opinion. State v. Johnson, 166 N.J. 523, 766 (2001), S.O.
at 35; State v. Shoats, N.J. Super. , S.O. at 16, 2001
WL 267054 (App. Div. 2001).
- Violent Crime
“Violent crime” is defined in the statute as any crime in
which the actor causes death or serious bodily injury; or
uses or threatens the immediate use of a deadly weapon; or
any aggravated sexual assault or sexual assault in which the
actor uses, or threatens the immediate use of, physical
force. N.J.S.A. 2C:43-7.2d.
NERA does not apply to knowing and purposeful
murder. State v. Manzie, 335 N.J. Super. 267 (App. Div.
2000), certif. granted N.J. (2001) (argued March
13, 2001). The Appellate Division, in the interest of
sentencing uniformity, declined to reconsider whether
murder is a NERA offense and potentially create a conflict
of law because issue is before Supreme Court in Manzie.
State v. Allen, 337 N.J. Super. 259, 766 (App. Div. 2001).
If NERA applies to murder, the parole ineligibility
term for sentence of life imprisonment would be 63 3/4
years, that is 85% of 75 years - 75 years being the basis of a
life sentence in light of parole act, N.J.S.A. 30:4-123.51(a)
and (b). State v. Allen, 337 N.J. Super. 259, 766 (App. Div.
2001).
NERA applies to reckless-intent crimes like reckless
manslaughter, and not just to purposeful or knowing
offenses. NERA’s plain language proves that reckless
manslaughter is a violent crime, within the meaning of the
statute. State v. Newman, 325 N.J. Super. 556 (App. Div.
1999), certif. denied 163 N.J. 396 (2000). See State v.
Burford, 163 N.J. 16, 20-21 (2000).
NERA applies to vehicular homicide convictions.
State v. Ferencsik, 326 N.J. Super. 228 (App. Div. 1999);
State v. Burford, 163 N.J. at 20-21.
A conviction for drug-induced death, N.J.S.A. 2C:35-
9, qualifies as a violent crime under the provisions of
NERA; therefore, the 85% parole disqualifier was properly
applied to defendant’s sentence. State v. Cullum, N.J.
Super. (App. Div. March 29, 2001).
Sentencing judge properly considered facts beyond
those limited to proof of the elements of the predicate
crime in determining that offense was violent crime under
NERA. State v. Williams, 333 N.J.Super. 356, 361 (App.
Div. 2000), sentence vacated N.J. (March 14, 2001)
(NERA factual predicate not found beyond a reasonable
doubt by jury).In State v. Thomas, __ N.J. __, 2001 WL 194653
(2001), the Supreme Court found that NERA covers three
types of first degree aggravated sexual assault and second
degree sexual assaults: (1) those in which the actor causes
serious bodily injury; (2) those in which the actor uses or
threatens the immediate use of a deadly weapon, and (3)
those in which the actor uses or threatens the immediate use
of physical force. (S.O. at 14).Where the elements of the sexual offense charged
against a defendant do not contain as an element of proof
any one or more of the NERA factors, there must be proof
of an independent act of force or violence or a separate
threat of immediate physical force to satisfy the NERA
factor. State v. Thomas, S.O. at 18. This independent act
of force or violence or separate threat of immediate physical
force must be found beyond a reasonable doubt by a jury
where the case proceeds to trial. State v. Thomas, S.O. at
18; State v. Johnson, 166 N.J.523, 766 (2001), S.O. at 29-
30.Guilty plea to armed robbery in which defendant
stated that he used baseball bat to strike the victim on his
neck satisfied definition of violent crime under NERA.
State v. Hernandez, __ N.J. Super. __, S.O. at 5, 2001 WL
262636 (App. Div. 2001).A broken nose is not serious bodily injury as required
for sentencing under NERA. State v. Kane, 335 N.J.Super.
391, 398-399 (App. Div. 2000).- Deadly Weapon
“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 intended to be used, is known to be capable of
producing death or serious bodily injury. N.J.S.A. 2C:43-
7.2d.Whether defendant used or threatened the immediate
use of a deadly weapon must be found beyond a reasonable
doubt by a jury at a trial, or a judge in cases involving guilty
pleas, if the use or threatened use of a deadly weapon is not
an element of the offense. State v. Johnson, 166 N.J. 523,
766 (2001), S.O. at 29-30; State v. Shoats, __ N.J. Super.
__, S.O. at 14-16, 2001 WL 267054.The use of a hypodermic needle purportedly
containing the AIDS virus to commit first degree armed