State v. Parolin

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Argued January 15, 2002

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.

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