cdTOCtest

percent parole ineligibility for crimes of the first and
second degree where the actor, inter alia, uses or threatens
to use a deadly weapon. The definition of “deadly
weapon” set forth in N.J.S.A. 2C:43-7.2d is identical to
that in N.J.S.A. 2C:11-1. See also, State v. Mosley, 335
N.J. Super. 144, 149-154 (App. Div. 2000) (comparing
differences in weapons element between NERA and
Graves Act offenses), certif. denied, N.J. (March
2, 2001).

State v. Burford, 163 N.J. 16 (2000), affirmed the
Appellate Division, 321 N.J. Super. 360 (App. Div.
1999), which held that defendant’s second-degree
eluding conviction does not qualify as a “violent crime”
under NERA, because he did not intend to use the stolen
automobile he was driving as a deadly weapon. The
Supreme Court’s opinion holds that while the literal
language of the NERA statute may encompass
defendant’s actions, this was not its intent. But see, State
v. Griffith, 336 N.J. Super. 514 (App. Div. 2001)
(holding defendant used his car as a “deadly weapon”
within meaning of NERA when he intentionally rammed
police vehicle blocking him to effect his arrest).

In State v. Grawe, 327 N.J. Super. 579 (App. Div.
2000), defendant pled guilty to first degree robbery, but
the trial court determined that he did not use or threaten
the use of a deadly weapon and thus did not impose a
NERA sentence. On the State’s appeal, the Appellate
Division affirmed the trial court’s factual finding,
explaining that no one alleged that defendant caused
death or serious bodily injury. Because he used a hammer
merely to break the front of a jewelry store’s display case,
did not brandish it in a threatening manner, and left it
lying on top of the counter when he ran from the store,
defendant did not use or threaten the immediate use of
a deadly weapon as N.J.S.A. 2C:43-7.2d requires. Rather
than using the hammer “as a menacing, deadly weapon,”
defendant employed it “as a burglar’s tool.” Although it
may seem anomalous that a first degree robbery would
not trigger a NERA sentence, the court determined the
robbery statutes’s definition of a “deadly weapon” is
broader than that set forth in NERA. See also, State v.
Johnson, 325 N.J. Super. 78 (App. Div. 1999) (holding
that purely possessory crimes, such as second degree
possession of a firearm with intent to use it unlawfully
against another, are excluded from the purview of
NERA), aff’d, N.J. (2001).

State v. Cheung, 328 N.J. Super. 368 (App. Div.
2000), affirmed defendant’s robbery and burglary
convictions stemming from guilty pleas. The court
expressed reservation that defendant’s appeal was

cognizable given his recognition in pleading guilty that

NERA applied and his unwillingness to invalidate his

guilty plea. It went on, however, to reject defendant’s

claims, reiterating that a BB gun is a deadly weapon for

purposes of N.J.S.A. 2C:43-7.2, pursuant to State v.

Meyer, infra, and that NERA applies to accomplices

pursuant to State v. Rumblin, 326 N.J. Super. 296 (App.

Div. 1999), aff’d, ___ N.J. ___ (2001). The matter was

remanded to the trial court for technical corrections of the

judgment of conviction.

State v. Meyer, 327 N.J. Super. 50 (App. Div. ), certif.

denied, 164 N.J. 191 (2000), affirmed defendant’s guilty

plea to armed robbery and related crimes. A pellet gun

used to commit the robbery was both a “firearm” and a

“deadly weapon” for purposes of NERA. But see, State v.

Austin, 335 N.J. Super. 486, 488-489 (App. Div. 2000)

(holding inoperable BB gun not a deadly weapon for

NERA sentencing purposes), certif. pending, ___ N.J.

___ (2001).

In State v. Ainis, 317 N.J. Super. 127 (Law Div.

1998), the Law Division held that threatening the use of

a hypodermic needle purportedly containing the AIDS

virus to commit first degree armed robbery is a violent

crime for purpose of NERA. In this case, the hypodermic

needle was, under NERA, a “deadly weapon,” a term the

judge determined was substantially similar to the same

term defined in N.J.S.A. 2C:11-1c and analyzed in State

v. Riley, 306 N.J. Super. 141 (App. Div. 1997).

Defendant wielded the needle toward a convenience store

clerk, wanted her to believe that it contained a fatal virus,

and threatened to kill her with it, thereby intending to

convey the message that it was a deadly weapon. The

Ainis court did not need to decide, though, if a needle

alone was a deadly weapon.

II. PRESUMPTION AS TO POSSESSION,

LICENSES AND PERMITS (N.J.S.A. 2C:39-2)

A. Possession in Vehicles

Prior law, N.J.S.A. 2A:151-7, created an unqualified

presumption that a firearm or other weapon found in an

automobile was possessed by all occupants. Judicial

interpretation, however, limited the scope of this section.

In State v. Humphreys, 54 N.J. 406 (1969), for example,

the New Jersey Supreme Court held that N.J.S.A.

2A:151-7 allowed a permissible inference, but not a

mandatory presumption, that a person in an auto

possessed a firearm found therein. Also, the court held

that it was error to read this statutory section to the jury

because jury members might erroneously believe that the

presumption was mandatory.