SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1872-18

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

THOMAS I. MOORE,

Defendant-Appellant.

Argued February 24, 2021 – Decided March 22, 2021

Before Judges Fuentes, Rose and Firko.

On appeal from the Superior Court of New Jersey, Law 

Division, Essex County, Indictment No. 17-10-2812.

Susan L. Romeo, Assistant Deputy Public Defender, 

argued the cause for appellant (Joseph E. Krakora, 

Public Defender, attorney; Susan L. Romeo, of counsel 

and on the brief).

Barbara A. Rosenkrans, Special Deputy Attorney 

General/Acting Assistant Prosecutor, argued the cause 

for respondent (Theodore N. Stephens, II, Acting Essex 

County Prosecutor, attorney; Barbara A. Rosenkrans, 

of counsel and on the brief).

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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PER CURIAM

A jury convicted defendant Thomas I. Moore of armed robbery, 

conspiracy to commit robbery, and related weapons offenses for his involvement 

in the attempted theft of a man who was never identified. But the crime was 

witnessed by law enforcement officers who were in the area conducting 

surveillance of a home on Franklin Avenue in Newark (Franklin home). During 

the short trial, the State presented the testimony of two detectives who witnessed 

the crime, and another who arrested defendant when he returned to the Franklin 

home shortly thereafter. Defendant testified but did not present the testimony 

of the witnesses named in his alibi notice. Following his convictions, defendant 

pled guilty to two additional robberies and was thereafter sentenced to an 

aggregate twenty-five-year prison term. He must serve eighty-five percent of 

that term under the No Early Release Act, N.J.S.A. 2C:43-7.2. 

Defendant now appeals, raising the following points for our consideration:

POINT I

DEFENDANT WAS DENIED A FAIR TRIAL BY 

THE CUMULATIVE EFFECT OF THE 

PROSECUTOR'S IMPROPER CROSSEXAMINATION AND ARGUMENTS RELATING 

TO THE TIMING AND CONTENTS OF 

DEFENDANT'S NOTICE OF ALIBI AND THE 

ALLEGEDLY MISSING WITNESSES LISTED 

THERE.
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(Not raised below).

[A]. The Prosecutor's Questions And 

Argument To The Jury Regarding The 

Notice Of Alibi Violated Defendant's Right 

To Silence.

[B]. The Prosecutor's Questions And 

Argument To The Jury Regarding The 

Notice Of Alibi Witnesses Who Did Not 

Testify Impermissibly Shifted The Burden 

Of Proof To Defendant.

[C]. The Prosecutor Committed Gross 

Misconduct With Summation Comments 

On The Notice Of Alibi And The Allegedly 

Missing Witnesses That Denigrated The 

Defense, Urged Jurors To Render A 

Decision Based On Personal Emotion And 

Inconvenience, And Shifted The Burden 

Of Proof To Defendant.

[D]. The Cumulative Effect Of The 

Prosecutor's Improper Questioning And 

Argument Regarding Defendant's Notice 

Of Alibi And Its Contents Was Plain Error.

POINT II

DEFENDANT'S SENTENCE ON [THE UNLAWFUL 

POSSESSION OF A WEAPON CONVICTION] 

MUST BE REVERSED, BECAUSE HIS EIGHTYEAR SENTENCE WITH A FOUR-YEAR 

MINIMUM TERM FOR A FOURTH-DEGREE 

CRIME UNDER N.J.S.A. 2[C]:39-5(d) WAS 

ILLEGAL, AND BECAUSE THE COURT 

IMPROPERLY IMPOSED A CONSECUTIVE 

SENTENCE FOR UNLAWFUL POSSESSION OF A 
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WEAPON, WITH NO FINDING THAT THE 

CONSECUTIVE SENTENCE WAS WARRANTED 

UNDER THE YARBOUGH1 FACTORS.

We reject the belated contentions raised in point I and affirm defendant's 

convictions. However, we are compelled to remand the matter for resentencing 

because the trial court: (1) improperly sentenced defendant to serve a term of 

imprisonment within the second-degree range on his fourth-degree unlawful 

possession of a weapon conviction; and (2) imposed consecutive terms of 

imprisonment without conducting the analysis required under Yarbough, 100 

N.J. 643-44.

I.

Following a string of robberies that occurred between May 20 and June 4, 

2017, defendant was charged in a nineteen-count Essex County indictment with: 

four counts of second-degree conspiracy to commit robbery, N.J.S.A. 2C:5-2 

and 2C:15-1 (counts one, five, nine, and fifteen); first-degree armed robbery, 

N.J.S.A. 2C:15-1 (counts two, six, ten, and sixteen); third-degree unlawful 

possession of a weapon, N.J.S.A. 2C:39-5(c)(1) (counts three, seven, eleven, 

and seventeen); second-degree possession of a weapon for an unlawful purpose, 

N.J.S.A. 2C:39-4(a) (counts four, eight, twelve, and eighteen); fourth-degree 

1 State v. Yarbough, 100 N.J. 627 (1985).
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aggravated assault, N.J.S.A. 2C:12-1(b)(4) (counts thirteen and fourteen); and 

third-degree receiving stolen property, N.J.S.A. 2C:20-7(a) (count nineteen). 

Defendant's sister, Shalina2 was charged in the same indictment with counts nine 

through twelve, and nineteen. Shalina's boyfriend, Zachery Hoger, was charged 

with counts one through eight, fifteen through eighteen, and nineteen. 3 

In September 2018, defendant was tried separately from Hoger on counts 

fifteen through eighteen, renumbered as counts one through four for trial. We 

summarize the trial testimony, prosecutor's summation, and jury instruction that 

are pertinent to defendant's belated assertions of prosecutorial misconduct raised 

in point I.

Around 9:30 p.m. on June 4, 2017, about one dozen plainclothes 

detectives in three unmarked police cars established surveillance of the Franklin 

home in anticipation of "effectuat[ing] a legal process."

4

 The Franklin home 

2 Because defendant and Shalina share the same surname, we use Shalina's first 

name to avoid confusion. We intend no disrespect in doing so. 

3 The record on appeal does not indicate the disposition of the charges against 

Shalina and Hoger; they are not parties to this appeal. 

4 Prior to the commencement of testimony, the trial court granted the 

prosecutor's application to substitute the term, "legal process" for "search 

warrant" and to lead the detectives in view of the prior mistrial in that regard. 

The court denied the prosecutor's application to elicit testimony from the 
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was located in the Stephen Crane Village housing complex in Newark near the 

Belleville border. The detectives were assigned to the Newark Police 

Department, Belleville Police Department, and Essex County Sheriff's Office. 5 

At trial, the State presented the testimony of Belleville Police Detectives David 

Sheridan and Michael Agosta, and Newark Police Detective Philip Turzani.

Sheridan, Turzani and another detective were in a car located directly in 

front of the Franklin home; Agosta was in another vehicle parked "just south of" 

the Franklin home. Both Sheridan and Agosta testified that they saw defendant 

and Hoger exit the front door of the home a few times, look to their left and right 

on Franklin Avenue, then reenter the Franklin home. When defendant and 

Hoger came outside the final time, they noticed another man walking 

southbound on Franklin Avenue. This time, defendant and Hoger reentered the 

Franklin home and exited through the back door. Detectives stationed in another 

(continued)

detectives that they had viewed defendant's photograph prior to establishing 

surveillance. Instead, the court permitted the State "to present testimony 

through the officers of what they observed that day, what they communicated, 

[and] what they said to the other officers." 

5 Three departments participated in the search warrant's execution because the 

affidavit was based on information that defendant and Hoger had committed 

multiple robberies in Newark and Belleville. That information was not disclosed 

to the jury, which instead was advised that the crime occurred in Newark on the 

border of Belleville.
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police car at the rear of the home radioed the others that defendant now appeared 

to be limping.

Agosta saw defendant "pull[] out a long style rifle from the right side of 

his pant leg . . . [and] point[] the rifle up at . . . the male that they saw walking 

originally." Agosta and the other detectives in his car proceeded on foot in their 

direction. Agosta heard defendant or Hoger tell the unidentified man: "Stop. 

Give me your shit." Sheridan and Agosta testified they were certain defendant 

held the weapon; both detectives identified defendant in court. 

When the detectives approached defendant and Hoger, defendant 

"dropped the weapon and then proceeded back northbound into the complex," 

which is "kind of a maze." Hoger was arrested in the complex. The officers 

recovered a BB gun at the scene. Defendant was not apprehended until about 

fifteen to twenty minutes later, when he entered the Franklin home through the 

back door. At that point, Turzani and other detectives were executing the search 

warrant at the Franklin home. 

Both Sheridan and Turzani testified that defendant was "sweating" and 

"breathing heavily" when he entered the Franklin home's back door. Sheridan, 

who wrote the incident report, acknowledged on cross-examination that he did 
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not include that description in the report. When the detectives asked defendant 

for his address, he provided the Franklin home's address. 

Defendant testified and denied he had been at the Franklin home on June 

4, 2017 prior to his arrest. Instead, defendant claimed he was home "all day" at 

the residence he shared with Adriana Gonzalez and the couple's two children 

(Peabody home). Defendant asserted that he did not leave the Peabody home 

until Gonzalez told him to leave following the couple's argument about 

defendant's ex-girlfriend. Defendant walked "1.7" miles to the Franklin home, 

where his parents lived with Shalina, Hoger, and defendant's other sister. 

Arriving at "[a]bout 10:30" p.m., the walk took about "thirty, thirty-five 

minutes." Defendant denied he was sweating. Defendant asserted he: "was 

never in the vicinity of [the Franklin home] until after [he] left [the Peabody 

home]"; "never was in possession of a BB gun"; "never was in the presence of 

Zachery Hoger"; and "never committed any robberies." 

Several weeks before trial, defendant served the State with a notice of alibi 

pursuant to Rule 3:12-2(a).6 On cross-examination, after asking defendant about 

6 The notice of alibi was not provided on appeal or admitted in evidence at trial. 

During oral argument before us, we questioned appellate counsel about the 

contents of the notice. Appellate counsel candidly acknowledged she was 

unable to obtain a copy of the notice. Accordingly, defendant's merits brief 
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his address and relationship with Hoger, the prosecutor established that the alibi 

notice was dated August 5, 2018. The prosecutor then elicited testimony from 

defendant that "it took [him] a year and two months to put down in writing where 

[he] claim[ed he was] on the day of the incident." The prosecutor also asked: 

"Now, in that document and in your testimony you indicate there were a number 

of people present [at the] Peabody [home] on the day you were there . . . 

includ[ing your] girlfriend?" Defendant responded: "My child's [sic] mother, 

my kids, and her mother." The prosecutor then asked why Gonzalez and her 

mother were not testifying and defendant responded that they were working. 

Defense counsel posed no objections to that line of inquiry.

Prior to summations, outside the presence of the jury, the prosecutor 

stated: 

For the record, it's my understanding in the 

case law that I am obligated to advise 

defense counsel prior to my summation 

that I intend to comment on the fact that 

there were two alleged witnesses to . . . 

defendant's alibi testimony, who have not 

been produced. I am not asking for a 

[Clawans]

7

charge with regard to that. I'm 

(continued)

relies upon the prosecutor's cross-examination as to the general contents of the 

notice. We do the same. 

7 State v. Clawans, 38 N.J. 162 (1962).
10 A-1872-18

merely indicating to the defense and to the 

court that I intend to comment on the 

failure of those witnesses to be called. 

[D]efendant indicated that both of them are 

at work, indicating that he had knowledge 

of where they were and they were not 

produced, and I intend to comment on that 

upon my summation.

Defense counsel posed no objection and instead replied: "I received the 

information. I understand that." After verifying that the two witnesses were 

Gonzalez and her mother, Gladys Valentine, and having heard no objection from 

the defense, the trial court granted the prosecutor's request. 

During his summation, the prosecutor prefaced his remarks about 

defendant's testimony by telling the jury defendant's "story" was "positively 

absurd." The prosecutor then commented:

He doesn't have to testify, but once he testifies, you 

judge him just like you would judge any other witness. 

According to him, he's with two adults in a house or an 

apartment, whatever you want to call it, 1.3, whatever 

it is, miles away and I asked him, "Where are those 

people, why aren't they here today?" [Defendant 

replied:] "They're working." Guess what? All of you, 

but for the fact that you received a notice from the court 

to be here, would be working today too, if you're not 

retired. [Defendant's witnesses could have been] 

subpoenaed, just like you were, to be here, but neither 

of them came here to verify the fact that he was on . . . 

whatever the name of that street was, Peabody Street. 

Neither of them. You didn't hear a word from anyone 
11 A-1872-18

other than Mr. Moore, that he was in fact at that 

address.

After recounting the detectives' testimony, and the omission from the 

police report that defendant was "sweating and breathing heavy," the prosecutor 

commented: 

That report was written the day of or the day after the 

incident. Mr. Moore signed his notice of alibi in 

August of this year. So, the police had no idea at that 

point that Mr. Moore was going to claim, "I wasn't even 

there at the time of the robbery." So, the "sweating 

profusely" and the "heaving beathing" wasn't especially 

relevant until he finally told us in August of this year, 

"No guys, you had it all wrong. I wasn't here. I was [at 

the Peabody home]."

During the final instructions, the trial court closely followed the model 

jury charge for alibi. Model Jury Charges (Criminal), "Alibi" (rev. May 12, 

2008). Pursuant to that charge, the court informed the jury:

I instructed [sic] that Mr. Moore had no obligation to 

provide an account of [sic] any time and there may be 

many reasons for not doing so. You may not use the 

testimony about when Mr. Moore first came forward to 

affect his ability [sic] or to conclude that he violated 

some obligation to come forward, because Mr. Moore 

had no duty to speak on the subject with anyone.

Defense counsel raised no objections to the prosecutor's summation or 

final jury charge. 
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II.

A.

For the first time on appeal, defendant contends the prosecutor's crossexamination and closing remarks, individually and cumulatively, "had the clear 

capacity to bring about an unjust result." Because defendant did not object at 

trial, the plain error standard applies. R. 2:10-2.

Initially, we consider defendant's arguments that the prosecutor 

impermissibly questioned defendant about the timing of his alibi notice and 

commented to the jury about that timing. In State v. Noble, we held a 

prosecutor's repeated references to timing of the defendant's alibi notice did not 

violate the defendant's right to remain silent, where the timing was used to 

highlight inconsistencies between the factual assertions in the notice and the 

defendant's trial testimony two days later. 398 N.J. Super. 574, 589-90 (App. 

Div. 2008). Accordingly, the State may cross-examine a defendant on the late 

filing of an alibi defense to highlight inconsistencies in his trial testimony, not 

to "impale" a defendant on the failure to furnish the defense earlier. Id. at 592.

We therefore expect competent prosecutors to refrain from commenting on the 

timing of defendant's alibi notice in the absence of some inconsistency. 
13 A-1872-18

In the present case, defense counsel did not ask defendant who was home 

with him on the day of the incident. Instead, counsel asked defendant why he 

left the Peabody home. Defendant responded he had an argument with 

Gonzalez, who asked him to leave. Defendant did not mention Gonzalez's 

mother during his direct testimony, but expressly stated Valentine was present 

at the Peabody home on cross-examination. That question was fair game by the 

prosecutor. Nonetheless, we discern no inconsistency between defendant's 

testimony and his alibi notice that would warrant the prosecutor to elicit the date 

on which defendant signed the notice. 

Nor are we convinced by the State's contention that the prosecutor's 

comment in summation about the timing of defendant's alibi notice sought to 

explain why the police report did not reflect that defendant was sweating 

profusely and out of breath when he entered the Franklin home. Notably, the 

prosecutor did not ask the detective why those details were omitted from his 

report. In our view, the timing of defendant's alibi had no bearing upon the 

detective's report. Stated another way, whether police believe a defendant will 

later assert an alibi defense should not impact the officer's report of the crime. 

Accordingly, there is no doubt that the prosecutor's cross-examination of 
14 A-1872-18

defendant and closing remarks about the timing of defendant's alibi notice 

violated the proscription we enunciated in Noble.

Despite having reached that conclusion, however, we are satisfied that the 

prosecutor's errors do not warrant reversal of defendant's convictions. As stated, 

defense counsel did not object at the time the prosecutor questioned defendant 

or made the comment in summation. Although the question and remark clearly 

were improper, they nevertheless were fleeting and not capable of bringing 

about an unjust result. Crucially, "the prosecutor never argued that defendant's 

alibi was untrue because he waited so long to furnish it." Noble, 398 N.J. Super. 

at 591. 

Moreover, the trial court properly instructed the jury pursuant to the model 

charge for alibi that it may not consider defendant's testimony about when he 

"first came forward," reinforcing defendant "had no duty to speak on the subject 

with anyone." We presume the jury followed that instruction. State v. Smith, 

212 N.J. 365, 409 (2012). We therefore conclude the errors did not have the 

capacity to compromise the integrity of the trial. See State v. Elkwisni, 190 N.J. 

169, 181 (2007). 

We turn to the remainder of the prosecutor's closing remarks that 

defendant now claims were prejudicial. Defendant contends the prosecutor 
15 A-1872-18

improperly urged the jury "to question the absence of testimony from [his] 

girlfriend and her mother." He further argues the prosecutor "deliberate[ly] 

attempt[ed] to inflame [the] jurors against defendant" by commenting that his 

alibi witnesses were at work, where they would likely be if they had not 

"received a notice from the court to be here." And defendant claims the 

prosecutor's remark that "the defense was 'positively absurd' also had no basis 

in admissible evidence." 

Defendant did not object to the comments now challenged, "suggest[ing] 

that defense counsel did not believe the remarks were prejudicial at the time 

they were made." State v. Frost, 158 N.J. 76, 84 (1999); see also State v. 

Pressley, 232 N.J. 587, 594 (2018). "The failure to object also deprive[d] the 

court of an opportunity to take curative action." Frost, 158 N.J. at 84. 

"Generally, if no objection was made to the improper remarks, the remarks will 

not be deemed prejudicial." State v. R.B., 183 N.J. 308, 333 (2005) (citation 

omitted). 

Moreover, New Jersey courts have long recognized prosecutors "are 

afforded considerable leeway in making opening statements and summations." 

State v. Williams, 113 N.J. 393, 447 (1988). They may even do so "graphically 

and forcefully." State v. Pratt, 226 N.J. Super. 307, 323 (App. Div. 1988). 
16 A-1872-18

"Prosecutors can sum up cases with force and vigor, and are afforded 

considerable leeway so long as their comments are 'reasonably related to the 

scope of the evidence presented.'" Pressley, 232 N.J. at 593 (quoting State v. 

Timmendequas, 161 N.J. 515, 587 (1999)). "[I]f a prosecutor's arguments are 

based on the facts of the case and reasonable inferences therefrom, what is said 

in discussing them, 'by way of comment, denunciation or appeal, will afford no 

ground for reversal.'" State v. Smith, 167 N.J. 158, 178 (2001) (quoting State 

v. Johnson, 31 N.J. 489, 510 (1960)). 

Nonetheless, "the primary duty of a prosecutor is not to obtain convictions 

but to see that justice is done." Smith, 212 N.J. at 402-03. A prosecutor's "duty 

is to prove the State's case based on the evidence and not to play on the passions 

of the jury or trigger emotional flashpoints, deflecting attention from the hard 

facts on which the State's case must rise or fall." State v. Blakney, 189 N.J. 88, 

96 (2006). "A prosecutor must 'conscientiously and ethically undertak[e] the 

difficult task of maintaining the precarious balance between promoting justice 

and achieving a conviction,' ensuring that at all times his or her 'remarks and 

actions [are] consistent with his or her duty to ensure that justice is achieved.'" 

State v. Jackson, 211 N.J. 394, 408 (2012) (alterations in original) (quoting 

Williams, 113 N.J. at 447-48). 
17 A-1872-18

Even if the prosecutor exceeds the bounds of proper conduct, that finding 

does not end our inquiry "because, in order to justify reversal, the misconduct 

must have been 'so egregious that it deprived the defendant of a fair trial.'" 

Smith, 167 N.J. at 181 (quoting Frost, 158 N.J. at 83). "To justify reversal, the 

prosecutor's conduct must have been clearly and unmistakably improper, and 

must have substantially prejudiced defendant's fundamental right to have a jury 

fairly evaluate the merits of his defense." Timmendequas, 161 N.J. at 575 

(internal quotation marks omitted); see also State v. Nelson, 173 N.J. 417, 460 

(2002). 

Prior to summations in the present case, the prosecutor properly advised 

defense counsel and the court of his intention to comment that defendant failed 

to produce the two witnesses named in his alibi notice and refrained from 

seeking a Clawans adverse inference charge. See State v. Hill, 199 N.J. 545, 

560-61 (2009) (generally disapproving of the use of a Clawans instruction 

against defendants in a criminal trial but recognizing "[t]he procedure of prior 

notification is . . . required whenever a party wishes to mention the inference 

during closing argument"). Defense counsel raised no objection and we discern 

no error in the prosecutor's comments on the absence of the alibi witnesses at 

trial.
18 A-1872-18

Defendant's newly-minted objections to the prosecutor's remaining 

comments require little comment. "It is well settled that prosecutors are not 

permitted to cast unjustified aspersions on the defense or defense counsel." 

State v. Rodriguez, 365 N.J. Super. 38, 50 (App. Div. 2003); see also Frost, 158 

N.J. at 86. In context, however, the prosecutor's comment that defendant's 

version of events was "positively absurd," while perhaps better avoided, was not 

egregious or unfair and did not have the capacity to bring about a result the jury 

might not otherwise have reached. See Timmendequas, 161 N.J. at 589-90. 

After making the remark, the prosecutor commented on defendant's failure 

to call Gonzalez and Valentine, defendant's relationship with Hoger and the 

unreliability of defendant's statements that he had not discussed this matter with 

Hoger while they were locked up on the charges at police headquarters. The 

prosecutor then discussed the reliability of the detectives' identifications in view 

of the court's ensuing instructions. To the extent the prosecutor's fleeting remark 

could be viewed as improper, we conclude it does not rise to plain error. See R.

2:10-2. 

Finally, the prosecutor's remark that the alibi witnesses did not testify 

because they were working, while the jurors were noticed to appear for the trial 

and unable to attend work, should have been avoided. That analogy could have 
19 A-1872-18

been construed as an appeal to the juror's emotions rather than a comment on 

the evidence or lack thereof. However, having reviewed the prosecutor's 

comments "within the context of the trial as a whole," State v. Feaster, 156 N.J. 

1, 64 (1998), we decline to find reversable error. 

We therefore determine none of the assistant prosecutor's remarks warrant 

reversal because, individually or cumulatively, they were not so egregious to 

substantially prejudice defendant's right to a fair trial. Timmendequas, 161 N.J. 

at 575. To the extent not specifically addressed, defendant's remaining 

contentions lack sufficient merit to warrant discussion in a written opinion. R.

2:11-3(e)(2).

B.

Pertinent to the issues raised in point II, prior to closing arguments, the 

trial court amended the indictment based upon the evidence adduced a trial. The 

court amended count seventeen (renumbered as count three for trial) from thirddegree unlawful possession of a weapon, N.J.S.A. 2C:39-5(c)(1), as charged, to 

N.J.S.A. 2C:39-5(d), a fourth-degree offense; and count eighteen (renumbered 

as count four for trial), second-degree possession of a weapon for an unlawful 

purpose, N.J.S.A. 2C:39-4(a), as charged, to N.J.S.A. 2C:39-4(d), a third-degree 

offense. At sentencing, however, the court imposed an eight-year term of 
20 A-1872-18

imprisonment, with a four-year term of parole ineligibility under the Graves Act, 

N.J.S.A. 2C:43-6(c), on count seventeen. After ordering appropriate mergers, 

the court imposed a consecutive sentence on that conviction, without conducting 

an analysis under the factors established by our Supreme Court in Yarbough, 

100 N.J. at 643-44. 

We agree with defendant's contentions that the trial judge incorrectly: 

imposed sentence on count seventeen within the second-degree range, N.J.S.A. 

2C:43-6(a)(2) (fixing the term of imprisonment "between five years and [ten] 

years"); and failed to conduct a Yarbough analysis. We therefore vacate 

defendant's sentence on the unlawful possession of a weapon conviction, 

charged in count seventeen only. On remand the court shall impose sentence on 

that conviction within the fourth-degree range, N.J.S.A. 2C:43-6(a)(4) 

(requiring "a specific term" that "shall not exceed [eighteen] months"). The 

court also shall apply the Yarbough factors in deciding whether to impose to a 

consecutive sentence on that count. 

We disagree, however, with defendant's assertion that the trial court 

incorrectly determined the Graves Act applies to defendant's unlawful 

possession of a BB gun conviction under the circumstances presented here. See

N.J.S.A. 2C:43-6(c) (mandating the Graves Act disqualifier where the defendant 
21 A-1872-18

"while in the course of committing" a robbery "used . . . a firearm" as defined in 

N.J.S.A. 2C:39-1(f)). As we recognized in State v. Austin, a BB gun is a firearm 

within the definition of N.J.S.A. 2C: 39-1(f). 335 N.J. Super. 486, 494 (App. 

Div. 2000). We therefore conclude the court correctly determined the Graves 

Act applies here. 

Affirmed in part; vacated and remanded in part. We do not retain 

jurisdiction.