SYLLABUS
This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.
State v. Zaire J. Cromedy (A-17-24) (089188)
Argued March 17, 2025 -- Decided August 5, 2025
NORIEGA, J., writing for a unanimous Court.
In this appeal, the Court considers whether a conviction under N.J.S.A. 2C:39-5(j), a subsection of the unlawful weapons possession statute, is subject to a mandatory parole disqualifier pursuant to the Graves Act, N.J.S.A. 2C:43-6(c).
In August 2021, police arrested defendant on an outstanding warrant for a robbery charge. During his arrest, police located a handgun believed to belong to defendant, and he was charged accordingly. Defendant pled guilty to first-degree unlawful possession of a weapon pursuant to N.J.S.A. 2C:39-5(b)(1) and to N.J.S.A. 2C:39-5(j), which is a first-degree crime when a person with a prior conviction subject to the No Early Release Act (NERA) commits an unlawful possession of a weapon offense under N.J.S.A. 2C:39-5(a), (b), (c), or (f).
Defense counsel argued that subsection (j) should not carry a mandatory period of parole ineligibility because the crime is not among the offenses that the Graves Act expressly enumerates. The State countered that subsection (j) is a grading statute that incorporates the language of subsection (b), an offense that the Graves Act expressly includes, and urged the court to read the two subsections in tandem. The sentencing judge rejected defendant’s argument and imposed a Graves Act parole disqualifier. The Appellate Division affirmed. 478 N.J. Super. 157, 168 (App. Div. 2024). The Court granted certification. 258 N.J. 576 (2024).
HELD: N.J.S.A. 2C:39-5(j) falls outside the scope of the Graves Act. It sets forth a distinct substantive offense that must be charged independently, even though it is cognizable only when paired with a corresponding prior offense under N.J.S.A. 2C:39-5(a), (b), (c), or (f).
1. N.J.S.A. 2C:39-5 governs the unlawful possession of weapons in New Jersey. Subsections (a), (b), (c), and (f) define crimes based on the type of weapon; subsection (j) establishes that “[a] violation of subsection a., b., c. or f. of this section by a person who has a prior conviction of any of the crimes enumerated in [NERA] is a first degree crime.” The Graves Act prescribes a minimum term of
1
incarceration for certain firearm-related offenses. As relevant here, the Act provides that “[a] person who has been convicted under . . . subsection a., b., c., or f. of N.J.S.A. 2C:39-5 . . . shall be sentenced to a term of imprisonment by the court,” including a period of parole ineligibility. N.J.S.A. 2C:43-6(c). In 2013, the Legislature simultaneously amended the unlawful possession of weapons statute and the Graves Act. It added subsection (j) to N.J.S.A. 2C:39-5 and added N.J.S.A. 2C:39-5(f) to the Graves Act, but the Legislature did not add subsection (j) to the list of offenses subject to, or expressly exempt from, the Graves Act. (pp. 10-12)
2. A straightforward reading of N.J.S.A. 2C:39-5(j) reveals that it sets forth a substantive offense comprised of two distinct elements. First, the State must prove that the defendant violated N.J.S.A. 2C:39-5(a), (b), (c), or (f). Next, the State must prove that the defendant has a prior conviction subject to NERA. If the State proves both elements beyond a reasonable doubt, the defendant is guilty of a first-degree substantive crime. This conviction does not elevate the defendant’s conviction for a second-degree crime under subsections (a), (b), (c), or (f). Rather, it results in a separate, first-degree offense. The Graves Act does not mention N.J.S.A. 2C:39-5(j), and therefore a sentence under that provision does not carry the Graves Act’s mandatory period of parole ineligibility. The Court explains how N.J.S.A. 2C:39-5(h) and (i) support that analysis. Most importantly, though, if the Legislature had intended for subsection (j) to trigger the Graves Act’s mandatory minimums and parole ineligibility periods, it could have included that provision expressly in N.J.S.A. 2C:43-6(c), as it did with other subsections. That it did not do so --especially when simultaneously amending the statutes to create subsection (j) and broadening the reach of the Graves Act -- is a legislative choice, and not one the courts are free to override under the guise of avoiding an allegedly undesirable or unexpected outcome. The Court therefore holds that subsection (j) constitutes a substantive first-degree crime, not a sentencing enhancement, and is not subject to the Graves Act. The Court explains that trial courts must conduct a bifurcated trial, severing proceedings for subsection (j) from prior proceedings for the possessory charge. (pp. 12-16)
3. The Court addresses issues raised by the appellate court that warrant further discussion. First, it clarifies the distinction between grading provisions and sentencing enhancements. Whereas grading provisions create separate crimes, sentencing enhancements modify or add to the penalties that apply within or beyond the baseline range, typically through mandatory minimums, periods of parole ineligibility, or extended terms. For prosecutors, the grading of an offense is critical in determining which elements must be charged, what evidence is necessary to prove those elements, and how to structure the indictment. By contrast, sentencing provisions or post-sentencing provisions, like those found in subsections (h) and (i) of N.J.S.A. 2C:39-5, operate only after conviction. Second, the Court explains that the Appellate Division based its decision, in part, on what it perceived to be an
2
“absurd” outcome: that a defendant convicted under subsection (j) of N.J.S.A. 2C:39-5, a first-degree crime, might not be subject to the Graves Act’s mandatory minimum term, while a defendant convicted of a second-degree weapons offense could be. But a first-degree offense carries a broad sentencing range -- ten to twenty years -- pursuant to N.J.S.A. 2C:43-6(a)(1). Within that range, courts retain discretion to impose a sentence that reflects the seriousness of the conduct and the individual circumstances of the defendant. The sentencing court is not compelled to impose the lowest possible sentence. And certainly, a conviction under subsection (j), which requires a recidivist offender with a NERA conviction, is unlikely to receive the minimum sentence absent compelling mitigating factors. Even in those rare cases, the sentencing courts retain discretion to impose a longer term consistent with the statutory range. Any perceived disparity in sentencing exposure between different degrees of offenses does not justify judicial revision of the statutory scheme. (pp. 16-23)
REVERSED and REMANDED for resentencing.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS,
WAINER APTER, FASCIALE, and HOFFMAN join in JUSTICE NORIEGA’s
opinion.
3
SUPREME COURT OF NEW JERSEY
A-17 September Term 2024
089188
State of New Jersey,
Plaintiff-Respondent,
v.
Zaire J. Cromedy,
Defendant-Appellant.
On certification to the Superior Court,
Appellate Division, whose opinion is reported at
478 N.J. Super. 157 (App. Div. 2024).
Argued Decided
March 17, 2025 August 5, 2025
Daniel S. Rockoff, Assistant Deputy Public Defender,
argued the cause for appellant (Jennifer N. Sellitti, Public
Defender, attorney; Daniel S. Rockoff, of counsel and on
the briefs).
Jennifer E. Kmieciak, Deputy Attorney General, argued
the cause for respondent (Matthew J. Platkin, Attorney
General, attorney; Jennifer E. Kmieciak, of counsel and
on the briefs).
Jeffrey S. Farmer argued the cause for amicus curiae
Association of Criminal Defense Lawyers of New Jersey
(Mazraani & Liguori, attorneys; Joseph M. Mazraani, of
counsel, and Jeffrey S. Farmer, of counsel and on the
brief).
1
JUSTICE NORIEGA delivered the opinion of the Court.
The New Jersey Criminal Code is designed to give fair warning of both
the prohibited conduct and the potential penalties upon conviction, including
those provisions that may enhance penalties. The Graves Act is such a
provision, and therefore defendants must receive fair warning of its
applicability. In this appeal, we consider whether a conviction under N.J.S.A.
2C:39-5(j), a subsection of the unlawful weapons possession statute, is subject
to a mandatory parole disqualifier pursuant to the Graves Act, N.J.S.A. 2C:43-6(c). N.J.S.A. 2C:39-5(j) is a first-degree crime when a person with a prior
conviction subject to the No Early Release Act (NERA) commits an unlawful
possession of a weapon offense under N.J.S.A. 2C:39-5(a), (b), (c), or (f). The
Graves Act expressly imposes mandatory periods of parole ineligibility for
convictions under N.J.S.A. 2C:39-5(a), (b), (c), and (f), but does not list
N.J.S.A. 2C:39-5(j).
Nonetheless, the trial court here sentenced defendant Zaire J. Cromedy
to a term of imprisonment that included a Graves Act parole disqualifier, based
on a plea to a single count in an indictment that charged violations of both
N.J.S.A. 2C:39-5(b) and (j). The Appellate Division affirmed, reasoning that
subsection (j) is merely “a grading statute” that enhances the degree of the
2
conviction for subsection (b) and thereby permits a sentencing judge to impose
a first-degree penalty subject to the Graves Act.
Our task in interpreting unambiguous statutes is to apply their plain
language in a manner that advances the Legislature’s intent. Applying that
principle here, we conclude that N.J.S.A. 2C:39-5(j) falls outside the scope of
the Graves Act. It sets forth a distinct substantive offense that must be
charged independently, even though it is cognizable only when paired with a
corresponding prior offense under N.J.S.A. 2C:39-5(a), (b), (c), or (f).
Accordingly, we reverse the judgment of the Appellate Division and remand
the matter for resentencing consistent with this opinion.
I.
A.
In August 2021, police arrested defendant on an outstanding warrant for
a robbery charge. During his arrest, police located a handgun believed to
belong to defendant, and he was charged accordingly. Among various
offenses, the State charged defendant with a violation of N.J.S.A. 2C:39-5(j),
based on a 2017 conviction for reckless manslaughter, a crime subject to
NERA, N.J.S.A. 2C:43-7.2(d)(2). Thereafter, a grand jury returned two
separate indictments. The first charged defendant with two offenses: (1)
second-degree eluding, contrary to N.J.S.A. 2C:29-2(b), and (2) first-degree
3
unlawful possession of a weapon, in violation of both N.J.S.A. 2C:39-5(b)(1)
and N.J.S.A. 2C:39-5(j). The second indictment charged defendant with
certain persons not to possess a firearm, contrary to N.J.S.A. 2C:39-7(b).
Pursuant to a plea agreement, the State agreed to recommend a ten-year
sentence with a mandatory five-year period of parole ineligibility under the
Graves Act, in exchange for defendant’s guilty plea to first-degree unlawful
possession of a weapon pursuant to N.J.S.A. 2C:39-5(b)(1) and N.J.S.A.
2C:39-5(j). In return, the State agreed to dismiss the eluding and certain
persons charges. Defense counsel reserved the right to argue at sentencing that
the Graves Act does not apply to N.J.S.A. 2C:39-5(j).
At sentencing, defense counsel argued that subsection (j) should not
carry a mandatory period of parole ineligibility because the crime is not among
the offenses that the Graves Act expressly enumerates. The State countered
that subsection (j) is a grading statute that incorporates the language of
subsection (b), an offense that the Graves Act expressly includes.
Accordingly, the State urged the court to read the two subsections in tandem to
give effect to the legislative intent of imposing mandatory minimums for firstdegree firearms offenses. The sentencing judge rejected defendant’s argument
and imposed the agreed-upon sentence of ten years’ imprisonment with a fiveyear parole disqualifier, as per the Graves Act.
4
B.
The Appellate Division affirmed the sentence. Without a specific
finding that the statute was ambiguous or unclear, the appellate court sought to
interpret the statute “in conformity with its dominating general purpose.”
State v. Cromedy, 478 N.J. Super. 157, 165 (App. Div. 2024) (quoting Herman
& MacLean v. Huddleston, 459 U.S. 375, 387 n.23 (1983)). The court
principally relied on the Sponsors’ Statement accompanying the 2013
amendments to the Graves Act as evidence of legislative intent to cover
subsection (j) within the Graves Act. Id. at 166. The court noted that,
although the Legislature enacted N.J.S.A. 2C:39-5(j) on the same day it
explicitly exempted other specified offenses from the Graves Act, it was not
persuaded as to legislative intent to exclude subsection (j). Ibid. The
Appellate Division concluded that because the Sponsors’ Statement did not
expressly exempt first-degree unlawful weapons offenses, the Legislature did
not intend to do so. Ibid.
The appellate court further reasoned that accepting defendant’s argument
would produce an absurd result because a defendant convicted under
subsection (j) without a mandatory minimum could become parole eligible
before a similarly situated second-degree offender with a Graves Act sentence.
Id. at 167. The court concluded that it would therefore be “more sensible” to
5
treat subsection (j) as a grading statute rather than a substantive offense
excluded from Graves Act coverage. Ibid.
To illustrate its logic, the appellate court cited N.J.S.A. 2C:14-2(a)(1),
the sexual assault statute. Ibid. Relying on State v. Drury, 190 N.J. 197, 210
(2007), the court noted that certain crimes, like sexual assault, may be
upgraded from a second- to first-degree crime under specific aggravating
circumstances. Ibid.
“By virtue of upgrading an unlawful weapons possession offense where
a defendant had a prior NERA conviction, the Legislature intended that firstdegree offenses become subject to the Graves Act,” the Appellate Division
concluded. Id. at 168. The appellate court also determined that the grading
effect of subsection (j) “is not a consideration for the jury because defendant’s
prior conviction speaks for itself.” 1 Id. at 170.
We granted certification. 258 N.J. 576 (2024). We also granted leave to
appear as amicus curiae to the Association of Criminal Defense Lawyers of
New Jersey (ACDL).
1
Given our conclusion in this case, we need not reach the issue of how the model jury charges impact the issue under review. However, the Appellate Division recommended that the Model Jury Charge Committee revise its guidance for N.J.S.A. 2C:39-5(j). Id. at 171. We instead find that the current jury instructions for the provision are in line with this opinion and do not require reconsideration.
6
II.
Defendant argues that the plain language of both N.J.S.A. 2C:39-5(j) and
the Graves Act demonstrates that subsection (j) is a standalone substantive
offense not subject to the Graves Act’s mandatory parole disqualifier.
Defendant contends that subsection (j) unambiguously creates a first-degree
crime for which an offender may be charged and convicted independently of
other provisions within N.J.S.A. 2C:39-5. In support, defendant emphasizes
that subsection (j) expressly refers to itself as “a first degree crime,” which is,
in defendant’s view, sufficient to establish a separate substantive offense.
Defendant further argues that because the Graves Act does not list
subsection (j) among its enumerated offenses, a conviction under subsection (j)
does not trigger the Graves Act’s mandatory period of parole ineligibility.
The ACDL similarly contends that subsection (j) is a substantive offense
and not a sentencing enhancement. The ACDL underscores that the Graves
Act does not reference subsection (j) and urges the Court not to “perform
judicial surgery” by effectively inserting subsection (j) into a statute where it
does not appear. If the omission of subsection (j) was a legislative oversight,
the ACDL argues, the proper remedy lies with the Legislature, not the courts.
In the ACDL’s view, the plain language of the statute compels the conclusion
7
that a conviction under subsection (j) results in a flat sentence without a
mandatory period of parole ineligibility.
The State counters that the text and structure of N.J.S.A. 2C:39-5(j)
reflect that it operates as a sentencing enhancement rather than a separate
substantive offense. The State maintains that subsection (j) functions to
elevate the degree of other firearms possession offenses when committed by a
defendant with a prior NERA conviction. The State also distinguishes
subsection (j) from the certain persons statute, N.J.S.A. 2C:39-7, noting that
the certain persons statute exists in a separate statutory section, does not crossreference N.J.S.A. 2C:39-5, and creates a distinct second-degree offense. In
contrast, the State argues, subsection (j) explicitly refers to violations of
subsections (a), (b), (c), and (f), thereby serving its role as a grading provision.
According to the State, the Graves Act does not need to enumerate
subsection (j) because it already includes the underlying offenses that
subsection (j) upgrades. Legislative history, the State argues, confirms that
subsection (j) was enacted to impose harsher penalties on recidivist offenders
with prior NERA convictions. In the State’s view, to exclude such defendants
from the Graves Act would produce an absurd result, potentially allowing
repeat offenders to serve less time than first-time offenders convicted of
second-degree weapons charges. Therefore, the State asserts, it would be
8
illogical for the Legislature to have simultaneously increased the degree of the
offense while exempting such offenders from the very parole ineligibility
provisions meant to enhance punishment.
III.
A.
We review decisions construing a statute de novo, owing no deference to
the analysis of trial or appellate courts. State v. Higginbotham, 257 N.J. 260,
280 (2024). “When interpreting a statute, the Legislature’s intent is paramount
to a court’s analysis, and the plain language of the statute is crucial to
determining legislative intent.” In re Est. of Jones, 259 N.J. 584, 595 (2025)
(citing DiProspero v. Penn, 183 N.J. 477, 492 (2005)). Accordingly, we begin
our analysis “with the plain language of the statute” and turn “to extrinsic
evidence only when . . . ‘ambiguity in the statutory language’” allows for
“more than one plausible interpretation.” Ibid. (quoting DiProspero, 183 N.J.
at 492). “We ascribe to the statutory words their ordinary meaning and
significance and read them in context with related provisions so as to give
sense to the legislation as a whole.” Musker v. Suuchi, Inc., 260 N.J. 178, 185
(2025) (quoting DiProspero, 183 N.J. at 492). “If the plain language of a
statute is clear, our task is complete.” Id. at 186 (quoting Savage v. Township
of Neptune, 257 N.J. 204, 215 (2024)).
9
As we have long held, it is not the role of the Court to
“rewrite a plainly-written enactment of the Legislature
[]or presume that the Legislature intended something
other than that expressed by way of the plain language.”
O’Connell v. State, 171 N.J. 484, 488 (2002). We
cannot “write in an additional qualification which the
Legislature pointedly omitted in drafting its own
enactment,” Craster v. Bd. of Comm’rs of Newark, 9
N.J. 225, 230 (1952), or “engage in conjecture or
surmise which will circumvent the plain meaning of the
act,” In re Closing of Jamesburg High Sch., 83 N.J. 540,
548 (1980). “Our duty is to construe and apply the
statute as enacted.” Ibid.
[DiProspero, 183 N.J. at 492 (alteration in original).]
B.
N.J.S.A. 2C:39-5 governs the unlawful possession of weapons in New
Jersey. Subsections (a), (b), (c), and (f) define crimes based on the type of
weapon -- i.e., machine guns, handguns, rifles and shotguns, and assault
firearms, respectively -- and their designated degree of severity. N.J.S.A.
2C:39-5(a), (b), (c), (f). Subsection (j) establishes that “[a] violation of
subsection a., b., c. or f. of this section by a person who has a prior conviction
of any of the crimes enumerated in [NERA] is a first degree crime.” Id. at (j).
Our analysis of subsection (j) is informed by a review of neighboring
subsections (h) and (i). Subsection (h) provides that “[a] person who is
convicted of a crime under subsection a., b., f. or j. of this section shall be
ineligible for participation in any program of intensive supervision.” N.J.S.A.
10
2C:39-5(h). Subsection (i) provides that “[a] person convicted of violating
subsection a., b. or f.” must be sentenced to a term of imprisonment and may
face the imposition of a minimum period of parole ineligibility if certain
aggravating factors apply. N.J.S.A. 2C:39-5(i).
C.
The Graves Act, N.J.S.A. 2C:43-6(c), “prescribes a minimum term of
incarceration for certain firearm-related offenses.” State v. Benjamin, 228 N.J.
358, 360 (2017). Specifically, the Act “makes the use or possession of a
firearm during the commission, attempted commission, or flight from the
commission of certain designated offenses a sentencing factor that triggers the
imposition of a mandatory term of imprisonment.” Id. at 367 (quoting State v.
Franklin, 184 N.J. 516, 529 (2005)).
As relevant to this case, the Graves Act provides that
[a] person who has been convicted under . . . subsection
a., b., c., or f. of N.J.S.[A.] 2C:39-5 . . . shall be
sentenced to a term of imprisonment by the court. The
term of imprisonment shall include the imposition of a
minimum term. The minimum term shall be fixed at
one-half of the sentence imposed by the court or 42
months, whichever is greater . . . , during which the
defendant shall be ineligible for parole.
[N.J.S.A. 2C:43-6(c).]
In 2013, the Legislature simultaneously amended the unlawful
possession of weapons statute and the Graves Act. It added subsection (j) to
11
N.J.S.A. 2C:39-5. L. 2013, c. 113, § 1. It also added N.J.S.A. 2C:39-5(f) to
the Graves Act. Id. § 2. The Legislature did not add subsection (j) to the list
of offenses subject to, or expressly exempt from, 2 the Graves Act.
IV.
A.
We begin our analysis, as we must, with the plain language of the
statute, which directly answers whether subsection (j) falls within the scope of
the Graves Act. It does not.
A straightforward reading of N.J.S.A. 2C:39-5(j) reveals that it sets forth
a substantive offense comprised of two distinct elements: (1) a predicate
violation that triggers liability and (2) criteria for determining the degree of the
offense. Thus, to secure a conviction for the “first degree crime” that
subsection (j) establishes, the State must first prove that the defendant violated
N.J.S.A. 2C:39-5(a), (b), (c), or (f). Next, the State must prove that the
defendant has a prior conviction subject to NERA. If the State proves both
elements beyond a reasonable doubt, the defendant is guilty of a first-degree
substantive crime. This conviction does not elevate the defendant’s conviction
2
The Graves Act expressly exempts violations of N.J.S.A. 2C:39-5(b)(2), which governs air guns, spring guns, or similar weapons that use forces like springs, elastic bands, or compressed air as a propelling force. N.J.S.A. 2C:43-6(d)(2).
12
for a second-degree crime under subsections (a), (b), (c), or (f). Rather, it
results in a separate, first-degree offense into which the second-degree offense
will merge at the time of sentencing. N.J.S.A. 2C:1-8(a)(1).
After merger, a defendant faces the sentencing range for a first-degree
offense as prescribed in N.J.S.A. 2C:43-6(a), namely, a term of imprisonment
of ten to twenty years, “[e]xcept as otherwise provided.” The exceptions,
scattered throughout the Criminal Code, impose modified or mandatory
penalties for particular offenses. Of relevance here is the Graves Act, N.J.S.A.
2C:43-6(c), which mandates a period of parole ineligibility for certain
enumerated offenses, including subsections (a), (b), (c), or (f) of N.J.S.A.
2C:39-5, as well as N.J.S.A. 2C:39-7(a), (b)(2), or (b)(3) (prohibiting certain
persons from possessing weapons). The Graves Act does not mention N.J.S.A.
2C:39-5(j), and therefore a sentence under that provision does not carry the
Graves Act’s mandatory period of parole ineligibility.
In sum, under a plain reading of the relevant statutes, a count in an
indictment charging first-degree unlawful possession of a weapon under
N.J.S.A. 2C:39-5(j) places defendants on notice that they face a first-degree
charge punishable by ten to twenty years of incarceration. The elements the
State must prove are: (1) a current violation of subsection (a), (b), (c), or (f) of
N.J.S.A. 2C:39-5 and (2) a prior NERA-qualifying conviction. Because
13
subsection (j) is not included among the offenses referenced in any statute
imposing mandatory minimum terms or sentencing enhancements, including
the Graves Act, a defendant would reasonably expect to be sentenced under the
ordinary range for a first-degree offense. This interpretation aligns with the
foundational principle that our criminal statutes must “give fair warning of the
nature of the sentences that may be imposed on conviction of an offense.”
N.J.S.A. 2C:1-2(b)(5).
A review of N.J.S.A. 2C:39-5(h) and (i) supports our analysis.
Subsection (h), for example, refers to subsection (j) as a “crime” for which one
can be “convicted,” and it includes subsection (j) in a list of substantive
offenses. Like subsection (j), subsection (i) also refers to earlier violations set
forth in (a), (b), or (f), but with a significant variation that reveals legislative
intent: subsection (i) prescribes parole ineligibility periods and mandatory
minimum terms that “[a] person convicted of violating subsection a., b., or f.
of this section shall be sentenced” to by the court (emphasis added), whereas
subsection (j) applies to “a violation of subsection a., b., c., or f. of this
section” (emphasis added). The use of convicted in subsection (i) reflects a
clear intent to establish sentencing consequences, not merely to define the
degree of the offense -- a point reinforced by the sentencing instructions that
follow. In subsection (i), the Legislature demonstrated it knew precisely how
14
to construct a sentencing provision. By contrast, subsection (j) makes no
reference to sentencing enhancements or parole ineligibility. The contrast
reinforces the conclusion that subsection (j) does not implicate the Graves Act
or other mandatory sentencing provisions.
Most importantly, though, if the Legislature had intended for subsection
(j) to trigger the Graves Act’s mandatory minimums and parole ineligibility
periods, it could have included that provision expressly in N.J.S.A. 2C:43-6(c),
as it did with other subsections. That it did not do so -- especially when
simultaneously amending the statutes to create subsection (j) and broadening
the reach of the Graves Act -- is a legislative choice, and not one the courts are
free to override under the guise of avoiding an allegedly undesirable or
unexpected outcome.
We therefore hold that subsection (j) constitutes a substantive firstdegree crime, not a sentencing enhancement, and is not subject to the Graves
Act. The State must present the elements of subsection (j) to a jury and prove
them beyond a reasonable doubt. However, because the existence of a prior
NERA conviction is a necessary element of the first-degree charge, but also a
prejudicial fact if introduced prematurely, trial courts must conduct a
bifurcated trial, severing proceedings for subsection (j) from prior proceedings
for the possessory charge. Mirroring the proceedings used in cases of a certain
15
persons offense under N.J.S.A. 2C:39-7, trial courts may use the same jury that
has rendered a guilty verdict on the underlying N.J.S.A. 2C:39-5 weapons
offense to hear evidence in the subsequent trial on the first-degree subsection
(j) offense.
B.
Although we find the plain language of the statute dispositive, we briefly
address several issues raised by the appellate court that warrant further
discussion.
1.
First, the Appellate Division conflated the concept of grading provisions
with sentencing enhancements, which we must clarify. Although the Code
does not formally define “grading,” the term is firmly entrenched in the
lexicon of criminal law practice and jurisprudence. “Grading” is “[t]he fixing
of a criminal offense at a level of seriousness, such as first degree, second
degree, or third degree (in reference to a felony).” Black’s Law Dictionary
838 (12th ed. 2024). The distinction between grades depends on specific
elements. 3 Some statutes define the relevant offense and then establish the
grades of that offense in clearly labeled subsections. See, e.g., N.J.S.A.
3
For the sake of succinctness, our analysis of grading intentionally leaves out non-felony offenses that are present throughout the Code.
16
2C:20-11 (subsection (b) defines shoplifting, and subsection (c), titled
“Gradation,” sets offense degrees based on value of merchandise); N.J.S.A.
2C:15-1 (subsection (a) defines robbery and subsection (b), titled “Grading,”
sets forth the degree of the offense based upon the presence of a weapon,
potential for or actual harm caused).
Other statutes embed grading directly within the offense definition. For
example, N.J.S.A. 2C:12-1 is structured to define the offense of assault in
multiple degrees, beginning with simple assault in subsection (a), followed by
aggravated assault in subsection (b), each with detailed elements. Subsection
(b), which defines thirteen forms of aggravated assault, includes an internal
grading provision that assigns the degree of each offense based on the nature
of the conduct, the status of the victim, or the surrounding circumstances.
Likewise, N.J.S.A. 2C:14-2 grades sexual assault based on a series of factors
including age, relationship, and harm to the victim, which must be separately
proven beyond a reasonable doubt.
By either method, those statutes create a “graded offense,” which is “[a]
crime that is divided into various degrees of severity with corresponding levels
of punishment.” Black’s Law Dictionary 1297 (12th ed. 2024). Thus,
N.J.S.A. 2C:39-5 makes unlawful possession of a weapon a graded offense,
and subsection (j) is in fact a grading provision; it makes the crime a first17
degree offense when accompanied by a prior NERA conviction. Subsection (j)
does not enhance the sentence for an already-defined offense; it defines a
distinct, first-degree offense that arises only when the two elements we
describe above are met.
Both the trial court and appellate court erred in conflating grading
provisions with sentencing enhancements. While those concepts are
sometimes discussed interchangeably in shorthand, they are doctrinally and
functionally distinct. Grading determines the level of the offense, and thereby
the applicable sentencing range, based on separate elements for separate
crimes. Sentencing enhancements, by contrast, “increase [] a criminal
defendant’s punishment.” Black’s Law Dictionary 1642 (12th ed. 2024)
(defining “sentence enhancement”). Thus, whereas grading provisions create
separate crimes, sentencing enhancements modify or add to the penalties that
apply within or beyond the baseline range, typically through mandatory
minimums, periods of parole ineligibility, or extended terms.
The Graves Act, NERA, or extended term sentences, for example, are
prototypical sentencing enhancements. Although such sentencing
enhancements may result in a higher sentence that mirrors the penalty for a
higher-degree crime, they do not operate as elements of the offense itself.
Rather, enhancements apply only to sentencing -- “[t]he judicial determination
18
of the penalty for a crime,” Black’s Law Dictionary 1642 (12th ed. 2024)
(defining “sentencing”) (emphasis added) -- and therefore apply after a
conviction is secured and serve to increase the punishment based on additional
facts, often related to the defendant’s conduct, prior convictions, or the manner
in which the offense was committed. An enhancement may raise the sentence
to what would otherwise be imposed for a higher-degree crime, but it does not
equate to a conviction for that higher-degree offense.
The distinction between grading and sentencing is not merely academic;
it has practical consequences for how a case proceeds through the criminal
justice system. For prosecutors, the grading of an offense is critical in
determining which elements must be charged, what evidence is necessary to
prove those elements, and how to structure the indictment. State v. Hodde,
181 N.J. 375, 380-81 (2004) (recognizing that facts in a statute’s grading
provisions, like multiple thefts that were part of a single scheme, or harm to a
kidnapping victim, are elements that must be proven to a jury). “[W]e have
expressly recognized that [grading] provisions [] contain facts that the State
must prove to warrant a conviction.” Ibid.
The degree of the offense dictates not only the seriousness of the charge,
but also essential facts that must be presented to the grand jury and ultimately
proven beyond a reasonable doubt to the trial jury. State v. Federico, 103 N.J.
19
169, 176 (1986) (ruling that the kidnapping statute’s “unharmed release
provision,” contained in the “grading” subsection of the statute, must be
treated as an element of the offense); State v. Rolon, 199 N.J. 575, 576, 585-86
(2009) (interpreting the phrase “armed with a deadly weapon,” which is used
in the grading provision of the robbery statute, to elevate the crime from
second- to first-degree and holding that degree-elevating facts are elements
that must be found by the jury).
By contrast, sentencing provisions or post-sentencing provisions, like
those found in subsections (h) and (i) of N.J.S.A. 2C:39-5, operate only after
conviction. The State may, at sentencing, invoke these provisions to affect the
scope or severity of the penalty. For instance, subsection (i) is a sentencing
provision: it imposes consequences after a conviction has been secured.
Similarly, subsection (h)’s restriction from the intensive supervision program
for those convicted of specific weapons offenses is available only after
conviction. Conversely, subsection (j) contains no such language; it simply
provides that a violation under certain circumstances “is a first degree crime.”
That language pertains to grading, not sentencing.
To underscore the distinction: a grading provision creates or reclassifies
an offense based on certain elements that must be found by a jury. A
sentencing enhancement increases the punishment for an already-convicted
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offense. Subsection (j) plainly falls in the former category. It makes unlawful
possession of a weapon a first-degree offense when combined with a prior
NERA conviction. It does not impose an additional penalty only upon
conviction.
2.
The Appellate Division also based its decision, in part, on what it
perceived to be an “absurd” outcome: that a defendant convicted under
subsection (j) of N.J.S.A. 2C:39-5, a first-degree crime, might not be subject to
the Graves Act’s mandatory minimum term, while a defendant convicted of a
second-degree weapons offense could be. The court reasoned that such a
framework could allow the first-degree offender to be released earlier than the
second-degree offender, depending on the sentence imposed. Thus, a
defendant sentenced to a ten-year term of imprisonment after a second-degree
conviction (the highest sentence permitted for a second-degree conviction),
subject to the Graves Act would be ineligible for parole for five-years, whereas
a defendant sentenced to ten-years’ imprisonment following a first-degree
conviction (the lowest permissible sentence for a first-degree conviction)
under subsection (j) without a Graves Act parole disqualifier might be eligible
for parole sooner than five years.
21
This is not an absurd result; it is a consequence of the sentencing range
the Legislature has established coupled with its selective application of
sentencing enhancements. A first-degree offense carries a broad sentencing
range -- ten to twenty years -- pursuant to N.J.S.A. 2C:43-6(a)(1). Within that
range, courts retain discretion to impose a sentence that reflects the seriousness
of the conduct and the individual circumstances of the defendant. The
sentencing court is not compelled to impose the lowest possible sentence, and
nothing in subsection (j) precludes the imposition of a sentence at the higher
end of the first-degree range if appropriate aggravating factors exist. And
certainly, a conviction under subsection (j), which requires a recidivist
offender with a NERA conviction, is unlikely to receive the minimum sentence
absent compelling mitigating factors. Even in those rare cases, the sentencing
courts retain discretion to impose a longer term consistent with the statutory
range.
The fact that mandatory minimums survive merger further mitigates
against any perceived absurdity. See State v. Dillihay, 127 N.J. 42, 45 (1992).
As earlier noted, the Graves Act expressly lists subsections (a), (b), (c), and (f)
of N.J.S.A. 2C:39-5, so convictions under those provisions “shall include the
imposition of a [mandatory] minimum term.” N.J.S.A. 2C:43-6(c). Therefore,
if a person were convicted of a violation of N.J.S.A. 2C:39-5(b) and sentenced
22
to ten years with five years’ parole ineligibility, and also convicted of a
violation of N.J.S.A. 2C:39-5(j) and sentenced to the maximum sentence
permissible of twenty years with no period of parole ineligibility, the
convictions would merge to a sentence of twenty years with five years of
parole ineligibility. -------See ibid.
This argument also ignores the tools a trial judge already possesses to
sentence a defendant to a discretionary minimum term of parole ineligibility,
beyond those contained in the Graves Act. Under N.J.S.A. 2C:43-6(b), for
example, where “[a]s part of a sentence for any crime, . . . the court is clearly
convinced that the aggravating factors substantially outweigh the mitigating
factors, as set forth in [N.J.S.A. 2C:44-1(a) and (b)], or the court finds that the
aggravating factor set forth in [N.J.S.A. 2C:44-1(a)(5)] applies, the court may
fix a minimum term not to exceed one-half of the term set . . . , during which
the defendant shall not be eligible for parole . . . .” Therefore, even without
the Graves Act, a court can sentence a person convicted of violating only
N.J.S.A. 2C:39-5(j) to a period of parole ineligibility pursuant to N.J.S.A.
2C:43-6(b).
In any event, any perceived disparity in sentencing exposure between
different degrees of offenses does not justify judicial revision of the statutory
scheme.
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V.
For those reasons, we reverse the judgment of the Appellate Division
and remand the matter for resentencing consistent with this opinion.
CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRELOUIS, WAINER APTER, FASCIALE, and HOFFMAN join in JUSTICE
NORIEGA’s opinion.
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