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    SYLLABUS

(This syllabus is not part of the opinion of the Court. 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 Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

    Brian Parolin was indicted in Monmouth County for (1) pointing a loaded firearm at his former girlfriend, a fourth-degree offense; (2) making terroristic threats against the former girlfriend, a third-degree offense; (3) possession of a .22 caliber rifle with a purpose to use it unlawfully against the former girlfriend, a second-degree offense; and (4) aggravated assault on the former girlfriend by causing or attempting to cause serious bodily injury to her, a second-degree offense. All of the offenses were alleged to have occurred on October 23, 1998, at the same time and place.

    On March 13, 2000, Parolin pled guilty to the fourth-degree charge of pointing a loaded firearm and the second-degree possession of the rifle for use unlawfully against the former girlfriend. At the plea hearing, Parolin was told he was subject to the Graves Act and that the State would be seeking a NERA term of parole ineligibility.

    On April 20, 2000, Parolin was sentenced. The trial court declined to impose a NERA sentence, reasoning that it was bound by the Appellate Division’s decision in State v. Johnson, which held that possession of a firearm for an unlawful purpose did not qualify for a NERA sentence. The State appealed the resulting Graves Act sentence, and the Appellate Division affirmed.

    The Court granted the State’s petition for certification.

HELD: Under the factual circumstances of this case, defendant’s second-degree unlawful possession of a firearm with the purpose to use it unlawfully on another person came within the scope of NERA as it stood at the time of the offense.

1. When pleading guilty to possession of the rifle for an unlawful purpose, Parolin used the factual underpinning for his guilty plea to fourth-degree aggravated assault to establish the required identifiable purpose for possession of the weapon. In the Court’s view, Parolin’s testimony at the plea hearing clearly established that he committed a violent crime within the meaning of NERA. (pp. 5-10)

2. The version of NERA that was in effect at the time of Parolin’s offenses defined “violent crimes,” in part, as “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:43-7.2d. Based on Parolin’s own sworn testimony, he came within NERA’s scope by pointing a rifle at the victim and threatening to shoot her if she did not leave his house immediately. To the extent that the Appellate Division’s decision in State v. Johnson is inconsistent with this holding, it is overruled. (pp. 10-13)

3. Subsequent to the entry of the judgment of conviction and the Appellate Division’s review of this case, the Legislature amended NERA to enumerate specifically the first- and second-degree offenses to which it applies. NERA was amended in response to court decisions in State v. Manzie (murder not applicable to NERA because it had a separate sentencing statute), State v. Mosley (NERA does not apply to tender years sexual assaults without physical force), and State v. Thomas (same issue as Mosley). The current list of NERA offenses does not include second-degree possession of a firearm for unlawful use against another person. The current version of NERA should not, however, be applied retroactively to the facts of this case. Criminal law legislation is presumptively prospective in effect. (pp. 13-16)

JUSTICE LONG, dissenting, in which JUSTICE ZAZZALI joins, would affirm the judgment of the Appellate Division. She is of the view that NERA is meant to apply only to the “most violent” first- and second-degree offenders in our society. The facts supplied by Brian Parolin at his plea hearing fall far short of establishing him as a member of the class of offenders NERA was intended to cover. The exclusion of Parolin’s offense from the amended version of NERA sheds further light on the original meaning of NERA and should have been considered by the Court in assessing this case.


    The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the Law Division to merge the aggravated assault conviction with the conviction for possession of a rifle to use unlawfully against the person of defendant’s former girlfriend, and to impose a NERA sentence.

    CHIEF JUSTICE PORITZ and JUSTICES STEIN and LaVECCHIA join in JUSTICE COLEMAN’s opinion. JUSTICE LONG has filed a separate dissenting opinion in which JUSTICE ZAZZALI joins. JUSTICE VERNIERO did not participate.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BRIAN PAROLIN,

Defendant-Respondent.

Argued January 15, 2002 – Decided March 27, 2002

On certification to the Superior Court, Appellate Division, whose opinion is reported at 339 N.J. Super. 10 (2001).    

Richard E. Incremona, Assistant Prosecutor, argued the cause for appellant (John A. Kaye, Monmouth County Prosecutor, attorney; Mary R. Juliano, Assistant Prosecutor, of counsel and on the brief).

Andrew T. Walsh argued the cause for respondent (Waldman & Moriarty, attorneys; Charles M. Moriarty, on the letter in lieu of brief).

Carol M. Henderson, Assistant Attorney General, argued the cause for amicus curiae, Attorney General of New Jersey (David N. Samson, Attorney General, attorney; Melaney S. Payne, Deputy Attorney General, of counsel and on the brief).

    The opinion of the Court was delivered by

COLEMAN, J.

    This case requires us to determine whether the parole ineligibility requirement of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applies to a second-degree conviction for possession of a firearm with the purpose to use it unlawfully against another person, a violation of N.J.S.A. 2C:39-4a. In State v. Thomas, 166 N.J. 560, 573 (2001), we held that when “the elements of [an] offense charged against a defendant do not contain as an element proof of any one or more of the NERA factors, there must be proof of an independent act of force or violence or a separate threat of immediate physical force to satisfy the NERA factor.” We hold that although the elements of some second-degree unlawful possession of firearms, explosive substances or destructive devices offenses under N.J.S.A. 2C:39-4 do not contain a NERA factor, in this case defendant’s acknowledgment at his plea hearing that, contemporaneously with the unlawful possession of a loaded rifle, he used that rifle unlawfully against his former girlfriend by pointing it “right at her . . . to scare her . . . and threatened to shoot her” to get her to leave his house, satisfied a NERA factor.

[State v. Diaz, 144 N.J. 628, 635 (1996).]

Proof of the fourth element “requires ‘an identification of the unlawful purpose or purposes suggested by the evidence.’” State v. Brims, supra, 168 N.J. at 304 (quoting State v. Villar, 150 N.J. 503, 511 (1997)).
Possession of a firearm for an unlawful purpose generally falls into one of two main categories or a combination thereof. State v. Diaz, supra, 144 N.J. at 636. In the majority of cases the unlawful possession charge “‘is coupled with a charge of an act accomplished with the gun.’” Ibid. (quoting State v. Jenkins, 234 N.J. Super. 311, 315 (App. Div. 1989)). Under that scenario the criminal act effected with the firearm provides the factual underpinning that demonstrates that the firearm was possessed for an unlawful purpose. State v. Diaz, supra, 144 N.J. at 636. Under those circumstances, the substantive offense committed with the firearm merges with the possessory offense. Ibid. The second category into which the possessory offense falls is the one in which the unlawful purpose for possessing the firearm is established independently of the commission of a substantive offense. Ibid. The record before us fits within those cases in which use of the firearm to commit another offense (here, the aggravated assault) is used to establish the unlawfulness of the possession charge.
    When pleading guilty to possession of the rifle for an unlawful purpose, defendant used the factual underpinning for his guilty plea to fourth-degree aggravated assault to establish the required identifiable purpose for possession of the weapon. To accomplish that purpose, defendant stated the following:
A. Well, Your Honor, I just took the gun out just to scare the girl, she was driving me crazy. I couldn’t get her out of my house. I took the gun out to scare her. That is all I did.

    [DEFENSE ATTORNEY]: May I ask some questions, Judge?

    THE COURT: Yes. You better.

BY [DEFENSE ATTORNEY]

    Q. While you were in the house, did you point the gun at her?

    A. Yeah, just to scare her.

    Q. But you did it with the purpose to scare her?

    A. I was trying to scare her.

    Q. The gun was loaded?

    A. Yeah.

    Q. You pointed it right at her?

    A. Yeah.

    Q. And said “get out”?

    A. Yeah.

    Q. And the purpose of getting that gun was not for target practice?

    A. No.

    Q. The purpose of the gun was to point it at her to scare her into leaving the house, is that right?

    A. That is exactly right.

    THE COURT: Are you satisfied with the unlawful purpose?

    [ASSISTANT PROSECUTOR]: No, Judge.

BY [ASSISTANT PROSECUTOR]:

    Q. At some point, you threatened to shoot her with that gun?

    A. Yes.

    Q. At some point you hit her with the rifle, with the barrel of the rifle?

    A. No, I did not.

    Q. At some point, you shot that gun?

    A. Yes.

    Q. She was standing outside of your house at the time?

    A. Yes, sir.

    Q. And when you shot the gun the bullet ricocheted off the pavement and hit her in the leg?

    [DEFENSE ATTORNEY]: We don’t dispute that, Judge. That did happen.

    THE COURT: Did he answer yes or no?

    THE DEFENDANT: No. I mean the way it looked to me, no. I mean –
    
    [DEFENSE ATTORNEY]: Just so it is clear, Judge, he is not disputing it. He didn’t physically –

    THE COURT: He is disputing it.

    [DEFENSE ATTORNEY]: Brian, you have seen the reports?

    THE DEFENDANT: Yeah. Well, I guess I hit her in the leg then. I mean, yeah, yes.

    [DEFENSE ATTORNEY]: Judge, what he is talking about, they can’t pull it out. Clearly, the bullet hit the ground.

    THE COURT: But it is a piece of lead in her.

    [DEFENSE ATTORNEY]: Maybe, maybe not.

    THE COURT: What is it.

    [DEFENSE ATTORNEY]: It could be the cement. We don’t dispute what hit caused something to go into her.

    Clearly, we caused the injury. There is no question about that, but they have never been able to pull it out. They have never been able to see it. There is no question about it.

    THE COURT: It shows up on an x-ray?

    [DEFENSE ATTORNEY]: Yes.

    THE COURT: It sounds like metal.

    [DEFENSE ATTORNEY]: I don’t really dispute that, Judge.

    THE COURT: Are you satisfied now?

    [ASSISTANT PROSECUTOR]: Now, I am, Judge.

. . . .

d. For the purposes of this section, “violent crime” means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. “Violent crime” also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force.

    . . . .

e. A court shall not impose sentence pursuant to this section unless the ground therefor has been established at a hearing after the conviction of the defendant and on written notice to him of the ground proposed. The defendant shall have the right to hear and controvert the evidence against him and to offer evidence upon the issue.

[N.J.S.A. 2C:43-7.2a, d, e. (2000)]

In light of that statutory language, this Court has concluded that the prior version of NERA covers three types of first- and second-degree violent crimes: (1) those in which the actor causes death or serious bodily injury; (2) those in which the actor uses or threatens the immediate use of a deadly weapon; and (3) those in which the actor uses or threatens the immediate use of physical force. “Those three categories are NERA factors.” State v. Thomas, supra, 166 N.J. at 571. Although the elements of defendant’s second-degree offense¾possession of a rifle to use unlawfully against his former girlfriend¾did not require proof of a NERA factor, both the State and defendant relied on his use of the rifle to scare, frighten and threaten the victim to prove the identifiable unlawful purpose element of the possessory offense. Based on defendant’s own sworn testimony, he established the second and, arguably, the third NERA factors by pointing the rifle at the victim and threatening to shoot her unless she left his house immediately. Indeed, he fired the weapon and the victim was not only frightened, but was injured as well. Consequently, the trial court was correct when it observed that the factual basis for the pleas satisfied NERA’s violent crime requirement.
    The present case is to be distinguished from State v. Williams, 333 N.J. Super. 356 (App. Div. 2000), rev’d, 168 N.J. 287 (2001). There, defendant was convicted by a jury of possession of a handgun for an unlawful purpose and possession of the gun without a permit. Id. at 357. In a post-trial NERA hearing the trial court, not the jury, found that defendant had “brandished the gun on a public street and fired it in the direction of others contemporaneous with a verbal threat to kill. Pedestrians and bystanders, including a small child, were placed in danger by defendant’s use of the firearm.” Id. at 361. The Appellate Division upheld the imposition of a NERA sentence. Ibid. After we rendered our decision in State v. Johnson, 166 N.J. 523, 543 (2001), holding that when convictions are based on jury verdicts, a jury must determine the NERA sentencing factor, we vacated the NERA sentence in Williams because the judge, not the jury, made the NERA finding. State v. Williams, 168 N.J. 287 (2001). Unlike Williams, defendant’s conviction is based on his guilty pleas and at least one NERA factor was admitted by defendant in his factual statements at the plea hearing. Therefore, Williams is distinguishable. For all of the foregoing reasons, we hold that the version of NERA that was in effect when defendant committed his offenses applies here. To the extent that the Appellate Division’s holding in Johnson, supra, 325 N.J. Super. at 78, is inconsistent with this opinion, it is overruled.

(2) N.J.S. 2C:11-4, aggravated manslaughter or manslaughter;

(3) N.J.S. 2C:11-5, vehicular homicide;

(4) subsection b. of N.J.S. 2C:12-1, aggravated assault;

(5) subsection b. of N.J.S. 2C:12-11, disarming a law enforcement officer;

(6) N.J.S. 2C:13-1, kidnapping;

(7) subsection a. of N.J.S. 2C:14-2, aggravated sexual assault;

(8) subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection c. of N.J.S. 2C:14-2, sexual assault;

(9) N.J.S. 2C:15-1, robbery;

(10) section 1 of P.L. 1993, c. 221 (C.2C:15-2), carjacking;

(11) paragraph (1) of subsection a. of N.J.S. 2C:17-1, aggravated arson;

(12) N.J.S. 2C:18-2, burglary;

(13) subsection a. of N.J.S. 2C:20-5, extortion;

(14) subsection b. of section 1 of P.L. 1997, c. 185 (C.2C:35-4.1), booby traps in manufacturing or distribution facilities; or

(15) N.J.S. 2C:35-9, strict liability for drug induced deaths.

[N.J.S.A. 2C:43-7.2d (2001).]

    Because the catalog of offenses to which NERA now applies does not include second-degree possession of a firearm for unlawful use against another person, the question is whether the amendment should be applied retroactively to this case. It should not. The legislative intent is designed to clarify NERA’s application to murder and certain sexual offenses and to overturn the Appellate Division’s interpretation of NERA in reported decisions, not to correct any legislative drafting error. Consistent with the presumption that criminal legislation is to have prospective effect, see United States v. Morena, 245 U.S. 392, 395, 38 S. Ct. 151, 152, 62 L. Ed.2d 359 (1918); Phillips v. Curiale, 128 N.J. 608, 615 (1992); Gibbons v. Gibbons, 86 N.J. 515, 522 (1981); Street v. Universal Maritime, 300 N.J. Super. 578, 580 (App. Div. 1997), the Legislature stated that the amendments would take effect immediately. L. 2001, c. 129. Moreover, this Court has already declined to apply the NERA modification amendments retroactively when the Court denied the State’s motion to reconsider Manzie in light of those amendments.

    CHIEF JUSTICE PORITZ and JUSTICES STEIN and LaVECCHIA join in JUSTICE COLEMAN’s opinion. JUSTICE LONG has filed a separate dissenting opinion in which JUSTICE ZAZZALI joins. JUSTICE VERNIERO did not participate.

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

BRIAN PAROLIN,

Defendant-Respondent.

______________________________________________

LONG, J., dissenting.

    NERA is meant to apply only to the “most violent” first- and second-degree offenders in our society. State v. Thomas, 166 N.J. 560, 570 (2001). Brian Parolin is simply not such a person. The facts he supplied at his plea hearing clearly warrant punishment but fall far short of establishing him as a member of the class of offenders NERA was enacted to harness. That he was never intended to fall within the ambit of NERA is underscored by the recent amendments to the statute that exclude from its purview the only qualifying crime to which Parolin pled guilty, second-degree possession of a weapon for an unlawful purpose, N.J.S.A. 2C:43-7.2d. That clarification, in my view, sheds light on the original meaning of NERA and should inform our assessment of this case. I would, therefore, affirm the judgment of the Appellate Division.
    Justice Zazzali joins in this dissent.

NO.     A-6    SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court    

STATE OF NEW JERSEY,

    Plaintiff-Appellant,

        v.

BRIAN PAROLIN,

    Defendant-Respondent.

DECIDED     March 27, 2002
    Chief Justice Poritz    PRESIDING
OPINION BY Justice Coleman    
CONCURRING OPINION BY
DISSENTING OPINION BY    Justice Long

CHECKLIST	REVERSE AND REMAND	AFFIRM
CHIEF JUSTICE PORITZ	X
JUSTICE STEIN	X
JUSTICE COLEMAN	X
JUSTICE LONG		X
JUSTICE VERNIERO	-------------	------------	--------------
JUSTICE LaVECCHIA	X
JUSTICE ZAZZALI		X
TOTALS	4	2