State v. Des Marets

455 A.2d 1074, 92 N.J. 62, 1983 N.J. LEXIS 2338

• Court: Supreme Court of New Jersey
• Decided: January 26, 1983
• Status: Published

Opinions

The opinion of the Court was delivered by

WILENTZ, C.J.

These cases present two questions concerning permissible sentencing for Graves Act offenses. N.J.S.A. 2C:43-6(c); L.1981, e. 31. May the trial court impose an indeterminate term at a youth correctional institution? May the trial court impose the mandatory three year imprisonment sentence and then suspend it?

The Graves Act provides, generally, that one who uses or possesses a firearm while committing, attempting to commit, or fleeing after the commission of, certain serious offenses specified in that Act shall be mandatorily sentenced to prison for a term that includes at least three years of parole ineligibility.¹ If trial courts retain the power to suspend sentence of those guilty of Graves Act offenses or to sentence to an indeterminate term at a youth correctional institution, the three year mandatory imprisonment of the Graves Act would not be imposed, and the deterrent impact on gun-related crimes sought by the Legislature would be lost. We hold that our courts have no such power.

We also hold that the sentence that includes the three year parole ineligibility term may not be to a youth correctional institution, but rather requires imprisonment, although those in charge of the State prison may, if they see fit, administratively transfer prisoners to such institutions (N.J.S.A. 30:4-85), and that the “possession” of a firearm need not be possession with intent to use in order to make the Graves Act applicable.

We therefore affirm the Appellate Division in Des Marets and the trial court in Appleton, which we certified directly before the Appellate Division heard the matter.

We do not pass on the wisdom of this legislation’s mandatory three year imprisonment term or the wisdom of its imposition on the offenses covered. That is a matter solely for the Legislature to decide. Once the Legislature has made that decision, and has made it within constitutional bounds, our sole function is to carry it out. Judges have no business imposing their views of “enlightened” sentencing on society, 92 N.J. at 91 (Handler, J., dissenting), including notions of discretionary, individualized treatment, when the Legislature has so clearly opted for mandatory prison terms for all offenders. It may be that the Legislature is more enlightened than the judges.² Our clear obligation is to give full effect to the legislative intent, whether we agree or not. We have endeavored to do so here.³

Des Marets

I.

On March 23, 1981, defendant Robert Des Marets committed two separate acts of burglary. During the first of these incidents, defendant stole two unloaded handguns.⁴

Pursuant to a plea bargain, defendant entered a plea of guilty to two charges of burglary in violation of N.J.S.A. 2C:18-2, two charges of theft in violation of N.J.S.A. 20:20-3, and one charge of possession of a handgun without a license in violation of N.J.S.A. 2C:39-5(b). In return, the State agreed to recommend that defendant, then 18 years of age, be placed on probation after serving a custodial term of 90 days. Defendant had a juvenile record, but had never been incarcerated.

On the day of sentencing, the court refused to accept the plea bargain agreement because of the provisions of the Graves Act. As noted above, the Act mandates a three year imprisonment term in connection with a burglary conviction where the defendant “while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm .... ” Although acknowledging Des Marets never evinced any intent to use the weapon and did not arrive armed at the burglary during which the guns were taken, the court nonetheless concluded his actions fell within the statute’s coverage. Defendant chose not to withdraw his pleas of guilty.

The judge then stated that although it was his preference to sentence defendant to an indeterminate term provided for by the youthful offender statute, N.J.S.A. 2C:43-5, he felt his normal sentencing discretion foreclosed by the Graves Act. He sentenced Des Marets to the New Jersey State Prison for four years with a mandatory minimum of three years.

On May 5, 1982, the Appellate Division affirmed defendant’s conviction. The court rejected defendant’s contention that the Act was not intended to apply to a situation in which defendant steals a gun at the scene rather than arming himself in advance of the crime. It held further that the state did not have to prove intent to use the weapon; possession was sufficient. The court also ruled that the Legislature was within its rights in eliminating the judicial power to suspend sentences in Graves Act cases.

We granted certification, 91 N.J. 254 (1982).

II.

Defendant Des Marets argues that no relationship existed between his possession of a firearm and the crime committed. Although physically in possession of a weapon, the gun was unloaded at all times and defendant never used it or demonstrated any intent to use it. Des Marets maintains “possession” for the purposes of the Graves Act should be interpreted as possession with intent to use and that he, accordingly, falls outside the law’s coverage.

While it is theoretically debatable whether the Graves Act contemplates merely the physical act of possession of a firearm or possession with intent to use, the Act’s purpose clearly resolves the issue.

The intent of the Act is manifest: at the very least, to ensure incarceration for those who arm themselves before going forth to commit crimes. The Act is a direct response to á substantial increase in violent crime in New Jersey. The history of the legislation makes it clear that its focus is deterrence and only deterrence; rehabilitation plays no part in this legislation.⁵ The intended deterrence can be served only by giving effect to the obviously broad coverage of this law.

A holding that the Graves Act sanctions apply upon a showing of possession of a firearm, without any need to demonstrate intent to use, should not surprise defendants subject to its provisions.⁶ 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. The inclusion of N.J.S.A. 2C:39-4a as a Graves offense is also persuasive. That section of the Code covers possession of a firearm with intent to use it unlawfully. No more is required for a Graves Act offense to occur, neither murder, manslaughter, aggravated assault nor any of the other offenses thereafter listed in the Act. That part of the Act, therefore (practically all of it), covering conviction of certain crimes where defendant “was in possession of a firearm,” would be largely superfluous if intent to use was also required to be proven, for, by virtue of the inclusion N.J.S.A. 2C:39-4a, Graves Act consequences would always follow upon such proof regardless of the commission or non-commission of such crimes.

The foregoing conclusion becomes graphically clear when the Act is read in its present form, including the amendment of 1982 (not in effect at the time of Des Marets’ offense):

A person who has been convicted under 2C:39-4a. of possession of a firearm with intent to use it against the person of another, or of a crime under any of the following sections: 2C:ll-3, 2C:ll-^t, 2C:12-lb., 2C:13-1, 2C:14-2a., 2C:14-3a., 20:15-1, 20:18-2, 20:29-5, who while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm .... [N.J.S.A. 2C:43-6c. (emphasis represents 1982 amendment, L.1982, c. 119) ].

The express inclusion of a requirement of intent to use in the first instance persuasively suggests its absence in all others.

There are policy considerations that weigh in favor of extending the law to encompass Des Marets. 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.

It is the mere presence of guns at the scene of crimes that this statute seeks to end.⁷

Defendant Des Marets was thus in possession of a firearm within the meaning of the Graves Act.⁸

III.

It is further claimed that the court incorrectly concluded that it was not permitted to sentence defendant as a youthful offender to an indeterminate term at the Youth Correctional Institution Complex, despite the minimum term mandated by the Graves Act. Analysis of this claim requires further examination of the legislative intent embodied in both the Graves Act and in the statutes authorizing indeterminate sentencing for youthful offenders. N.J.S.A. 2C:43-5; N.J.S.A. 30:4 — 148.

Rehabilitation has long been central to this state’s treatment of youthful offenders. Our laws concerning youthful offenders reflect the long-standing philosophy that “correction and rehabilitation, rather than retribution,” are the preferred approaches to the problem. State v. Horton, 45 N.J.Super. 44, 46 (App.Div. 1957).

N.J.S.A. 2C:43-5 embodies this approach. It provides that:

Any person who, at the time of sentencing, is less than 26 years of age and who has been convicted of a crime may be sentenced to an indeterminate term at the Youth Correctional Institution Complex in accordance with R.S. 30:4-146 et seq. in the case of men, and to the Correctional Institution for Women, in accordance with R.S. 30:4r-153 et seq., in the case of women, instead of the sentences otherwise authorized by the code.

N.J.S.A. 30:4-148 provides in part that courts in sentencing pursuant to N.J.S.A. 2C:43-5 “shall not fix or limit the duration of sentence . ... ”

Indeterminate sentencing to a youth correctional facility, rather than to State prison, is one of the primary means by which rehabilitation is accomplished. The theory behind such sentencing is to allow discretion to the custodial authorities to terminate a sentence if an offender is successfully rehabilitated, thus greatly increasing the incentive for rehabilitation. See State v. Hopson, 114 N.J.Super. 146 (App.Div.) (Halpern, J.A.D., dissenting), rev’d on dissent, 60 N.J. 1 (1971). Accordingly, these statutes allow only indeterminate sentences, which may not include periods of parole ineligibility. State v. Groce, 183 N.J.Super. 168 (App.Div.1982).

The result is that youthful offenders who receive indeterminate sentences pursuant to N.J.S.A. 2C:43-5 may have their sentences terminated at any time. N.J.S.A. 30:4^123.51(f). Theoretically, this could occur very shortly after sentencing. Certainly many youthful offenders who were convicted of Graves Act offenses, for which a three-year minimum term is mandated, would be released long before this time had elapsed if they received indeterminate sentences.

The Graves Act represents a different philosophy. Instead of an approach to crime that looks to rehabilitation through the promise of release, the Graves Act approach is deterrence through the promise of imprisonment.⁹ Furthermore, its spirit is totally contrary to the belief that all of the circumstances of both the offender and the offense must be considered if justice is to be done, and that one of the most important aspects of our system of criminal justice is the discretionary nature of punishment.

A court’s preference between these two approaches to the problem of crime is irrelevant here, for our task, as always, is to seek the legislative intent. It is not difficult to divine.

We begin by looking at violent crime statistics. Recent statistics indicate violent crime in New Jersey jumped by 21 percent between 1979 and 1980 and 5 percent between 1980 and 1981. Uniform Crime Reports, Crime in New Jersey 1980 at 18; Uniform Crime Reports, Crime in New Jersey 1981 at 16. The role of firearms in violent crime is likewise alarming. In 1979, for example, firearms were involved in 63.3 percent of all murders, 39.7 percent of all robberies, and 23 percent of all aggravated assaults that occurred nationwide. Federal Bureau of Investigation Uniform Crime Reports of 1979 at 10, 18, 20.

These disturbing statistics confirm the obvious intent of the Graves Act to deter the use and possession of firearms by criminals for the purpose of reducing the number of persons killed or injured by such weapons. As the Assembly Judiciary Committee noted in discussing the legislative goal of the forerunner to the Graves Act:

Crimes committed with guns are on the rise and deaths from these crimes are also increasing. Guns are particularly dangerous weapons, all too easy to use and to kill with if used. The purpose of this bill is to make criminals think twice before going forth to commit crimes armed with guns. [Assembly Judiciary, Law, Public Safety and Defense Committee, Statement to S.1071, July 24, 1980.] ¹⁰

It is clear that the Legislature had in mind very specific means to carry out its intent. It sought to deter the use of firearms by establishing mandatory minimum terms of imprisonment to ensure certainty of punishment. The Senate version of the Graves Act was accompanied by the following statement: “This bill provides for mandatory minimum sentences for individuals convicted of certain specified violent crimes where they possess or use a firearm during the commission of the crime.” Senate Law, Public Safety and Defense Committee Statement to S.3057 (emphasis added).

Enforcing the certainty of imposition of this punishment upon conviction of a Graves Act offense was central to the intent of the drafters. Thus, the Senate Report on the Graves Act explicitly stated that those convicted would be ineligible for parole, and that suspensions and non-custodial dispositions would not be permitted. The efficacy and perhaps even the wisdom of this approach may not be clear to some, but the message intended by the Legislature could hardly be clearer: if you are convicted of a crime against a person while using or possessing a firearm, you will go to prison for at least three years. Period. The Graves Act aims at deterrence through the eventually -widespread knowledge that one who is convicted of using or possessing a firearm while committing any one of a number of crimes cannot, and will not, escape a mandatory minimum imprisonment of at least three years.

That deterrence is as permissible a legislative goal as rehabilitation when dealing with the problems of youthful offenders is unquestioned. See State in the Interest of C.A.H. and B.A.R., 89 N.J. 326, 334-36 (1982). The legislative legitimacy of attempting to deter youthful offenders is underscored by the stark facts of youthful crime. In New Jersey in 1981, persons under 25 years of age were arrested for 225 of 447 arrests for murder, 32 of 62 manslaughters, 698 of 1,237 rapes, 4,740 of 6,169 robberies, 5,662 of 10,252 aggravated assaults, and 14,761 of 18,244 burglaries. Uniform Crime Reports, Crime in New Jersey 1981 at 41-42. Firearms play a role in a significant proportion of these crimes. The concern of the Legislature in deterring crimes involving firearms legitimately extends to both youthful and adult offenders; indeed, youth involvement is apparently shockingly high.

We are thus faced with an inescapable conflict between the Graves Act and the youthful offender statutes. The essence of the Graves Act is that anyone convicted of possessing or using a firearm during the course of enumerated crimes will face a certainty of at least three years imprisonment, that certainty achieved by a clear statement that proscribes parole eligibility, suspension of sentence and non-custodial dispositions.¹¹ In contrast, indeterminate sentencing is perhaps the central feature of the youthful offender statutes under consideration, and the plain consequence of such sentences is that they may be legitimately terminated at any point. This is the antithesis of certainty.

This is not the first time that our courts have concluded that there is a conflict between these youthful offender statutes and mandatory minimum sentencing provisions. State v. Brozi, 125 N.J.Super. 485 (App.Div.1973), certif. den., 64 N.J. 501 (1974); State v. Hopson, supra; State v. Lavender, 113 N.J.Super. 576 (App.Div.1971); State v. Pallitto, 107 N.J.Super. 96 (App.Div.1969), certif. den., 55 N.J. 309 (1970); State v. Ammirata, 104 N.J.Super. 304 (App.Div.1969).

On two occasions, in Hopson and in Brozi, indeterminate sentencing of youthful offenders has been held permissible, notwithstanding mandatory minimum sentencing provisions. It does not appear, however, that youthful offenders were then regarded by the Legislature as one of the primary sources of the criminal problem addressed by the mandatory sentencing laws involved in these cases. That difference is critical, but there are others as well.

The legislative policies then in effect concerning mandatory minimum sentences, as revealed by the applicable parole provisions, differed from those implicit in the Code. Under the mandatory imprisonment legislation at issue in Hopson (1971) and Brozi (1974), parole eligibility was not affected. Eligibility for first offenders began when an inmate served the minimum sentence or one-third of the maximum, less in each instance' commutation time for good behavior and for diligent application to work assignments. N.J.S.A. 30:4-123.10 (repealed by the Parole Act of 1979, c. 441, § 27). At that time, then, many criminals who received minimum sentences never served their full minimum term. When the Legislature mandated minimum sentences for crimes then, it did so fully aware that not only was there no guarantee of incarceration for the full length of the minimum sentence, but there was also a significant probability that many inmates would be paroled well before they had served their minimum term. Under these circumstances, it was reasonable to permit the courts to sentence youthful offenders to indeterminate terms, even though such disposition permitted release from the reformatory prior to the time that would have been required by the mandated minimum sentence. Neither Hopson nor Brozi did violence to the legislative policies then in effect concerning mandatory minimum terms.

The present parole statutes demonstrate a significantly different legislative intent. N.J.S.A. 30:4-123.51(a), which in 1979 replaced the prior provision, N.J.S.A. 30:4-123.10, explicitly proscribes anything that would allow parole eligibility to begin before the entire term of any mandatory minimum sentence has been served. In contrast to the prior provision, when a parole ineligibility term is imposed and has not been fully served in prison, eligibility will not commence even if one-third of the sentence has been served and regardless of the amount of commutation and work credits. The effect is that each one of the crimes listed in the Graves Act has a specific mandatory minimum of at least three years in prison.

Standing alone, we would find these differences highly compelling evidence of a markedly different legislative policy regarding mandatory minimum sentences and would find them sufficient to distinguish this case from those cases that pre-date the Parole Act of 1979. When considered in conjunction with the unmistakable policy expressed by the Legislature in the Graves Act — that conviction for the listed offense results without fail in at least three years imprisonment, which imprisonment is not to be reduced by parole eligibility, sentence suspension, or anything — we find that the legislative intent permits but one conclusion. The courts have been left no discretion to sentence youthful offenders to indeterminate terms of imprisonment. All Graves Act offenders, even those under 26 years of age, must receive the mandatory minimum terms prescribed by the Act.¹²

We recognize that this decision repeals N.J.S.A. 2C:43-5 and N.J.S.A. 30:4-148 to the extent that these conflict with the Graves Act, and that such implied repeals are not favored. Brewer v. Porch, 53 N.J. 167 (1969). However, the presumption against implied repeals is overcome by a showing of irreconcilable inconsistency, which is the case here. 1A Sutherland, Statutory Construction § 23.10 (4th ed. 1972). In such situations, the general rule is that the later expression of legislative intent is intended to supersede prior law. Brewer v. Porch, supra; Department of Labor v. Cruz, 45 N.J. 372 (1965); Two Guys from Harrison v. Furman, 32 N.J. 199 (1960); Montclair v. Stanoyevich, 6 N.J. 479 (1951); Sutherland, supra, § 23.09. Given the clear legislative intent evidenced in the Graves Act, we find it must be construed as controlling in the case of youthful offenders.

To hold otherwise would drastically dilute the certainty of incarceration that is at the heart of the intent of the Graves Act. This is illustrated graphically by the fact that 59 percent of all Graves Act offenders during the first half of 1982 were under the age of 26 at the time of sentencing. Administrative Office of the Courts, “Sentencing Experience Under the Graves Act during the First Half of 1982.” The availability of indeterminate sentencing, with the possibility of immediate or early release for over one-half of all Graves Act offenders, is irreconcilable with legislation intended to serve notice on everyone, not just half but everyone, that if they commit certain crimes with a gun in their possession they will with certainty go to prison for at least three years.

IY.

Having determined that the Graves Act seeks to deter the possession or use of firearms through the imposition of mhndatory minimum terms, we must consider defendant’s claim that the Legislature did not intend to restrict courts in their traditional power to suspend the imposition of sentence.¹³ N.J. S.A. 2C:43-6(c) provides that Graves Act offenders “shall be sentenced to a term of imprisonment by the court,” but does not explicitly mention suspension of sentences. Defendant Des Marets contends that the Graves Act does not eliminate the court’s authority to suspend sentences, arguing that when a court imposes a sentence that is then suspended, the defendant has been “sentenced to a term of imprisonment” within the meaning of the Graves Act. We disagree and hold that the Legislature intended that courts be barred from suspending the imposition of sentence for the period of the minimum term.

Certainly the Act could have disposed of this issue more clearly. For example, the Legislature could have said that Graves Act offenders “shall be imprisoned for three years,” rather than “shall be sentenced” to a three year term, or, more simply, that “sentence shall not be suspended.” It would seem hardly necessary, however, having told a judge that he must sentence a defendant to three years imprisonment, to add that he may not immediately set him free. Lack of precision in drafting does not mandate lack of common sense in construction.

The original bill introduced on February 21, 1980, S.1071, explicitly stated that “any sentence imposed pursuant to this section shall be a fixed minimum sentence during which the defendant shall not be eligible for parole. The court may not suspend or make any other non-custodial disposition of any person sentenced pursuant to this section.” (Emphasis added). The Assembly Judiciary Committee Statement, dated July 24, 1980, which accompanied this version of the bill, noted that “neither parole, nor suspension or other noncustodial dispositions would be permitted during the period of the sentence imposed.”

When this bill was later modified, the Legislature dropped the provision that expressly barred courts from suspending sentences.¹⁴ This provision was also omitted from S.3057, the bill that ultimately became N.J.S.A. 2C:43-6.¹⁵

Under other circumstances, the excision of a provision barring courts from suspending sentences might well suggest that the Legislature had reevaluated its position and decided that the Graves Act should not interfere with the judiciary’s power to suspend sentences. In this case, however, the modification of the original bill did not reflect a legislative change of heart. As proof, one need only look to the Senate Statement accompanying S.3057: “Persons sentenced pursuant to [the Graves Act] would be ineligible for parole. Neither suspensions nor noncustodial dispositions would be permitted in such eases.” Senate Law, Public Safety and Defense Committee Statement to S.3057.

Allowing courts to suspend sentences would frustrate the Legislature’s attempt to achieve deterrence through certainty of punishment. The mandatory minimum sentences called for by the Senate Statement to the Graves Act cannot be achieved if judges are free to suspend sentences. When a legislature announces that criminals who use guns will serve at least three years in prison, it does not intend judges to set them free before they spend even one night there.

We thus hold that the intent of the Graves Act, if not its specific language, requires that sentences not be suspended and that offenders serve the statutorally prescribed minimum terms.¹⁶

V.

Although the intent of the Legislature is clear, the extent to which this intent intrudes upon judicial prerogatives remains to be discussed.

The defendant contends that suspension of sentences is an inherent judicial power protected by our Constitution from legislative interference. See Article III, par. 1 (separation of powers), and Article VI, § I, par. 1 (judicial power).

From at least as early as 1846, courts in New Jersey have exercised the power to suspend sentences in criminal actions in furtherance of the interests of justice despite the absence of statutory authority. Adamo v. McCorkle, 13 N.J. 561, 564 (1953). This judicial power, codified in N.J.S.A. 2C:43-2b was a common law attribute predating its statutory form both in this state and elsewhere. In re Baer, 140 N.J.Eq. 571, 573 (E. & A. 1947); Gehrmann v. Osborne, 79 N.J.Eq. 430, 443 (Ch. 1911).

The question now before the Court is whether this venerable practice is legally protected from the legislative intrusion resulting from the Graves Act. We hold that it is not.¹⁷

This issue of legislative power to preclude judicial suspension of sentences may be thought of as subsumed in the larger issue of power to enact mandatory sentencing laws in the first place. As suggested above, that latter power would not amount to much if it did not include the former. A recent confirmation of the power to mandate imprisonment is found in our dictum in State v. Bausch, 83 N.J. 425 (1980), where we noted that “the judiciary has no power ... to lessen or reduce a sentence where the Legislature has provided a mandatory penalty .... ” Id. at 433. To the same effect, see State v. Fearick, 69 N.J. 32, 38 (1976), and the more specific application of the doctrine to suspension of sentences found in the Appellate Division decision in Fearick, 132 N.J.Super. 165, 170 (1975).

We dealt with the suspension issue directly in State v. Johnson, 42 N.J. 146 (1964), in which defendant appealed from the three month custodial sentence then mandated by N.J.S.A. 39:4-50 for second offenders under our drunken driving laws. In response to her contention “that legislation prescribing mandatory sentences invalidly impinges upon an inherent judicial power to suspend the imposition or execution of sentences,” 42 N.J. at 174, we said:

It is clear that, before and quite apart from statutory authority, New Jersey courts did exercise what they considered to be an inherent power to suspend the imposition or execution of sentences of imprisonment upon a conviction for crime. The present existence or extent of any inherent power has now become largely academic by reason of the adoption of probation statutes and the suggestion that a state legislature cannot validly remove any that remains by mandatory sentence provisions in particular situations is of doubtful merit. We certainly think that power cannot successfully be questioned at least with respect to the type of offense here involved and in view of the short term of imprisonment required. [Id. at 174-75 (citations omitted) ].

Similarly we conclude that the “power cannot successfully be questioned at least with respect to the type of offense here involved ...,” even though the mandated term of imprisonment is substantial. The public interest involved, prevention of violent crime, is most important — some would say second to none— and the legislative responsibility and power paramount. Given this substantial public interest and the clear legitimacy of the legislative power, we hold its exercise constitutionally permissible in this instance.

VI.

Defendant Des Marets contends that his sentence amounts to “cruel and unusual punishment.” N.J. Const. (1947), Art. I, par. 12.¹⁸ In considering this claim, we inquire whether the nature of the criticized punishment shocks the general conscience and violates principles of fundamental fairness; whether comparison shows the punishment to be grossly disproportionate to the offense; and whether the punishment goes beyond what is necessary to accomplish any legitimate penal aim. State v. Hampton, 61 N.J. 250, 273-74 (1972). The showing that must be made to sustain the claim is substantial. See, e.g., State v. Fearick, supra, 69 N.J. 32 (1976).

Given the magnitude and severity of the problem of violent crime, we do not find that the sentence in the Graves Act applied to this case constitutes cruel and unusual punishment under our Constitution. We cannot, of course, foreclose the possibility that in some future case, the Act as applied might amount to cruel and unusual punishment.

Appleton

On July 17, 1981, the Burlington County Grand Jury returned a four count indictment against defendant Jeffrey Appleton. The indictment charged Appleton with armed robbery, unlawful possession of a handgun, aggravated assault and possession of a pistol. He had also been charged with burglary in another indictment.

Defendant pleaded not guilty. Thereafter he appeared before the trial court and pursuant to a plea bargain retracted his plea and pleaded guilty to armed robbery, a violation of N.J.S.A. 2C:15-1. This is a Graves Act offense. N.J.S.A. 2C:43-6(c). The State agreed to recommend that the remaining charges be dismissed and that Appleton be sentenced as a second degree offender.

At sentencing, Appleton, then 20 years old, requested that he be sentenced to an indeterminate term at the Youth Correctional Institution Complex pursuant to N.J.S.A. 2C:43-5, with three years of parole ineligibility for the Graves Act offense. The court held that it could not do so because a period of parole ineligibility is inconsistent with an indeterminate term as provided in N.J.S.A. 2C:43-5. The court therefore sentenced Appleton to a seven year term of imprisonment, including a three year minimum period of parole ineligibility.

Defendant appealed and we granted direct certification.

We have already concluded in Des Marets that the Graves Act does not permit indeterminate sentencing for youthful offenders. There remains the issue of whether a youthful offender, sentenced to a mandatory minimum term, may be sentenced for such term to the Youth Correctional Institution Complex rather than to a State prison. Defendant Appleton has requested such sentencing; and his desire is understandable. Conditions in our State prison may erode, rather than enhance, the possibility of rehabilitation. Because of the compelling advantages, for rehabilitative purposes, of the Youth Correctional Institution Complex compared to State prison, we have held that courts should sentence youthful offenders to a youth correctional institution “unless good and substantial reasons exist for not so doing.” State v. McBride, 66 N.J. 577, 580 (1975).

However, N.J.S.A. 2C:43-5 and N.J.S.A. 30:4-148 preclude this result for Graves Act offenders. As previously noted, N.J.S.A. 2C:43-5 permits youthful offenders to be sentenced to indeterminate terms at the Youth Complex pursuant to N.J.S.A. 30:4-148. By its terms, N.J.S.A. 30:4-148 provides that courts in sentencing “shall not fix or limit the duration of sentence.” The import of this language is clearly that “a minimum may not be fixed when sentencing to a reformatory.” State v. Hopson, 114 N.J.Super. 146, 150 (App.Div.) (Halpern, J.A.D., dissenting), rev’d on dissent, 60 N.J. 1 (1971). Because all Graves Act offenders, youthful offenders included, must be sentenced to minimum terms of incarceration of at least three years, no discretion exists to allow a court to sentence such an offender to the Youth Complex.

This problem is not new to this Court. As held in State v. Spinks, 66 N.J. 568, 575 (1974):

Perhaps a sentencing judge should have the power to sentence a youthful offender to the Complex, but fix a minimum term that must be served. However, this would require an amendment to N.J.S.A. 30:4-148.

S.1691, presently under consideration, is just such an amendment. This proposed bill would explicitly provide that youthful offenders sentenced to mandatory minimum terms may serve those terms at the Youth Complex. Absent passage of this or a similar amendment, however, we are constrained to hold that sentences for mandatory minimum terms must be served at State Prison.¹⁹ Accordingly, we affirm the judgment below.

The Dissenting Opinion

The dissent’s argument that the Graves Act does not repeal the sentencing provisions applicable to young adult offenders by implication is based on the statutory construction principles of the Code, the common law rule of strict construction of criminal laws, and the factual conclusion that the statutes are compatible. Noting that many young adults will go to jail for these offenses under N.J.S.A. 2C:43-5, that some, in any event, will be sentenced under the Graves Act (since their treatment as youth-’ ful offenders is optional) and that deterrence is a factor that will be considered by trial judges in sentencing young offenders (especially where Graves Act offenses are involved), it concludes that the statutes are not repugnant to each other and, given the longstanding sentencing scheme covering young adults, so recently reenacted as part of the Code (and presumably fully known to the Legislature), it concludes the Legislature could not have intended this partial repeal by silence.

Legislative intent therefore is the only issue. The interpretive principles of the Code, the rule of strict construction of criminal laws, and the presumption against implied repealers all give way if the Legislature clearly intended the Graves Act to apply to young adult offenders.

The dissent totally misses the point of the Graves Act. The legislative purpose was to stop gun-related crimes, not just half of gun-related crimes. Its method, through this law, was to announce that anyone who had a gun in his possession while committing certain crimes would — with certainty — go to jail, and — with certainty — for three years. The certainty, not the possibility, not the probability, of not one day less than a three year prison term is the whole point, the very heart, of the Graves Act. The Legislature’s hope was that the unprecedented severity and certainty of punishment attached to the possession of a gun would stop criminals from carrying them. The law’s all-encompassing intention is apparent: it covered every crime where experience indicated guns were most likely to be used.

More than half of these crimes are committed by young adults between the ages of 18 and 25. It is inconceivable that the Legislature would leave them out of this law. Yet that is precisely what the dissent does. There is no certainty of punishment, no certainty of three years in prison for that group. When they put the 'gun in their pocket, all they know is they may go to prison, they may not, they may go for three years, they may not. The heart of the law is cut out of it if there is no certainty of State prison for three years. It may be Yardville (a youth correctional institution), and it may be for only two months, or six months. Deterrence through the certainty of severe punishment is lost. That is the kind of deterrence that the Legislature sought to achieve through this Act. The dissent will not allow it. It is satisfied with the possibility of punishment.²⁰ The Legislature wanted certainty. Its achievement is not possible if Graves applies to less than half of the offenders.²¹

The dissent concludes despite the statute’s unqualified use of the word, that “possession” means “possession with intent to use firearms in the course of committing the statutorily enumerated crimes.” 90 N.J. at 105. It notes that if mere “possession” is all that is required, there would be no need to attach Graves Act consequences to the “use” of a firearm, since presumably every time one is used, it is also possessed. Obviously, however, the same may be said about the dissent’s definition of “possession”: every time a firearm is used, it presumably, at least for some period, was possessed with the intention of being used. The dissent, furthermore, ignores the fact that possession with intent to use unlawfully (presumably that is the same quality of possession the dissent has in mind) is, by itself, a Graves Act offense, since that is precisely what the first statute referred to in the Graves Act, N.J.S.A. 2C:39-4a refers to. Under the dissent’s construction, therefore, it would never be necessary to prove murder, manslaughter, aggravated assault, kidnapping, or any of the other offenses, since the accompanying “possession” (as defined by the dissent) would be sufficient in and of itself to trigger the Graves Act.

The certainty of punishment is further diminished by the requirement of intent that the dissent adds to “possession.” While the difference between the dissent and the majority on this issue may not seem important at first glance (since “possession” in connection with the enumerated crimes will usually support a factual inference of intent to use), the dynamics involved in handling a Graves offense suggest that the difference may indeed be quite important. All of those involved in the criminal justice system, police officer, investigator, assistant prosecutor, prosecutor, probation officer, are fully aware of the drastic consequences that follow a Graves Act conviction. In many cases the community pressure is intense to find some way to spare the defendant, to give him something less than three years in prison. Added to this pressure is the deep conviction of many in the criminal justice system that the Graves Act is wrong, that its severity is cruel, and unjustified by any likelihood of achieving deterrence. It would be naive to believe that it would be rare for someone to take advantage of this loophole that the dissent’s definition builds into the law. There can be little doubt that in some of these cases, those whose conduct fits within the dissent’s definition will, because of that definition, avoid the three year mandatory imprisonment.

At the core of the dissent’s misapprehension of this law is its failure, again, to understand the intent of the Legislature to deter the possession of guns. Deterrence is diluted to the extent that when these crimes are committed, something in addition to possession is required; the maximum in deterrence is achieved by requiring possession and nothing more. The Legislature knew that a person who carries a gun is liable to kill you. The purpose of the legislation was to change the criminal’s habits, not his intentions. The purpose was to take the gun out of his pocket. The Legislature should be given a chance to achieve that purpose. The dissent’s definition of possession when added to its elimination of more than half the offenders, takes that chance away.

The dissent calls the majority’s interpretation of the Graves Act “extraordinarily harsh ... unwarranted and unjust.” 90 N.J. at 90. We submit it is the Graves Act that is harsh and not our interpretation of it. The Legislature has a right to be harsh if that is what it thinks is required to stop violent crime. The judiciary should regard that harshness as a clear indicator of legislative intent, not as an excuse to undo it. The Legislature obviously regarded violent crime as one of the most serious crimes facing society. Its clear intention was to punish gun-related offenders with extreme, unprecedented severity, and with absolute certainty. The conclusion that the same Legislature that passed such a law would exempt more than half the offenders defies common sense.

Conclusion

For the reasons stated, we affirm the judgment of the Appellate Division in Des Marets and that of the trial court in Appleton.

1 The Act at the time of the offense provided in part that:

A person who has been convicted under 2C:39^4a. or of a crime under any of the following sections: 2C11-3, 2G11-4, 2C:12-lb., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, who, while" in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm as defined in 2C:39-lf., 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, or between, one-third and one-half of the sentence imposed by the court or 3 years, whichever is greater, or 18 months in the case of a fourth degree crime, during which the defendant shall be ineligible for parole. [N.J.S.A. 2C:43-6(c) ].

The covered offenses, in addition to possession of a firearm with intent to use same unlawfully, N.J.S.A. 2C:39-4a, are murder, manslaughter, aggravated assault, kidnapping, aggravated sexual assault, aggravated criminal sexual contact, robbery, burglary and escape.

Reference is sometimes made herein, based on the Act’s language, to the mandatory three year imprisonment sentence. That sentence will presumably include a provision “committing defendant] to the custody of the Commissioner of the Department of Corrections for the term of his sentence and until released in accordance with law.” N.J.S.A. 2C:43-10a.

2 As noted recently by the Supreme Court, “Legislatures, not courts, prescribe the scope of punishment,” Missouri v. Hunter,-U.S.-,-, 103 S.Ct. 673, 679, 74 L.Ed.2d 535 (1983) (where the legislature intends to punish criminal conduct under more than one statute, the Double Jeopardy Clause is not violated by the imposition in a single trial of cumulative sentences for the same conduct).

3 See our memorandum of April 27, 1981, to all trial court judges, printed following N.J.S.A. 2C:43-6 (1982), prohibiting conventional plea bargaining of Graves Act offenses.

4 Des Marets, therefore, “was in possession of a firearm” during “the immediate flight” from the commission of a burglary. He was clearly guilty of a Graves Act offense. The dissent’s added requirement, not found in the statute, that “possession” means “possession with intent to use against the person,” would relieve Des Marets — and everyone else who steals guns not then intending to use them — of this Graves Act mandatory imprisonment term.

5 The Act’s legislative intent is discussed in greater detail, infra.

6 Although the term possession is not defined in this Act, it is defined in other areas of the Code. For example, N.J.S.A. 2C:2-l(c) states:

Possession is an act, within the meaning of this section, if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.

In addition, in State v. Brown, 80 N.J. 587, 597 (1979), it was held criminal possession of an object signifies:

“... intentional control and dominion, the ability to affect physically and care for the item during 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) ....

But see State v. Stewart, 186 N.J.Super. 517 (1982), (certif. pending), in which the Appellate Division held that the presence of a flaregun in the interior of a vehicle did not constitute possession as defined by the Graves Act.

7 Des Marets also contends there is an inconsistency between his conviction on a charge of third degree burglary under N.J.S.A. 2C:18-2 (a crime that by definition involves an unarmed perpetrator) and his sentencing under the Graves Act. He urges the two statutes be read in pari materia. We disagree. The simple answer is that N.J.S.A. 2C:18-2 is specifically listed as a Graves Act offense.

8 No claim is made that for the Act to apply, the firearm must be loaded.

9 Deterrence however is at least as important to the welfare of young adults as rehabilitation. In 1979 (the most recent statistics available), 12.6 percent of the deaths of persons between ages 15-24 were caused by homicides. Health of the United States, National Center for Health Statistics, Department of Health and Human Services (1982).

10 Although the specific provisions of the Graves Act differ from S.1071, infra at 78-79, no one disputes the fact that the underlying purpose of the legislation has remained the same.

11 As noted later, infra at 77-79, the Act’s purpose and history compel the conclusion that suspension of sentence, although not explicitly referred to in its provisions, was intended to be prohibited.

12 To the extent it conflicts with this opinion, State v. Ribbecke, 185 N.J.Super. 65 (Law Div.1982), is overruled. It is perhaps appropriate to take note here of S.1691, presently pending in the Assembly. S.1691 expressly provides that the indeterminate sentencing option in N.J.S.A. 2C:43-5 does not apply to Graves Act offenders.

13 N.J.S.A. 2C:43-2(b) provides that courts generally may suspend the imposition of sentence, but that this power is subject to applicable provisions of the Code.

14 In its place, the Legislature added language identical to N.J.S.A. 2C:43-6(c), stating that persons who used or possessed a gun while committing certain crimes “shall be sentenced to a term of imprisonment by the court. The term of imprisonment shall include the imposition of a minimum term ... during which the defendant shall be ineligible for parole.” Second Official Copy Reprint, S.1071.

15 S.1071 was vetoed by Governor Byrne, in part because he thought minimum terms were required for too many kinds of offenses and in part because of the intrusion upon judicial discretion. Governor Byrne’s Veto Message to the Senate. The Legislature then passed S.3057, which reduced the number of offenses covered by the Act. This bill was signed into law by the Governor.

16 We dispose briefly of defendant Des Marets’ claim that L.1982, c. 119, § 2, N.J.S.A. 2C:43-6.1 (adopted after the date of the offense here), indicates that judges retain the power to suspend sentences under the Act. That amendment deals with defendants who are serving minimum mandatory terms under the Graves Act for possession of a firearm with intent to use it against the property of another. The amendment was passed to avoid what the Legislature apparently concluded was undue severity in applying the Graves Act under those circumstances. It provides that such a defendant, if he “has not had his sentence suspended or been paroled or discharged,” may move to have his sentence reviewed by the sentencing court. (The provision has no application to Des Marets because his was a crime against the person, not property.) The quoted portion of the statute is internally inconsistent with its operative provisions. One who is currently serving a mandatory minimum term could not, despite what the statute seems to suggest, have already had his sentence suspended or have been paroled or discharged. We glean from this language simply no indication that judges may suspend sentences under Graves, but rather an obviously inadvertent inclusion of conditions that make no sense.

17 Almost unanimously, other jurisdictions have held that the suspension of sentences is not an inherent power of the judiciary protected by the separation of powers doctrine. See People v. Tanner, 24 Cal.3d 514, 156 Cal.Rptr. 450, 596 P.2d 328 (Cal.1979); State v. Normand, 285 So.2d 210 (La.1973); State v. Farmer, 324 A.2d 739 (Me. 1974); Commonwealth v. Jackson, 369 Mass. 904, 344 N.E.2d 166 (Mass. 1976); Delaney v. State of Oklahoma, 507 P. 2d 564 (Okl.Cr.1973); State v. Butterfield, 12 Wash.App. 745, 529 P.2d 901 (Ct.App.Wash.1974); but a statutory limitation on the power to suspend sentences was held to violate separation of powers in State v. McCoy, 94 Idaho 236, 486 P.2d 247 (Idaho 1971).

18 Defendant does not claim that his sentence violates the “cruel and unusual punishment” provision of the United States Constitution.

19 Youthful offenders with minimum terms may nonetheless be administratively transferred to the Youth Complex to serve their prison sentence. N.J.S.A. 30:4-85. “Indeed, a sentencing judge, in an appropriate situation, should include in the judgment of conviction a provision that the offender be immediately evaluated for potential transfer to a Youth Complex facility to serve the minimum-maximum sentence imposed.” State v. Spinks, supra, 66 N.J. at 576.

20 The critical statistic that the dissent does not mention is that, without the Graves Act, only 9 percent of young adult offenders committing these crimes where a firearm was present were imprisoned for three years or more (1977 statistics). The deterrence of the dissent would be less than one-tenth of what the Legislature intended if this sentencing pattern continued under Graves. This greatly diminished deterrence applies to more than half of those who commit these crimes. They can carry a gun knowing the odds are 10-1 they will not get a mandatory three year term.

The dissent assumes, 90 N.J. at 99, n. 5, that more young adult offenders will be sentenced to prison because of the Graves Act even if indeterminate sentencing to a youth correctional institution is a permissible option. Given the sentencing pattern prior to Graves, with only 9 percent of Graves Act offenders incarcerated for three years or more, it seems more likely that judges will be most reluctant to sentence these offenders to prison, since the shorter terms formerly available will no longer be a sentencing option. Given the choice between three years’ mandatory imprisonment and an indeterminate sentence to a youth correctional institution, it seems probable that even more young adult offenders will receive an indeterminate sentence after Graves, and because of it.

21 The dissent is mistaken when it states that “[t]he majority assumes that all young adult ‘Graves Act’ offenders would be given indeterminate terms and subject to immediate or early release if N.J.S.A. 2C:43-5 is not deemed to be repealed.” 90 N.J. at 99, n. 5. What the majority does assume — correctly — is that no young adult would know with certainty that a three year prison term awaits him if he commits a Graves Act offense; that all young adult offenders, if the dissent prevailed, could hope, with reason, as they leave home with their gun, that if they are caught, the worst that will happen is that they might be sentenced to an indeterminate term.