(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 February 1, 2000 -- Decided March 14, 2000
PER CURIAM
The question in this appeal is whether William Burford's second-degree eluding conviction qualifies as a
“violent crime” subjecting defendant's sentence to the eighty-five percent minimum term of the “No Early Release
Act” (NERA or the Act), N.J.S.A. 2C:43-7.2.
On October 9, 1997, William Burford drove a stolen BMW from a fast-food restaurant parking lot in
Newark. Newark police officers saw the vehicle and were advised it was stolen. They activated their siren and
lights and followed Burford, who ultimately ran a red light and struck another vehicle. No one was seriously
injured in the accident. Burford ran from the scene but was apprehended by the police.
Burford pled guilty to all four counts of an indictment. Before sentencing, the trial court held a hearing to
determine whether the “No Early Release Act” applied. The trial court held that the Act did not apply because
defendant did not intend to use the vehicle as a “deadly weapon.” The Appellate Division upheld the trial court's
ruling at
321 N.J. Super. 360 (1999). The Appellate Division agreed that an automobile could be a deadly weapon,
but only in certain circumstances, such as where it is driven directly at a law enforcement officer who is positioned
to stop the vehicle.
The Act provides that a court imposing a prison sentence for a crime of the first or second degree must fix
a minimum term of parole ineligibility of 85" of the sentence if the crime is a “violent crime.” The Act defines
“violent crime” to mean a crime in which a defendant causes death, serious bodily injury, or uses or threatens the
immediate use of a deadly weapon. “Deadly weapon” is defined, in turn, as a firearm, device, instrument, material
or substance, which in the manner used is known to be capable of producing death or serious bodily injury. The
specific question is whether William Burford's use of a stolen automobile to elude police and his reckless striking of
another vehicle during the chase made the stolen automobile a “deadly weapon” under NERA.
The Supreme Court granted the State's petition for certification.
HELD: Defendant's second-degree conviction for eluding does not qualify as a “violent crime” under the “No Early
Release Act.” The judgment of the Appellate Division is affirmed substantially for the reasons reported in the
Appellate Division's ruling.
1. Although the literal language of the statute may reach a case like this, that was not the intent of NERA. As
originally introduced, NERA applied to “any crime of violence.” An amendment was added to link the violent
crime to the use of a deadly weapon. This amendment was intended to narrow, not broaden, the Act, to apply only
to the most dangerous criminal conduct. And, determining whether an otherwise innocent object is regarded as a
deadly weapon requires consideration of the circumstances surrounding the possession. The legislative concern for
reckless eluding that poses a risk of injury to others is addressed by elevating what would be a third-degree offense
to a second-degree offense carrying a presumption of imprisonment. (Pp. 4-7)
2. The Court also points out that even if the Act were applicable to Burford's crime, his plea would probably have
to be set aside because he was not properly informed of the likelihood of parole ineligibility. (Pp. 7-9)
The judgment of the Appellate Division is AFFIRMED.
JUSTICE LaVECCHIA, dissenting in part and concurring in part, agrees that defendant's plea would
have to be set aside because he was not given the requisite notice of the parole ineligibility in his sentence. She
disagrees, however, on the majority's interpretation of NERA, concluding that a speeding car, driven recklessly in a
heavily populated area by someone ignoring stop signs and red lights, is a “deadly weapon” that subjects defendant
to NERA.
JUSTICES O'HERN, STEIN, COLEMAN, and LONG join in this per curiam opinion. JUSTICE
LaVECCHIA filed a concurring and dissenting opinion in which CHIEF JUSTICE PORITZ joins.
JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
8 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
WILLIAM BURFORD,
Defendant-Respondent.
Argued February 1, 2000-- Decided March 14, 2000
On certification to the Superior Court, Appellate
Division, whose opinion is reported at
321 N.J. Super. 360 (1999).
Gary A. Thomas, Special Deputy Attorney General,
argued the cause for appellant (Donald C. Campolo,
Assistant Attorney General, Acting Essex County
Prosecutor, attorney).
Jacqueline E. Turner, Assistant Deputy Public
Defender, argued the cause for respondent (Ivelisse
Torres, Public Defender, attorney).
Russell J. Curley, Deputy Attorney General, argued the
cause for amicus curiae, Attorney General of New
Jersey (John J. Farmer, Jr., Attorney General,
attorney).
PER CURIAM
The central question in this appeal is whether defendant's
second-degree eluding conviction qualifies as a “violent crime”
subjecting defendant's sentence to the eighty-five percent
minimum term of the “No Early Release Act” (NERA or the Act),
N.J.S.A. 2C:43-7.2. Not before us are any constitutional
challenges to the Act. The specific question is whether
defendant's use of a stolen automobile to elude police and his
reckless striking of another vehicle during the chase made the
stolen automobile a “deadly weapon” under NERA.
N.J.S.A. 2C:43-7.2 provides:
a. A court imposing a sentence of
incarceration for a crime of the first or
second degree shall fix a minimum term of 85" of the sentence during which the defendant
shall not be eligible for parole if the crime
is a violent crime as defined in subsection
d. of this section.
N.J.S.A. 2C:43-7.2d states in pertinent part:
For the purposes of this section,
"violent crime" means any crime in which the
actor causes death, causes serious bodily
injury as defined in subsection b. of
N.J.S.A. 2C:11-1, or uses or threatens the
immediate use of a deadly weapon.
It is undisputed that defendant neither caused death nor serious
bodily injury. The only issue is whether he used or threatened
the use of a deadly weapon.
N.J.S.A. 2C:43-7.2d defines "deadly weapon" as 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.
The trial court held that the Act did not apply because
defendant did not intend to use the vehicle as a "deadly weapon."
On appeal, the Appellate Division upheld the trial court's
ruling. We agree and affirm substantially for the reasons stated
in the Appellate Division opinion reported at
321 N.J. Super. 360
(1999). Relying on that court's decision in State v. Riley,
306 N.J. Super. 141 (App. Div. 1997), it explained:
We noted in Riley that deadly weapons can be
divided into two categories: firearms, which
are per se deadly weapons and every other
object which may or may not be a deadly
weapon. Id. at 146. Within the catch-all
non-firearm category are other per se
weapons, that are not firearms "namely
objects that, by their nature, have no
apparent use or purpose other than the
infliction of death or serious bodily harm
and whose likelihood of possession for a
lawful purpose is so remote that their
possession by persons who are not members of
the military or a law enforcement unit is
interdicted by law." Id. at 146-47
(citations omitted). We further recognized a
class of objects "having a wide variety of
lawful uses but of which may take on the
character of a deadly weapon" depending on
the circumstances. Id. at 147. We
articulated the test in the following terms:
[T]he character of this class of
objects as deadly weapons is, in every
case, entirely circumstantial--that is,
did a particular defendant possess a
particular object at a particular time
and in a particular situation with the
intention of using it as a weapon.
[Id. at 147].
In applying the Riley analysis to the
facts here, the sentencing judge's conclusion
that defendant did not possess the automobile
with the intent to use it as a weapon is
clear. An automobile is not a firearm, nor
is it an object for which there are no
innocent uses. Simply put, an automobile is
ordinarily expected to be used as a means of
transportation.
On the other hand, an automobile can be
used as a deadly weapon under certain
circumstances; the most obvious example being
where it is driven directly at a law
enforcement officer who is positioned to stop
the vehicle. Thus, there may be
circumstances where an automobile can be used
as a deadly weapon.
[321 N.J. Super. at 363-64.]
We add only these observations. Although the literal
language of the statute may reach to a case like this (defendant
had at the time of the offense used an object -- the car -
capable of being used as a deadly weapon), that was not the
intent of NERA.See footnote 11 Penal statutes are strictly construed, State v.
Edwards,
28 N.J. 292, 298 (1958), and this principle applies to
the Act. State v. Thomas,
322 N.J. Super. 512, 518 (App. Div.
1999) (holding that the No Early Release Act must be strictly
construed). As originally introduced, NERA applied to any “crime
of violence.” The Governor's Study Commission on Parole
recommended, and the Assembly by amendment agreed, that the term,
crime of violence, “should be drawn narrowly to reflect the most
dangerous criminal conduct.” Report of the Study Commission on
Parole, December 1996, p. 13 (emphasis added).
The recommended amendment of N.J.S.A. 2C:43-7.2d, that
linked the definition of crimes of violence to crimes involving
the use of a deadly weapon was intended to narrow, not broaden,
the Act's coverage. To apply NERA when violence was neither
intended nor threatened contradicts that purpose. The
Legislature is presumed to be familiar with judicial construction
of statutes. Whether an otherwise innocent object, such as an
automobile or a kitchen knife, is regarded as a deadly weapon is
resolved by a “contextual test.” Cannel, New Jersey Criminal
Code Annotated, comment 4 on N.J.S.A. 2C:39-5 (1999)(citing
Riley, supra, at 148-49). “If it is used as a weapon, it is a
weapon; if it is not used as a weapon, it is [not a weapon, it
is] only a “potential weapon whose potentiality remained
unrealized.” Ibid. (quoting Riley, supra, at 148).
These principles of contextual analysis are consistently
applied in varied settings. In State v. Colon,
186 N.J. Super. 355 (App. Div. 1982), the issue was whether a knife (an object
having legitimate uses) was a weapon possessed under manifestly
inappropriate circumstances in violation of N.J.S.A. 2C:39-5d.
The court upheld the conviction because the switchblade knife
allegedly possessed to peel potatoes was not so being used to
settle an argument. “The issue is not whether a weapon could be
lawfully used, but whether the circumstances surrounding the
possession were manifestly appropriate for such lawful uses.”
Colon, supra, at 357; see also State v. Lee,
96 N.J. 156, 162
(1984) (explaining that “surrounding circumstances” determines
whether the purpose of an actor is to use an otherwise innocent
object “as a weapon”). The legislative concern to sanction
reckless eluding that poses a risk of injury to others is
respected inasmuch as it is precisely the reckless use of the car
posing risk of injury to others that elevates what would be a
third-degree offense of eluding to a second-degree offense
carrying a presumption of imprisonment. State v. Wallace,
158 N.J. 552 (1999). Of course, if defendant had, in the course of
eluding, caused death or serious bodily injury to another, the
Act would apply. See State v. Ferencsik,
326 N.J. Super. 228,
231 (App. Div. 1999) (holding NERA applies to reckless vehicular
homicide when defendant caused death by driving recklessly);
State v. Newman,
325 N.J. Super. 556, 561 (App. Div. 1999)
(holding that reckless manslaughter was a “violent crime” under
NERA).
For future guidance, we point out that even if the Act were
applicable to Burford's crime, his plea would probably have been
set aside for failure to comply with the requirements of State v.
Kovack,
91 N.J. 476 (1982).See footnote 22 In Kovack, the Court held that “a
defendant must be informed of any period of parole ineligibility
that is likely to become part of his sentence,” id. at 479, and
that, at the time of the plea, “the court must make certain that
defendant has been made aware of any loss of parole opportunities
that may be a component of the sentence.” Id. at 483. The court
stated, “[o]bviously, this is best accomplished by the court
satisfying itself, through specific question and answer, that
defendant understands the possibility that a stated period of
parole ineligibility can be made part of the sentence.” Id. at
484 (footnote omitted). In the absence of such advice, no period
of parole ineligibility can be imposed without giving the
defendant the option of withdrawing his guilty plea subject to
reinstatement of any dismissed charge, endeavoring to renegotiate
the agreement, or accepting the sentence. Id. at 485.
In his April 24, 1998 Directive for Enforcing the No Early
Release Act, former Attorney General Verniero reinforced these
requirements of Kovack for procedural fairness and directed that
written notice be furnished to the court and a defendant before a
plea hearing (and after verdict) concerning whether the defendant
may be subject to the provisions of NERA. The Directive also
suggests the manner in which the grounds for NERA sentencing may
be established. Moreover, if a defendant desires to plead guilty
but contests the State's assertion that NERA applies, the
defendant can enter the plea and acknowledge his or her potential
exposure under NERA, and agree to be bound by the determination
at the sentencing hearing, or the parties might agree that the
defendant can withdraw his or her plea if the judge finds that
the Act applies.
In future cases, courts must ensure that the Kovack
requirements are met in accepting a NERA plea. In most
instances, the predicate for NERA sentencing will be established
by the elements of the offense to which the plea has been
entered.
The judgment of the Appellate Division is affirmed.
JUSTICES O'HERN, STEIN, COLEMAN, and LONG join in this PER
CURIAM opinion. JUSTICE LaVECCHIA filed a separate concurring
and dissenting opinion in which CHIEF JUSTICE PORITZ joins.
JUSTICE VERNIERO did not participate.
SUPREME COURT OF NEW JERSEY
A-
8 September Term 1999
STATE OF NEW JERSEY,
Plaintiff-Appellant,
V.
WILLIAM BURFORD,
Defendant-Respondent.
__________________________
LaVECCHIA, J., concurring, in part and dissenting, in part.
The Court today holds that the No Early Release Act
(“NERA”), N.J.S.A. 2C:43-7.2, should not be applied to defendant.
The Court cites two reasons. First, the manner in which the
Court accepted defendant's plea did not satisfy State v. Kovack,
91 N.J. 476 (1982) and his sentence may not now be able to be
increased. Second, defendant's driving of a stolen car to elude
police did not constitute use of a “deadly weapon” triggering
application of NERA.
I agree with the first reason and therefore join in the
disposition of the Court. I disagree as to the second reason.
In enacting NERA, the Legislature sought to require longer
sentences for criminals whose actions caused death or serious
bodily injury or who used in the commission of their crime a
deadly weapon capable of causing death or serious bodily injury.
Either circumstance qualifies for NERA to be applicable. NERA
defines “violent crime” as “. . . any crime in which the actor
causes death, causes serious bodily injury . . . or uses or
threatens the immediate use of a deadly weapon” (emphasis added).
Id. subsection d. The term “deadly weapon” is defined as “. . .
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.” Ibid. (emphasis
added).
Here defendant was driving a stolen car when police
attempted to stop him. The sentencing hearing reveals that
defendant drove the stolen car indiscriminately through Newark,
in excess of the lawful speed limit, to elude the police. He
recklessly sped through the streets and intersections of heavily
populated areas of Newark, running stop signs, running a red
light and colliding with another car in an intersection.
Fortunately, the operator of the second vehicle escaped serious
injury.
The majority concedes that reckless behavior is sufficient
to support the imposition of NERA's extended period of parole
ineligibility if the conduct of the criminal defendant actually
causes death or serious bodily injury, citing State v. Newman,
325 N.J. Super. 556 (App. Div. 1999), certif. den. ___ N.J. ___
(2000) and State v. Ferencsik,
326 N.J. Super. 228 (App. Div.
1999), but not if injury is fortuitously avoided. I disagree. I
read the statute as requiring NERA to apply if defendant “uses” a
“deadly weapon” even if death or serious bodily injury does not
result.
It is clear to me that the automobile used by defendant
here, in the manner in which it was used, constituted a “deadly
weapon” within the meaning of NERA. NERA's definition of “deadly
weapon” specifically includes an instrument which, in the manner
it is used, is known to be capable of producing death or serious
bodily injury. A speeding car, driven recklessly in heavily
populated areas of an urban center in New Jersey, by someone
ignoring traffic controls such as stop signs and a red traffic
light, is an object capable of producing death or serious bodily
injury. And, the defendant actually did hit another car, with a
person in it. His conduct easily meets the “contextual” analysis
urged by the majority. He did everything within his ability to
seriously hurt someone. By good fortune, this defendant was not
successful in causing death or serious bodily injury. But, the
manner in which he used that stolen car made it capable of
producing such consequences, and but for good fortune would have
been successful in producing serious harm. For that, a defendant
in circumstances such as presented here should be subject to
NERA. State v. Colon,
186 N.J. Super. 355 (App. Div. 1982) is
wholly inapposite. This was not a man whose purpose was about
“peeling potatoes.”
In a related context the Legislature has recognized the
heightened criminality of using a stolen car to elude police
while placing others at risk of death or injury. In 1993, the
Legislature elevated the offense of eluding, if it created a risk
of injury or death, to a second degree crime. N.J.S.A. 2C:29-2b.
The Legislature added a presumption in favor of jail time for all
second degree eluding offenses, even if a first time offender was
involved. Upon signing the bill enacting chapter 219 of the Laws
of 1993, Governor Florio noted:
This bill puts the brakes on a frightening
and dangerous act. Suspects who lead police
on high speed chases put everyone around them
at risk of injury or death. Now, they'll
face mandatory sentences for turning a motor
vehicle into a deadly weapon.
I would find that the manner in which defendant used a
stolen vehicle to elude police through the streets of Newark
constituted use of a “deadly weapon” within the meaning of NERA
and therefore would hold NERA to be applicable.
The Chief Justice joins in this opinion.
NO. A-8 SEPTEMBER TERM 1999
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
WILLIAM BURFORD,
Defendant-Respondent.
DECIDED March 14, 2000
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING/DISSENTING OPINION BY Justice LaVecchia
DISSENTING OPINION BY
Footnote: 1 1Literalism should sometimes yield in the interpretation of
statutes.
The common sense of man approves the
judgment mentioned by Puffendorf, that the
Bolognian law which enacted “that whoever
drew blood in the streets should be punished
with the utmost severity,” did not extend to
the surgeon who opened the vein of a person
that fell down in the street in a fit. The
same common sense accepts the ruling, cited
by Plowden, that the statute of lst Edward
II, which enacts that a prisoner who breaks
prison shall be guilty of felony, does not
extend to a prisoner who breaks out when the
prison is on fire_“for he is not to be hanged
because he would not stay to be burnt.”
[K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325 n.2, 108 S. Ct. 1811, 1835 n.2, 100 L. Ed.2d 313, 344-45 n.2 (1988) (Scalia, J., concurring in part and dissenting in part). Footnote: 2 2And, having commenced to serve a sentence that was not really illegal (the trial court simply found a sentencing predicate absent), it may not have been possible to increase defendant's sentence. State v. Ryan, 86 N.J. 1 (1981).