concurring, in part and dissenting, in part.
The Court today holds that the No Early Release Act (“NERA”), N.J.S.A. 2C:43-7.2, should not be applied to defendant. The Court cites two reasons. First, the manner in which the Court accepted defendant’s plea did not satisfy State v. Kovack, 91 N.J. 476, 453 A.2d 521 (1982) and his sentence may not now be able to be increased. Second, defendant’s driving of a stolen ear to elude police did not constitute use of a “deadly weapon” triggering application of NERA.
I agree with the first reason and therefore join in the disposition of the Court. I disagree as to the second reason.
In enacting NERA, the Legislature sought to require longer sentences for criminals whose actions caused death or serious bodily injury or who used in the commission of their crime a deadly weapon capable of causing death or serious bodily injury. Either circumstance qualifies for NERA to be applicable. NERA defines “violent crime” as “... any crime in which the actor causes death, causes serious bodily injury ... or uses or threatens the immediate use of a deadly weapon” (emphasis added). Id. subsection d. The term “deadly weapon” is defined as “... any *23firearm or other weapon, device, instrument, material or substance, whether animate or inanimate, which in the manner it is used or is intended to be used, is known to be capable of producing death or serious bodily injury.” Ibid, (emphasis added).
Here defendant was driving a stolen car when police attempted to stop him. The sentencing hearing reveals that defendant drove the stolen car indiscriminately through Newark, in excess of the lawful speed limit, to elude the police. He recklessly sped through the streets and intersections of heavily populated areas of Newark, running stop signs, running a red light and colliding with another car in an intersection. Fortunately, the operator of the second vehicle escaped serious injury.
The majority concedes that reckless behavior is sufficient to support the imposition of NERA’s extended period of parole ineligibility if the conduct of the criminal defendant actually causes death or serious bodily injury, citing State v. Newman, 325 N.J.Super. 556, 740 A.2d 153 (App.Div.1999), certif. den. 163 N.J. 396, 749 A.2d 370 (2000) and State v. Ferencsik, 326 N.J.Super. 228, 741 A.2d 101 (App.Div.1999), but not if injury is fortuitously avoided. I disagree. I read the statute as requiring NERA to apply if defendant “uses” a “deadly weapon” even if death or serious bodily injury does not result.
It is clear to me that the automobile used by defendant here, in the manner in which it was used, constituted a “deadly weapon” within the meaning of NERA. NERA’s definition of “deadly weapon” specifically includes an instrument which, in the manner it is used, is known to be capable of producing death or serious bodily injury. A speeding car, driven recklessly in heavily populated areas of an urban center in New Jersey, by someone ignoring traffic controls such as stop signs and a red traffic light, is an object capable of producing death or serious bodily injury. And, the defendant actually did hit another car, with a person in it. His conduct easily meets the “contextual” analysis urged by the majority. He did everything within his ability to seriously *24hurt someone. By good fortune, this defendant was not successful in causing death or serious bodily injury. But, the manner in which he used that stolen car made it capable of producing such consequences, and but for good fortune would have been successful in producing serious harm. For that, a defendant in circumstances such as presented here should be subject to NERA. State v. Colon, 186 N.J. Super. 355, 452 A.2d 700 (App.Div.1982) is wholly inapposite. This was not a man whose purpose was about “peeling potatoes.”
In a related context the Legislature has recognized the heightened criminality of using a stolen car to elude police while placing others at risk of death or injury. In 1993, the Legislature elevated the offense of eluding, if it created a risk of injury or death, to a second degree crime. N.J.S.A. 2C:29-2b. The Legislature added a presumption in favor of jail time for all second degree eluding offenses, even if a first time offender was involved. Upon signing the bill enacting chapter 219 of the Laws of 1993, Governor Florio noted:
This bill puts the brakes on a frightening and dangerous act. Suspects who lead police on high speed chases put everyone around them at risk of injury or death. Now, they’ll face mandatory sentences for turning a motor vehicle into a deadly weapon.
I would find that the manner in which defendant used a stolen vehicle to elude police through the streets of Newark constituted use of a “deadly weapon” within the meaning of NERA and therefore would hold NERA to be applicable.
The Chief Justice joins in this opinion.
For affirmance — Justices O’HERN, STEIN, COLEMAN and LONG — 4.
Concur in part; dissent in part — Chief Justice PORITZ and Justice LaVECCHIA — 2.