State v. Grawe

In 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) defendant pled guilty to first degree robbery. The plea offer left it to the judge to determine whether a NERA sentence was required, with the bargained for term dependent upon that outcome. After conducting a NERA hearing, the judge concluded NERA did not apply. The evidence that was presented established that with a hammer in his possession, defendant robbed a jewelry store. During the course of the robbery, he used the hammer to break the show cases. The employees, however, felt threatened. Nonetheless, in affirming the judge's determination that NERA was not applicable, the Court said: Initially, one might be perplexed to reconcile Judge Neustadter's acceptance of defendant's guilty plea to first-degree robbery and his factual conclusion that NERA is inapplicable. This seeming anomaly is explicable because on close examination the definition of deadly weapon for purposes of the robbery statute and for NERA differ somewhat. NERA omits the language "or which in the manner it is fashioned would lead the victim reasonably to believe it to be capable of producing death or serious bodily injury." For purposes of NERA, the intent and conduct of defendant and not the belief, reasonable or not, of the victim controls for sentencing purposes. The judge's acceptance of the armed-robbery guilty plea while finding NERA inapplicable is not inconsistent. Clearly defendant possessed the hammer during the commission of the crime. Unclear, however, is whether that defendant used the hammer as a "deadly weapon" under NERA. There is no admission from defendant that he intended to use the hammer for anything other than to break the glass case. Defendant made no present threats against the person of either victim. Defendant did not raise the hammer above his head at any time. He smashed the front of the Rolex case, not the top. The threats defendant directed toward a victim about harming his family members were threats of future, not present harm. As recognized by the judge, future threats are not controlling in this context. We find the judge reasonably concluded that the State failed to meet its burden to establish defendant intended to use the hammer as a deadly weapon. Regardless of his guilty plea to first-degree robbery, the judge reasonably found defendant intended only to use the hammer as part of his plan to commit a theft, not a violent assault. While a person in . . . the victim's position would fear the possibility of immediate bodily injury, that fear is not controlling under NERA. Having the opportunity to view the videotape, we observed that defendant never raised the hammer above his waist while he was in front of the Rolex case. Defendant did not have the hammer in his hand while he emptied the Rolex case in fact, defendant almost certainly dropped the hammer on the ground in front of the case and kicked it aside. Even if defendant had the hammer in his hand when he walked over to the Piaget case, the State produced no evidence suggesting that he raised the hammer above his head at that time or threatened the victim in any way. Defendant just said, "give me the watches or I'll break the case." When we examine defendant's intent using an objective standard, his use of the hammer did not constitute a "using or threatening the use of a deadly weapon" under NERA. The State failed to meet its burden, whether beyond a reasonable doubt or by a preponderance of the evidence. 327 N.J. Super. at 593-95, 744 A.2d 246.