N.J.S.A. 2c:43-7.2 Interpretation
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 the Court held that possession of a weapon for an unlawful purpose is not a "violent crime" within the intent of NERA.
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.
No Early Release Act (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.