State v. Parolin

• Decision Date: 02 April 2001
• Citation: 770 A.2d 1204,339 N.J. Super. 10
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Brian PAROLIN, Defendant-Respondent.
• Court: New Jersey Superior Court

770 A.2d 1204

339 N.J. Super. 10

STATE of New Jersey, Plaintiff-Appellant, v. Brian PAROLIN, Defendant-Respondent.

Superior Court of New Jersey, Appellate Division.

Submitted February 14, 2001.

Decided April 2, 2001.

John Kaye, Monmouth County Prosecutor, for appellant (Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

Waldman & Moriarty, attorneys for respondent (Andrew T. Walsh, on the brief).

Before Judges SKILLMAN, CONLEY and WECKER.

The opinion of the court was delivered by SKILLMAN, P.J.A.D.

The issue presented by this appeal is whether the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applies to a sentence for second-degree possession of a weapon for an unlawful purpose if the conviction was based on conduct that involved the use or threat of immediate use of a deadly weapon.

Defendant was indicted for second-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(1), second-degree possession of a weapon for an unlawful purpose, in violation of N.J.S.A. 2C:39-3a, terroristic threats, in violation of N.J.S.A. 2C:12-3a or 3b, and fourth-degree aggravated assault, in violation of N.J.S.A. 2C:12-1b(4). Defendant entered into a plea bargain under which he agreed to plead guilty to possession of a weapon for an unlawful purpose and fourth-degree aggravated assault, and the State agreed to dismiss the second-degree aggravated assault and terroristic threats charges. The State also agreed to recommend a five year term of imprisonment. Defendant stipulated that the Graves Act, N.J.S.A. 2C:43-6c, would apply to his sentences for both offenses. In addition, the State reserved the right to argue that NERA was applicable to defendant's sentence for possession of a weapon for an unlawful purpose.

At the plea hearing, defendant admitted that he had pointed a loaded gun at the victim. Defendant stated that his purpose in brandishing the gun was to scare the victim so she would get out of his house. Defendant also admitted that after the victim left the house, he fired the gun, the bullet ricocheted off the pavement, and either the bullet or a piece of pavement became lodged in the victim's leg.

At sentencing, neither the State nor defendant offered any evidence, in addition to defendant's version of the offense provided at the time of his plea, relating to imposition of a NERA parole disqualifier. The trial court refused to impose a NERA sentence, concluding that under our decision in State v. Johnson, 325 N.J.Super. 78, 89-90, 737 A.2d 1140 (App.Div.1999), aff'd on other grounds, 166 N.J. 523, 766 A.2d 1126 (2001), a purely possessory offense, such as possession of a weapon for an unlawful purpose, does not qualify for NERA sentencing. The court then sentenced defendant in accordance with the Graves Act to a five year term of imprisonment, with three years of parole ineligibility, for possession of a weapon for an unlawful purpose, and a concurrent eighteen month term without parole eligibility for aggravated assault.

The State appeals from the trial court's determination that NERA does not apply to defendant's sentence. Defendant's answering brief argues that the State has no right to appeal. In the alternative, defendant argues that the trial court correctly concluded that NERA does not apply to his sentence.

We conclude that the State may appeal a sentence on the ground that the trial court failed to impose the period of parole ineligibility mandated by NERA. We also conclude that the trial court correctly held that NERA does not apply to defendant's sentence for possession of a weapon for an unlawful purpose.

I

Initially, we consider defendant's argument that the State has no right to appeal the trial court's ruling that NERA does not apply to his sentence.

It is firmly established that a court may correct an illegal sentence at any time, even if such corrective action results in an increase in a defendant's term of imprisonment. State v. Horton, 331 N.J.Super. 92, 97-102, 751 A.2d 141 (App. Div.2000); State v. Baker, 270 N.J.Super. 55, 74-76, 636 A.2d 553 (App.Div.), aff'd o.b., 138 N.J. 89, 648 A.2d 1127 (1994)

. A corollary of this principle is that the State may appeal an illegal sentence without express authorization in the criminal code or rules of court. State v. Sheppard, 125 N.J.Super. 332, 336-39, 310 A.2d 731 (App.Div.),

certif. denied,

64 N.J. 318, 315 A.2d 407 (1973); see also State v. Mercadante, 299 N.J.Super. 522, 529, 691 A.2d 819 (App.Div.),

certif. denied,

150 N.J. 26, 695 A.2d 668 (1997); State v. Eigenmann, 280 N.J.Super. 331, 337-38, 347-48, 655 A.2d 452 (App.Div.1995); State v. Leslie, 269 N.J.Super. 78, 86, 634 A.2d 572 (App. Div.1993),

certif. denied,

136 N.J. 29, 641 A.2d 1040 (1994).

If NERA applies to a sentence, the imposition of a parole ineligibility period of 85% of the sentence is mandatory. N.J.S.A. 2C:43-7.2a. Thus, a sentence that fails to include this mandatory parole ineligibility period is an illegal sentence, which the State may appeal to correct the illegality. In fact, the Supreme Court and this court have entertained appeals from trial court refusals to impose NERA parole ineligibility terms on a number of occasions without raising any question concerning the State's right to appeal. See, e.g., State v. Thomas, 166 N.J. 560, 767 A.2d 459 (2001)

; State v. Pierre, 330 N.J.Super. 7, 748 A.2d 1129 (App.Div. 2000); State v. Grawe, 327 N.J.Super. 579, 744 A.2d 246 (App.Div.),

certif. denied, 164 N.J. 560, 753 A.2d 1152 (2000). Therefore, the State may appeal the sentence imposed upon defendant on the ground that the trial court failed to impose the parole ineligibility period mandated by NERA.

II

NERA provides in pertinent part:

A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime....

For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury ..., or uses or threatens the immediate use of a deadly weapon....

[N.J.S.A. 2C:43-7.2a, d.]

In State v. Johnson, supra, 325 N.J.Super. at 89-90, 737 A.2d 1140, a panel of this court held that possession of a weapon for an unlawful purpose is not a "violent crime" within the intent of NERA.¹ After quoting the definition of "violent crime" set forth in N.J.S.A. 2C:43-7.2, the panel said:

We think it plain that a purely possessory crime does not meet this definition. One cannot by mere possession with an unlawful purpose be deemed to have actually caused either death or serious bodily injury or used or threatened the immediate use of a deadly weapon. These are certainly elements of the robberies for which defendant was indicted and, certainly, threat of use of a deadly weapon was an element of the robbery of which defendant was convicted. But they are not elements of the purely possessory crime. A defendant must do more than have the intent to use the weapon unlawfully against the person of another before he meets the statutory definition of a violent criminal.

[Ibid.]

However, in State v. Williams, 333 N.J.Super. 356, 361, 755 A.2d 1168 (App. Div.2000), another panel of this court held that if the evidence presented at trial shows that the defendant in fact used or threatened the use of a deadly weapon, a NERA sentence may be imposed for possession of a weapon for an unlawful purpose even though use or threatening the immediate use of a deadly weapon is not an element of the offense:

[Defendant] brandished the gun on a public street and fired it in the direction of others contemporaneous with a verbal threat to kill. Pedestrians and bystanders, including a small child, were placed in danger by defendant's use of the firearm. In this factual setting we hold that the sentencing judge properly considered facts beyond those limited to proof of the elements of the predicate crime in determining that the offense was a "violent crime" under NERA.

... We hold that the possessory offense of unlawful possession of a firearm is not excluded from the imposition of a NERA sentence under all circumstances. The sentencing judge may evaluate the factual circumstances to determine whether the defendant's actions constituted a "violent crime" under NERA.

In State v. Mosley, 335 N.J.Super. 144, 761 A.2d 130 (App.Div.2000), certif. denied, ___ N.J. ___, ___ A.2d ___ (2001), Judge Pressler, the author of our opinion in Johnson, expanded upon the conceptual underpinning of Johnson's holding that a purely possessory crime does not qualify for NERA sentencing:

[NERA] does not address the circumstances surrounding the commission of a crime, i.e., firearm possession or use, but, rather, particularly well-defined, well-understood and statutorily defined elements of a crime. Thus, as section d. defines it, a NERA crime is one in which the actor (1) causes death, or (2) causes serious bodily injury as defined by N.J.S.A. 2C:11-1b, or (3) uses or threatens the immediate use of a deadly weapon, or (4) uses or threatens the immediate use of physical force in committing an aggravated sexual assault or sexual assault....

It is immediately apparent that each of [the] NERA conditions is a customary first-or second-degree crime element. Causing death is, of course, an essential element of the criminal homicide crimes defined by N.J.S.A. 2C:11-3 (murder), N.J.S.A. 2C:11-4 (manslaughter), and N.J.S.A. 2C:11-5 (vehicular homicide). Serious bodily injury is, illustratively, an essential statutory element of N.J.S.A. 2C:12-1b (aggravated assault), and N.J.S.A. 2C:15-1b (first-degree robbery). Use or immediately threatened use of a deadly weapon is, illustratively, an essential statutory element of N.J.S.A. 2C:12-1b(2) (aggravated assault) and N.J.S.A. 2C:15-1b (first-degree robbery). And use or threat of immediate use of physical force is an element of aggravated sexual assault as...