State of New Jersey v. Keith Drake , 444 N.J. Super. 265 ( 2016 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1514-14T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, February 24, 2016
v. APPELLATE DIVISION
KEITH DRAKE,
Defendant-Appellant.
__________________________________
Argued October 6, 2015 – Decided February 24, 2016
Before Judges Hoffman, Leone and Whipple.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-09-2224.
Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Kirsch, of counsel and on the
brief).
Sara M. Quigley, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Ms. Quigley, of counsel and on the briefs).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
LEONE, J.A.D.
Defendant Keith Drake was sentenced for committing second-
degree sexual assault under N.J.S.A. 2C:14-2(c)(1). The court
imposed a minimum term of 85% of the sentence, and a three-year
term of parole supervision, pursuant to the No Early Release Act
(NERA), N.J.S.A. 2C:43-7.2. Defendant filed a motion to correct
an illegal sentence, asserting that NERA only applies to second-
degree sexual assault under N.J.S.A. 2C:14-2(c)(1) if a
defendant is simultaneously sentenced for second-degree sexual
assault under N.J.S.A. 2C:14-2(b). We reject defendant's
reading of NERA, and affirm the denial of defendant's motion.
I.
Our prior opinion upholding defendant's conviction included
the following facts. On March 30, 2005, J.H., an eighteen-year-
old high school student, went to visit defendant's mother at her
home. When J.H. arrived, defendant's mother was not home, but
defendant was there. Defendant, who was thirty-five years old
at the time, attempted to kiss J.H. Defendant blocked the door
when she tried to leave. Despite her protests, defendant
grabbed her, straddled her, pulled down her pants, and began
performing oral sex on her. J.H. tried to push off the much
larger defendant, but he was able to hold her down. Defendant
then attempted to penetrate J.H.'s vagina with his penis, but
she testified that defendant "didn't go all the way in." After
ejaculating on her shirt, and confirming this was her first
sexual experience, he allowed her to leave.
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Defendant was charged with third-degree criminal restraint,
N.J.S.A. 2C:13-2 (count one), second-degree sexual assault by
vaginal penetration using physical force or coercion, N.J.S.A.
2C:14-2(c)(1) (count two), and second-degree sexual assault by
performing cunnilingus using physical force or coercion,
N.J.S.A. 2C:14-2(c)(1) (count three). The jury acquitted
defendant on the first two counts, but convicted him on count
three.
Defendant's prior record included five juvenile
adjudications, twelve disorderly-persons convictions, and nine
indictable convictions in New Jersey. He also had four Florida
convictions, a federal conviction, and four open New Jersey
indictments. The trial court found defendant was a persistent
offender under N.J.S.A. 2C:44-3(a), and sentenced him to an
extended term of seventeen years in prison.
Defendant's trial counsel acknowledged that defendant's
conviction carried with it "a No Early Release Act 85 percent
sentence." The trial court agreed that N.J.S.A. 2C:14-2(c)(1)
"falls directly under NERA," so "the crime for which the
defendant was convicted automatically activates an 85 percent
period of parole ineligibility under the No Early Release Act,"
N.J.S.A. 2C:43-7.2(d)(8). Thus, the court found that "the No
Early Release Act applies," and imposed an 85% minimum term
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sentence and a three-year period of parole supervision under
NERA, N.J.S.A. 2C:43-7.2(a), (c). The court also imposed
community supervision for life and registration under Megan's
Law, N.J.S.A. 2C:7-1 to -23.
On appeal, defendant did not challenge the applicability of
NERA. We affirmed his conviction, but remanded to reconsider
other aspects of this sentence. State v. Drake, No. A-6507-06
(App. Div. Oct. 27, 2008), certif. denied, 197 N.J. 477 (2009).
Ultimately, on February 17, 2011, the trial court reduced
defendant's sentence to sixteen years in prison, and imposed an
85% minimum term sentence and three years of parole supervision,
reiterating that NERA "applies pursuant to N.J.S.A. 2C:43-
7.2(d)(8)."
Defendant filed a petition for post-conviction relief,
challenging his conviction, but not his sentence. We affirmed
the denial of his petition. State v. Drake, No. A-1821-12 (App.
Div. Apr. 24, 2014), certif. denied, 220 N.J. 40 (2014).
On February 28, 2014, defendant filed a pro se motion to
correct an illegal sentence. He argued he could not be
sentenced under NERA unless he was convicted under both N.J.S.A.
2C:14-2(c)(1) and 2C:14-2(b). Judge Verna G. Leath ultimately
denied the motion by order dated October 28, 2014.
4 A-1514-14T4
Defendant's appeal was originally heard before an Excessive
Sentencing Oral Argument panel pursuant to Rule 2:9-11. It was
then transferred to the plenary calendar for briefing and oral
argument. In his counseled brief, defendant raises one point:
DEFENDANT'S MOTION TO CORRECT AN ILLEGAL
SENTENCE SHOULD HAVE BEEN GRANTED. HIS NERA
85% PAROLE BAR WAS ILLEGALLY IMPOSED BECAUSE
THE GOVERNING STATUTE REQUIRES A DEFENDANT
TO BE CONVICTED OF VIOLATIONS OF BOTH
"SUBSECTION B. OF N.J.S. 2C:14-2 AND
PARAGRAPH (1) OF SUBSECTION C. OF N.J.S.
2C:14-2" IN ORDER FOR NERA TO APPLY.
Defendant's pro se brief raises the same point in his own words:
THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL
SENTENCE SHOULD HAVE BEEN REVERSE DUE TO THE
VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS GUARANTEE OF DUE PROCESS. THE
DEFENDANT IS CONSEQUENTLY SERVING AN ILLEGAL
SENTENCE CONTRARY TO N.J.S.A. 2C:43-7.2.
MANDATORY SERVICES OF 85 PERCENT OF SENTENCE
FOR CERTAIN OFFENSES STATUTE REQUIRES A
DEFENDANT TO BE CONVICTED OF BOTH VIOLATION
IN SUBSECTION d. (8) OF N.J.S.A. 2C:43-7.2.
(SUBSECTION B. OF N.J.S.2C:14-2 AND
PARAGRAPH (1) OF SUBSECTION C. OF N.J.S.
2C:14-2, SEXUAL ASSAULT) IN ORDER FOR NERA
TO APPLY. FOR THESE REASONS, THE DEFENDANT
RESPECTFULLY REQUEST THAT HIS BRIEF TO
CORRECT AN ILLEGAL SENTENCE BE GRANTED IN
IT'S ENTIRETY.
II.
We must consider whether defendant's sentence is illegal.
"[A] truly 'illegal' sentence can be corrected 'at any time.'"
State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-
10(b)(5)). "[A]n illegal sentence is one that 'exceeds the
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maximum penalty provided in the Code for a particular offense'
or a sentence 'not imposed in accordance with law.'" Id. at 45(quoting State v. Murray, 162 N.J. 240, 247 (2000)). A sentence
"not imposed in accordance with law" includes "a disposition
[not] authorized by the Code." Murray, supra, 162 N.J. at 247.
The question of what crimes are covered by NERA "is an
issue of statutory construction; our review is therefore de
novo." State v. Olivero, 221 N.J. 632, 638 (2015). Whether
defendant's sentence is unconstitutional is also an issue of law
subject to de novo review. State v. Pomianek, 221 N.J. 66, 80
(2015). We must hew to that standard of review.
Because "this is a case of statutory interpretation," our
task "'is to discern and give effect' to the Legislature's
intent." State v. Munafo, 222 N.J. 480, 488 (2015) (citation
omitted). "To begin, we look at the plain language of the
statute." Ibid. "Statutory language is to be interpreted 'in a
common sense manner to accomplish the legislative purpose.'"
Olivero, supra, 221 N.J. at 639 (citation omitted). "We do not
support interpretations that render statutory language as
surplusage[.]" Burgos v. State, 222 N.J. 175, 203 (2015). "In
addition, we will not interpret a statute in a way that 'leads
to an absurd result.'" State v. Williams, 218 N.J. 576, 586
(2014) (citation omitted). "If the language is unclear, courts
6 A-1514-14T4
can turn to extrinsic evidence for guidance, including a law's
legislative history." Munafo, supra, 222 N.J. at 488. "But a
court may not rewrite a statute or add language that the
Legislature omitted." Ibid.
III.
Under the plain language of N.J.S.A. 2C:43-7.2, NERA
applies to second-degree sexual assault under N.J.S.A. 2C:14-
2(c)(1). Subsection a. of N.J.S.A. 2C:43-7.2 requires that "[a]
court imposing a sentence of incarceration for a crime of the
first or second degree enumerated in subsection d. of this
section shall fix a minimum term of 85% of the sentence imposed,
during which the defendant shall not be eligible for parole."
Subsection b. similarly requires that "[t]he minimum term
required by subsection a. of this section shall be fixed as a
part of every sentence of incarceration imposed upon every
conviction of a crime enumerated in subsection d. of this
section[.]" N.J.S.A. 2C:43-7.2(b) (emphasis added). Subsection
d. requires that "[t]he court shall impose sentence pursuant to
subsection a. of this section upon conviction of the following
crimes or an attempt or conspiracy to commit any of these
crimes[.]" N.J.S.A. 2C:43-7.2(d) (emphasis added). Among the
"following crimes" "enumerated in subsection d." is "paragraph
(1) of subsection c. of N.J.S. 2C:14-2, sexual assault[.]"
7 A-1514-14T4
N.J.S.A. 2C:43-7.2(d)(8). Because N.J.S.A. 2C:14-2(c)(1) is "a
crime of the . . . second degree enumerated in subsection d.,"
NERA applies. N.J.S.A. 2C:43-7.2(a), (b), (d).
Defendant's contrary argument turns on his parsing of how
N.J.S.A. 2C:14-2(c)(1) is enumerated in N.J.S.A. 2C:43-
7.2(d)(8), particularly the use of "and." To put the issue in
context, subsection d. of N.J.S.A. 2C:43-7.2 currently lists the
following crimes:
(1) N.J.S. 2C:11-3, murder;
(2) N.J.S. 2C:11-4, aggravated manslaughter
or manslaughter;
(3) N.J.S. 2C:11-5, vehicular homicide;
(4) subsection b. of N.J.S. 2C:12-1,
aggravated assault;
(5) subsection b. of section 1 of P.L. 1996,
c. 14 (C. 2C:12-11), disarming a law
enforcement officer;
(6) N.J.S. 2C:13-1, kidnapping;
(7) subsection a. of N.J.S. 2C:14-2,
aggravated sexual assault;
(8) subsection b. of N.J.S. 2C:14-2 and
paragraph (1) of subsection c. of N.J.S.
2C:14-2, sexual assault;
(9) N.J.S. 2C:15-1, robbery;
(10) section 1 of P.L. 1993, c. 221 (C.
2C:15-2), carjacking;
(11) paragraph (1) of subsection a. of
N.J.S. 2C:17-1, aggravated arson;
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(12) N.J.S. 2C:18-2, burglary;
(13) subsection a. of N.J.S. 2C:20-5,
extortion;
(14) subsection b. of section 1 of P.L.
1997, c. 185 (C. 2C:35-4.1), booby traps in
manufacturing or distribution facilities;
(15) N.J.S. 2C:35-9, strict liability for
drug induced deaths;
(16) section 2 of P.L. 2002, c. 26 (C.
2C:38-2), terrorism;
(17) section 3 of P.L. 2002, c. 26 (C.
2C:38-3), producing or possessing chemical
weapons, biological agents or nuclear or
radiological devices;
(18) N.J.S. 2C:41-2, racketeering, when it
is a crime of the first degree;
(19) subsection i. of N.J.S. 2C:39-9,
firearms trafficking; or
(20) paragraph (3) of subsection b. of
N.J.S. 2C:24-4, causing or permitting a
child to engage in a prohibited sexual act,
knowing that the act may be reproduced or
reconstructed in any manner, or be part of
an exhibition or performance.
Defendant argues that by using "and" rather than "or" in
N.J.S.A. 2C:43-7.2(d)(8), the Legislature intended that
defendants convicted of sexual penetration using physical force
under N.J.S.A. 2C:14-2(c)(1) would be subject to NERA only if
they were simultaneously sentenced for "sexual contact with a
9 A-1514-14T4
victim who is less than 13 years old and the actor is at least
four years older than the victim" under N.J.S.A. 2C:14-2(b).
However, defendant's parsing fails to interpret the
statutory language "'in a common sense manner to accomplish the
legislative purpose.'" Olivero, supra, 221 N.J. at 639
(citation omitted). The obvious legislative purpose of N.J.S.A.
2C:43-7.2(d) was to list the statutory citation in the Criminal
Code, and name of the crime, for every crime to which NERA
applies. Where the Legislature intended every crime encompassed
in a Criminal Code section to be covered by NERA, the
Legislature simply listed the section and the name of the
crime(s). See N.J.S.A. 2C:43-7.2(d)(1)-(3), (6), (9), (12),
(15)-(17). Where the Legislature intended NERA to apply only to
a crime under one subsection, it listed only the specific
subsection and the name of the crime(s). See N.J.S.A. 2C:43-
7.2(d)(4)-(5), (7), (10)-(11), (13)-(14), (19)-(20).1
N.J.S.A. 2C:43-7.2(d)(8) was the only instance in which
NERA applied to more than one subsection, but not to all
subsections, of the same crime, namely second-degree sexual
1
In N.J.S.A. 2C:43-7.2(d)(18), the Legislature listed the
particular degree of the racketeering crime rather than a
subsection because the Criminal Code distinguished violent
racketeering from racketeering by giving them different degrees,
without putting them in separate subsections. See N.J.S.A.
2C:41-2, -3(a).
10 A-1514-14T4
assault. In that unique situation, the Legislature took the
common-sense approach of providing that NERA applied to both
"subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection
c. of N.J.S. 2C:14-2, sexual assault." N.J.S.A. 2C:43-
7.2(d)(8).
Despite the unique situation posed by N.J.S.A. 2C:43-
7.2(d)(8), defendant looks to other situations in N.J.S.A.
2C:43-7.2(d) where the Legislature uses "or." From those
different situations, he infers that the Legislature's use of
"and" in N.J.S.A. 2C:43-7.2(d)(8) shows an intent to require a
defendant be convicted of two crimes for NERA to be applicable.
Defendant's implausible inference ignores that the word choice
may differ merely because the situations differ. The
Legislature used "or" between the names of separate crimes
covered by the same section or subsection of the Criminal Code,
such as "N.J.S. 2C:11-4, aggravated manslaughter or
manslaughter." N.J.S.A. 2C:43-7.2(d)(2); see also N.J.S.A.
2C:43-7.2(d)(14), (17), (20) (replicating "or" from the
descriptions of the crimes in the cited Criminal Code section or
subsection). The Legislature also used "or" between the
subparts of N.J.S.A. 2C:43-7.2(d) to make clear that NERA
applies to all the crimes listed in N.J.S.A. 2C:43-7.2(d)(1)
through (19) "or" (20).
11 A-1514-14T4
In any event, if the Legislature had stated that NERA
applied to "N.J.S. 2C:11-4, aggravated manslaughter and
manslaughter," defendant could not plausibly suggest that NERA
would not apply unless a defendant committed both aggravated
manslaughter and manslaughter. Similarly, if the Legislature
had stated that NERA applied to all the crimes listed in
N.J.S.A. 2C:43-7.2(d)(1) through (19) "and" (20), defendant
could not plausibly suggest that a defendant had to commit all
twenty crimes to be subject to NERA.
That is because "'[t]he words "or" and "and" are ofttimes
used interchangeably, and the determination of whether the word
"and" as used in a statute should be read in the conjunctive or
disjunctive depends primarily upon the legislative intent.'"
Pine Belt Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J.
564, 578 (1993) (quoting Howard v. Harwood's Rest. Co., 25 N.J.
72, 88 (1957)); accord State v. Carreon, 437 N.J. Super. 81, 87
(App. Div. 2014). Thus, "it is a well recognized principle of
statutory construction" that "and" can be read as "or" "if to do
so is consistent with the legislative intent." N.J. State Bd.
of Optometrists v. Koenigsberg, 33 N.J. Super. 387, 394 (App.
Div. 1954) (citing Murphy v. Zink, 136 N.J.L. 235 (Sup. Ct.
1947), aff’d, 136 N.J.L. 635 (E. & A. 1948)). "The context of
the language and the words surrounding the disputed portion
12 A-1514-14T4
[using 'and'] can be used to evidence an intention to create a
disjunctive meaning." Garden State Land Co. v. City of
Vineland, 368 N.J. Super. 369, 378 (App. Div. 2004) (citing Pine
Belt Chevrolet, supra, 132 N.J. at 578-79). Further, "'and' may
be read as 'or' if necessary to carry out the legislative
intent." Cruz v. Trotta, 363 N.J. Super. 353, 359 (App. Div.
2003) (citing Howard, supra, 25 N.J. at 88).
For example, in State v. Regis, 208 N.J. 439 (2011), our
Supreme Court held that, despite the use of the word "and" in
N.J.S.A. 39:4-88(b), "the better construction of the statute is
that it consists of two separate, independent clauses, each of
which addresses a distinct offense." Id. at 447. The Court
concluded that "[t]he Legislature's choice to combine these two
clauses in a single sentence, connected by the word 'and' rather
than divided into separate sentences, does not alter the
analysis." Id. at 448 (citing Pine Belt Chevrolet, supra, 132
N.J. at 578). Similarly, we held that in N.J.S.A. 2C:7-2(d),
"the word 'and' must be equated to the conjunction 'or' to give
the statute its proper meaning and effect." State v. Leahy, 381
N.J. Super. 106, 112 (App. Div. 2005) (citing Howard supra, 25
N.J. at 88), certif. denied, 186 N.J. 245 (2006).
Here, both context and intent show the better reading of
N.J.S.A. 2C:43-7.2(d) is that NERA applies to each and every
13 A-1514-14T4
crime listed, including N.J.S.A. 2C:14-2(b) and N.J.S.A. 2C:14-
2(c)(1). Subsections a. and b. of NERA provide that an 85%
minimum-term sentence must be imposed if a defendant is being
sentenced for each ("a crime") and "every conviction of a crime
enumerated under subsection d." N.J.S.A. 2C:43-7.2(a), (b).
Because N.J.S.A. 2C:14-2(c)(1) is one of the "crimes" enumerated
in N.J.S.A. 2C:43-7.2(d), the Legislature intended that NERA
apply.
We should effectuate that intent even if the Legislature
should not have used both "and" and "or" in compiling its
lengthy list of crimes. For example, in Koenigsberg, supra, we
found the Legislature's use of both "and" and "or" in its long
list of covered acts was "subject to criticism from the
standpoint of construction," and its use of "and" "le[ft]
something to be desired in the way of surface consistency with
the various 'or's.'" 33 N.J. Super. at 394. Nonetheless, we
applied the "well recognized principle of statutory
construction" and read the "and" as an "or" because that was
"consistent with the legislative intent." Ibid.Moreover, defendant's contrary interpretation "'leads to an
absurd result.'" Williams, supra, 218 N.J. at 586 (citation
omitted). Defendant's reading creates the anomaly that a
defendant who commits a crime listed in N.J.S.A. 2C:43-7.2(d) is
14 A-1514-14T4
not subject to NERA unless he simultaneously committed a second
crime. The absurdity of that result becomes even more apparent
when the other provisions of NERA are considered. If a
defendant were to violate both of those subsections of second-
degree sexual assault listed in N.J.S.A. 2C:43-7.2(d)(8), he
would have to "commit[] an act of sexual penetration" using
"physical force or coercion," while "commit[ting] an act of
sexual contact with a victim who is less than 13 years old[.]"
N.J.S.A. 2C:14-2(b), (c)(1). However, a defendant who "commits
an act of sexual penetration" where "[t]he victim is less than
13 years old" is guilty of aggravated sexual assault under
N.J.S.A. 2C:14-2(a)(1), and thus is already subject to NERA
under N.J.S.A. 2C:43-7.2(d)(7). Thus, defendant's reading would
render N.J.S.A. 2C:43-7.2(d)(8) superfluous. "We decline to
interpret [NERA] in a manner that would render 'words in [the]
statute surplusage.'" See State v. Patterson, 435 N.J. Super.
498, 517 (App. Div. 2014) (quoting Shelton v. Restaurant.com,
Inc., 214 N.J. 419, 440 (2013)).
To avoid such fatal superfluity, defendant posits unlikely
scenarios. He argues that there might be cases where N.J.S.A.
2C:43-2(d)(7) did not apply to such a defendant if a jury
verdict or plea deal were somehow to result in second-degree
convictions for both N.J.S.A. 2C:14-2(b) and (c)(1), rather than
15 A-1514-14T4
the equivalent first-degree conviction under N.J.S.A. 2C:14-
2(a)(1). Defendant also argues that his reading would cover the
situation where a defendant committed sexual contact with a
victim younger than thirteen years old, then committed forcible
penetration when the child was older, and then both crimes were
prosecuted together. However, there is no indication that the
Legislature was trying to address inconsistent jury verdicts,
unusual plea deals, or delayed prosecutions when it "amended
NERA to specifically enumerate the first- and second-degree
offenses to which NERA applies." State v. Parolin, 171 N.J.
223, 232 (2002) (citing L. 2001, c. 129 (eff. June 29, 2001)).
Defendant's strained arguments further illustrate the absurdity
of his reading.
Even if defendant's parsing showed that the plain language
of N.J.S.A. 2C:43-7.2 "'is not clear or if it is susceptible to
more than one plausible meaning,' [we] may look to extrinsic
evidence such as legislative history to determine legislative
intent." Olivero, supra, 221 N.J. at 639 (citation omitted).
"A court may also turn to extrinsic evidence 'if a literal
reading of the statute would yield an absurd result,
particularly one at odds with the overall statutory scheme.'"
In re N.B., 222 N.J. 87, 98-99 (2015) (citation omitted). Thus,
we "may turn to such extrinsic guides as legislative history,
16 A-1514-14T4
including sponsor statements and committee reports." Wilson ex
rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012).
Here, that legislative history shows that our plain reading
serves, and defendant's reading contravenes, the Legislature's
intent.
"NERA was enacted primarily because of New Jersey's
alarmingly high rate of parolee recidivism." State v. Thomas,
166 N.J. 560, 569 (2001). "To reduce recidivism, NERA increases
the real time period of incarceration of defendants who commit
[certain] first- and second-degree . . . crimes by requiring
that such defendants serve at least eighty-five percent of the
sentence imposed." State v. Johnson, 182 N.J. 232, 238 (2005).
When originally enacted in 1997, subsection a. of N.J.S.A.
2C:43-7.2 applied "if the crime is a violent crime as defined in
subsection d. of this section." L. 1997, c. 117, § 2 (eff. June
9, 1997) (emphasis added). Subsection d. originally provided:
"violent crime" means any crime in which the
actor causes death, causes serious bodily
injury as defined in subsection b. of N.J.S.
2C:11-1, or uses or threatens the immediate
use of a deadly weapon. "Violent crime"
also includes any aggravated sexual assault
or sexual assault in which the actor uses,
or threatens the immediate use of, physical
force.
[Ibid. (emphasis added).]
17 A-1514-14T4
Because second-degree sexual assault under N.J.S.A. 2C:14-
2(c)(1) requires that the actor commit an act of sexual
penetration using "physical force or coercion," most or all
violations of N.J.S.A. 2C:14-2(c)(1) were already covered by the
original version of NERA. See Thomas, supra, 166 N.J. at 573-74(holding that the original version of NERA applied if "the
elements of the sexual offense charged against a defendant . . .
contain as an element proof of any one or more of the NERA
factors," or if there is "proof of an independent act of force
or violence or a separate threat of immediate physical force");
see also State v. Mosley, 335 N.J. Super. 144, 152 (App. Div.
2000), certif. denied, 167 N.J. 633 (2001) (noting the NERA's
requirement of "use or threat of immediate use of physical force
is an element . . . of sexual assault as defined by N.J.S.A.
2C:14-2c(1)").
Thereafter, the State took the position that NERA applied
to second-degree sexual assault under N.J.S.A. 2C:14-2(b), which
provides that "[a]n actor is guilty of sexual assault if he
commits an act of sexual contact with a victim who is less than
13 years old and the actor is at least four years older than the
victim." In Thomas, we rejected that position because no
physical force was used, and we distinguished In Re M.T.S., 129
N.J. 422 (1992), which considered what constituted physical
18 A-1514-14T4
force under N.J.S.A. 2C:14-2(c)(1). See State v. Thomas, 322
N.J. Super. 512, 515-16, 519-20 (App. Div. 1999), aff’d, 166
N.J. 560, 574 (2001) (holding that "NERA would apply to the
M.T.S.-type cases under today's ruling"). In Mosley, we
similarly ruled that NERA did not apply in a case of aggravated
sexual assault by penetration of a minor less than thirteen
years old, N.J.S.A. 2C:14-1(a)(1), again contrasting that "use
or threat of immediate use of physical force is an element . . .
of sexual assault as defined by N.J.S.A. 2C:14-2c(1)." Mosley,
supra, 335 N.J. Super. at 152.
Assembly Bill No. A3201 (Feb. 5, 2001) was introduced to
amend NERA, and to overturn Thomas and Mosley, as well as our
decision that NERA did not apply to murder in State v. Manzie,
335 N.J. Super. 267 (App. Div. 2000), aff'd by equally divided
court, 168 N.J. 113 (2001). See Parolin, supra, 171 N.J. at 232(NERA "was changed in response to the Appellate Division
decisions in" Manzie, Mosley, and Thomas). The appended
sponsor's statement explained that "several recent Appellate
Division decisions have held that in its present form, NERA is
inapplicable to certain crimes." Sponsor's Statement Appended
to Assemb. B. No. A3201, at 9 (Feb. 5, 2001) [hereinafter
Appended Sponsor's Statement to Assemb. B. No. A3201]. In
particular, the sponsor explained that in Mosley and Thomas,
19 A-1514-14T4
the Appellate Division held that NERA does
not apply to cases where the defendant is
guilty of sexual assault under N.J.S.A.
2C:14-2 on grounds that the victim is under
the age of 13, since the current language of
NERA requires the element of some additional
"physical force."
In order to overcome the issues raised
by these cases and clarify the provisions of
[NERA], this bill would amend NERA to
specifically list the crimes that are
intended to be encompassed by the statute.
[Ibid.]
The bill specifically proposed to amend NERA to apply to
both "subsection b. of N.J.S. 2C:14-2 and paragraph (1) of
subsection c. of N.J.S. 2C:14-2, sexual assault." Assemb. B.
No. A3201, at 3 (Feb. 5, 2001). The bill also listed nine other
crimes by their statutory sections or subsections. Ibid.2 The
Assembly's Law and Public Safety Committee and Appropriations
Committee reported the bill favorably, proposing the same
statutory language about sexual assault and giving the same
explanation in their committee reports, but adding five more
crimes to be covered by NERA. Assemb. B. No. A3201 (1st reprint
Mar. 1, 2001); Assemb. L. & Pub. Safety Comm. Statement to
Assemb. B. No. A3201, at 1-2 (Feb. 26, 2001) [hereinafter
2
A parallel bill proposing the same statutory language about
sexual assault, with an identical sponsor's statement, was later
introduced in the Senate. S.B. No. S2233, at 3-4 (Mar. 26,
2001).
20 A-1514-14T4
Assemb. L. & Pub. Safety Comm. Statement]; Assemb.
Appropriations Comm. Statement to Assemb. B. No. A3201, at 1-2
(June 4, 2001).3 Both houses then passed the Assembly Bill. L.
2001, c. 129, § 1 (eff. June 29, 2001) [hereinafter "the 2001
amendment"].4
The 2001 amendment replaced the requirement in N.J.S.A.
2C:43-7.2(a) that the crime be "a violent crime as defined in
subsection d." with the requirement that the crime be
"enumerated in subsection d." Ibid. Subsection d. was amended
to replace its definition of "violent crime" with the list of
crimes enumerated in N.J.S.A. 2C:43-7.2(d)(1) through (15).
Ibid. As amended, subsections a., b., and d. all provided that
a court shall impose an 85% minimum term for the crimes
enumerated in subsection d., including "subsection b. of N.J.S.
2C:14-2 and paragraph (1) of subsection c. of N.J.S. 2C:14-2,
sexual assault." Ibid.5
3
The Senate Judiciary Committee favorably reported a substitute
bill and statement identical to those reported by the Assembly
Committees. S.B. Nos. S2087 & S2233, at 2-3 (June 11, 2001); S.
Judiciary Comm. Statement to S.B. Nos. S2087 & S2233, at 1-2
(June 11, 2001) [hereinafter S. Judiciary Comm. Statement].
4
The other amendment of NERA in 2001 simply reworded some of its
parole language. See L. 2001 c. 79, § 16 (eff. Sept. 1, 2001).
5
Subsequent amendments altered the citation form in N.J.S.A.
2C:43-7.2(d)(5), added the crimes enumerated in N.J.S.A. 2C:43-
7.2(d)(16)-(20), and moved the "or", originally between
(continued)
21 A-1514-14T4
This legislative history supports our reading of the plain
meaning of N.J.S.A. 2C:43-7.2. First, second-degree sexual
assault using physical force in violation of N.J.S.A. 2C:14-
2(c)(1) was already covered by NERA before the 2001 amendment,
coverage that the legislative history assumed would continue.
Second, one of the major goals of the 2001 amendment was to
extend the same coverage to second-degree sexual assault against
a victim under thirteen years old in violation of N.J.S.A.
2C:14-2(b) by overturning our decision in Thomas. Third, the
legislative history indicated an intent to expand the
application of NERA, not only to cover both N.J.S.A. 2C:14-2(b)
and (c)(1), but initially nine other crimes, then fourteen other
crimes, and now nineteen other crimes.
This legislative history is wholly contrary to defendant's
reading of N.J.S.A. 2C:43-7.2. Under his reading, the 2001
amendment would remove NERA's pre-existing coverage of N.J.S.A.
2C:14-2(c)(1) when there is no indication of any intent to do so
in the legislative history. His reading would also defeat one
of the major goals of the 2001 amendment, to ensure that every
(continued)
subsections (d)(14) and (15), to between subsections (d)(19) and
(20) at the end of the expanded list. Those amendments did not
otherwise alter subsections a., b., or d. L. 2002, c. 26, § 19
(eff. June 18, 2002); L. 2007, c. 341, § 6 (eff. Jan. 13, 2008);
L. 2013, c. 111, § 3 (eff. Nov. 1, 2013); L. 2013, c. 136, § 4
(eff. Aug. 14, 2013).
22 A-1514-14T4
defendant convicted solely of N.J.S.A. 2C:14-2(b) would receive
a NERA sentence. Moreover, his reading would find an intent to
restrict the crimes to which NERA is applicable, despite the
clear legislative intent to expand the number of such crimes.
As Judge Leath noted, "to accept the defendant's argument would
mean that the legislature only intended to make a small number
of second-degree sexual assaults subject to NERA." That is
contrary to the legislative history.
In addition, the legislative history confirms that "[t]he
Legislature oftentimes use[d] 'or' and 'and' interchangeably" in
promulgating the 2001 amendment. Carreon, supra, 437 N.J.
Super. at 87. For example, when the legislative committees
added the language in N.J.S.A. 2C:43-7.2(d)(2) on which
defendant relies, making NERA applicable to "(2) N.J.S.A. 2C:11-
4, aggravated manslaughter or manslaughter," Assemb. B. No.
A3201, at 2 (Feb. 26, 2001); S.B. No. S2233, at 3 (Mar. 26,
2001), the committee reports described that subsection as "(2)
N.J.S.A. 2C:11-4 (aggravated manslaughter and manslaughter)."
Assemb. L. & Pub. Safety Comm. Statement, supra, at 2 (emphasis
added); S. Judiciary Comm. Statement, supra, at 1 (emphasis
added).
Similarly, just after the Assembly Bill was introduced, a
bill was introduced in the Senate which similarly sought to
23 A-1514-14T4
"amend the provisions of [NERA] concerning sexual assaults in
light of recent cases holding the act inapplicable to defendants
who commit sexual assaults against certain young victims,"
citing Mosley and Thomas. Sponsor's Statement Appended to S.B.
No. S2087, at 3 (Feb. 8, 2001) [hereinafter Appended Sponsor's
Statement to S.B. No. S2087]. This bill proposed simply to
amend N.J.S.A. 2C:43-7.2 to "add specific statutory citations to
sexual assault crimes, providing that NERA would apply to 'any
aggravated sexual assault or sexual assault pursuant to
paragraph (1) or paragraphs (3) through (7) of subsection a. of
N.J.S. 2C:14-2; subsection b. of N.J.S. 2C:14-2; or paragraph
(1) of subsection c. of N.J.S. 2C:14-2.'" Appended Sponsor's
Statement to S.B. No. S2087, supra, at 3-4 (emphasis added).6
When the Senate Judiciary Committee adopted the Assembly's
language as a committee substitute, its report did not indicate
it was changing its intent and now providing that NERA would
only apply if a defendant was convicted of both subsection b. of
N.J.S. 2C:14-2 and paragraph (1) of subsection c. of N.J.S.
2C:14-2. See S. Judiciary Comm. Statement, supra, at 1-2.
6
Notably, the original Assembly Bill and sponsor statement
provided that NERA would apply to "paragraph (1) and paragraphs
(3) through (7) of subsection a. of N.J.S. 2C:14-2, aggravated
sexual assault." Assemb. B. No. A3201, at 3 (Feb. 5, 2001)
(emphasis added); Appended Sponsor's Statement to Assemb. B. No.
A3201, supra, at 9.
24 A-1514-14T4
Therefore, we find the Legislature intended that a
defendant would be subject to NERA if he violated any one of
"subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection
c. of N.J.S. 2C:14-2, sexual assault." N.J.S.A. 2C:43-
7.2(d)(8).
Defendant argues it would be absurd for the Legislature to
make NERA applicable to second-degree sexual assault where the
"victim is less than 13 years old," N.J.S.A. 2C:14-2(b), and
applicable where "[t]he actor uses physical force or coercion,"
N.J.S.A. 2C:14-2(c)(1), but not where a defendant violates the
other subsections of N.J.S.A. 2C:14-2(c). However, those other
subsections do not concern the two things the Legislature was
most concerned about — victims under thirteen years old, and the
use of physical force.7
Thus, whether we look solely at the plain language of NERA,
or examine its legislative history, or apply the canons of
statutory interpretation requiring us to avoid surplusage and
absurd results, it is clear that NERA applies to a defendant
7
Instead, the other subsections concern the misuse of
relationships: a supervisory or disciplinary relationship over
detainees; such a relationship, or a familial or guardianship
relationship, with a victim over sixteen years old; and the
relationship of an adult to a victim between thirteen and
sixteen years old. N.J.S.A. 2C:14-2(c)(2), (3), (4). Those
subsections were not covered by NERA before or after the 2001
amendment. See Thomas, supra, 166 N.J. at 572.
25 A-1514-14T4
convicted of second-degree sexual assault under N.J.S.A. 2C:14-
2(c)(1).
Accordingly, we decline defendant's invitation to apply the
rule of lenity. "That doctrine 'holds that when interpreting a
criminal statute, ambiguities that cannot be resolved by either
the statute's text or extrinsic aids must be resolved in favor
of the defendant.'" State v. Rangel, 213 N.J. 500, 515 (2013)
(citation omitted). "'It does not invariably follow, that every
time someone can create an argument about the meaning of a penal
sanction, the statute is impermissibly vague, or that the lowest
penalty arguably applicable must be imposed.'" Olivero, supra,
221 N.J. at 639-40 (citation omitted). "Instead, the rule of
lenity is applied only if a statute is ambiguous, and that
ambiguity is not resolved by a review of 'all sources of
legislative intent.'" Ibid. (citation omitted). Here, the
statute's text and all extrinsic aids show defendant was
properly sentenced under NERA.
We have also considered, and now reject, the arguments in
defendant's pro se brief. Because defendant's NERA sentence was
not illegal, his counsel at his resentencing was not ineffective
for not raising defendant's current argument. Defendant makes
unsupported reference to the Eighth and Fourteenth Amendments of
the United States Constitution, but "NERA survives Eighth
26 A-1514-14T4
Amendment scrutiny." State v. Johnson, 166 N.J. 523, 548
(2001). Defendant's remaining pro se arguments are without
sufficient merit to warrant further discussion. R. 2:11-
3(e)(2).
Affirmed.
27 A-1514-14T4