In Graves Act cases, jury should not be instructed that
a guilty verdict would result in a mandatory minimum
term of imprisonment. State v. Reed, 211 N.J. Super. 177,
186-187 (App. Div. 1986), certif. denied 110 N.J. 508
(1988).
The Graves Act requires an independent determina-
tion of defendant’s use or possession of a firearm based
upon a consideration of all relevant material, not merely
that adduced at trial or considered by a jury. State v.
Palmer, 211 N.J. Super. 349, 354 (App. Div. 1986).
Firearm need not be operable, State v. Gantt, 101 N.J.
573 (1986), or loaded or even recovered for Graves Act
sentence. State v. Des Marets, 92 N.J. at 66, 70 n.8; State v.
Hickman, 204 N.J. Super. 409 (App. Div. 1985).
An air-powered pistol is considered to be a handgun
within the meaning of N.J.S.A. 2C:39-5b and for Graves
Act purposes. State v. Harmon, 203 N.J. Super. 216, 229
(App. Div. 1985), rev’d o.g. 104 N.J. 189 (1986); State v.
Mieles, 199 N.J. Super. 29 (App. Div.), certif. denied 101
N.J. 265 (1985).
Inoperable BB gun used during course of robbery
required Graves Act sentence. State v. Austin, 335 N.J.
Super. 468, 494 (App. Div. 2000).
Allegedly inoperable shotgun used during the course of
robbery/kidnapping fell within definition of firearm and
required imposition of Graves Act sentence. State v.
Orlando, 269 N.J. Super. 116, 141 (App. Div. 1993), certif.
denied 136 N.J. 30 (1994).
A starter’s pistol is not a firearm for purposes of the
Graves Act. State v. Williams, 232 N.J. Super. 414 (App.
Div.), certif. denied 117 N.J. 633 (1989).
It is the role of the sentencing court, not the jury, to
decide whether a defendant intended to use a firearm
against a person, as opposed to the property, of another for
purposes of Graves Act sentencing under N.J.S.A. 2C:43-
6c. State v. Camacho, 153 N.J. 54 (1998), cert. denied 535
U.S. 864 (1998). But see Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); State v.
Johnson, 166 N.J. 523, 766 (2001).
In McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct.
2411, 91 L.Ed.2d 67 (1986), the United States Supreme
Court upheld the constitutionality of Pennsylvania’s
version of the Graves Act. The Court concluded that States
may treat “visible possession of a firearm” as a sentencing
consideration rather than an element of a particular
offense. The Court further held that due process was
satisfied by the standard that proof of possession be
established by a preponderance of the evidence.C. Graves Act Extended Term - N.J.S.A. 2C:43-6c;
2C:44-3N.J.S.A. 2C:44-5a(2) does not preclude imposition of
multiple Graves Act sentences on second Graves Act
offender. That provision limits the judge’s authority to
impose discretionary extended prison terms, not Graves
Act mandatory extended prison terms. State v. Singleton,
326 N.J. Super. 351, 355 (App. Div. 1999); State v.
Connell, 208 N.J. Super. 688, 691 (App. Div. 1986). Thus,
the sentence for each Graves Act crime imposed on a
second Graves Act offender must be within the extended
prison sentence range.Defendant is entitled to written notice and a hearing
for a mandatory Graves Act extended term. State v. Martin,
110 N.J. 10 (1988); R. 3:21-4d. The notice must state the
prior conviction that will be relied upon and the substance
of the proof that will be addressed in support of the claim
that it is a prior Graves Act conviction. Id. at 20. Proof of
the conviction may be established by a certified copy of a
conviction, transcripts of testimony indicating that a
firearm was possessed or used, or other information, in
addition to the presentence report. State v. Martin, 110
N.J. at 18.When a sentence of life imprisonment is imposed
upon a subsequent Graves Act offender the judge must
impose a parole ineligibility term of 25 years. N.J.S.A.
2C:43-7c; State v. Swint, 328 N.J. Super. 236, 262 (App.
Div.), certif. denied 165 N.J. 492 (2000).The trial court rationally determined that defendant
had used a real gun to commit his crimes and properly
imposed an extended Graves Act sentence. In reaching this
conclusion, the trial court was allowed to consider,
pursuant to N.J.R.E. 101(a)(2)(c) and N.J.R.E. 410,
defendant’s sworn statements at his subsequently
withdrawn guilty plea, that the gun used in the offense was
real, in addition to his unsworn statement to the police that
the gun he used was a toy. State v. Hawkins, 316 N.J. Super.
74 (App. Div. 1998), certif. denied 162 N.J. 489 (1999).In State v. Jefimowicz, 119 N.J. 152 (1990), the
Supreme Court held that when the record is clear regarding
defendant’s prior Graves Act conviction, a hearing is not
required under Martin in order to clarify or elucidate the
nature of the conviction.