State v. Cromedy: N.J.S.A. 2C:39-5(j) Is a Substantive First-Degree Crime Outside the Graves Act’s Mandatory Parole Bar

Introduction

On 5 August 2025 the Supreme Court of New Jersey, in State v. Zaire J. Cromedy, A-17-24 (089188), unanimously held that subsection (j) of the weapons-possession statute (N.J.S.A. 2C:39-5(j)) is a stand-alone substantive offence. Consequently, a conviction under subsection (j) does not automatically trigger the Graves Act’s mandatory minimum term and period of parole ineligibility (N.J.S.A. 2C:43-6(c)).

The ruling reverses both the trial court and the Appellate Division, which had treated subsection (j) merely as a “grading” provision that elevates a second-degree firearms offence to first-degree status and therefore imports the Graves Act. By re-characterising subsection (j) as a complete offence the Court has clarified charging, trial and sentencing procedures for recidivist weapons offenders and has significantly limited the reach of one of New Jersey’s most punitive sentencing schemes.

Summary of the Judgment

• Holding: 2C:39-5(j) creates an independent first-degree crime consisting of two elements: (1) a current violation of 2C:39-5(a), (b), (c) or (f); and (2) the defendant’s prior NERA-qualifying conviction. Because the Graves Act does not list subsection (j), its mandatory parole bar does not apply.
• Disposition: Judgment of the Appellate Division reversed; matter remanded for resentencing without a Graves-Act parole disqualifier.
• Key Procedural Directive: Trials must be bifurcated: the jury first decides the present-possession charge; if it convicts, the same or a new jury hears evidence of the prior NERA conviction to determine liability under subsection (j).

Analysis

Precedents Cited and Their Influence

1. State v. Drury, 190 N.J. 197 (2007) – explained “grading” via aggravating circumstances in the sexual-assault statute. The Appellate Division relied on Drury to analogise subsection (j) to a grading clause. The Supreme Court distinguished Drury: when a clause re-grades it creates a higher-degree crime rather than merely raising the sentence.
2. State v. Franklin, 184 N.J. 516 (2005) & State v. Benjamin, 228 N.J. 358 (2017) – described the Graves Act as a sentencing enhancement triggered by enumerated firearm offences. Cromedy extends these cases by emphasising that explicit enumeration is indispensable.
3. State v. Dillihay, 127 N.J. 42 (1992) – held that mandatory minimums survive merger. Cromedy uses Dillihay to rebut the “absurdity” argument: even after merging the second-degree firearm count into the first-degree subsection (j) conviction, any Graves-Act minimum attached to the lower-degree count remains intact.
4. Statutory-interpretation line: DiProspero v. Penn, 183 N.J. 477 (2005); Higginbotham, 257 N.J. 260 (2024); Musker v. Suuchi, 260 N.J. 178 (2025). These cases reinforce the primacy of plain meaning and forbid courts from rewriting statutes to achieve perceived policy aims.

Legal Reasoning

1. Plain-Language Approach. The Court observed that subsection (j) says a violation “is a first degree crime.” It therefore defines a crime – not a penalty modifier. By contrast, the Graves Act is expressly limited to subsections (a), (b), (c), and (f).
2. Structural Comparisons within 2C:39-5.
   • Subsection (i) explicitly talks about sentencing (“shall be sentenced to a term of imprisonment…”), proving the Legislature knows how to draft enhancements.
   • Subsection (j) lacks any sentencing verbs; it merely re-grades the offence, signalling a new crime.
3. Legislative Silence Is Deliberate. In 2013 the Legislature amended both the weapons statute and the Graves Act in the same bill yet omitted any reference to subsection (j) in the Graves Act. The Court treats this synchronised omission as intentional.
4. Distinction Between Grading vs. Enhancement. Grading provisions determine what must be pleaded, proven, and submitted to a jury; enhancements activate only at sentencing. Subsection (j) therefore demands a bifurcated trial to protect the accused from unfair prejudice arising from the prior-conviction evidence.
5. Rebuttal of “Absurdity.” The perceived possibility that a first-degree offender serves less “real time” than a Graves-Act second-degree offender is not absurd because (a) the sentencing judge retains discretion to impose anywhere from 10–20 years, and (b) other discretionary tools (N.J.S.A. 2C:43-6(b)) allow courts to impose parole ineligibility even when the Graves Act is inapplicable.

Potential Impact

• Charging Strategies: Prosecutors must now include a separate count under 2C:39-5(j) if they wish to pursue the recidivist first-degree route. A plea to only the underlying subsection (b) or (c) count will not automatically sweep in subsection (j).
• Trial Mechanics: Mandatory bifurcation will lengthen trials in recidivist gun cases and heighten the evidentiary burden; proof of the prior NERA conviction must satisfy In re Winship standards beyond a reasonable doubt.
• Sentencing Landscape: Hundreds of defendants previously sentenced under the Graves Act on subsection (j) pleas may seek post-conviction relief or resentencing.
• Legislative Response: The onus shifts to the Legislature—if it truly intended Graves-Act treatment for subsection (j), it must amend N.J.S.A. 2C:43-6(c) to say so explicitly.
• Analytical Template: Cromedy supplies a clarifying methodology for distinguishing between grading and sentencing provisions across the entire Criminal Code—important for statutes such as aggravated assault, robbery, and vehicular homicide.

Complex Concepts Simplified

Grading vs. Sentencing Enhancement

• Grading: Determines the degree of the offence (e.g., 2nd or 1st degree)
• Enhancement: Adds a mandatory penalty after conviction (e.g., Graves Act, NERA).

Graves Act (N.J.S.A. 2C:43-6(c))

A sentencing law requiring a minimum term (at least 42 months or half the sentence) without parole for certain listed firearm crimes. If the statute is silent on your crime, Graves Act does not apply.

No Early Release Act (NERA)

Applies to violent crimes such as manslaughter or robbery. It forces offenders to serve 85% of their sentence before parole eligibility. Under subsection (j), a prior NERA conviction is what turns today’s gun-possession offence into a first-degree crime.

Bifurcated Trial

Trial split into phases: liability for the present conduct determined first; only if guilty does the jury hear about the prior conviction. Protects against unfair prejudice.

Conclusion

State v. Cromedy emphatically demonstrates the Court’s commitment to textual fidelity and fair-warning principles in criminal law. By treating subsection (j) as an autonomous first-degree crime and refusing to graft the Graves Act onto it, the State’s highest court vindicates the separation of powers: courts interpret, legislatures legislate. Practitioners must adjust indictments, jury charges, plea negotiations, and sentencing arguments accordingly. Should the Legislature disagree with the outcome, Cromedy provides a clear roadmap: amend N.J.S.A. 2C:43-6(c). Until then, recidivist weapons offenders under subsection (j) face ordinary first-degree ranges—harsh but not mandatorily tethered to a Graves-Act parole bar.