dissenting.
By reframing the question and selectively applying our prior precedent on the Graves Act, N.J.S.A 2C:43-6c, the majority reverses the judgment of the Appellate Division. It holds that a judge, not a jury, may determine whether a defendant possessed a weapon for the purpose of using it against the person of another. In doing so, it disapproves long-standing precedent that has served to advance the efficient administration of the Graves Act. *74The result of the Court’s reasoning -will be more work for lawyers and judges and less efficient administration of the Graves Act.
I
The Question Presented
The question that the majority asks is whether a conviction of N.J.S.A. 2C:39-4a (possession of a weapon for an unlawful purpose) may be based on either the intent to injure the person or the property of another. The answer to that question is simple. It may be either. Hence, the majority reasons that the intent to injure the person of another is not an essential element of the offense.
That, however, is not the question in this case. The question in this case is how, in the language of the Graves Act, is one “convicted under 2C:39-4a of possession of a firearm with intent to use it against the person of another.” By its framing of the issue, the majority avoids this central point in the case. That point is that the Graves Act, in setting forth the criteria for its applicability, creates a symmetry between N.J.S.A. 2C:39-4a and the other nine crimes, conviction of which brings the Graves Act into play. That symmetry is created by the first sentence of N.J.S.A. 2C:43-6(a). That sentence provides that a minimum jail term will be imposed on
(a) a person who has been convicted under 2C:39-4a of possession of a firearm with intent to use it against the person of another or of a crime under any of [nine enumerated criminal statutes] while in the course of committing or attempting to commit the crime, including the immediate flight therefrom, used or was in possession of a firearm.
[N.J.S.A. 2C:43-dc (emphasis added).]
The reason for the distinct treatment of 2C:39-4a is to harmonize it with the nine other predicate offenses for Graves Act sentencing so that each essentially involves the common feature of a crime against a person. In order to convict a defendant under 2C:39-4a, a jury must conclude that a defendant possessed a weapon, but a jury need not consider the use or possession of a *75weapon or firearm in order to convict under any of the other nine crimes (murder, manslaughter, aggravated assault, kidnapping, aggravated sexual assault, aggravated criminal sexual contact, robbery, burglary, or escape) that bring the Graves Act into play. Although burglary and escape are not always crimes against the person, the attendant danger to persons is surely the wellspring of concern for Graves Act sentencing.
To repeat, the question is not whether one must commit a crime against a person in order to be convicted under N.J.S.A 2C:39-4a. Rather, the question is how is one “convicted” of a crime against the person of another. Our State and Federal Constitutions guarantee criminal defendants the right to have juries decide whether those defendants deserve to be convicted. U.S. Const. amend. VI; N.J. Const, art. 1, para. 10. The majority should not waste the Appellate Division’s efforts, both in this case and in State v. Latimore, 197 N.J.Super. 197, 221, 484 A.2d 702 (1984), to uphold those rights.
II
The Precedent Involved
Because a jury would ordinarily not have to resolve possession or use of a firearm in convicting a defendant of one of the other nine enumerated offenses, the Court held in State v. Stewart, 96 N.J. 596, 477 A.2d 300 (1984), that N.J.S.A 2C:43-6e permits sentencing courts to determine whether a defendant used or possessed a weapon while committing one of those nine crimes. Stewart involved a robbery prosecution. As noted above, robbery is a predicate to the Graves Act. It is one of the predicate crimes that does not necessarily involve the possession of a gun but most often does involve a person as a victim. N.J.S.A 2C:15-1. Robert Stewart argued that because a jury had acquitted him of armed robbery and weapons charges and only convicted him of unarmed robbery, it would be fundamentally unfair to allow the sentencing court to decide the Graves Act issue of whether Stewart used or possessed a firearm in the course of the robbery. *76Stewart, supra, 96 N.J. at 605, 477 A.2d 300. We rejected his argument. We interpreted N.J.S.A. 2C:43-6d as placing in the trial judge’s hands the determination of whether a defendant used or possessed a weapon while committing one of the nine person-threatening crimes. Stewart, supra, 96 N.J. at 605-06, 477 A.2d 300. We did not give the trial judge the power to determine whether a defendant threatened a person.
Nor does State v. White, 98 N.J. 122, 484 A.2d 691 (1984), lend any support to the majority’s position. That case extended Graves Act sentencing to accomplices who have constructive knowledge that their co-felons will use or possess a firearm. Id. at 131, 484 A.2d 691. The Court emphasized that the defendant did not dispute that “he was properly found guilty of armed robbery upon the State’s proofs that he knew, and indeed planned, that each of the robberies would be effected with the use of the handgun.” Id. at 132, 484 A.2d 691. In short, while the White Court allowed the sentencing judge to determine whether the defendant constructively possessed a gun for Graves Act purposes, the' enumerated predicate offense was established by the conviction.
State v. Des Marets, 92 N.J. 62, 455 A.2d 1074 (1983), is also unhelpful to the majority. Robert Des Marets pled guilty to two charges of burglary. Because he had stolen two handguns in the course of one of the burglaries, the sentencing court read the Graves Act to mandate a minimum three-year term of imprisonment. Des Marets contended that the Graves Act should not apply because he never demonstrated any intent to use either of the firearms. The Court undertook a straightforward reading of N.J.S.A. 2C:43-6c and held that intent to use a firearm was not a prerequisite to Graves Act applicability. Mere possession of a firearm would trigger the minimum sentence provisions. Des Marets, supra, 92 N.J. at 68-69, 455 A.2d 1074. However, the statute just as clearly states that mere possession of a gun will not trigger the Graves Act for a defendant convicted under N.J.S.A. 2C:39-4a. The statute states that such defendants must be con*77victed of having an intent to use their firearm against a person. The Des Marets Court did not say that a sentencing judge could determine whether a defendant had that intent. In fact, Des Marets explicitly emphasized that the express inclusion of a requirement of intent to use the firearm against the person of another in N.J.S.A 2C:39-4a argued against that as a jury requirement in the case of the nine other enumerated offenses. 92 N.J at 69, 455 A.2d 1074.
To repeat, the use or possession of a gun that triggers a Graves Act sentence is often not an essential element of the offense for which a Graves Act sentence may be imposed. For example, one may commit a rape with or without a gun; one may commit a robbery with or without a gun. Sometimes the sentencing court has to decide whether the weapon brandished was in fact a real gun and not a toy. Only if the actor uses a real gun will the Graves Act minimum eligibility term be imposed. State v. Gantt, 101 N.J. 573, 584, 503 A.2d 849 (1986). But whether the gun is real or not is irrelevant to whether the actor may have committed first-degree robbery. In such a setting, there is no real potential for a conflict between a jury verdict and the sentencing decision because a jury considering a robbery prosecution need not even consider the defendant’s choice of weapon. In prosecutions under N.J.S.A 2C:39-4a, however, the potential for conflict exists. A jury may convict a defendant under that statute based on an intent to fire at the victim’s TV set. At a sentencing hearing, a judge under today’s ruling may then convict the same defendant of intending to shoot the victim.
Ill
The Need for a Special Verdict Form in Such Cases
Because only a jury and not a judge may convict a defendant of an offense when a jury trial has been demanded, I disagree with the disapproval of the special verdict form approved for use in State v. Latimore, 197 N.J.Super. 197, 484 A.2d 702 (App.Div. 1984). The majority criticizes the Latimore opinion for ignoring *78this Court’s decision in Stewart. The criticism is misplaced. Stewart never held that a court may convict of the offense that is predicate to a Graves Act sentence. Latimore involved a prosecution under N.J.S.A. 2C:39-4a whereas Stewart involved a prosecution' for robbery, one of the nine other crimes enumerated in the Graves Act. The Latimore court did not follow Stewart because, unlike the majority, it recognized the distinction under the Graves Act between N.J.S.A. 2C:39-4a and the other nine enumerated crimes.
Although it is true that a conviction under 2C:39-4a for possession of a weapon with intent to use it unlawfully may be obtained without specifying whether the defendant intended to use the weapon against the person or property of another, it does not follow that the defendant does not have a right to request that the jury specify for what purpose the weapon was used. A jury need not always agree unanimously on every fact that establishes the essential elements of an offense. See State v. Parker, 124 N.J. 628, 633-35, 592 A.2d 228 (1991). When, however, there is a possibility of a patchwork verdict because some jurors may believe the defendant guilty on one basis and others on another, a jury may be required to specify its findings. Id. at 637, 592 A.2d 228. Our law has long required that “a jury instruction on a charge of gun possession for unlawful purpose must include an identification [by the court] of such unlawful purposes as may be suggested by the evidence.” State v. Jenkins, 234 N.J.Super. 311, 316, 560 A.2d 1240 (App.Div.1989). Thus, the Model Jury Charge currently in use requires the court to set forth the State’s contention concerning the defendant’s unlawful purpose in possessing the firearm. Model Jury Charges (Criminal) § 2C:39-4a, Possession of a Firearm with a Purpose to Use It Unlawfully Against the Person or Property of Another (Mar. 30, 1993). If a hypothetical defendant were charged with having possessed a gun for the purpose of shooting Smith’s car and threatening to shoot Jones, it is inescapable to me that a court may not refuse to have the jury indicate for which of the two purposes (or both) it found the defendant had unlawfully possessed the gun.
*79Writing for the Court in State v. Diaz, 144 N.J. 628, 677 A.2d 1120 (1996), Justice Coleman recently “reaffirm[ed] the propriety of using the type of written special verdict sheets recommended in State v. McAllister [211 N.J.Super. 355, 365-67, 511 A.2d 1216 (App.Div.1986) ].” The special verdict sheet in McAllister specifically referred to “possession of a weapon with the purpose of using it unlawfully against a person.” 211 N.J.Super. at 365, 511 A.2d 1216 (emphasis added). Hence, although the majority seems to believe that its decision will simplify things, the decision will likely result in more work for lawyers and judges, and more trials rather than fewer in most instances. Competent counsel will not permit patchwork verdicts in cases in which the conviction predicate to a Graves Act sentence is in doubt.
As an aside, this conviction is quite sustainable on the basis that the defendant waived his right to trial by jury. If he insists on repleading, the State should be free to reinstate the aggravated assault counts. I doubt the defendant really wants that.
Justice POLLOCK joins in this opinion.
For reversal — Chief Justice PORITZ and Justices HANDLER, GARIBALDI, STEIN and COLEMAN — 5.
Dissenting — Justices O’HERN and POLLOCK — 2.