State v. James Grate State v. Fuquan Cromwell (072750) ( 2015 )

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. James Grate; State of New Jersey v. Fuquan Cromwell (A-47/48-13) (072750)
Argued October 21, 2014 -- Decided January 15, 2015
SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers (1) whether the “knowingly” mens rea requirement of N.J.S.A. 2C:39-
5(e)(1) applies to both the possession of the firearm and the defendant’s presence at an educational institution; (2)
the constitutionality of N.J.S.A. 2C:39-5(i)’s mandatory minimum sentence in light of in Alleyne v. United States,
___ U.S. ___, 133 S. Ct. 2151 (2013); and (3) the propriety of a defendant’s sentence.
Defendants Fuquan Cromwell and James Grate were stopped by police officers on the campus of Drew
University during the attempted robbery of an acquaintance. Defendants were charged with various offenses,
including second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree unlawful
possession of a weapon at an educational institution, N.J.S.A. 2C:39-5(e)(1). With regard to the latter, the trial
judge instructed the jury that the State must prove “the defendant possessed the firearm in or upon the buildings or
grounds of any school, college, university, or other educational institution.” The judge did not ask the jury to decide
whether defendants were aware that they were on the property of an educational institution. The jury found
defendants guilty of second-degree unlawful possession of a weapon and third-degree unlawful possession of a
weapon at an educational institution, and acquitted them of the remaining charges.
At the sentencing hearing, Corporal Edwin Santana testified that defendants admitted they were members
of a local chapter of the Crips street gang and that both defendants had tattoos denoting their membership. The
judge found that aggravating factors five, a substantial likelihood that defendants were involved in organized
criminal activity, N.J.S.A. 2C:44-1(a)(5), three, the risk defendant will commit another offense, N.J.S.A. 2C:44-
1(a)(3), and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), applied to both defendants; that aggravating factor
six, the extent of the defendant’s prior criminal record, N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell; and that
no mitigating factors applied. After merging the possession convictions, the court sentenced Grate and Cromwell to
eight and nine years in prison, respectively. The court also ordered mandatory five-year parole disqualifiers under
N.J.S.A. 2C:39-5(i), finding it substantially likely that defendants were involved in organized criminal activity.
On appeal, defendants contended, among other things, that the jury charge for unlawful possession of a
weapon at an educational institution improperly failed to instruct the jury that the “knowingly” mens rea
requirement applied to the locational element of the crime. The Appellate Division rejected defendants’ arguments
and affirmed their convictions and sentences. The Court entered limited grants of certification. State v. Cromwell,
216 N.J. 361 (2013); State v. Grate, 216 N.J. 362 (2013).
HELD: (1) In order to prove a violation of N.J.S.A. 2C:39-5(e)(1), the State must prove beyond a reasonable doubt
both that a defendant knowingly possessed a firearm and that he or she did so while knowingly on the property of an
educational institution; (2) because the mandatory minimum sentence under N.J.S.A. 2C:39-5(i) is based on a
judicial finding of fact, rather than a finding by the jury, it is unconstitutional under Alleyne; and (3) Grate’s
sentence was not excessive because the trial court’s analysis of the aggravating and mitigating factors was supported
by the record.
1. N.J.S.A. 2C:39-5(e)(1) states, in relevant part, that “[a]ny person who knowingly has in his possession any
firearm in or upon any part of the buildings or grounds of any school, college, university or other educational
institution without the written authorization of the governing officer of the institution, is guilty of a crime of the
third degree.” Whether the culpability requirement of “knowingly” applies to the locational element of N.J.S.A.
2C:39-5(e)(1) is a question of statutory interpretation. As such, the Court attempts to discern and implement the
Legislature’s intent by first looking at the statute’s plain language and, if that language if ambiguous, by looking to
1
extrinsic sources. The Code prescribes rules for the “[c]onstruction of statutes with respect to culpability
requirements.” N.J.S.A. 2C:2-2(c). N.J.S.A. 2C:2-2(c)(1) applies to statutes that provide a culpability requirement
as to one but not all elements of the offense. N.J.S.A. 2C:2-2(c)(1) requires that such statutes be interpreted to apply
the stated culpability requirement to every material element of the offense if the offense does not distinguish among
them, and “unless a contrary purpose plainly appears.” Because N.J.S.A. 2C:39-5(e)(1) criminalizes even otherwise
lawful possession of a weapon if a defendant possesses the weapon at an educational institution, the locational
element is “material.” In addition, the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication that the
“possession” element has been distinguished from the “location” element. Both elements are contained within the
same clause, preceded by the adverb “knowingly.” Finally, no contrary purpose to applying the knowing
requirement to both material elements is plainly indicated. As a result, N.J.S.A. 2C:39-5(e)(1)’s knowing
requirement applies to both possession of a firearm and being at an educational institution. (pp. 13-16)
2. The Court rejects that the Legislature intended a defendant to be strictly liable for the locational element based on
the “essentially regulatory nature” of our gun control laws. Although the Court has described Chapter 39 sections
39-3 and 39-5 as containing “essentially regulatory offenses,” in doing so it explained that “they prohibit possession
of firearms and other weapons without regard to the individual's intent or purpose in possessing them.” State v.
Harmon, 104 N.J. 189, 197 (1986). Because N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A. 2C:2-2(c)(1),
requires only that the State prove defendants knowingly possessed the weapon while knowingly at an educational
institution, defendants’ intent or purpose in possessing the gun is not at issue here. The regulatory nature of the
offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of construction, nor does it alleviate the State of its burden to
prove defendants acted with the requisite culpability as to each element of the offense. In addition, State v. Smith,
197 N.J. 325 (2009), does not affect the Court’s interpretation of N.J.S.A. 2C:39-5(e)(1). In Smith, the Court
interpreted a different criminal statute and, based on statutory phrasing materially different than that found in
N.J.S.A. 2C:39-5(e)(1), held that the State did not have to prove that the defendant knew that the firearm he
possessed had been defaced. Id. at 326-27, 331-32. Because the State was required to prove that defendants were
knowingly at an educational facility in order to obtain a conviction under N.J.S.A. 2C:39-5(e)(1), the jury
instructions with respect to defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) warrant reversal, and the Court
vacates those convictions and remands for resentencing on the unlawful possession charges. (pp. 16-19)
3. N.J.S.A. 2C:39-5(i) requires the sentencing court to impose a period of parole ineligibility “if the court finds” a
substantial likelihood that the defendant is involved in organized criminal activity. Alleyne held that “any fact that
increases the mandatory minimum sentence is an ‘element’ that must be submitted to the jury” to be found beyond a
reasonable doubt. 133 S. Ct. at 2156. Alleyne therefore renders the imposition of a mandatory minimum sentence
under N.J.S.A. 2C:39-5(i) unconstitutional. The Court acknowledges that, “[i]n appropriate cases, a court has the
power to engage in judicial surgery or the narrow construction of a statute to free it from constitutional doubt or
defect.” State v. Fortin, 198 N.J. 619, 630 (2009) (quoting N.J. State Chamber of Commerce v. N.J. Election Law
Enforcement Comm’n, 82 N.J. 57, 75 (1980)) (internal quotation marks omitted). However, this procedure applies
only “if we fairly can do so.” Id. at 631. Here, N.J.S.A. 2C:39-5(i) unambiguously requires the imposition of a
mandatory minimum sentence based on a judicial finding of fact. Requiring a jury rather than a judge to make such a
finding would not merely be severing a constitutionally infirm portion of the sentencing statute, it would be rewriting
its essential requirements. That determination is for the Legislature. The Court vacates defendants’ sentences and
remands for resentencing for the unlawful possession convictions, without consideration of the mandatory minimum
sentence under N.J.S.A. 2C:39-5(i) and without the empaneling of a sentencing jury. (pp. 19-23)
4. Grate claims that his sentence was excessive. An appellate court reviews the trial court’s sentencing
determination under a deferential standard of review and is bound to affirm the sentence as long as the trial court
properly identifies and balances aggravating and mitigating factors that are supported by competent credible
evidence in the record. The trial court’s findings that aggravating factors three, five, and nine applied, and no
migrating factors applied, were amply supported by the record. Although a judicial finding of aggravating factor
five cannot be the basis of a mandatory minimum sentence, the sentencing court may nevertheless consider that
factor when deciding what sentence to impose within the statutory range. With the exception of the mandatory
minimum sentence imposed pursuant to N.J.S.A. 2C:39-5(i), the Court affirms Grate’s sentence. (pp. 23-26)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED for a new trial on the charge of unlawful possession of a weapon at an educational facility
and for resentencing consistent with the Court’s opinion.
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CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
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SUPREME COURT OF NEW JERSEY
A-47/48 September Term 2013
072750
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES GRATE,
Defendant-Appellant.
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FUQUAN CROMWELL, (a/k/a
FUGUAN CROMWELL, FUQUAN A.
CROMWELL, SAMAAD CROMWELL,
SAMAD CROMWELL, SAMAAD
LATHER, SAMADD N. J.L.,
SAMAAD N. LATHER),
Defendant-Appellant.
Argued October 21, 2014 – Decided January 15, 2015
On certification to the Superior Court,
Appellate Division.
Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
Fuquan Cromwell (Joseph E. Krakora, Public
Defender, attorney).
Al Glimis, Assistant Deputy Public Defender,
argued the cause for appellant James Grate
(Joseph E. Krakora, Public Defender,
attorney; Mr. Glimis and Kevin G. Byrnes,
Designated Counsel, on the briefs).
1
John K. McNamara, Jr., Assistant
Prosecutor/Special Deputy Attorney General,
argued the cause for respondent (Fredric M.
Knapp, Morris County Prosecutor, attorney;
Mr. McNamara and Erin Smith Wisloff,
Assistant Prosecutor/Special Deputy Attorney
General, on the brief).
Jeffrey S. Mandel argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Cutolo
Mandel, attorneys; Mr. Mandel and Andrew
Stein, on the brief).
Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney).
Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).
JUSTICE SOLOMON delivered the opinion of the Court.
Following an attempted robbery of an acquaintance,
defendants Fuquan Cromwell and James Grate were stopped by
police officers on the campus of Drew University. The officers
discovered a gun under the driver’s seat of the acquaintance’s
car within reach of defendants. Defendants were arrested and
charged in a twelve-count indictment with various offenses,
including second-degree unlawful possession of a weapon and
third-degree unlawful possession of a weapon at an educational
institution.
2
Defendants were tried jointly. The trial court in its
charge to the jury did not state that to find defendants guilty
of unlawful possession of a weapon at an educational facility,
N.J.S.A. 2C:39-5(e)(1), it must find defendants knew they were
at an educational facility. The jury convicted defendants of
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b), and third-degree unlawful possession of a weapon at an
educational institution, N.J.S.A. 2C:39-5(e)(1). Cromwell, who
had a prior felony conviction, was also convicted under N.J.S.A.
2C:39-7(b)(1), which bars persons convicted of any of the
offenses enumerated in the statute from possessing a weapon.
At the sentencing hearing, a witness testified that
defendants were members of a local chapter of the Crips street
gang. The trial court concluded that defendants were involved
in organized criminal activity, a finding requiring the
imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-
5(i). Their convictions and sentences were affirmed on appeal,
and we granted certification to resolve three issues.
The first issue requires us to construe the culpability
requirement under N.J.S.A. 2C:39-5(e)(1), which criminalizes the
knowing possession of a weapon at an educational institution.
We hold that in order to prove a violation of N.J.S.A. 2C:39-
5(e)(1), the State must prove beyond a reasonable doubt both
that a defendant knowingly possessed a weapon and that he or she
3
did so while knowingly on the property of an educational
institution. The jury instructions here, which did not specify
that the jury was required to find defendants were knowingly at
an educational institution, were therefore flawed, and
defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) must be
vacated.
Second, we consider the constitutional validity of N.J.S.A.
2C:39-5(i) in light of the recent Supreme Court decision in
Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L.
Ed. 2d 314 (2013). The Alleyne Court held that the imposition
of a mandatory minimum sentence based upon a fact that was not
submitted to the jury for determination beyond a reasonable
doubt violates the Sixth Amendment right to a jury trial. Id.at __, 133 S. Ct. at 2155, 186 L. Ed. 2d at 321. The mandatory
minimum sentence under N.J.S.A. 2C:39-5(i) is based on a
judicial finding of fact and cannot survive constitutional
scrutiny. We therefore vacate defendants’ sentences and remand
for resentencing on the unlawful possession of a weapon
convictions.
The third issue is the propriety of Grate’s sentence.
Because we find the court’s findings were supported adequately
by evidence of record, we reject Grate’s argument that his
sentence was excessive and affirm as to the trial court’s
weighing and analysis of factors applicable to Grate’s sentence.
4
I.
A.
The following facts are derived from the testimony given at
trial. In December 2008, Cromwell, Grate, and Cromwell’s
younger brother, J.L., approached C.A. while he was refueling
his car at a gas station. Cromwell asked C.A. to give them a
ride, and because C.A. knew Cromwell, he agreed. Soon after
driving away, Cromwell asked C.A. to give them money. C.A.,
believing Cromwell was joking, ignored the requests. Cromwell
then pulled out a gun, pointed it at C.A.’s head, and told him
to “[g]et the money up.” Because C.A. had no money with him and
feared for his life, he offered to drive to Drew University to
retrieve a credit card from his girlfriend, who lived on campus.
C.A. drove to the university, passed through a security
checkpoint, and parked outside of his girlfriend’s residence
hall. Although C.A.’s girlfriend was not home at the time, her
roommate allowed C.A. and Cromwell into the room. While
searching for his girlfriend’s credit card, C.A. surreptitiously
phoned William Humphries, a New Jersey State Police Detective
with whom C.A. was familiar from a prior arrest. Detective
Humphries did not answer, but called C.A. back soon thereafter.
C.A., claiming he was speaking to his uncle, was able to tell
Detective Humphries that he was being threatened by people who
5
were demanding money from him. Eventually, C.A.’s girlfriend
arrived and gave C.A. her credit card.
C.A. and Cromwell returned to C.A.’s car, but before they
could depart, Sergeant Joseph Cirella of the Madison Police
Department arrived and ordered everyone out of the car. Before
complying, defendants and J.L. told C.A. that, “if anything
[goes] down, this is your gun. It’s our word against yours.”
They got out of the car, and Sergeant Cirella had them lie face
down on the ground. After backup officers arrived and placed
C.A. in the backseat of the police cruiser, he reported that
there was a gun inside his car.
During a brief search of C.A.’s car, the officers found a
loaded nine-millimeter handgun under the driver’s seat. All
four men were handcuffed and taken to the police station, and
C.A.’s car was impounded. Shortly thereafter, Detective
Humphries arrived and drove C.A. home.
Defendants were each indicted on charges of first-degree
kidnapping, N.J.S.A. 2C:13-1(b)(2), (11); first-degree
carjacking, N.J.S.A. 2C:15-2(a)(1), (2), (4); first-degree
robbery, N.J.S.A. 2C:15-1(a)(2); third-degree terroristic
threats, N.J.S.A. 2C:12-3(a); fourth-degree aggravated assault,
N.J.S.A. 2C:12-1(b)(4); second-degree unlawful possession of a
weapon, N.J.S.A. 2C:39-5(b); and third-degree unlawful
possession of a weapon at an educational institution, N.J.S.A.
6
2C:39-5(e)(1). Cromwell was charged separately with second-
degree certain persons not to possess weapons, N.J.S.A. 2C:39-
7(b).
At trial, it was revealed that no latent fingerprints were
found on the gun because the textured surface of the handle made
fingerprints difficult to detect. Sergeant Cirella confirmed
that the gun was found under the driver’s seat and was
accessible to anyone riding in the backseat, but was difficult
to reach from the driver’s seat.
Testifying in his own defense, Grate denied that anyone had
pulled a gun on C.A. or demanded money from him. He claimed
that Cromwell had asked C.A. to give J.L. a ride home, and that
C.A. agreed to do so after he visited his cousin at college.
Grate stated that he believed C.A. was traveling to his cousin’s
home, and that he did not realize C.A. was traveling to a
college campus. He denied ever seeing the gun before appearing
in court for trial.
At the charge conference, the trial judge, noting that
there is no model jury charge for unlawful possession of a
weapon at an educational institution, settled on an instruction
that “has been drafted right out of the statute.” Without
objection, the judge instructed the jury that the State must
prove “the defendant possessed the firearm in or upon the
buildings or grounds of any school, college, university, or
7
other educational institution. In this case, the grounds of
Drew University.” The judge did not ask the jury to decide
whether defendants were aware that they were on the property of
an educational institution.
The jury found defendants guilty of second-degree unlawful
possession of a weapon and third-degree unlawful possession of a
weapon at an educational institution, but acquitted them of the
remaining charges. Cromwell later pled guilty to the separate
second-degree certain persons charge.
B.
At the sentencing hearing, the trial judge heard testimony
by Corporal Edwin Santana that defendants admitted they were
members of a local chapter of the Crips street gang known as “5
Deuce Hoova Crip” and that both defendants had a large “C”
tattooed on their chests, which denotes membership in that gang.
Corporal Santana then opined that, based upon his experience,
the Crips street gang is involved in organized criminal
activity. Relying on Corporal Santana’s testimony, the judge
found aggravating factor five, a substantial likelihood that
defendants were involved in organized criminal activity,
N.J.S.A. 2C:44-1(a)(5), applied to both defendants.
The court also found aggravating factors three, the risk
defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3),
and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9),
8
applied to both defendants. Next, the court found aggravating
factor six, the extent of the defendant’s prior criminal record,
N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell based upon
his three prior indictable convictions. The court found no
mitigating factors applied to either defendant.
After merging their convictions for possession while at an
educational institution with their convictions for unlawful
possession of a weapon, the court sentenced Grate and Cromwell
to eight and nine years in prison, respectively. Having found
that it was substantially likely defendants were involved in
organized criminal activity, the court made both sentences
subject to the mandatory five-year parole disqualifier under
N.J.S.A. 2C:39-5(i). In accordance with his plea agreement, the
court also sentenced Cromwell to a consecutive eighteen-month
prison sentence with no parole eligibility on the certain-
persons conviction.
C.
On appeal, defendants contended, among other things, that
the jury charge with respect to the unlawful possession of a
weapon at an educational institution was erroneous because it
failed to instruct the jury that in order to convict defendants
of that offense the State was required to prove that defendants
knew they were at an educational institution. After
consolidating their appeals, the Appellate Division rejected
9
defendants’ arguments and affirmed their convictions and
sentences in an unpublished opinion.
Cromwell filed a petition for certification with this
Court, raising the mens rea argument. In response to the United
States Supreme Court decision in Alleyne, which was released
five days after he filed his initial petition, Cromwell filed a
supplemental petition arguing that the mandatory minimum
sentence imposed under N.J.S.A. 2C:39-5(i) was unconstitutional.
We granted Cromwell’s petition, limited to the issues of whether
“the ‘knowingly’ mens rea requirement of N.J.S.A. 2C:39-5(e)(1),
third-degree unlawful possession of a weapon at an education
institution, appl[ies] to both the possession of the firearm and
the [defendant’s] presence at an educational institution”;
whether the sentencing court erred “in finding and applying the
aggravating factor of N.J.S.A. 2C:44-1(a)(5) (substantial
likelihood that defendant is involved in organized criminal
activity)”; and whether “the decision in Alleyne[, supra,]
render[s] the imposition of a mandatory minimum sentence invalid
under the Sixth Amendment of the United States Constitution.”
State v. Cromwell, 216 N.J. 361 (2013) (third alteration in
original).
Separately, Grate filed a petition for certification
asserting that his sentence was excessive, and joined in
Cromwell’s Alleyne argument. Initially, we granted
10
certification “limited to the issue of whether [Grate’s]
sentence was excessive.” State v. Grate, 216 N.J. 362 (2013).
Grate subsequently filed a motion to expand our grant of
certification to include the mens rea argument. By order dated
April 11, 2014, we expanded our limited grant of Grate’s
petition to include the mens rea argument raised by Cromwell.
We also granted motions by the Association of Criminal
Defense Lawyers (ACDL), the American Civil Liberties Union
(ACLU), and the Attorney General to appear as amici curiae.
II.
A.
With respect to the mens rea requirement of N.J.S.A. 2C:39-
5(e)(1), both defendants and the ACDL contend the trial court
improperly interpreted the statute to require the State to prove
only that they knowingly possessed a weapon and not that they
possessed the weapon while knowingly at an educational facility.
Defendants rely on N.J.S.A. 2C:2-2(c)(1), which provides that
“[w]hen the law defining an offense prescribes the kind of
culpability that is sufficient for the commission of an offense,
without distinguishing among the material elements thereof, such
provision shall apply to all the material elements of the
offense, unless a contrary purpose plainly appears.” Arguing
that the locational element of this offense is material and that
the statute fails to distinguish between its material elements,
11
defendants maintain the State was required to prove that
defendants knowingly possessed a weapon and that they did so
while knowingly at an educational institution.
Defendants also rely on N.J.S.A. 2C:2-2(c)(3), which
imposes a “knowing” culpability requirement where a statute
fails to specify a culpability requirement. Defendants
therefore contend that the State had to prove beyond a
reasonable doubt that they were knowingly present at an
educational facility, and that the trial court’s failure to
instruct the jury regarding that burden constitutes plain error.
The State counters that the plain language of N.J.S.A.
2C:39-5(e)(1) unambiguously provides a mens rea requirement to
the element of possession only, and that the locational element
merely describes the circumstances of the possession. The State
analogizes this statute to N.J.S.A. 2C:39-3(d), which states
that “[a]ny person who knowingly has in his possession any
firearm which has been defaced . . . is guilty of a crime of the
fourth degree.” The State relies upon State v. Smith, 197 N.J.
325, 332 (2009), a case in which we interpreted N.J.S.A. 2C:39-
3(d) to require proof only that a defendant knowingly possessed
a firearm, and not that the defendant knew the firearm was
defaced. The State argues that N.J.S.A. 2C:39-5(e)(1), like
N.J.S.A. 2C:39-3(d), contains an independent clause that
includes a mens rea requirement, followed by a subordinate
12
clause containing no mens rea requirement. The State adds that
the regulatory nature of this State’s gun control laws is
largely unconcerned with the intent of the individual carrying a
firearm.
B.
Whether the culpability requirement of “knowingly” applies
to the locational element of N.J.S.A. 2C:39-5(e)(1) is a
question of statutory interpretation. As such, we review the
dispute de novo, unconstrained by deference to the decisions of
the trial court or the appellate panel. State v. Drury, 190
N.J. 197, 209 (2007). In doing so,
we attempt to discern and implement the
Legislature’s intent. Basic techniques of
statutory interpretation first require us to
look at a statute’s plain meaning, and, “[i]f
the meaning of the text is clear and
unambiguous on its face, [we] enforce that
meaning.” If the language is ambiguous or
“admits to more than one reasonable
interpretation, we may look to sources outside
the language to ascertain the Legislature’s
intent.” Such extrinsic sources, in general,
may include the statute’s purpose, to the
extent that it is known, and the relevant
legislative history.
[Ibid. (internal citations omitted).]
Furthermore, “[w]hen interpreting a penal statute, such as the
one we consider here, if plain meaning and extrinsic sources are
inadequate, we then ‘employ the canon of statutory construction
that counsels courts to construe ambiguities in penal statutes
13
in favor of defendant.’” Id. at 209-10 (quoting State v.
Reiner, 180 N.J. 307, 311 (2004) (footnote omitted)).
With those principles in mind, we turn to the statutory
language at issue here. N.J.S.A. 2C:39-5(e)(1) states, in
relevant part, that “[a]ny person who knowingly has in his
possession any firearm in or upon any part of the buildings or
grounds of any school, college, university or other educational
institution without the written authorization of the governing
officer of the institution, is guilty of a crime of the third
degree.”
The Code prescribes rules for the “[c]onstruction of
statutes with respect to culpability requirements.” N.J.S.A.
2C:2-2(c). N.J.S.A. 2C:2-2(c)(3) addresses “statutes not
stating [a] culpability requirement.” Because N.J.S.A. 2C:39-
5(e)(1) plainly sets forth a mens rea requirement for the first
element of this offense, the Appellate Division correctly
determined that N.J.S.A. 2C:2-2(c)(3) is inapplicable.
As set forth above, N.J.S.A. 2C:2-2(c)(1) applies to
statutes that provide a culpability requirement as to one but
not all elements of the offense. Specifically, N.J.S.A. 2C:2-
2(c)(1) requires the statute to be interpreted to apply the
stated culpability requirement as to every material element of
the offense if the offense does not distinguish among them, and
“unless a contrary purpose plainly appears.”
14
The State does not dispute that the N.J.S.A. 2C:39-5(e)(1)
locational element is “material.” The Code defines “[m]aterial
element” as “an element that does not relate exclusively to the
statute of limitations, jurisdiction, venue or to any other
matter similarly unconnected with (1) the harm or evil[] . . .
sought to be prevented, or (2) the existence of a justification
or excuse.” N.J.S.A. 2C:1-14(i). Because N.J.S.A. 2C:39-
5(e)(1) criminalizes even otherwise lawful possession of a
weapon if a defendant possesses the weapon at or on the grounds
of an educational institution, we agree that the circumstances
of the possession are material to the offense. See State v.
Harmon, 104 N.J. 189, 202-03 (1986) (finding a defendant’s
intent to use a weapon for an unlawful purpose “clearly a
material element” of the offense of possession of a weapon for
an unlawful purpose).
The Appellate Division found N.J.S.A. 2C:2-2(c)(1) “does
not apply because N.J.S.A. 2C:39-5(e)(1) distinguishes ‘among
the material elements’ of the offense.” However, careful review
of the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication
that the “possession” element is clearly distinguishable from
the “location” element. Both elements are contained within the
same clause, preceded by the adverb “knowingly.” We therefore
reject the Appellate Division’s conclusion that N.J.S.A. 2C:2-
2(c)(1) does not apply, and find N.J.S.A. 2C:39-5(e)(1) does not
15
distinguish between its material elements. As a result, to
obtain a conviction under N.J.S.A. 2C:39-5(e)(1) the State was
required to prove defendants knowingly possessed a firearm while
knowingly at an educational institution unless the statute
plainly evidences a contrary purpose, N.J.S.A. 2C:2-2(c)(1).
We find no such contrary purpose is plainly indicated. The
State, emphasizing the “essentially regulatory nature” of our
gun control laws, urges us to consider N.J.S.A. 2C:39-5(e)(1) in
conjunction with other sections of Chapter 39 to find the
Legislature intended a defendant to be strictly liable for the
locational element of N.J.S.A. 2C:39-5(e)(1). Although we have
described sections 39-3 and 39-5 as containing “essentially
regulatory offenses,” in doing so we explained that “they
prohibit possession of firearms and other weapons without regard
to the individual's intent or purpose in possessing them.”
Harmon, supra, 104 N.J. at 197; accord State v. Brims, 168 N.J.
297, 313 (2001).
The State correctly notes that the offense at issue here is
distinguishable from the offense of possession of a weapon for
an unlawful purpose, N.J.S.A. 2C:39-5(d), in that the State need
not prove defendants’ intent or purpose in possessing the gun.
However, N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A.
2C:2-2(c)(1), requires only that the State prove defendants
knowingly possessed the weapon while knowingly at an educational
16
institution. A person acts “knowingly with respect to the
nature of his conduct or the attendant circumstances if he is
aware that his conduct is of that nature, or that such
circumstances exist, or he is aware of a high probability of
their existence.” N.J.S.A. 2C:2-2(b)(2). Accordingly,
defendants’ intent or purpose in possessing the gun is not at
issue here -- only that defendants were aware of what they were
doing and where they were doing it. The regulatory nature of
the offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of
construction, nor does it alleviate the State of its burden to
prove defendants acted with the requisite culpability as to each
element of the offense.
The State also argues that our decision in Smith, supra,
requires a finding that the Legislature did not intend the
knowing culpability requirement to apply to the locational
element of N.J.S.A. 2C:39-5(e)(1). In Smith, we considered and
rejected a defendant’s claim that N.J.S.A. 2C:39-2(d), which
prohibits any person from “knowingly ha[ving] in his possession
any firearm which has been defaced,” required the State to prove
he knew the firearm had been defaced. Smith, supra, 197 N.J. at
326-27.
In Smith, we began our analysis by first determining what
the term “knowingly” modified. Id. at 331. We noted “the
Legislature placed the term ‘knowingly’ immediately before the
17
phrase, ‘has in his possession a firearm,’” followed by the
“subordinate phrase, ‘which has been defaced,’ that describes
further the nature of the proscribed item.” Id. at 332.
The State argues that here, as in Smith, the statute at
issue places the term “knowingly” immediately before the phrase
“has in his possession any firearm,” followed by the subordinate
clause “in or upon any part of the buildings or grounds of any
school, college, university or other educational institution.”
However, the locational element of N.J.S.A. 2C:39-5(e)(1) is not
contained in a subordinate clause. Rather, as set forth above,
“in or upon any part” of an educational facility expresses a
separate material element of the offense. Indeed, it is the
locational element of N.J.S.A. 2C:39-5(e)(1) that distinguishes
ordinary possession, which need not be unlawful itself, from the
wrongdoing sought to be addressed under the statute, namely the
harm possession of a firearm presents at a setting like an
educational facility. Thus, unlike the statute at issue in
Smith, N.J.S.A. 2C:39-5(e)(1) does not criminalize the
possession of a certain type of weapon, but rather the
possession of a weapon at a particular place.
In any event, as discussed above, the Legislature clearly
expressed an intent to apply the culpability requirement stated
as to one element to each other material element. N.J.S.A.
2C:2-2(c)(1). “[O]ur goal is to discern and implement the
18
intent of the Legislature.” Smith, supra, 197 N.J. at 332. The
State was therefore required to prove defendants were knowingly
at an educational facility in order to obtain a conviction under
N.J.S.A. 2C:39-5(e)(1). Accordingly, we find the jury
instructions with respect to defendants’ convictions under
N.J.S.A. 2C:39-5(e)(1) warrant reversal, and we are constrained
to vacate those convictions and remand for resentencing on the
unlawful possession charges.
Having determined that remand for resentencing is
necessary, we next address defendants’ sentencing arguments.
III.
A.
Defendants, joined by the ACLU, contest the imposition of
their mandatory minimum terms of imprisonment under N.J.S.A.
2C:39-5(i). That statute requires the sentencing court to
impose a period of parole ineligibility “if the court finds” a
substantial likelihood that the defendant is involved in
organized criminal activity.
Defendants and amici rely principally on Alleyne, supra,
which provides that “any fact that increases the mandatory
minimum sentence is an ‘element’ that must be submitted to the
jury” to be found beyond a reasonable doubt. ___ U.S. at ___,
133 S. Ct. at 2156, 186 L. Ed. 2d at 321 (overruling Harris v.
United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 52419
(2002)). Applying Alleyne’s holding to N.J.S.A. 2C:39-5(i),
defendants contend that the imposition of mandatory minimum
sentences based upon a judicial finding that they were involved
in organized crime violated their Sixth Amendment rights.1
The State, joined by the Attorney General, concedes that
Alleyne renders N.J.S.A. 2C:39-5(i) unconstitutional as written.
Nevertheless, the State asks this Court to graft onto N.J.S.A.
2C:39-5(i) a requirement that a jury find that a defendant was
involved in organized criminal activity before requiring the
imposition of a mandatory minimum prison term.
B.
We agree with defendants that Alleyne renders the
imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-
5(i) unconstitutional. Further, there is no dispute that
Alleyne, which was decided during the pendency of defendants’
appeal, applies to defendants’ convictions. See State v.
Wessells, 209 N.J. 395, 412 (2012) (“[I]t is now well-
established that ‘a new rule for the conduct of criminal
prosecutions is to be applied retroactively to all cases, state
1 To the extent that Cromwell also challenges application of
aggravating factor five, N.J.S.A. 2C:44-1(a)(5) (substantial
likelihood that defendant is involved in organized criminal
activity), we note that a sentencing court may consider this
factor when deciding what sentence to impose within the
statutory range. Post at ___ (slip op. at 24) (citing State v.
Natale, 184 N.J. 458, 472, 481-82 (2005)).
20
or federal, pending on direct review or not yet final, with no
exception for cases in which the new rule constitutes a “clear
break” with the past.’” (quoting Griffith v. Kentucky, 479 U.S.
314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987))).
The question thus becomes whether it is within this Court’s
purview to amend the statute as the State requests.2
Given the clear statement of legislative intent in N.J.S.A.
2C:39-5(i), we decline the State’s invitation to perform
“judicial surgery.” We acknowledge that, “[i]n appropriate
cases, a court has the power to engage in judicial surgery or
the narrow construction of a statute to free it from
constitutional doubt or defect.” State v. Fortin, 198 N.J. 619,
630 (2009) (quoting N.J. State Chamber of Commerce v. N.J.
Election Law Enforcement Comm’n, 82 N.J. 57, 75 (1980))
(internal quotation marks omitted). However, this procedure
applies only “if we fairly can do so.” Id. at 631.
In State v. Natale, 184 N.J. 458 (2005), we considered the
constitutional validity of our sentencing statutes providing for
the imposition of a sentence beyond the presumptive statutory
2 Additionally, the State and amici raise numerous preemptory
arguments with respect to the constitutional validity of the
discretionary parole disqualifier under N.J.S.A. 2C:43-6(b) and
certain applications of the Graves Act not applicable to this
case. Because defendants were not sentenced under either of
those provisions, we decline to address those arguments here.
See State v. Nero, 195 N.J. 397, 412 n.5 (2008).
21
term based on a judicial finding of one or more aggravating
factors. We held that our sentencing provisions allowing for
the imposition of a sentence beyond that which is allowed by the
jury verdict violated the Sixth Amendment, as expressed in
Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.
2d 403 (2004). Natale, supra, 184 N.J. at 481-82. In striking
the pertinent sentencing provisions, we preserved the judge’s
discretion to balance the aggravating and mitigating factors in
considering the appropriate sentence within the applicable
statutory range. Id. at 488.
Here, N.J.S.A. 2C:39-5(i) unambiguously requires the
imposition of a mandatory minimum sentence based on a judicial
finding of fact. Requiring a jury rather than a judge to make
such a finding would not merely be severing a constitutionally
infirm portion of the sentencing statute, it would be rewriting
its essential requirements. There is no ambiguity in the
statute from which we can “assum[e] that the Legislature
intended to act in a constitutional manner.” Right to Choose v.
Byrne, 91 N.J. 287, 311 (1982). It is unclear “‘whether the
Legislature would want the statute to survive with appropriate
modifications rather than succumb to constitutional
infirmities.’” State v. Emmons, 397 N.J. Super. 112, 122 (App.
Div. 2007) (quoting Byrne, supra, 91 N.J. at 311), certif.
22
denied, 195 N.J. 421 (2008). Thus, that determination is for
the Legislature.
Because judicial rehabilitation is not an option, we are
compelled to vacate defendants’ sentences and remand for
resentencing for the unlawful possession convictions, without
consideration of the mandatory minimum sentence under N.J.S.A.
2C:39-5(i) and without the empaneling of a sentencing jury, as
the State requests.
IV.
In addition to the Alleyne issue discussed above, Grate
disputes the trial court’s assessment of the aggravating and
mitigating factors in his conviction for unlawful possession of
a handgun. Specifically, Grate contends there was insufficient
evidence to support the court’s finding of aggravating factors
three, the risk that he will reoffend, N.J.S.A. 2C:44-1(a)(3);
five, the substantial likelihood that he is involved in
organized criminal activity, N.J.S.A. 2C:44-1(a)(5); and nine,
the need for deterrence, N.J.S.A. 2C:44-1(a)(9).
It is well-established that appellate courts review the
trial court’s “sentencing determination under a deferential
standard of review.” State v. Lawless, 214 N.J. 594, 606 (2013)
(citing State v. Cassady, 198 N.J. 165, 180 (2009); State v.
O’Donnell, 117 N.J. 210, 215 (1989)). We are “bound to affirm a
sentence, even if [we] would have arrived at a different result,
23
as long as the trial court properly identifies and balances
aggravating and mitigating factors that are supported by
competent credible evidence in the record.” Ibid. (internal
quotation marks and citations omitted).
Here, there was ample evidence supporting the trial court’s
findings. Grate’s presentence report shows that he had been
charged with numerous indictable offenses on eight prior
occasions. Those charges resulted in two downgraded
convictions, the first for violent behavior and the second for
simple assault. In connection with the current offense, the
court’s finding that defendant was at a high risk to recidivate
was sound. Further, as the court noted, “handguns on a college
campus . . . is a dangerous situation, and absolutely cannot be
tolerated.” Accordingly, we find no basis to overturn the
court’s findings with respect to aggravating factors three and
nine.
We reiterate that a judicial finding of aggravating factor
five cannot be the basis of a mandatory minimum sentence. The
sentencing court may nevertheless consider this factor when
deciding what sentence to impose within the statutory range.
See Natale, supra, 184 N.J. at 472, 481-82 (“A judge is
authorized to impose a sentence within the range allowed by the
jury verdict[.]”). There was more than enough evidence
supporting the judge’s finding with respect to aggravating
24
factor five. Corporal Santana testified that Grate admitted to
being a member of the “5 Deuce Hoova Crip” street gang, and that
he had “body brandings” and a tattoo that identified him as a
member of that street gang. Based on this testimony, it was not
an abuse of discretion to find defendant was substantially
likely to have been involved in organized crime.
Grate also argues the sentencing court abused its
discretion in failing to consider evidence in support of
mitigating factors one, that he did not cause or threaten
serious harm, N.J.S.A. 2C:44-1(b)(1), and two, that he did not
contemplate that his conduct would cause or threaten serious
harm, N.J.S.A. 2C:44-1(b)(2). The sentencing court is required
to consider evidence of a mitigating factor and must apply
mitigating factors that “are amply based in the record.” State
v. Dalziel, 182 N.J. 494, 504-05 (2005); see also State v. Hess,
207 N.J. 123, 155 n.8 (2011) (noting same). Grate, however,
presents no evidence in support of his claim. In light of the
nature of the offense, we see no abuse of discretion in failing
to consider these mitigating factors.
Accordingly, with the exception of the mandatory minimum
sentence imposed pursuant to N.J.S.A. 2C:39-5(i), we affirm
Grate’s sentence.
V.
25
For the foregoing reasons, the judgment of the Appellate
Division affirming defendants’ convictions for unlawful
possession of a weapon at an educational facility is reversed.
We remand for a new trial on the charge of unlawful possession
of a weapon at an educational facility, and for resentencing
consistent with this opinion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.
26
SUPREME COURT OF NEW JERSEY
NO. A-47/48 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMES GRATE,
Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
FUQUAN CROMWELL, (a/k/a
FUGUAN CROMWELL, FUQUAN A.
CROMWELL, SAMAAD CROMWELL,
SAMAD CROMWELL, SAMAAD
LATHER, SAMADD N. J.L.,
SAMAAD N. LATHER),
Defendant-Appellant.
DECIDED January 15, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM IN PART/
CHECKLIST REVERSE IN PART/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7