carjacking has no presumptive term. State v. Zadoyan, 290
N.J. Super. at 290.
Because there is no presumptive term for carjacking,
the Appellate Division, in State v. Zadoyan, 290 N.J. Super.
at 291, set out a sentencing procedure to guide judges,
which focuses on the four elevating factors in the carjacking
statute. The longer sentences should be reserved for the
cases involving the most serious additional fact: the
infliction of bodily injury or the use of force [Element
a(1)].
Sentences in the lower range should be considered in
cases involving the least serious element, operation of the
vehicle with the lawful occupant remaining in it [Element
a (4)], unless of course the remaining occupant is an infant
or child or if the perpetrator further victimizes the
occupant by committing a third or fourth degree offense.
State v. Zadoyan, 290 N.J. Super. at 291 and fn 2.
Where there is the threat of bodily injury or the
commission or threat to commit a first or second degree
crime [Elements a(2) and a(3)], generally a sentence within
the mid-range of sentence would be appropriate. State v.
Zadoyan, 290 N.J. Super. at 291; State v. Henry, 323 N.J.
Super. at 163-164.
The high end of the sentencing range for carjacking
should be reserved for those cases involving the most
serious accompanying elements. State v. Zadoyan, 290 N.J.
Super. at 292.
Where defendant did not injure victim but carjacking
involved use of gun, a risk of serious injury and commission
or threat of other crimes including robbery and kidnaping,
defendant should be sentenced on high side of intermediate
range for carjacking. State v. Henry, 323 N.J. Super. 157,
164 (App. Div. 1999).
Mandatory sentence for carjacking did not constitute
cruel and unusual punishment. State v. Zadoyan, 290 N.J.
Super. 280 (App. Div. 1996).
B. Graves Act
Mandatory minimum terms of parole ineligibility for
offenses committed with firearms; plea bargaining to less
than mandatory minimum prohibited. State v. Des Marets,
92 N.J. 62 (1983); N.J.S.A. 2C:43-6c and d.
Graves Act “escape valve statute”, N.J.S.A. 2C:43-6.2
which required consent of prosecutor for reduction of
sentence, did not violate separation of powers doctrine.
State v. Alvarez, 246 N.J. Super. 137 (App. Div. 1991).The prosecutor’s refusal to apply, pursuant to N.J.S.A.
2C:43-6.2, for an “escape valve” reduction of defendant’s
mandatory Graves Act parole disqualifier was not arbitrary
but was consistent with the legislative goal of deterrence
and there was no denial of equal protection of the law. In
this case, defendant pointed a loaded handgun at two
people, threatened them and then accidently shot himself
in the foot. State v. Miller, 321 N.J. Super. 550 (Law Div.
1999).The length of a Graves Act parole disqualifier is
determined in the same manner as non-Graves Act parole
ineligibility. State v. Towey, 114 N.J. 69, 81-82 (1989).However, since a parole ineligibility term is mandated
by the Graves Act even if the court determines that the
mitigating factors outweigh the aggravating ones and
imposes a base term lower than the presumptive term, it is
understandable that there may be less correlation between
the length of a base term and the severity of the Graves Act
parole disqualifier than that imposed in non-Graves cases.
State v. Towey, 114 N.J. at 81-82.The Court should also consider, in determining the
length of a Graves Act parole ineligibility term, the extent
to which injury was threatened or inflicted by defendant’s
possession or use of the firearm, regardless of the fact that
this particular consideration may also be an element of the
offense. State v. Towey, 114 N.J. at 83.The trial court must inform a defendant of the
mandatory parole ineligibility term required by N.J.S.A.
2C:43-6c before accepting a guilty plea to a Graves Act
offense. State v. Bailey, 226 N.J. Super. 559 (App. Div.
1988).Accomplice is subject to Graves Act penalties if he
knew or had reason to know that codefendant would use or
be in possession of a firearm. State v. White, 98 N.J. 122
(1984).Graves Act applies to defendant even if his
involvement with weapon was limited to hiring someone to
commit murder. State v. Mancine, 124 N.J. 232 (1991).Constructive possession of weapon is sufficient in
certain cases for Graves Act sentence. State v. Stewart, 96
N.J. 596 (1984).