State v. Stewart

Decision Date25 June 1984
Citation96 N.J. 596,477 A.2d 300
PartiesSTATE of New Jersey, Plaintiff-Appellant, v. Robert Keith STEWART, Defendant-Respondent.
CourtNew Jersey Supreme Court
Katherine F. Graham, Deputy Atty. Gen., for plaintiff-appellant (Irwin I. Kimmelman, Atty. Gen., attorney)

Mark H. Friedman, Asst. Deputy Public Defender, for defendant-respondent (Joseph H. Rodriguez, Public Defender, attorney).

The opinion of the Court was delivered by


This case raises questions concerning the scope of the mandatory sentencing provisions known as the Graves Act, N.J.S.A. 2C:43-6, L.1981, c. 31, 1 and the proper procedures to be followed in sentencing a criminal defendant under the Act. Specifically, we are asked to determine what constitutes possession of a firearm for purposes of the Graves Act. Further, we must define the procedure trial courts should use to decide the question of possession or use of a firearm, the critical fact in determining whether the Act applies. We also apply our holding in State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983), which makes clear that possession of a weapon without intent to use it suffices to trigger the Graves Act.

This case stems from a robbery of William Hampton that occurred in Atlantic City on May 25, 1981. At trial, Hampton testified that he had been standing on a corner waiting for a bus when defendant, Robert Stewart, leaped out of the pickup truck in which Stewart had been a passenger, stuck a flare gun in Hampton's side, and robbed him of $50.

Defendant's version of the case was quite different. Stewart testified that on May 25 he and two friends, Timothy Longnecker and David Blewitt, drove by truck to Atlantic City to go gambling. At the time of the robbery, defendant was seated in the truck's cab between Blewitt and Longnecker. A flare gun was sitting on the dashboard and two air rifles were behind the seat.

When the truck stopped for a red light, Hampton, who was standing on a corner, pulled out a bag of marijuana and offered it for sale. When the light changed, defendant snatched the bag. As the truck drove away, Hampton alerted the police. Aware that the truck was being followed, Stewart threw the exposed flare gun behind the seat, out of view.

When the police pulled the truck over, the flare gun and the two air rifles were found in the well behind the seat of the truck.

Defendant was indicted on June 9, 1981, and charged with conspiracy to commit robbery, N.J.S.A. 2C:5-2; armed robbery, N.J.S.A. 2C:15-1; Possession of a weapon (the flare gun) under circumstances not manifestly appropriate for lawful use, N.J.S.A. 2C:39-5(d); possession of two rifles without the necessary permits, N.J.S.A. 2C:39-5(c)(1); and possession of a flare gun for unlawful purposes, N.J.S.A. 2C:39-4(d). The court dismissed the charges of possession of a rifle without the necessary permits.

The jury acquitted defendant of the conspiracy to commit robbery, armed robbery, and weapons possession charges, but convicted him of second degree (unarmed) robbery.

To determine whether to apply the Graves Act, the court gave the jury the following interrogatory to answer if it found defendant guilty of robbery: "If so, in the course of committing or attempting to commit the crime including the immediate flight therefrom did he use or was he in possession of a firearm?" The jury answered "Yes." Accepting this finding, the court sentenced defendant to a term of five years, three of On appeal, the Appellate Division vacated defendant's sentence and remanded the matter to the trial court for resentencing, finding defendant was not in possession of a firearm within the meaning of the Graves Act. 186 N.J.Super. 517, 453 A.2d 246. 2 According to the court, the Graves Act required proof of intent to use a firearm as well as possession. The court also held that only actual possession of a firearm can trigger application of the Graves Act. Id. at 525, 453 A.2d 246.

which were to be served without parole eligibility pursuant to the Graves Act.

Subsequently, we decided State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983), and held that mere possession of a firearm, without a showing of intent to use, was a sufficient ground for application of the Graves Act.

The State petitioned for certification, which was granted on February 7, 1983. 93 N.J. 271, 460 A.2d 674 (1983).


The Graves Act provides that anyone who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of certain designated crimes shall be sentenced to prison for a mandatory minimum term prescribed by the Act. As we stated in Des Marets, 92 N.J. at 68, 455 A.2d 1074 the intent of the Graves Act is clear: "[A]t the very least to ensure incarceration for those who arm themselves before going forth to commit crimes." It seeks to deter crime, not to rehabilitate criminals. Guided by this purpose, we found that the Act applied to defendant Des Marets, although he did not intend to use the weapon he possessed when committing one of the crimes enumerated in the Act. 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. ... 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.

The Appellate Division below interpreted "possession" for the purposes of the Graves Act as actual possession requiring intent to use. It held that constructive possession of a firearm does not trigger a mandatory minimum sentence. That court's interpretation of "possession" for Graves Act purposes was partially repudiated by our holding in Des Marets:

It is the mere presence of guns at the scene of crimes that this statute seeks to end. [92 N.J. at 68-70, 455 A.2d 1074 (footnotes omitted) ].

Applying this reasoning to the present case, the Appellate Division's conclusion that defendant, Stewart, did not possess any weapons with the intent to use them during the robbery becomes immaterial. Rather, at issue here is whether possession for Graves Act purposes may encompass constructive possession. Specifically, does the presence of the flare gun on the dashboard establish possession of a weapon within the meaning of the Graves Act? We hold that it does.

The trial court defined constructive possession for the jury as "possession in which the property is so located that [the possessor] is aware of the presence of the property and is able to exercise intentional control over it should he wish to do so" or "knowingly has the power and the purpose at a given time to exercise control over a thing either directly or through another person or persons."

As we noted in Des Marets, possession is not defined in the Graves Act. It is thus our task to define the term, at least for the purpose of this case, with the language, intent, and purposes of the Graves Act in mind.

As an initial matter, we note that possession has been defined, in its broadest sense, to include both actual and constructive possession. We recently stated:

Criminal "[p]ossession signifies intentional control and dominion, the ability to affect physically and care for the item during a span of time", State v. Davis, 68 N.J. 69, 82 (1975), accompanied by knowledge of its character, State v. Reed, 34 N.J. 554, 557 (1961); State v. Reyes, 98 N.J.Super. 506, 512 (App.Div.), cert. [sic.] den., 51 N.J. 582 (1968); see State v. Labato, 7 N.J. 137, 148 (1951); also State v. Humphreys, 54 N.J. 406, 413-414 (1969). Such possession can be constructive rather than actual. Physical or manual control of the proscribed item is not required as long as there is an intention to exercise control over it manifested in circumstances where it is reasonable to infer that the capacity to do so exists. [State v. Brown, 80 N.J. 587, 597, 404 A.2d 1111 (1979) ]. 3

In State v. Humphreys, 54 N.J. 406, 255 A.2d 273 (1969), a jury convicted defendant of unlawful possession of a weapon in an automobile. The Court held that given the statute providing that the presence of a firearm in a vehicle is presumptive evidence of possession by all persons occupying the vehicle, a jury could infer that defendant, a front seat passenger, was in possession of the gun, found protruding from the cushions of the car's back seat.

In State v. Riley, 69 N.J. 217, 352 A.2d 257 (1976), the jury found defendant guilty of "constructive possession" of a rifle in a vehicle without a purchaser identification card. N.J.S.A. 2A:151:41. Defendant had been in the back seat of a car from which he and his companions were hunting deer. In reinstating the jury's verdict this Court commented:

The State produced evidence that the rifle was in the back of the car where defendant was sitting and that defendant was to shoot a deer if one was spotted. Aside from the statutory presumption of possession by all persons occupying the vehicle at the time, N.J.S.A. 2A:151-7, these proofs were clearly In State v. Blanca, 100 N.J.Super. 241, 241 A.2d 647 (App.Div.1968), a conviction of a defendant under this same statute was upheld. Possession based on the statutory presumption could be found, the court ruled, where the court's instruction made clear that "conviction required proof ... that the occupant must have been aware of the presence of the gun and able to exercise intentional control over it." Id. at 250, 241 A.2d 647.

adequate to support the jury verdict that defendant had constructive possession of the rifle. [Id. at 221, 352 A.2d 257].

As noted above, the goal of the Graves Act...

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