dissenting.
We dissent substantially for the reasons set forth in the Appellate Division opinion.
As the majority notes, the Legislature has clarified the definition of a “deadly weapon” in N.J.S.A. 2C:ll-l(c) expressly to include a simulated weapon. L. 1981, c. 384, eff. Jan. 4, 1982. Under the current language, there is no doubt that defendant could be convicted of first degree robbery. The majority concludes that this change represents a broadening of the statutory definition. On the contrary, we believe that the Legislature never intended to restrict first degree robbery to crimes committed with a real gun. The current provision is entirely consistent with the pre-Code definition of a deadly weapon in N.J.S.A. *2332A:151-5 (repealed Sept. 1, 1979). The two-and-a-half year interval is sufficiently short to permit the conclusion that the Legislature never intended N.J.S.A. 2C:15-1 and N.J.S.A. 2C:ll-l(c) to change the statutory criteria for first degree robbery. Rather, the quick amendment of NJ.S.A. 2C:ll-l(c) demonstrates that no “clean break” with the past ever occurred. Ante at 226.
The majority’s reliance on the Model Penal Code and the New York Penal Code is equally unavailing. The New Jersey provision defining grades of robbery, N.J.S.A. 2C:15-l(b), contains aggravating circumstances not included in the Model Penal Code § 222.1(2) (Official Draft 1962). While the Model Penal Code defines first degree robbery only in terms of attempts to kill or injure, the New Jersey drafters also made it a first degree crime to threaten the immediate use of a deadly weapon. N.J.S.A. 2C:15-l(b). Similarly, the New York Penal Code § 160.15 specifically excludes from first degree robbery crimes committed with a weapon which could not in fact kill or seriously injure. This exclusion is not present in New Jersey law. The affirmative defense in the New York law that the gun was simulated was not adopted in the New Jersey provision.
Finally, it is simply not true that a robbery committed with a simulated weapon is necessarily less serious than one committed with an actual gun. The victim experiences as much fear whether or not a deadly weapon is used, and either way the robbery is as likely to provoke a violent response.
We would affirm the judgment of the Appellate Division.
For reversal and remandment—Chief Justice WILENTZ and Justices CLIFFORD, SCHREIBER, HANDLER and POLLOCK —5.
For affirmance —Justices PASHMAN and O’HERN—2.