whether or not capable of being
discharged or dangerous instrument of any
kind [such as a blackjack, metal knuckles,
dagger, stiletto, or any object or device,
whether toy or imitation, having an
appearance similar to or capable of being
mistaken for any of the foregoing] shall, in
addition to the punishment provided for the
crime, be punished on a first conviction by
imprisonment for not less than one nor more
than 10 years, upon a second conviction by
imprisonment for not less than 3 years nor
more than 15 years; upon a third conviction
by imprisonment for not less than 5 nor more
than 20 years; and upon a fourth or
subsequent conviction, by imprisonment for
not less than 10 years nor more than for
life, in the discretion of the court. No
such additional punishment shall be imposed
unless the indictment shall have averred that
the person was armed with or had in his
possession any such instrument and conviction
was had thereon. (Emphasis added).
A first-degree robbery conviction under the Code requires an
attempt to kill or inflict serious bodily injury or the
involvement of a deadly weapon. N.J.S.A. 2C:15-1b. Serious
bodily injury means bodily injury that creates a substantial risk
of death or which causes serious, permanent disfigurement, or
protracted loss or impairment of the function of any bodily
member or organ. N.J.S.A. 2C:11-1b. Defendant contends that no
such circumstances were shown to have been involved in his 1979
conviction. Had defendant used a weapon of any sort, he claims
that he would also have been indicted and convicted for robbery
while armed under N.J.S.A. 2A:151-5.
Instead, defendant claims that the judgment of conviction
under N.J.S.A. 2A:141-1 established only that defendant forcibly
took property by “violence” or “fear.” These elements of the 2A
crime of robbery establish nothing more than second-degree
robbery under N.J.S.A. 2C:15-1a. Defendant further asserts that
only through a conviction for robbery while armed or
circumstances suggesting a risk of death or serious bodily injury
could the State prove that the 2A robbery convictions were
equivalent to first-degree crimes. Because the State failed to
demonstrate the requisite “proofs” to a jury that defendant
caused or attempted to cause serious bodily injury, defendant
asserts that his 1979 conviction should not be deemed
substantially equivalent to a conviction for first-degree
robbery.
We disagree. The “deadly weapon” employed in this case may
not have fit the more precise definition of a “dangerous
instrument” under N.J.S.A. 2A:151-5. In order to establish the
offense of robbery in the first-degree, it is necessary only to
establish that the actor have possessed a “deadly weapon.”
Deadly weapon includes any firearm or
other weapon, device, instrument, material or
substance, whether animate or inanimate,
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 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.
The victim was quite specific that she believed that her scalp was split by an “object” other than defendant's hand. In her statement to the police and grand jury testimony, she said: Q Did you see a weapon or anything?
A No I didn't see anything but they must have had something.
Q Why do you say that?
A Because the blow open my head up not the fall on the steps, it was a hard object that struck me.
. . . .
Q And do you know what it was that hit you
in the back of the head?
A No.
Q Could it have been a hand?
A I don't think so.
. . . .
Q And did you go to the hospital as a
result of this?
A Yes, I did.
Q What type of injuries did you receive?
A I received five stitches, in the back of
my head.
The Code definition of a deadly weapon can be met by the
subjective perception of the victim that the object was indeed
“capable of producing . . . serious bodily injury.” N.J.S.A.
2C:11-1c. It was thus proven to “the satisfaction of the court,”
N.J.S.A. 2C:1-13d, that the 1979 robbery involving the use of an
object that caused lacerations of the skull fell within the
substantive definition of first-degree robbery under 2C:15-1b.See footnote 55
The judgment of the Appellate Division is affirmed.
Justices Garibaldi, Stein, Coleman, and Long join in Justice O'Hern's opinion. Chief Justice Poritz and Justice Verniero did not participate.
NO. A-72 SEPTEMBER TERM 1998
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
GREGORY OLIVER, a/k/a "RED",
Defendant-Appellant.
DECIDED February 28, 2000
Justice O'Hern PRESIDING
OPINION BY Justice O'Hern
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 Another similar proposal is a “No Early Release Act,” requiring certain violent offenders to serve 85" of their terms before becoming eligible for parole. The New Jersey Legislature enacted such a statute in 1997. See N.J.S.A. 2C:43-7.2 Footnote: 2 2 The trial court reasoned that because N.J.S.A. 2C:43 7.1b(1), which prescribes extended terms for repeat violent offenders, specifically refers to second-degree robbery, N.J.S.A. 2C:43-7.1a applies only to first-degree robbery. The State agrees with this interpretation. Footnote: 3 3In People v. Superior Court (Romero), 13 Cal 4th 497, 917 P.2d 628 (Cal. 1996), the California Supreme Court read discretion into its Three-Strikes Law, allowing a court to exclude a prior strike. California's law, however, permits a third strike and enhanced sentence for any number of violent or non-violent offenses. See Cal. Penal Code § 667(c) (West Supp. 1999); Michael D. Harris, Garcetti Calls for New Three Strikes Law, L.A. Daily J., June 9, 1994, at 2. Footnote: 4 4 The Appellate Division ruled that the 1973 conviction was not a strike because the State did not present any evidence of the nature, extent and consequence of defendant's criminal conduct during the 1973 robbery similar to that presented with the 1979 conviction. 316 N.J. Super. at 599. Because the State did not cross-appeal, we do not discuss that offense. Footnote: 5 5The trial court found that the 1979 and “2C” offenses were substantially equivalent because the sentence ranges were substantially equivalent. In the analogous context of resentencing under the 1979 Code of Criminal Justice, courts have held that “[w]hether a particular provision is a congruent offense does not turn on the degree of punishment.” State v. Reed, 183 N.J. Super. 184, 190 (App. Div.), certif. denied, 91 N.J. 228 (1982). Generally an analysis of whether one offense is substantially similar to another depends on the essential elements of the two offenses. See State v. Simon, 161 N.J. 416, 510 (1999)(analyzing substantive elements of Pennsylvania murder law to determine if prior conviction of murder in Pennsylvania was substantially similar to a New Jersey murder conviction).