On March 4, 2024 a three-judge appellate panel decided the Middlesex County case of State v. Zaire Cromedy. The principal issue before the Court under N.J.S.A. 2C:39-5(j) concerned whether certain first-degree weapons offenses were exempt from mandatory parole ineligibility under the Graves Act.
Judge Mawla wrote for the panel in relevant part: Even more compelling is the fact that if we interpreted the Graves Act in the manner urged by defendant, those convicted of first-degree firearm offenses, like defendant, could serve lesser sentences than individuals convicted of lower-degree firearm offenses under subsections N.J.S.A. 2C:39-5(a), (b), (c), or (f). Indeed, the sentencing ranges for second-, third-, and fourth-degree offenses are five to ten years, three to five years, and not to exceed eighteen months, respectively. N.J.S.A. 2C:43-6(a)(2) to (4). If a conviction under N.J.S.A. 2C:39-5(j) was exempt from the Graves Act, a first-degree offender could arguably receive a ten-year sentence and become eligible for parole before a second-degree offender. We decline to interpret N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:39-5(j) in such a fashion, because it would lead to an absurd result.
The more sensible interpretation of N.J.S.A. 2C:39-5(j) is as a grading statute. Other examples of grading statutes enacted by the Legislature demonstrate our point. N.J.S.A. 2C:14-2(a)(1) upgrades sexual assault of a victim less than thirteen years old to a first-degree offense and mandates a minimum sentence of twenty-five years of imprisonment before parole eligibility. See State v. Drury (2007) (explaining sexual assault is a second-degree offense which “may be elevated to aggravated sexual assault, a first-degree crime, under certain circumstances”). Conversely, subject to certain conditions, N.J.S.A. 2C:44-1(e) allows a court not to impose a term of imprisonment for “a person convicted of an offense other than a crime of the first or second degree, who has not previously been convicted of an offense.”
These examples demonstrate the Legislature can express the gradation of a penalty for a certain offense and when a defendant shall not be subject to a penalty. N.J.S.A. 2C:39-5(j) is an expression of the former. By virtue of upgrading an unlawful weapons possession offense where a defendant had a prior NERA conviction, the Legislature intended that first-degree offenses become subject to the Graves Act. Because defendant had a prior NERA conviction and was convicted here of N.J.S.A. 2C:39-b(b)(1), N.J.S.A. 2C:39-5(j) upgrades his crime to a first-degree offense, and he must serve a mandatory period of parole ineligibility pursuant to N.J.S.A. 2C:43-6(c).
This is another example of the Legislature being sloppy in their drafting and approving of penal statutes. This litigation could have been avoided if the Legislature included the parole ineligibility term in the new statute.