State v. Des Marets

Decision Date26 January 1983
PartiesSTATE of New Jersey, Plaintiff-Respondent, v. Robert DES MARETS, Defendant-Appellant. STATE of New Jersey, Plaintiff-Respondent, v. Jeffrey Todd APPLETON, Defendant-Appellant.
CourtNew Jersey Supreme Court

Herbert I. Waldman, Designated Counsel, for defendant-appellant Robert Des Marets (Joseph H. Rodriguez, Public Defender, attorney).

Donald T. Thelander, Asst. Deputy Public Defender, for defendant-appellant Jeffrey Todd Appleton (Joseph H. Rodriguez, Public Defender, attorney).

Thomas W. Greelish, First Asst. Atty. Gen., and Allan J. Nodes, Deputy Atty. Gen., for plaintiff-respondent (Irwin I. Kimmelman, Atty. Gen., attorney; Frank M. Gennaro, Deputy Atty. Gen., of counsel and on the letter brief (A-68) and Allen J. Nodes and Katherine F. Graham, Deputy Attys. Gen., of counsel and on the brief (A-93)).

The opinion of the Court was delivered by


These cases present two questions concerning permissible sentencing for Graves Act offenses. N.J.S.A. 2C:43-6(c); L.1981, c. 31. May the trial court impose an indeterminate term at a youth correctional institution? May the trial court impose the mandatory three year imprisonment sentence and then suspend it?

The Graves Act provides, generally, that one who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of, certain serious offenses specified in that Act shall be mandatorily sentenced to prison for a term that includes at least three years of parole ineligibility. 1 If trial courts retain the power to suspend sentence of those guilty of Graves Act offenses or to sentence to an indeterminate term at a youth correctional institution, the three year mandatory imprisonment of the Graves Act would not be imposed, and the deterrent impact on gun-related crimes sought by the Legislature would be lost. We hold that our courts have no such power.

We also hold that the sentence that includes the three year parole ineligibility term may not be to a youth correctional institution, but rather requires imprisonment, although those in charge of the State prison may, if they see fit, administratively transfer prisoners to such institutions ( N.J.S.A. 30:4-85), and that the "possession" of a firearm need not be possession with intent to use in order to make the Graves Act applicable.

We therefore affirm the Appellate Division in Des Marets and the trial court in Appleton, which we certified directly before the Appellate Division heard the matter.

We do not pass on the wisdom of this legislation's mandatory three year imprisonment term or the wisdom of its imposition on the offenses covered. That is a matter solely for the Legislature to decide. Once the Legislature has made that decision, and has made it within constitutional bounds, our sole function is to carry it out. Judges have no business imposing their views of "enlightened" sentencing on society, 92 N.J. at 91, 455 A.2d 1089 (Handler, J., dissenting), including notions of discretionary, individualized treatment, when the Legislature has so clearly opted for mandatory prison terms for all offenders. It may be that the Legislature is more enlightened than the judges. 2 Our clear obligation is to give full effect to the legislative intent, whether we agree or not. We have endeavored to do so here. 3

Des Marets

On March 23, 1981, defendant Robert Des Marets committed two separate acts of burglary. During the first of these incidents, defendant stole two unloaded handguns. 4

Pursuant to a plea bargain, defendant entered a plea of guilty to two charges of burglary in violation of N.J.S.A. 2C:18-2, two charges of theft in violation of N.J.S.A. 2C:20-3, and one charge of possession of a handgun without a license in violation of N.J.S.A. 2C:39-5(b). In return, the State agreed to recommend that defendant, then 18 years of age, be placed on probation after serving a custodial term of 90 days. Defendant had a juvenile record, but had never been incarcerated.

On the day of sentencing, the court refused to accept the plea bargain agreement because of the provisions of the Graves Act. As noted above, the Act mandates a three year imprisonment term in connection with a burglary conviction where the defendant "while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm ...." Although acknowledging Des Marets never evinced any intent to use the weapon and did not arrive armed at the burglary during which the guns were taken, the court nonetheless concluded his actions fell within the statute's coverage. Defendant chose not to withdraw his pleas of guilty.

The judge then stated that although it was his preference to sentence defendant to an indeterminate term provided for by the youthful offender statute, N.J.S.A. 2C:43-5, he felt his normal sentencing discretion foreclosed by the Graves Act. He sentenced Des Marets to the New Jersey State Prison for four years with a mandatory minimum of three years.

On May 5, 1982, the Appellate Division affirmed defendant's conviction. The court rejected defendant's contention that the Act was not intended to apply to a situation in which defendant steals a gun at the scene rather than arming himself in advance of the crime. It held further that the state did not have to prove intent to use the weapon; possession was sufficient. The court also ruled that the Legislature was within its rights in eliminating the judicial power to suspend sentences in Graves Act cases.

We granted certification, 91 N.J. 254, 450 A.2d 571 (1982).


Defendant Des Marets argues that no relationship existed between his possession of a firearm and the crime committed. Although physically in possession of a weapon, the gun was unloaded at all times and defendant never used it or demonstrated any intent to use it. Des Marets maintains "possession" for the purposes of the Graves Act should be interpreted as possession with intent to use and that he, accordingly, falls outside the law's coverage.

While it is theoretically debatable whether the Graves Act contemplates merely the physical act of possession of a firearm or possession with intent to use, the Act's purpose clearly resolves the issue.

The intent of the Act is manifest: at the very least, to ensure incarceration for those who arm themselves before going forth to commit crimes. The Act is a direct response to a substantial increase in violent crime in New Jersey. The history of the legislation makes it clear that its focus is deterrence and only deterrence; rehabilitation plays no part in this legislation. 5 The intended deterrence can be served only by giving effect to the obviously broad coverage of this law.

A holding that the Graves Act sanctions apply upon a showing of possession of a firearm, without any need to demonstrate intent to use, should not surprise defendants subject to its provisions. 6 The statute itself requires "possession" and no more. The use of that unqualified word, especially as part of the phrase "used or was in possession of a firearm" strongly suggests that the actor's state of mind was meant to be irrelevant. The inclusion of N.J.S.A. 2C:39-4 a as a Graves offense is also persuasive. That section of the Code covers possession of a firearm with intent to use it unlawfully. No more is required for a Graves Act offense to occur, neither murder, manslaughter, aggravated assault nor any of the other offenses thereafter listed in the Act. That part of the Act, therefore (practically all of it), covering conviction of certain crimes where defendant "was in possession of a firearm," would be largely superfluous if intent to use was also required to be proven, for, by virtue of the inclusion of N.J.S.A. 2C:39-4 a, Graves Act consequences would always follow upon such proof regardless of the commission or non-commission of such crimes.

The foregoing conclusion becomes graphically clear when the Act is read in its present form, including the amendment of 1982 (not in effect at the time of Des Marets' offense):

A person who has been convicted under 2C:39-4a. of possession of a firearm with intent to use it against the person of another, or of a crime under any of the following sections: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, who while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm .... [ N.J.S.A. 2C:43-6 c. (emphasis represents 1982 amendment, L.1982, c. 119) ].

The express inclusion of a requirement of intent to use in the first instance persuasively suggests its absence in all others.

There are policy considerations that weigh in favor of extending the law to encompass Des Marets. Even if a criminal has no intent to use his gun, the possession of a firearm presents definable dangers. It invites gun use by police or third parties, with attendant risks to all involved. More obviously, while an individual may have no intent to use a gun when he embarks upon a course of criminal conduct, this resolution could change under the pressure of ensuing events.

It is the mere presence of guns at the scene of crimes that this statute seeks to end. 7

Defendant Des Marets was thus in possession of a firearm within the meaning of the Graves Act. 8


It is further claimed that the court incorrectly concluded that it was not permitted to sentence defendant as a youthful offender to an indeterminate term at the Youth Correctional Institution Complex, despite the minimum term mandated by the Graves Act. Analysis of this claim requires further examination of the legislative intent embodied in both the Graves Act and in the statutes authorizing indeterminate sentencing for youthful offenders. N.J.S.A. 2C:43-5; N.J.S.A. 30:4-148.

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