cdTOCtest

offense for which he was sentenced). (For a discussion of
the minimum sentencing terms and hearing require-
ments of the Graves Act, see also SENTENCING, this
Digest.)

1. Operability

State v. Gantt, 186 N.J. Super. 262 (Law Div. 1982),
aff’d, 195 N.J. Super. 114 (App. Div. 1984), aff’d, 101
N.J. 573 (1986).

Defendant was found guilty of robbery while armed
with a pistol. At sentencing, the State and defendant
agreed that the operability of a gun must be shown for the
gun to qualify as a firearm under N.J.S.A. 2C:39-1f, and
for the Graves Act to be applicable. The Law Division
reasoned, however, that the Code’s definition of a
handgun did not require a showing of present
operability, but only that the gun was originally designed
or manufactured to be fired with one hand. The clause
in the statute which stated that a firearm was a weapon
“from which may be fired... any... missile or bullet”
was merely descriptive of certain types of gun-like
weapons. A gun could therefore be inoperable yet still be
a firearm. 186 N.J. Super. at 265-66. The Graves Act was
therefore applicable to defendant.

The Supreme Court affirmed the Appellate Division
judgment, which in turn affirmed the Graves Act
sentence. The sentencing court need be satisfied only
that the weapon was originally designed to deliver a
potentially lethal projectile. The issue of inoperability
should enter the case only if it bears on the question of
design. There was no evidence to contradict the victim’s
description of the weapon as a small handgun, and this
evidence was credible and sufficient for the factfinder to
conclude the weapon was a firearm. See State v. Hickman,
204 N.J. Super. 409 (App. Div. 1985).

State v. Ortiz, 187 N.J. Super. 44 (App. Div. 1982).
Toy or fake gun is not a “firearm” within the meaning of
N.J.S.A. 2C:39-1f. The Graves Act is therefore
inapplicable where defendant uses a toy or fake gun
during the commission of a robbery.

2. Intent

State v. Camacho, 153 N.J. 54 (1998), held that the
sentencing court, not the jury, was to determine whether
defendant’s purpose was to use firearm against the
person, as opposed to the property, of another so as to
warrant Graves Act sentence.

In State v. DesMarets, 92 N.J. 62 (1983), defendant

committed a burglary during which he stole two

handguns and subsequently fled the crime scene. He

contended that his possession of the guns fell outside the

Graves Act because he did not intend to use the guns

against others. The court held, however, that defendant’s

lack of intent to use the stolen weapons against others was

irrelevant. The Act sought to deter the violence

accompanying crimes in which firearms are possessed

regardless of whether the actor intended to use the

firearm or not. Moreover, the statutory language evinced

no legislative directive to make the provisions of the Act

applicable only where the actor intended to use the

weapon against others. See also, State v. Stewart, infra.

3. Constructive possession

In State v. Stewart, 96 N.J. 596 (1984), defendant

was convicted of conspiracy to commit second degree

(unarmed) robbery. Nevertheless, the jury found that

defendant constructively possessed a gun during the

commission of the crime. According to defendant, he was

a passenger in a truck along with his two codefendants

when one of them stole narcotics from an individual

standing on a street corner. At that time there was a flare

gun on the dashboard of the vehicle, which was later

placed in the well behind the front seat. The court held

that constructive possession immediately convertible to

actual possession of the firearm was sufficient to warrant

the imposition of a Graves Act sentence. The intention

of the Graves Act was to remove guns from crime scenes

to the greatest extent possible. Thus, where defendant

had constructive possession and the ability to exercise

imminent control over a gun, the Graves Act was

applicable.

4. Accomplice liability

In State v. White, 98 N.J. 122 (1984), defendant was

found guilty as an accomplice to armed robbery. The

court held that because an accomplice to armed robbery

has the same intent as the principle to armed robbery, the

Graves Act applies to the accomplice. The Court also

held that when the principal is found guilty of armed

robbery, but the accomplice is found guilty of unarmed

robbery, the Graves Act applies to the accomplice only if

he knew or had reason to know that the principal would

possess the firearm during the course of the crime.

H. No Early Release Act

The No Early Release Act (NERA), N.J.S.A. 2C:43-

7.2, establishes a required minimum sentence of 85