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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 1, 2001

The assault firearms statute, L. 1990, c. 32, requires the imposition of a ten year period of parole ineligibility upon any person convicted of possession of an “assault firearm with the intent to use it against the person of another.” N.J.S.A. 2C:43- 6g. The statute defines “assault firearm” to include not only any one of thirty-six specifically enumerated firearms and types of firearms, N.J.S.A. 2C:39-1w(1), but also any other firearm that is “substantially identical” to one of the enumerated firearms, N.J.S.A. 2C:39-1w(2). Defendant argues that the inclusion within the definition of “assault firearm” of any firearm that is “substantially identical” to a specifically enumerated firearm or type of firearm is unconstitutionally vague. Alternatively, defendant argues that the determination of whether a firearm used in the commission of an offense is substantially identical to an enumerated firearm must be made by a jury beyond a reasonable doubt. We reject defendant’s claim that the definition of “assault firearm” is unconstitutionally vague. However, we conclude that a factual determination as to whether a particular firearm is “substantially identical” to an enumerated firearm or type of firearm must be made by a jury under the beyond a reasonable doubt standard of proof. Accordingly, we vacate defendant’s judgment of conviction and remand the case to the trial court.

 
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