cdTOCtest

2C:15-1), and makes burglary a crime of the second
degree (N.J.S.A. 2C:18-2).

(For a discussion of the elements of robbery, see also,
ROBBERY, this Digest.)

1. Armed Robbery

State v. Brown, 325 N.J. Super. 447 (App. Div.
1999), certif. denied, 163 N.J. 76 (2000), held that
defendant was not armed with a deadly weapon by
carrying a kitchen knife in his pocket and did not commit
first degree robbery.

State v. Riley, 306 N.J. Super. 141 (App. Div. 1997),
reversed defendant’s convictions for first degree armed
robbery and fourth degree possession of a knife under
circumstance not manifestly appropriate for lawful use.
The Court held that defendant’s pocket knife was not a
“deadly weapon” within the meaning of first degree
robbery statute and was not a “weapon” for purposes of
fourth degree possession charge.

State v. Lopez, 276 N.J. Super. 296 (App. Div. 1994),
certif. denied, 139 N.J. 289 (1994), rejected defendant’s
claim that he was convicted of a crime for which he had
not been indicted because the jury found him guilty of
armed robbery with a knife, although he had been
indicted for armed robbery with a machine gun. The
appellate court stated that where a grand jury indicts a
defendant for armed robbery, the kind of deadly weapon
used is not an essential element of the offense and thus
need not be particularized in the indictment, although
the State’s version must be disclosed in discovery, as was
done in this case. The type of weapon utilized is relevant
only with regard to the sentencing provisions of the
Graves Act, but has no impact on the jury’s deliberations
on the offenses charged and hence is not required to be
included in the indictment. The Lopez Court noted that
the indictment could have been amended to add “pistol”
and “knife,” as the State requested. The trial court had
denied the amendment, but permitted the State to
introduce evidence of the knife and gun and submitted
special interrogatories to the jury on that issue.

State v. Ortiz, 187 N.J. Super. 44 (App. Div. 1982).
Defendant used a fake gun to commit a robbery. He
appealed his sentence for first degree robbery in reliance
on the holding in State v. Butler, 89 N.J. 220 (1982), that
use of a weapon actually capable of deadly force was
necessary to constitute first degree robbery. The
Appellate Division found, however, that defendant’s use
of the fake gun as a club made the gun capable of

producing serious bodily injury. Therefore, the fake gun

was a deadly weapon, and his conviction for first degree

robbery was affirmed.

2. Aggravated Assault

N.J.S.A. 2C:12-1b(4) defines aggravated assault as

pointing a firearm at another “under circumstances

manifesting extreme indifference to the value of human

life... whether or not the actor believes [the firearm] to

be loaded.” In State v. Diaz, 190 N.J. Super. 639 (Law

Div. 1983), the trial judge construed the statute to

require that the gun used in an aggravated assault must

pose an actual threat to life, and therefore must be loaded.

In State v. Bill, 194 N.J. Super. 192 (1984), however,

the Appellate Division expressly disapproved of State v.

Diaz. According to the Court, the drafters of N.J.S.A.

2C:12-2, determined that pointing a firearm at another

was a reckless, dangerous act deserving enhanced

punishment regardless of whether the firearm was

loaded. Furthermore, the phrase “whether or not the

actor believes [the firearm] to be loaded” did not refer to

the condition of the firearm; the phrase was appended to

the statute to make clear that an assailant’s belief that he

carried an unloaded firearm was no defense to the charge

of aggravated assault.

F. Possession

N.J.S.A. 2C:2-1 states that “[p]ossession is an act..

. if the possessor knowingly procured or received that
thing possessed or was aware of his control thereof for a
sufficient period to have been able to terminate his
possession.” The term “possession” is used in N.J.S.A.
2C:39-3, -4, -5, and -7 to make possession of certain
weapons unlawful in specified circumstances. See State v.
Williams, et als., 315 N.J. Super. 384 (Law Div. 1998);
State v. Thomas, 105 N.J. Super. 331 (App. Div. 1969),
aff’d o.b., 57 N.J. 143 (1970).

G. Graves Act

The Graves Act, N.J.S.A. 2C:43-6c, requires

imprisonment of individuals who possess a firearm with

the purpose to use it unlawfully against the person of

another, or use or possess a firearm during the

commission of certain specified crimes. See State v.

Hawkes, 114 N.J. 359 (1989) (holding that Graves Act,

which imposed a mandatory extended term of second or

subsequent conviction of firearms offenses, applied to

defendant whose prior conviction of firearm offense

occurred subsequent to the commission of the firearms