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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 30, 2001

State v. Johnson, 166 N.J. 523 (2001), held that a jury must decide, by proof beyond a reasonable doubt, factors which relate to a mandatory parole ineligibility term under the No Early Release Act (“NERA”). In this case we must decide the application of Johnson to the Graves Act, N.J.S.A. 2C:43-6c.*fn1 Johnson’s holding was a matter of statutory interpretation, based on concerns flowing from Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 455 (2000), which held that a jury must decide sentencing factors, other than the fact of prior convictions, when a sentence maximum can be enhanced. Apprendi did not overrule McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986), which upheld a judge-imposed parole disqualifier like those required by NERA and the Graves Act. Given our Supreme Court holdings construing and upholding the constitutionality of the Graves Act, including our Supreme Court’s references to those Graves Act cases in its Apprendi opinion, we affirm this conviction. However, as we hereinafter develop, we urge trial judges to try all Graves Act cases as if Johnson applied until the Supreme Court reviews the issue.

 
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