robbery is a violent crime under NERA. State v. Ainis, 317
N.J. Super. 127 (Law Div. 1998)
If a first or second degree crime involves the use or
threat of immediate use of a firearm, NERA applies. State
v. Meyer, 327 N.J. Super. 50, 56 (App. Div.), certif. denied
164 N.J. 191 (2000).
A pellet gun or BB gun is a firearm and a deadly
weapon for purposes of NERA. State v. Cheung, 328 N.J.
Super. 368 (App. Div. 2000); State v. Meyer, 327 N.J.
Super. 50, 56 (App. Div.), certif. denied 164 N.J. 191
(2000).
An operable firearm encompassed within the
definition of N.J.S.A. 2C:39-4 does meet NERA standards.
State v. Austin, 335 N.J. Super. 486, 493 (App. Div. 2000)
(inoperable BB gun not deadly weapon under NERA).
Robbery committed with inoperable BB gun was not
NERA offense, but Graves Act applied and required
imposition of mandatory parole ineligibility term. State v.
Austin, 335 N.J. Super. 465, 494 (App. Div. 2000).
NERA does not apply to a “purely possessory” crime of
possession of a firearm with intent to unlawfully use it
against another where there was no contemporaneous use
of the weapon during a violent crime or a threat to use the
weapon. State v. Johnson, 325 N.J. Super. 78 (App. Div.
1999), aff’d o.g. 166 N.J. 523, 766 (2001). However,
possession of a weapon for an unlawful purpose is not
excluded from imposition of NERA sentence under all
circumstances. State v. Williams, 333 N.J. Super. 356, 361
(App. Div. 2000), remanded N.J. (March 14, 2001).
Court may evaluate factual circumstances to determine if
defendant’s actions constitute a violent crime under
NERA. Id.
Defendants’ use of a closed knife during a robbery,
concealed to look like a gun, did not constitute a “deadly
weapon” for purposes of NERA. State v. Pierre, 330 N.J.
Super. 7 (App. Div. 2000), aff’g 329 N.J. Super. 588 (Law
Div. 1999).
NERA sentence not required where defendant used a
hammer merely to break the front of a jewelry store’s
display case, and 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.” State
v. Grawe, 327 N.J. Super. 579 (App. Div. 2000), certif.
denied 164 N.J. 560 (2000).
Defendant’s second-degree eluding conviction did not
qualify as a “violent crime” under NERA, N.J.S.A. 2C:43-
7.2, because he did not intend to use the stolen automobile
he was driving as a deadly weapon. State v. Burford, 163
N.J. 16 (2000).However, where defendant intentionally used his car
as a battering ram against a police vehicle, it constituted a
deadly weapon under NERA. State v. Griffith, 336 N.J.
Super. 514 (App. Div. 2001).- NERA Hearing and Sentence
In accordance with N.J.S.A. 2C:43-7.2e, the State
must provide written notice to defendant of the ground it
will urge to support the imposition of a NERA sentence.
State v. Staten, 327 N.J. Super. 349, 357 (App. Div.), certif.
denied 164 N.J. 561 (2000).R.3:21-4(f) requires notice to defendant of enhanced
sentencing under NERA.- Burden of Proof
Where the NERA factor is not an element of the
offense, the State must prove beyond a reasonable doubt
the factual predicate which triggers the NERA sentence.
State v. Johnson, 166 N.J. 523, 766 (2001); State v. Ainis,
317 N.J. Super. 127 (Law Div. 1998).Judgment of conviction should include the period of
parole supervision required by NERA. State v. Shoats, __
N.J. Super. ___, ___ n. 2, S.O. at 2 n. 2, 2001 WL 267054
(App. Div. 2001); State v. Hernandez, __ N.J. Super. __, __
n. 1, S.O. at 2 n. 1, 2001 WL 262636 (App. Div. 2001);
State v. Cheung, 328 N.J. Super. 368 (App. Div. 2000).If a first degree offense is downgraded to a second
degree for purposes of sentencing, see N.J.S.A. 2C:44-
1(f)(2), defendant still receives the five year period of parole
supervision because he or she remains convicted of the first
degree offense. State v. Cheung, 328 N.J. Super. 368 (App.
Div. 2000).The judgment of conviction should reflect whether the
Graves Act also applied to the offense, because even though
the NERA 85% parole ineligibility term satisfies the
Graves mandatary minimum requirements, the record
must be clear in the event defendant commits a second
Graves offense, in which case a mandatory extended term is
required. State v. Cheung, 328 N.J. Super. 368 (App. Div.
2000).