State v. Jefimowicz

• Decision Date: 30 May 1990
• Citation: 574 A.2d 428,119 N.J. 152
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Leonid JEFIMOWICZ, Defendant-Respondent.
• Court: New Jersey Supreme Court

Page 152

119 N.J. 152

574 A.2d 428

STATE of New Jersey, Plaintiff-Appellant, v. Leonid JEFIMOWICZ, Defendant-Respondent.

Supreme Court of New Jersey.

Argued Feb. 26, 1990.

Decided May 30, 1990.

Nancy E. Peremes, Deputy Atty. Gen., for plaintiff-appellant (Robert J. Del Tufo, Atty. Gen., attorney; Ann Marie Luvera, Deputy Atty. Gen., of counsel, and on the brief).

Alan Dexter Bowman, Newark, for defendant-respondent.

The opinion of the Court was delivered by

HANDLER, J.

This case requires the Court to consider again the appropriate standards governing mandatory extended term sentencing under the Graves Act. The trial court concluded that such sentencing was required because defendant had been convicted of armed robbery, a Graves Act offense, and defendant's criminal record alone established a prior conviction for a Graves Act offense. It therefore sentenced defendant on the armed robbery count to an extended term of life imprisonment with a twenty-five year parole disqualifier. On appeal, the Appellate Division found that the trial court should have conducted a hearing to determine whether the prior offense was a Graves Act offense and, further, that it should have applied the sentencing standards applicable to discretionary extended terms to the mandatory extended term under the Graves Act. These rulings present the issues on appeal.

I.

Following a trial by jury, defendant, Leonid Jefimowicz, was convicted on March 5, 1987, of first-degree armed robbery, N.J.S.A. 2C:15-1; second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:39-4a; third-degree unlawful possession of a weapon, 2C:39-5b; and receiving stolen property, N.J.S.A. 2C:20-7a. Prior to sentencing, the State filed a motion seeking imposition of a mandatory extended term pursuant to the Graves Act, N.J.S.A. 2C:43-6c and N.J.S.A. 2C:44-3d or, alternatively, a discretionary extended term pursuant to N.J.S.A. 2C:44-3a. The motion was supported by certified copies of three of defendant's prior judgments of conviction, including a January 30, 1984 conviction entered on a plea of guilty as an accomplice to aggravated assault, N.J.S.A. 2C:12-1b(4) and 2C:2-6b(3). The State argued that this prior plea constituted a Graves Act conviction.

The trial court accepted the State's argument that the Graves Act mandated extended term sentencing and imposed an extended term of life imprisonment with a twenty-five year parole disqualifier. The court merged the third-degree weapons charge into the second-degree weapons charge and imposed a concurrent twelve-year sentence. In addition, the court gave defendant a concurrent seven-year sentence for the receiving stolen property count.

In a reported decision, 230 N.J.Super. 42, 552 A.2d 638 (1989), the Appellate Division affirmed the conviction but remanded the matter for sentencing, concluding that under our decision in State v. Martin, 110 N.J. 10, 538 A.2d 1229 (1988), before a defendant can be sentenced as a second-time Grave Act offender, the defendant must be permitted to collaterally challenge the validity of a prior guilty plea that constitutes the basisof the earlier Graves Act offense conviction, and that this defendant had not been afforded that opportunity. The Appellate Division directed the trial court to scrutinize the plea proceedings underlying the prior conviction in order to determine if it was in fact a Graves Act offense. 230 N.J.Super. at 51, 552 A.2d 638. The Appellate Division also found that, because the aggravating factors did not justify the imposition of the maximum sentence with the maximum period of parole ineligibility, defendant's sentence "shocks the judicial conscience." Ibid. It determined further that the sentencing guidelines prescribed in State v. Dunbar, 108 N.J. 80, 527 A.2d 1346 (1987), apply to both mandatory and discretionary extended term sentencing and that the trial court should look to those guidelines when resentencing defendant. 230 N.J.Super. at 53, 552 A.2d 638.

We granted the State's cross-petition for certification. 117 N.J. 71, 563 A.2d 834 (1989). The issues thus presented are whether our holding in Martin required the trial court to conduct a further hearing to determine if the factual basis underlying the prior plea demonstrated that the conviction was a Graves Act offense, and whether Dunbar applies to mandatory, in addition to discretionary, extended term sentencing.

II.

The sentencing provisions of the Code of Criminal Justice direct that a hearing be conducted in conjunction with the imposition of a mandatory sentence. The Graves Act, N.J.S.A. 2C:43-6d, provides in pertinent part: "The court shall not impose a mandatory sentence ... unless the ground therefor has been established at a hearing." In State v. Martin, supra, we held that this statutory provision requires that where the underlying record is unclear with respect to the nature of a prior conviction, a hearing is required at which the basis for an extended Graves Act term must be established. 110 N.J. at 17, 538 A.2d 1229 ("Subsection 6d ... is an explicit command for 'a hearing' at which 'the ground' for an extended Graves term ... must be established."). The defendant in Martin was convicted of first-degree robbery, N.J.S.A. 2C:15-1, a Graves Act offense, and, because he had a prior Graves Act conviction, received a mandatory extended term. That prior conviction was based on a guilty plea to a charge of "armed robbery." The record of the conviction did not indicate whether a firearm was involved. We remanded for resentencing, and directed that a hearing be held, ruling that a record of a conviction for armed robbery without additional information provides no certainty that the conviction is based on an underlying Graves Act offense because facially it is impossible to determine whether a firearm was used. Id. at 16, 538 A.2d 1229.

Defendant argues that the identical problem that required a remand in Martin is present in this case. According to defendant, the question of the possession and use of the firearm is equally unclear in this case. However, the record in this case discloses that the basis for defendant's prior conviction was a plea of guilty as an accomplice to aggravated assault, by knowingly pointing a firearm, contrary to N.J.S.A. 2C:12-1b(4) and 2C:2-6b(3). Hence, unlike Martin, the record of the guilty plea here generates no uncertainty with respect to the use of a firearm in the commission of the offense that is the basis of the prior conviction.

It is also stressed, however, that the plea of guilty was based on defendant's participation only as an accomplice in the prior offense. Defendant argues that this earlier conviction cannot qualify as a prior Graves Act violation without a hearing because the record alone is equivocal with respect to defendant's exact role as an accomplice.

This Court has previously addressed the circumstances pursuant to which accomplice liability qualifies for a Graves Act sentencing. See State v. Weeks, 107 N.J. 396, 526 A.2d 1077 (1987); State v. White, 98 N.J. 122, 484 A.2d 691 (1984). In White, we held that accomplices found guilty of Graves Act offenses, as well as those found guilty of unarmed offenses, who knew or had reason to know that their compatriots would use or be in possession of a firearm, are subject to Graves Act penalties. 98 N.J. at 126, 484 A.2d 691. In reaching this conclusion, we reasoned that in such a case, the accomplice "has committed the same crime as the individual who possessed or used the gun." Id. at 130, 484 A.2d 691. A fundamental premise of accomplice liability is that "[b]y definition an accomplice must be a person who acts with the purpose of promoting or facilitating the commission of the substantive offense for which he is charged as an accomplice." Id. at 129, 484 A.2d 691 (emphasis in original). Moreover, "[f]or both the accomplice and his partner to be guilty, 'it is essential that they shared in the intent which is the crime's basic element.' " Ibid. (quoting State v. Fair, 45 N.J. 77, 95, 211 A.2d 359 (1965)). In Weeks, we reaffirmed the principle that for an accomplice to be subject to a Graves Act penalty, he must be an accomplice to a Graves Act offense. Specifically, we held that an accomplice to armed robbery must be found to have "shared the purpose to commit a robbery with a weapon," 107 N.J. at 405, 526 A.2d 1077 (emphasis in original), and that for that accomplice to receive a Graves Act term, the weapon must have been a firearm. Id. at 398-99, 526 A.2d 1077.

In light of these standards, defendant urges that a conviction as an accomplice to aggravated assault based only on a record of a guilty plea does not, facially, reveal whether defendant had such knowledge or shared purpose. Defendant argues, therefore, that our holding in Martin requires a hearing to establish whether or not defendant shared the purposes of committing the offense with a firearm or knew or should have known that a firearm would be involved in the commission of the offense.

We cannot agree. Defendant misunderstands the reliance that a sentencing court is entitled to place on the record of a prior conviction when that record itself is unambiguous and creates no uncertainty that the underlying offense was a Graves Act violation. Here, the conviction itself and the guilty plea on which it was based specifically refer to N.J.S.A. 2C:12-1b(4). That statute expressly refers both to the use of a firearm in the commission of the aggravated assault and defendant's knowledge of that use. Thus, the record itself discloses that defendant was convicted of being an accomplice to "knowingly under circumstances manifesting extreme indifference to the value of human life by point[ing] a firearm ... at or in the direction of another." N.J.S.A. 2C:12-1b(4). This case is, therefore, quite different from State v. Martin, supra, where the prior conviction was for armed robbery without any specification of the...