State of New Jersey v. Jamel Carlton ( 2024 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0532-22
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
JAMEL CARLTON, a/k/a
JAMEL A. CARLTON,
JAMAL CARLTON, and
GHOST J,
Defendant-Appellant.
_________________________
Argued October 16, 2024 – Decided November 27, 2024
Before Judges Sumners, Susswein and Perez Friscia.
On appeal from the Superior Court of New Jersey,
Law Division, Atlantic County, Indictment No.
20-12-0711.
Michael Timothy Denny, Assistant Deputy Public
Defender, argued the cause for appellant (Jennifer N.
Sellitti, Public Defender, attorney; Michael Timothy
Denny, of counsel and on the briefs).
David M. Galemba argued the cause for respondent
(Matthew J. Platkin, Attorney General, attorney;
Mercedes Robertson, Deputy Attorney General, of
counsel and on the brief).
Appellant filed a pro se supplemental brief.
The opinion of the court was delivered by
SUSSWEIN, J.A.D.
Defendant Jamel Carlton appeals from his jury trial convictions for
aggravated sexual assault, sexual assault, aggravated assault, burglary, and
criminal restraint against an Atlantic City casino-hotel housekeeper. The State
presented surveillance video recordings captured by multiple cameras
throughout the casino-hotel. The State also introduced DNA evidence showing
that defendant sexually penetrated the victim, and photographic evidence of
her injuries, corroborating her testimony that the encounter was violent and not
consensual. The trial judge sentenced defendant as a persistent offender to a
forty-two-year prison term.
Defendant contends for the first time on appeal that his Confrontation
Clause rights were violated when the trial judge allowed the jury to hear lay
opinion testimony regarding the identification of the suspect shown on
surveillance video. He also contends the trial judge erred by preventing him
from introducing evidence about the victim's prior sexual conduct and from
discussing a newspaper article from 2005 describing prostitution activities at
the same casino-hotel where the present crimes were committed in February
2018—thirteen years after the article was published. In a self-represented
brief, defendant raises several other contentions, including allegations of
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prosecutorial misconduct. After carefully reviewing the record in light of the
parties' arguments and governing legal principles, we affirm defendant's
convictions.
Defendant also challenges his forty-two-year extended term sentence as
a persistent offender. In his initial appeal brief, defendant argued the trial
judge erred in finding that he was a persistent offender under N.J.S.A. 2C:44 -
3(a) based on two prior New York felony convictions—one committed in
2006 and the other committed in 2011. He also argued the trial judge abused
her discretion by electing to impose an extended term of imprisonment after
finding that defendant was eligible for an enhanced sentence as a persistent
offender.
After the initial briefs were filed, the United States Supreme Court
decided Erlinger v. United States, 602 U.S. 821 (2024), holding that under
the Fifth and Sixth Amendments, a jury—not a sentencing judge—must
decide whether prior convictions used to establish the basis for enhanced
sentencing had been committed on separate occasions. The majority in
Erlinger explained that the Supreme Court was not creating a new rule, but
merely applying constitutional principles it had previously announced
following its groundbreaking decision, Apprendi v. New Jersey, 530 U.S. 466(2000). It is undisputed, however, that Erlinger abrogates New Jersey
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Supreme Court precedent that embraced a contrary interpretation of the
Apprendi doctrine, State v. Pierce, 188 N.J. 155 (2006). Erlinger thus
necessitates a significant change to New Jersey practices and procedures for
imposing a persistent-offender extended term of imprisonment under
N.J.S.A. 2C:44-3(a).1
The State acknowledges the Erlinger rule applies retroactively to
"pipeline" cases and thus, defendant's Fifth and Sixth Amendment rights were
violated when the judge rather than a jury decided that he was eligible for a
persistent offender extended term. The Attorney General nonetheless urges
us to apply the harmless constitutional error doctrine to affirm defendant's
extended-term sentence.
To be sure, the approach advocated by the Attorney General would
conserve substantial judicial and prosecutorial resources by obviating the
need to remand an untold number of pipeline cases for new jury trials. We
are nonetheless unpersuaded the harmless constitutional error doctrine can be
applied in this case without eviscerating the Erlinger rule. We are concerned
that the essential nature of a harmless error analysis—which focuses on
1
We presume the Erlinger rule also applies to New Jersey's "three strikes"
law, N.J.S.A. 2C:43-7.1, which likewise requires a finding that the prior
crimes were committed on "separate occasions."
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whether the same outcome would have been reached if the error had not
occurred—runs counter to the Erlinger Court's stern admonition that "[t]here
is no efficiency exception to the Fifth and Sixth Amendments." 602 U.S. at
842. The Court added, "[i]n a free society respectful of the individual, a
criminal defendant enjoys the right to hold the government to the burden of
proving its case beyond a reasonable doubt to a unanimous jury of his peers
'regardless of how overwhelmin[g]' the evidence may seem to a judge." Ibid.
(alteration in original) (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).
Furthermore, the Attorney General candidly acknowledged at oral
argument that its harmless error argument would likely apply to most
pipeline cases. That suggests, as a practical matter, the harmless error
exception might swallow the rule, rendering hollow its retroactive
application.
In the absence of further guidance from the United States Supreme
Court on permissible exemptions to the Erlinger rule, we are constrained to
vacate defendant's persistent-offender extended-term sentence and remand to
the Law Division with instructions on how to remedy the constitutional
violation.
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I.
We discern the following facts and procedural history from the record.
A.
The victim, N.K., 2 was employed as a housekeeper at a casino-hotel. On
February 10, 2018, defendant approached her while she was working on the
fourth floor. He asked her to assist him in accessing room 496, claiming that
his girlfriend was inside. N.K. advised that she could not assist him because
she did not have the key to that room. She instructed defendant to go to the
hotel front desk to obtain a new key card.
Defendant left the fourth floor but returned after approximately ten
minutes. He informed N.K. that he could not obtain a new key card at the
front desk because he did not have identification. N.K. suggested that
defendant knock on the door so that his girlfriend would let him in.
N.K. went about her work cleaning rooms assigned to her, eventually
moving to room 495. While cleaning that room, N.K. retrieved supplies from
her cart in the hallway, but only after checking to see if defendant had left the
area. N.K. opened the door "just enough . . . to get out of the door to get
2
We use initials to protect the identity of the sexual assault victim. R. 1:38-
3(c)(12).
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supplies." Suddenly, defendant jumped on top of her, covered her mouth and
nose, and threw her onto the floor inside the room.
Defendant punched N.K. repeatedly, dragged her to the bathroom by her
hands, and banged her head. Defendant then dragged the victim out of the
bathroom towards the bed and threw her to the floor. Defendant removed her
pants, underwear, and socks while telling her that he was going to rape her.
N.K. repeatedly testified that she thought she was going to die.
Next, defendant threw N.K. onto the bed face up and covered her nose
and mouth. N.K. felt suffocated. While continuing to cover the victim's nose
and mouth, defendant inserted his penis into her vagina. Defendant also kissed
her foot and licked her toe. Defendant instructed her not to tell anyone about
the rape and threatened to kill her if she did.
N.K. testified the sexual assault occurred "[a]round eleven" in the
morning or "a little bit after." She could not recall the duration of the attack
because she "was so scared at that moment."
After the attack, N.K. heard a door close and believed defendant had left
the hotel room. When she tried to get out of the room, she realized defendant
was in the bathroom. Defendant ordered her to lie back down on the bed face
down. While she was on the bed, defendant searched through her bag, found a
cellphone, and discarded it in the trash bin.
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When N.K. believed that defendant had finally left the room, she locked
the door, retrieved her cellphone, and called her supervisor. She requested her
supervisor come up to the fourth floor because "someone raped . . . and
assault[ed] [her]." The housekeeping supervisor arrived at the fourth floor and
saw N.K. sitting against the open door to room 495, crying. The housekeeping
supervisor testified that she saw a "red mark on [N.K.'s] face" that looked like
"she [had] been punched." N.K. informed her that defendant had taken her
"key card and i[P]od." The housekeeping supervisor relayed this information
to security and her manager, and police were called.
The security supervisor at the casino-hotel, one of the security personnel
on scene at room 495, testified that he received a dispatch call around 11:30
a.m. reporting "[t]hat a room attendant had been assaulted." He entered the
room and saw the housekeeping supervisor consoling N.K., who appeared
"[d]istraught," "very upset," and was "crying a lot." He also noticed "a red
mark on her cheek." The security supervisor was present when N.K. provided
a description of defendant and informed security that defendant had attempted
to gain access to room 496. N.K. described the assailant as a Black man with a
medium build wearing an earring, gray hoodie, and black pants and shoes. The
security supervisor also contacted the front desk and spoke with a hotel
receptionist who confirmed that a male, later identified as defendant,
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"attempt[ed] to get a key ... [to] gain access to [room 496]," but did not have
access to rooms 495 and 496, or the fourth floor.
A hotel receptionist who worked the front lobby on February 10, 2018
testified that she was approached by a man who requested access to room 496.
She described the man as a "difficult guest." The receptionist asked defendant
for his identification and confirmed that his name was not on the reservation
for the room. She also called room 496 but no one answered. Although
defendant was insistent, the receptionist informed him that she was unable to
provide him with a room key. Defendant walked away "upset" and
"frustrated."
Emergency medical and Atlantic City Police Department (ACPD)
personnel responded to the scene of the attack. An ACPD detective testified
that N.K. appeared "distraught," "upset," and had "swelling to the jaw area."
Based on the description of the attacker that N.K. provided, the detective
reviewed hotel surveillance video and identified the suspect. According to the
detective, casino security personnel were aware of the suspect's identity from a
domestic violence incident that occurred earlier that morning. The detective
testified that he reviewed the surveillance footage, which showed a man
wearing a "gr[a]y sweatshirt, black pants[,] and black colored Air Jordan
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sneakers" with "a doo-rag on at the time" moving through the casino and
stairwell. At trial, the detective identified defendant as the man in the video.
The detective asked casino security to "locate all video footage of
[defendant] from . . . before and after the assault." A security specialist
employed by the casino reviewed the video surveillance footage to locate the
suspect based on a photograph of defendant. He provided a DVD to ACPD
containing the video surveillance files.
At trial, the State played for the jury portions of the video surveillance
video files and the security specialist provided narration. The video showed
two men, including the one the security specialist was "following," in an
elevator located on the second floor of the casino-hotel at 10:09 a.m. The man
was wearing a gray hoodie, black pants, and black shoes, similar to the
description given by N.K.
At 10:11 a.m., the suspect exited the elevator and entered a different
elevator, eventually arriving on the fourth floor at 10:17 a.m. Around 10:26
a.m., the suspect is seen re-entering the elevator on the fourth floor, taking it to
the second floor, walking to the front desk, and speaking with a hotel
receptionist. The suspect left the front desk at 10:28 a.m. and attempted to use
an elevator to travel to another hotel floor, but that attempt was unsuccessful
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without a room key.3 At 10:30 a.m., the suspect got off the elevator at the
eighth floor. Once on the eighth floor, the suspect entered an emergency exit
stairwell, which, the security specialist testified, "was the closest stairwell to
[room 496]."
At 11:22 a.m., the suspect was seen running down the second-floor
hallway, no longer wearing the gray hoodie or dark gray polo underneath. The
security specialist testified that the other floors in that part of the hotel did not
have surveillance cameras like the second floor.
Video shows that at 11:23 a.m., the suspect ran out of the hotel's second
floor to the parking garage while holding the dark gray polo shirt. When
another camera records the suspect approaching the parking garage elevators,
the suspect is no longer holding the polo shirt. The suspect then exited the
garage through a stairwell and ran across the street off the property.
The security specialist testified that, based on his observation of the
suspect's missing polo shirt, he went to the third floor of the parking garage to
look for it and found a gray polo hoodie in the trash can. The ACPD detective
3
The security specialist testified that an individual without a key card could
gain access to another hotel floor if another hotel guest selected that floor or if
the elevator was called to that floor while the key-less individual was in the
elevator.
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also testified that a gray sweatshirt was found on the eighth floor and was
recovered from lost-and-found.
Forensic evidence was recovered from the victim's person. Medical
personnel transported N.K. by ambulance to the Atlantic City Medical Center,
where a certified sexual assault nurse examiner conducted a forensic sexual
assault examination. As part of that examination, the nurse photographed
N.K.'s injuries. The photos show abrasions to her left temple and right wrist;
bruising on the left side of her neck, as well as her knee, legs, and left hand
and wrist; and redness on her left cheek. The nurse also performed a
gynecological examination, collecting swabs of N.K.'s vagina and cervix as
well as her mouth and right toes.
The swabs were submitted to the New Jersey State Police Office of
Forensic Sciences (NJSP OFS) for analysis. The results indicated that sperm
was located on the vaginal swabs, cervical swabs, and N.K.'s underwear. The
vaginal, cervical, and foot swabs, in addition to a portion of N.K.'s underwear,
were sent to the NJSP OFS DNA Laboratory for further testing. A NJSP OFS
forensic scientist and expert in the field of forensic DNA analysis determined
defendant was the source of the sperm fractions found on the vaginal, cervical,
and foot swabs, as well as on N.K.'s underwear.
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While enroute to the hospital to interview N.K., the ACPD detective
spotted defendant on the 1800 block of Atlantic Avenue. Photographs of
defendant were taken during that encounter. Those photos depict defendant
wearing a white t-shirt, black pants, and Air Jordan sneakers.
B.
Defendant was charged in a superseding indictment with first-degree
aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree
sexual assault, N.J.S.A. 2C:14-2(c)(l) (count two); second-degree burglary,
N.J.S.A. 2C:18-2(a)(l) (count three); third-degree aggravated assault, N.J.S.A.
2C:12-1(b)(7) (count four); third-degree criminal restraint, N.J.S.A. 2C:13-
2(a) (count five); fourth-degree obstructing administration of law, N.J.S.A.
2C:29-l(a) (count six); and a disorderly persons offense for resisting arrest,
N.J. S.A. 2C:29-2(a)(1).
A jury trial was held in March 2022. The jury found defendant guilty
on counts one through five. On September 7, 2022, the trial judge sentenced
defendant to an extended term of imprisonment as a persistent offender,
N.J.S.A. 2C:44-3(a). After merger, on count one, the judge imposed an
aggregate term of forty-two years in prison subject to the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2. The judge further imposed parole
supervision for life, N.J.S.A. 2C:43-6.4, and ordered defendant to abide by
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the requirements of Megan's Law, N.J.S.A. 2C:7-1 to -23. On counts four and
five, the judge sentenced defendant to two five-year prison terms to run
concurrently with each other and the sentence imposed on count one. The
judge dismissed count six and the disorderly persons offense. This appeal
followed.
II.
Defendant raises the following contentions for our consideration in his
counseled brief:
POINT I
THE STATE IMPROPERLY BOLSTERED ITS
CASE WITH INADMISSABLE HEARSAY AND
INADMISSIBLE LAY OPINION TESTIMONY
IMPLICATING THE DEFENDANT AS THE
PERPETRATOR IN VIOLATION OF THE
CONFRONTATION CLAUSE AND N.J.R.E. 701.
A. [The ACPD Detective] And [The Security
Specialist]'s Identifications Of The Man In The
Video As Carlton Violated N.J.R.E. 701.
B. Admission Of [The ACPD Detective] And [The
Security Specialist]'s Hearsay Testimony That
[The Casino-Hotel]'s Had Identified Carlton As
The Suspect Violated The Confrontation Clause.
POINT II
THE TRIAL COURT VIOLATED DEFENDANT'S
RIGHT TO A COMPLETE DEFENSE BY
LIMITING THE EVIDENCE REGARDING
PROSTITUTION.
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POINT III
DEFENDANT'S EXTENDED TERM SENTENCE
OF 42 YEARS WITH AN 85% PAROLE
DISQUALIFIER IS MANIFESTLY EXCESSIVE.
Defendant raises the following additional contentions in his self-
represented brief:
POINT I
Whether Defendant's right to Miranda was violated
under the Constitution of New Jersey and the
Constitution of [the] United States.
POINT II
Whether Defendant was denied his right to be free
from unreasonable search and seizure under the
United States Constitution and the New Jersey
Constitution.
POINT III
Whether Defendant['s] right to Speedy Trial was
denied under the Due Process of Law.
POINT IV
Whether Trial Court erred when it allowed the
DNA into evidence.
POINT V
Whether Trial Court erred when it refused to put
the time of the crime in the Jury Charge denying
defendant an unfair Jury and Due Process of Law.
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POINT VI
Whether Prosecutorial Misconduct led to defendant
being found Guilty by an unfair Jury.
POINT VII
Whether the Defendant was denied his right to
Discovery.
Defendant raises the following contention in a supplemental brief filed
by leave granted following the United States Supreme Court's decision in
Erlinger4:
POINT I
THE FIFTH AND SIXTH AMENDMENTS AND
APPRENDI V. NEW JERSEY, 530 U.S. 466(2000), REQUIRE THAT A JURY DECIDE THE
EXISTANCE OF THE FACTS NECESSARY TO
ESTABLISH THE PREDICATE FOR AN
EXTENDED TERM UNDER N.J.S.A. 2C:44-3A.
III.
We first address defendant's contention that his Confrontation Clause
rights were violated when two State witnesses testified about how they became
aware that defendant was the suspect. Prior to trial, defendant moved to
4
We note both parties submitted abbreviated supplemental briefs. Defendant
submitted a thirteen-page brief along with his motion for leave to file a
supplemental brief, which we granted. We directed the State to file a
responsive supplemental brief no longer than fifteen pages. We did not permit
a reply brief. We add that neither party requested oral argument. We sua
sponte scheduled oral argument limited to the Erlinger-related issues.
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preclude the State from referring to a domestic violence incident that led to the
identification of defendant as the person who sexually assaulted N.K. On the
morning of the sexual assault, defendant was involved in a domestic violence
episode with his girlfriend in room 496. Defendant was arrested at the hotel at
approximately 5:30 a.m. and released from police custody at 9:00 a.m. He
then returned to the casino-hotel and attempted to regain entry to his
girlfriend’s hotel room.
During the in limine hearing, the State agreed not to present any
evidence of the domestic violence incident or arrest in its case-in-chief. The
State also agreed that officers would testify only generally that they were
aware of defendant as the suspect. Defense counsel did not object to the State
pursuing that approach. Nor did defendant object when the State's witnesses
testified that casino security personnel were familiar with defendant and
provided a picture of him to police officers to assist in the sexual assault
investigation. Defendant claims for the first time on appeal that this testimony
violated his confrontation rights.
"The Confrontation Clause 'prohibit[s] the use of out-of-court
testimonial hearsay, untested by cross-examination, as a substitute for in-court
testimony.'" State v. Williams, 219 N.J. 89, 98 (2014) (quoting State ex rel.
J.A., 195 N.J. 324, 342 (2008)). But "[t]he right of confrontation, like other
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constitutional rights, may be waived by the accused." Ibid. A defendant can
waive this right "by failure to object to the offending evidence[.]" Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 (2009). Indeed, our Supreme
Court has stated that "[t]he defendant always has the burden of raising [their]
Confrontation Clause objection[.]" Williams, 219 N.J. at 99 (citing Melendez-
Diaz, 557 U.S. at 328). Articulated another way, generally, a defendant "must
attempt to exercise [their] confrontation right and object when necessary, if
[they] wish[] later to claim that [they were] denied that right." State v. Wilson,
227 N.J. 534, 543 (2017) (quoting Williams, 219 N.J. at 93).
Furthermore, it is well-recognized that as a matter of trial strategy,
defense counsel may refrain from raising a Confrontation Clause objection to
testimony "that may inure to the advantage of the defendant." Williams, 219
N.J. at 99. "[W]hen a defendant later claims that a trial court was mistaken for
allowing [them] to pursue a chosen strategy—a strategy not unreasonable on
its face but one that did not result in a favorable outcome—[their] claim may
be barred by the invited-error doctrine." Id. at 100 (citing State v. A.R., 213
N.J. 542, 561-62 (2013), then citing N.J. Div. of Youth & Family Servs. v.
M.C. III, 201 N.J. 328, 340 (2010)).
"The invited error doctrine is intended to 'prevent defendants from
manipulating the system' and will apply 'when a defendant in some way has led
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the court into error' while pursuing a tactical advantage that does not work as
planned." Ibid. (quoting A.R., 213 N.J. at 561-62). Thus, "if a party has
'invited' the error, he is barred from raising an objection for the first time on
appeal." A.R., 213 N.J. at 561 (citing M.C. III, 201 N.J. at 342).
Here, defendant failed to raise any objection to the ACPD detective's and
the security specialist's testimony that the casino-hotel was aware of the
suspect's identity as defendant and provided them with a known image of
defendant. Defendant now asserts for the first time on appeal that no person
from the casino-hotel testified about how they were able to identify defendant
as the suspect or why they were in possession of a photograph of him to share
with police. But defendant's pretrial motion to preclude any mention of the
domestic violence incident is the reason why the State did not elicit this
information before the jury.
We add that several casino security officers testified at trial. Defendant
thus had the opportunity to cross-examine them about how they were aware of
defendant, why they had a picture of him, and most importantly, how they
were able to identify him as a suspect. We are satisfied the defense made a
strategic decision not to object to their sanitized testimony and not to explore
the true basis for their knowledge on cross-examination.
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For the sake of argument, were we to assume that the officer's testimony
was improper under the Confrontation Clause, "[w]hen a defendant does not
object to an alleged error at trial, such error is reviewed under the plain error
standard." State v. Singh, 245 N.J. 1, 13 (2021) (citing R. 2:10-2); see also
State v. Nelson, 173 N.J. 417, 471 (2002) (holding that a failure to object to
testimony permits an inference that any error in admitting the testimony was
not prejudicial).
"Plain error is a high bar[.]" State v. Santamaria, 236 N.J. 390, 404
(2019). "Under that standard, an unchallenged error constitutes plain error if it
was 'clearly capable of producing an unjust result.'" Singh, 245 N.J. at 13
(quoting R. 2:10-2). "Thus, the error will be disregarded unless a reasonable
doubt has been raised whether the jury came to a result that it otherwise might
not have reached." Ibid. (quoting State v. R.K. 220 N.J. 444, 456 (2015)).
Importantly, moreover, "[t]o determine whether an alleged error rises to
the level of plain error, it 'must be evaluated in light of the overall strength of
the State's case.'" Id. at 13-14 (quoting State v. Sanchez-Medina, 231 N.J.
452, 468 (2018)). In the context of the identification of the culprit, "when a
case is fortified by substantial credible evidence—for example, direct
identification of the defendant—the testimony is not likely to be prejudicial
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under the 'plain error' rule." State v. Irving, 114 N.J. 427, 448 (1989) (citing
State v. Douglas, 204 N.J. Super. 265, 275 (App. Div. 1985)).
Here, there was substantial credible evidence—indeed, overwhelming
evidence—identifying defendant as the person who sexually assaulted N.K.
Defendant's DNA was found in the semen deposited in the victim's cervix,
vagina, and underwear. Additionally, defendant was the source of the DNA
found on N.K.'s foot, which corroborates the victim's claim that the perpetrator
licked it.
IV.
We turn next to defendant's contention that the trial judge erred by
allowing law enforcement officers at trial to present inappropriate lay opinion
testimony in violation of the Confrontation Clause and N.J.R.E. 701.
Defendant raises two distinct arguments regarding testimony related to the
surveillance video. He first contends that the ACPD detective and the casino -
hotel security specialist both offered improper lay opinion testimony in
violation of N.J.R.E. 701 as to the identity of the suspect in the surveillance
videos. He also claims that the security specialist's testimony that the hoodie
sweatshirt he found in the parking garage trash can resembled the shirt he
observed "the subject" wearing and carrying in the surveillance video also
violated N.J.R.E. 701. We address each argument in turn.
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A.
The State argues that both the security specialist and the detective
presented fact testimony—not opinion testimony—explaining what they did
when they were informed that casino-hotel personnel were aware of the
suspect's identity and were provided with a photograph of the suspect, known
to be defendant. But even accepting, for purposes of argument, that their
testimony was improper as to the identity of the suspected rapist, the
admission of the testimony challenged for the first time on appeal does not rise
to the level of plain error.
In Singh, a detective testifying at trial referred to the suspect in the video
as "the defendant" twice in narrating the surveillance footage. 245 N.J. at 18.
The Supreme Court determined that although it was error for the detective to
refer to an individual depicted in the surveillance video as the defendant
during the narration of that video, "that error was harmless given the fleeting
nature of the comment and the fact that the detective referenced defendant as
'the suspect' for the majority of his testimony." Id. at 17.
As in Singh, the security specialist referred to the person in the
surveillance video as "the subject" for the majority of his narration testimony.
He only referred to the person in the video as "Jamel" once.
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Afterwards, the detective—who did not provide any narration of the
surveillance video—testified that he was made aware of the identity of the
suspect as defendant, and, upon reviewing the surveillance video, observed
that "Mr. Carlton . . . he had on a gr[a]y sweatshirt, black pants and black
colored Air Jordan sneakers[.]" In all, defendant was referred to by name as
the person depicted in the surveillance video twice by two separate witnesses
who testified several days apart from one another.
We do not mean to suggest those references to defendant by name or by
using the phrase "the defendant" were appropriate. But in light of the
overwhelming evidence of defendant's guilt established through competent
admissible testimony, we decline to invalidate the jury verdict based on these
isolated misstatements. See id., 245 N.J. at 13-14 ("[t]o determine whether an
alleged error rises to the level of plain error, it 'must be evaluated in light of
the overall strength of the State's case.'") (quoting State v. Sanchez-Medina,
231 N.J. at 468).
B.
We next address whether the security specialist's testimony regarding the
shirt found in a trash can was improper lay opinion. Lay witness opinion
testimony is governed by N.J.R.E. 701. As the Court emphasized in Singh,
"lay opinion testimony can be admitted only 'if it falls within the narrow
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bounds of testimony that is based on the perception of the witness and that will
assist the jury in performing its function.'" Singh, 245 N.J. at 14 (quoting
State v. McLean, 205 N.J. 438, 456 (2011)). "The first prong of N.J.R.E. 701
requires the witness's opinion testimony to be based on the witness's
'perception,' which rests on the acquisition of knowledge through use of one's
sense of touch, taste, sight, smell or hearing." Ibid. (citing McLean, 205 N.J.
at 457). "[L]ay opinion testimony is limited to what was directly perceived by
the witness and may not rest on otherwise inadmissible hearsay." Id. at 14-15
(citing McLean, 205 N.J. at 460).
The second requirement is that lay-witness opinion testimony be
"limited to testimony that will assist the trier of fact either by helping to
explain the witness's testimony or by shedding light on the determination of a
disputed factual issue." Id. at 15 (quoting McLean, 205 N.J. at 458).
In Singh, the Court concluded that a detective's testimony comparing the
sneakers he observed on surveillance video to the sneakers he observed
defendant wearing when he arrested defendant was proper lay opinion
testimony under N.J.R.E. 701. 245 N.J. at 18-19. First, the Court determined
the detective had first-hand knowledge of what the sneakers looked like,
having seen them on defendant. Id. at 19-20. The Court thus concluded that
the detective's "lay opinion as to the similarities between the sneakers from the
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24
surveillance footage and the sneakers he saw that night was rationally based on
his perception[.]" Ibid.
As to the second prong in the N.J.R.E. 701 framework, the Singh Court
found that the detective's testimony as to the similarities between the sneakers
was helpful to the jury because he "had first-hand knowledge of what the
sneakers looked like[.]" Id. at 20. The Court reasoned that "[s]imply because
the jury may have been able to evaluate whether the sneakers were similar to
those in the video does not mean that [the detective's] testimony was
unhelpful[,] [n]or does it mean that [the detective's] testimony usurped the
jury's role in comparing the sneakers." Ibid.
In the matter before us, the security specialist's testimony likewise
satisfies the requirements of N.J.R.E. 701. He testified that he observed the
"subject" on the third floor of the parking garage with a polo shirt in his hand
during one portion of the video surveillance, but a few seconds later in the next
camera view, defendant was no longer holding the shirt. The security
specialist testified that based on this observation, he went to the third floor of
the parking garage, checked a trash can located at the entrance, and found
"[t]he missing shirt from the video frame" which "appeared to be a gr[a]y polo
hoodie."
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25
While those circumstances are distinguishable from what occurred in
Singh, we are not persuaded that a different result must be reached simply
because the security specialist did not personally see defendant wearing the
gray polo hoodie. All that is required is that the witness have "first -hand
knowledge" as to what the item of clothing looked like. That requirement was
satisfied when the security specialist retrieved the discarded shirt.
Furthermore, although the hoodie was admitted into evidence for the
jury to make its own comparison, Singh made clear that circumstance does not
automatically mean that the security specialist's testimony was unhelpful or
usurped the jury's role. The Court stressed, "[t]here is no requirement in
N.J.R.E. 701 that the testifying lay witness be superior to the jury in evaluating
an item." Singh, 245 N.J. at 19.
In this instance, because defendant failed to object, the trial judge had no
opportunity to address the N.J.R.E. 701 issue and make findings. We are
satisfied that because the security specialist had "first-hand knowledge" of
what the gray polo hoodie looked like after finding it discarded in the trash
can, his comparison of the retrieved hoodie to the one shown in the video was
helpful to the jury in evaluating whether the hoodies were similar.
Finally, and at the risk of undue repetition, even if this portion of the
security specialist's testimony were deemed to be improper, such error does not
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26
amount to plain error in light of the overwhelming evidence, including DNA
evidence, that it was defendant who sexually assaulted the victim.
V.
That brings us to defendant's contention the trial judge erred in
preventing the defense from introducing into evidence a newspaper article
from 2005 discussing a prostitution operation controlled by casino hosts, 5 and
by precluding the defense from presenting forensic evidence showing an
unidentified minor DNA profile found on N.K's cervical swab.
A trial judge's evidentiary rulings should be upheld "absent a showing of
an abuse of discretion." State v. Perry, 225 N.J. 222, 233 (2016) (citations
omitted). The law is well-settled that an appellate court should not substitute
its judgment for that of the trial judge unless the trial judge's ruling is "so wide
of the mark that a manifest denial of justice resulted." Ibid. (quoting State v.
Marrero, 148 N.J. 469, 484 (1997)).
A.
We conclude the trial judge did not abuse her discretion in preventing
defendant from cross-examining witnesses about an article published thirteen
5
The article discussed how three former casino hosts from the same casino-
hotel where the present incident occurred were "blacklisted" by the Casino
Control Commission because they recruited Malaysian and East Asian women
for a brothel in Philadelphia.
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27
years prior to the sexual assault of N.K. The trial judge found that the article
has no nexus to the present case, "which involves a middle[-]aged woman who
is an employee of the casino, who has no prior arrests or record of
prostitution." We do not hesitate to conclude the trial judge properly
precluded any such evidence concerning past casino-related prostitution
activities given that there was no evidence that N.K. was involved in
prostitution.
B.
We next address the trial judge's decision to preclude evidence of a
minor unidentified DNA profile that was detected on a swab obtained from
N.K.'s cervix. Defendant argued the third-party DNA could have identified
another person as the assailant, or additional parties who might have testified
N.K. was providing sex in exchange for money at the casino-hotel.
"The introduction of evidence of a victim's prior sexual conduct is
governed by New Jersey's Rape Shield Law, N.J.S.A. 2C:14-7[.]" Perry, 225
N.J. at 234. That statute "is designed to deter the unwarranted and
unscrupulous foraging for character-assassination information about the victim
and does not permit introduction of evidence of the victim's past sexual
conduct to cast the victim as promiscuous or of low moral character." Ibid.(citations and internal quotations omitted).
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The statute "defines 'sexual conduct' as 'any conduct or behavior relating
to sexual activities of the victim, including but not limited to previous or
subsequent experience of sexual penetration or sexual contact, use of
contraceptives, sexual activities reflected in gynecological records, living
arrangement and life style." Perry, 225 N.J. at 234 (quoting N.J.S.A. 2C:14-
7(f)). In the present matter, the minor DNA profile found from a swab of the
victim's cervix falls squarely within the statutory definition. See id. at 240(finding a semen stain found on the victim's underwear falls under the
definition of sexual conduct).
Determining the admissibility of evidence of a victim's prior sexual
conduct requires a two-step analysis: (1) whether the evidence is relevant and
necessary to resolve a material issue in light of other evidence that is available
to address that issue; and (2) whether the probative value of the contested
evidence outweighs the prejudicial effect to the victim in the context of the
Rape Shield Law. Id. at 236-37. "The determination of whether evidence of a
victim's prior sexual conduct is admissible 'is exquisitely fact-sensitive' and
'depends on the facts of each case.'" Id. at 238 (quoting State v. J.D., 211 N.J.
344, 358 (2012)). Under the first prong, N.J.R.E. 401 defines relevant
evidence as "evidence having a tendency in reason to prove or disprove any
fact of consequence to the determination of the action." See State v. Jenewicz,
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29
193 N.J. 440, 457-58 (2008). That analysis focuses on "the logical
connections between the proffered evidence and a fact in issue." State v.
Schnabel, 196 N.J. 116, 130 (2008) (quoting State v. Williams, 190 N.J. 114,
123 (2007)).
The second prong requires the court to determine whether the probative
value of the contested evidence outweighs its prejudicial effect on the victim.
Perry, 225 N.J. at 237 (citing State v. Budis, 125 N.J. 519, 532 (1991)).
"Under the Rape Shield Law, the probative value of the victim's prior sexual
conduct 'depends on clear proof that the conduct occurred, that it is relevant to
a material issue in the case, and that it is necessary to a defense.'" Ibid.(quoting State v. J.A.C., 210 N.J. 281, 300 (2012)). On the other hand, "[t]he
prejudice contemplated by the Rape Shield Law includes the trauma to the
victim, the degree to which the evidence sought to be admitted would invade
the victim's privacy, the 'impact of a given ruling on a victim reporting sexual
abuse,' as well as the need to guard victims from excessive cross-examination
and prevent undue jury confusion." Ibid. (quoting J.A.C., 210 N.J. at 300).
In Perry, the defendant sought to admit evidence of an unknown man's
semen deposited on the victim's shorts, claiming it was relevant to support his
theory of either consent or third-party guilt. 225 N.J. at 240. Our Supreme
Court stressed that there was nothing in the record to indicate when the semen
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30
was deposited on the shorts, and all the challenged evidence showed was "that
some unknown individual engaged in a sexual act with [the victim] at some
unknown time." Id. at 241. The Court further reasoned that "without proof
that the semen [was] in any way related to the crime here, the DNA evidence
of the semen stain on [the victim]'s shorts was not relevant to the issue the jury
had to decide[.]" Id. at 242. The Court ultimately determined "the proffered
evidence was irrelevant to defendant's consent defense, fails to support the
defense of third-party guilt, and was, therefore, properly excluded." Id. at 243.
For essentially the same reasons explained in Perry, here, the trial judge
properly denied defendant's attempts to admit the DNA evidence of the
unidentified minor profile found on N.K.'s cervical swab. There was no
evidence of when it was deposited or who deposited it.
That conclusion is not undermined by defendant's allegation that
"defendant's sexual involvement with the victim centered around receiving sex
in exchange for money" and his assertion that the third-party DNA would
confirm the victim was providing sex for money while working at the casino -
hotel. Even assuming, just for the sake of argument, that N.K. had engaged in
consensual sex with another party in exchange for money, that evidence would
not be admissible to prove the victim had consensual sex with defendant. See
State v. Clowney, 299 N.J. Super. 1, 15-16 (App. Div. 1997) (excluding
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31
evidence of victim's prior acts of sex with others for money as it was
inadmissible to prove the victim had consensual sex with defendant). In sum,
the trial judge did not abuse her discretion in precluding the evidence
defendant sought to use against the victim.
VI.
We need only briefly address the contentions raised in defendant's self-
represented submission. Those arguments lack sufficient merit to warrant
extensive discussion. See R. 2:11-3(e)(2).
A.
Defendant asserts for the first time on appeal that his Miranda6 rights
were violated, claiming that he was not advised of those rights. That assertion
is belied by the record, which clearly shows that he was advised of his rights
and invoked the right to counsel, declining to provide a statement to police. In
short, no statement was given to police and thus no statement was offered into
evidence at trial.
B.
Defendant contends that evidence establishing probable cause for the
search warrant was falsified. Defendant moved to suppress the DNA evidence
6
Miranda v. Arizona, 384 U.S. 436 (1966).
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32
obtained pursuant to a search warrant and requested a Franks7 hearing alleging
the warrant contained false or fictitious statements of material fact.
Specifically, defendant points to what he characterizes as an inconsistency
between what the victim said and what was contained in the affidavit in
support of the search warrant: the victim told police that the person who
assaulted her was wearing a gray sweater with a hood and black pants, whereas
the affidavit stated the suspect was wearing a gray hooded sweatshirt and black
jeans.
The trial judge denied defendant's request for a Franks hearing, finding
that defendant failed to make the requisite showing that a false statement was
made deliberately or in reckless disregard of the truth. The trial judge
reasoned that although jeans and pants, as well as a sweater and sweatshirt, are
different things, the inconsistencies were "nominal." The trial judge added
that even if there were something "more nefarious" here, there was other
information in the affidavit that amply established probable cause to support
issuance of the warrant.
We agree with the trial judge that defendant failed to establish by a
preponderance of the evidence that the allegedly false statement in the
7
Franks v. Delaware, 438 U.S. 154 (1978). Our Supreme Court adopted the
Franks test in State v. Howery, 80 N.J. 563 (1979).
A-0532-22
33
affidavit was made either deliberately or in reckless disregard of the truth. See
State v. Desir, 245 N.J. 179, 195-99 (2021). We also agree that even assuming
for the sake of argument that defendant had established the first prong of the
Franks/Howery test, any such false statement was not material in view of
additional information in the warrant application that established probable
cause to justify the warrant. See id. at 197.
C.
Defendant alleges the State violated his right to a speedy trial. See
Barker v. Wingo, 407 U.S. 514 (1972). But he cites to no instances in which
the State caused any of the delay he now complains about. His speedy trial
claim is therefore baseless.
D.
Defendant claims for the first time on appeal that the trial judge erred by
"refus[ing] to put the time of the crime in the [j]ury [c]harge." It is well -
settled that "[i]f the defendant does not object to the [jury] charge at the time it
is given, there is a presumption that the charge was not error and was unlikely
to prejudice the defendant's case." State v. Singleton, 211 N.J. 157, 182
(2012) (citing State v. Macon, 57 N.J. 325, 333-34 (1971)). Accordingly,
"[a]ppellate review applies the plain-error standard when a defendant fails to
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34
object to a given jury charge." Ibid. (citing R. 1:7-2, then citing State v.
Wakefield, 190 N.J. 397, 473 (2007)).
At trial, defendant did not challenge the jury instruction on the grounds
it failed to mention the time of the crime. Nor did defendant request that the
judge give such an instruction. In any event, it would have been inappropriate
for the trial judge to instruct the jury on when exactly the sexual attack
occurred. The time at which the crime was committed is a question of fact for
the jury to determine based on the evidence presented.
Notably, during their deliberations, the jury asked for the time at which
defendant was seen running down the stairwell. In response to that jury
request, the prosecutor and defense counsel agreed it was appropriate to show
the jury the relevant surveillance footage clip which included timestamps
rather than specifically tell the jury the time at which that event occurred.
In sum, the trial judge did not commit error much less plain error by not
instructing the jury on when the crime occurred.
E.
Defendant claims the prosecutor committed misconduct on several
occasions. "[P]rosecutorial misconduct can be a ground for reversal where the
prosecutor's misconduct was so egregious that it deprived the defendant of a
A-0532-22
35
fair trial." State v. Frost, 158 N.J. 76, 83 (1999). We are satisfied that
defendant's allegations are meritless.
Defendant baldly claims the prosecutor committed misconduct by being
aware of the fact that defendant had been identified as the suspect because of
the domestic violence incident that occurred several hours before the attack
upon N.K. But of course, a prosecutor is permitted to know facts that would
be unduly prejudicial if revealed to the jury. It was also not misconduct for the
prosecutor to seek a superseding indictment to remove all references to the
domestic violence incident that appeared in the initial indictment. That was
done to safeguard defendant's right to a fair trial, not to gain an unfair
advantage.
Defendant also alleges the prosecutor committed misconduct by not
turning over fourth-floor surveillance footage. The security specialist testified,
however, there was no surveillance camera coverage on the fourth floor. The
State consistently represented, moreover, there was no surveillance footage of
the fourth-floor hallway. There is, of course, no obligation under our State's
"open-file approach to pretrial discovery in criminal matters," State v.
Hernandez, 225 N.J. 451, 461 (2016), to turn over something that does not
exist.
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36
To the extent we have not specially addressed them, any additional
claims of prosecutorial misconduct or other trial errors lack sufficient merit to
warrant discussion. R. 2:11-3(e)(2).
VII.
We next turn our attention to defendant's sentencing arguments.
Following the jury verdict, the State in accordance with Rule 3:21-4(e)8 filed a
motion to sentence defendant to an extended term as a persistent offender
pursuant to N.J.S.A. 2C:44-3(a). In support of its motion, the State relied on
two certified judgments of conviction from New York as well as a printout of
defendant's criminal history. Those documents revealed a New York felony
conviction on February 26, 2007 for third-degree9 robbery committed on
September 20, 2006 and a New York felony conviction on November 17, 2011
8
Rule 3:21-4(e) provides that a motion for an extended term must be filed
"within 14 days of the of the entry of the defendant's guilty plea or the return
of the verdict." In light of Erlinger, this provision has become obsolete since
the prosecutor's decision to seek—or at least preserve the option to seek—a
persistent-offender extended term must now be made at a much earlier stage of
the prosecution considering the requirement, discussed in section IX, infra,
that a grand jury, not just a petit jury, must find certain facts to establis h
eligibility for a persistent-offender extended term. We recommend the
Supreme Court Criminal Practice Committee revise or replace the current rule
to account for the new procedures that are needed to comply with Erlinger.
9
We note that degree classifications under New York law are different from
the classifications set forth in N.J.S.A. 2C:43-1(a) and N.J.S.A. 2C:43-6(a).
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37
for fourth-degree possession of stolen property committed on May 10, 2011.
The trial judge granted the State's motion to sentence defendant to a
discretionary extended term as a persistent offender and sentenced defendant
to forty-two years in prison, subject to NERA.
In his initial appeal brief, defendant argues the forty-two-year sentence
is manifestly excessive. He also contends the trial judge erred in determining
defendant was eligible for an extended term as a persistent offender, arguing
that although "the third-degree charge in New York is called robbery, the
elements of the crime itself are nearly the same as New Jersey's theft from a
person charge . . . N.J.S.A. 2C:20-2(b)(d)," which is designated under New
Jersey law as a third-degree crime, as distinct from robbery, N.J.S.A. 2C:15-1,
which is designated as either a first or second-degree crime.10
Defendant also argues that because both New York convictions were for
non-violent property crimes, the trial judge should not have relied on them to
impose an enhanced sentence. Finally, defendant argues in his initial
counseled brief that the trial judge failed to provide reasons to impose the
10
But even accepting, for argument's sake, that defendant's New York robbery
conviction is congruent to a third-degree theft-from-a-person crime under New
Jersey law, the fact remains that the New York conviction was punishable by
more than one year in prison under New York law, which is all that matters for
deciding whether a conviction in another jurisdiction is a prior crime when
determining whether a defendant is a persistent offender. See Section X, infra,
discussing N.J.S.A. 2C:44-4(c).
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38
discretionary extended term after having found defendant eligible for a
persistent-offender sentence.
A.
As we have noted, on June 21, 2024—after both defendant and the State
filed their initial briefs in this appeal—the United States Supreme Court
decided Erlinger, which held that a jury, not the sentencing judge, must decide
the existence of the facts necessary to establish the grounds for a sentence
enhancement based on prior convictions for offenses committed on separate
occasions. 602 U.S. at 849.
In Apprendi, the United States Supreme Court changed the legal
landscape for imposing enhanced sentences. The Court held that "[o]ther than
the fact of a prior conviction, any fact that increases the penalty for a crime
beyond the prescribed statutory maximum must be submitted to a jury, and
proved beyond a reasonable doubt." 530 U.S. at 490. Erlinger is the latest in a
series of Supreme Court decisions explaining that, under the Apprendi
doctrine, a jury must find the facts necessary for sentencing enhancements. In
Almendarez-Torres v. United States, 523 U.S. 224 (1998), the Court focused
on an exception contemplated in the initial formulation of the basic Apprendi
rule. Specifically, the Court in Almendarez-Torres reiterated and amplified
A-0532-22
39
that the "fact of an earlier conviction" need not be submitted to a jury. 523
U.S. at 224.
In Erlinger, the Court considered the boundaries of that exception,
addressing whether a judicial determination that past offenses had been
committed on different occasions, which is necessary for enhanced sentencing
under the federal Armed Career Criminal Act (ACCA), 11 violated the
defendant's Fifth and Sixth Amendment rights. Erlinger, 602 U.S. at 830-34.
The majority in Erlinger rejected the government's argument that the "different
occasions" inquiry falls under the Almendarez-Torres exception. Id. at 836-
38. The majority emphasized that Almendarez-Torres recognizes a "narrow
exception" that permits "judges to find only 'the fact of a prior conviction.'"
Ibid. (quoting Alleyne v. United States, 570 U.S. 99, 111, n.1 (2013)). The
majority explained that "[a] judge may 'do no more, consistent with the Sixth
Amendment, than determine what crime, with what elements, the defendant
11
ACCA provides, in pertinent part:
In the case of a person who violates section 922(g) of
this title and has three previous convictions by any
court referred to in section 922(g)(1) of this title for a
violent felony or a serious drug offense, or both,
committed on occasions different from one another,
such person shall be fined under this title and
imprisoned not less than fifteen years. . . .
[18 U.S.C. § 924(e)(1).]
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40
was convicted of.'" Id. at 831, n.3 (quoting Mathis v. United States, 579 U.S.
500, 511-12 (2016)).
The Erlinger majority concluded the enhanced sentence imposed in that
case was unconstitutional because:
To determine whether Mr. Erlinger's prior convictions
triggered ACCA's enhanced penalties, the district
court had to do more than identify his previous
convictions and the legal elements required to sustain
them. It had to find that those offenses occurred on at
least three separate occasions. And, in doing so, the
court did more than Almendarez-Torres allows.
[Id. at 838-38.]
In reaching that conclusion, the Erlinger majority acknowledged that to
determine the fact of a prior conviction, a sentencing judge may "need to know
the jurisdiction in which the defendant's crime occurred and its date in order to
ascertain what legal elements the government had to prove to secure a
conviction in that place at that time." Id. at 839. The majority also recognized
that to obtain that information, a sentencing judge "may sometimes consult 'a
restricted set of materials,' often called Shepard12 documents, that include
judicial records, plea agreements, and colloquies between a judge and the
defendant." Ibid. (quotations omitted). Importantly, however, the Erlinger
majority emphasized:
12
Shepard v. United States, 544 U.S. 13 (2005).
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41
None of that . . . means that a court may use Shepard
documents or any other materials for any other
purpose. To ensure compliance with the Fifth and
Sixth Amendments, a sentencing judge may use the
information [the judge] gleans from Shepard
documents for the "limited function" of determining
the fact of a prior conviction and the then-existing
elements of that offense. "[N]o more" is allowed. In
particular, a judge may not use information in Shepard
documents to decide "what the defendant . . . actually
d[id]," or the "means" or "manner" in which [the
defendant] committed [their] offense in order to
increase the punishment to which [the defendant]
might be exposed.
[Id. at 839-40 (citations omitted).]
Applying those principles to the facts in the case before it, the Erlinger
majority concluded:
To determine what legal elements attached to Mr.
Erlinger's decades-old offenses, the court might have
needed to consult Shepard documents to ascertain the
jurisdiction in which they occurred and the date on
which they happened. But the court had no need or
authority "to go any further," and assume for itself the
responsibility of deciding whether Mr. Erlinger's past
offenses differed enough in time, location, character,
and purpose to have transpired on different occasions.
Let alone undertake that inquiry all with an eye
toward increasing his punishment. The Fifth and
Sixth Amendments "contemplat[e] that a jury—not a
sentencing court—will find such facts, unanimously
and beyond a reasonable doubt."
[Id. at 840 (citations omitted).]
B.
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42
The New Jersey persistent offender statute provides that upon
application of the prosecuting attorney, a person may be sentenced to an
extended term of imprisonment if the individual "has been convicted of a
crime of the first, second or third degree and is a persistent offender."
N.J.S.A. 2C:44-3(a). The statute further defines a "persistent offender" as:
[A] person who at the time of the commission of the
crime is 21 years of age or over, who has been
previously convicted on at least two separate
occasions of two crimes, committed at different times,
when he was at least 18 years of age, if the latest in
time of these crimes or the date of the defendant's last
release from confinement, whichever is later, is within
10 years of the date of the crime for which the
defendant is being sentenced.
[Ibid.]
At the time of defendant's sentencing hearing, our Supreme Court's
decision in Pierce controlled. The Pierce Court held that a sentencing court
"does not engage in impermissible fact-finding when it assesses a prior record
of convictions and determines that a defendant is statutorily eligible for a
discretionary extended-term as a persistent offender." 188 N.J. at 158. The
Court added there was "no Sixth Amendment violation in the sentencing
court's consideration of objective facts about defendant's prior convictions,
such as the dates of convictions, his age when the offenses were committed,
and the elements and degrees of the offenses, in order to determine whether he
A-0532-22
43
qualifies as a 'persistent offender.'" Id. at 163. Without question, Erlinger
abrogates the rule announced in Pierce with respect to the dates of convictions
and a defendant's age when the offenses were committed. 13
C.
The State argues in its supplemental brief that defendant's "newly minted
argument that his extended-term sentence is unconstitutional comes too late."
We disagree and decline to impose a procedural bar that would categorically
deny defendant a remedy for the constitutional violation that occurred in this
case. We see no basis to fault the trial judge, prosecutor, defendant, or his
counsel for following the clear rule our Supreme Court announced in Pierce
and "for not anticipating a change in law." See State v. Harris, 181 N.J. 391,
436 (2004). While we might be prepared to apply plain error analysis in these
circumstances, see United States v. Cotton, 535 U.S. 625 (2002), we are not
prepared to categorically disregard an uncontroverted constitutional error
simply because no one had the prescience to foretell the holding in Erlinger.
Cf. R. 2:10-2.
D.
13
As we explain in Section X, Almendarez-Torres and Erlinger permit a judge
to make findings concerning the elements of the earlier crime of conviction.
The statutorily-defined elements of a crime are pure legal matters determined
by reading the plain text of a statute. See also infra, note 15.
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44
Turning to the substantive merits of defendant's constitutional challenge
to his extended-term sentence, as we have noted, the Attorney General
acknowledges the Erlinger rule applies retroactively to persistent-offender
cases, like this one, that are still in the direct appeal "pipeline." See State v.
Wessells, 209 N.J. 395, 412 (2012) (noting that new rules "for the conduct of
criminal prosecutions" are to "be applied retroactively to all cases, state 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 (1987)). See also State v. Grate, 220
N.J. 317, 335 (2015) (affording pipeline retroactivity to Alleyne,14 570 U.S. at
99), and State v. Natale, 184 N.J. 458, 494 (2005) (affording pipeline
retroactivity to Blakely v. Washington, 542 U.S. 296 (2004)). The Attorney
General also acknowledges that defendant's Fifth and Sixth Amendment rights
as explained in Erlinger were violated when the trial judge, rather than a jury,
made factual findings regarding extended-term eligibility beyond the fact of
his prior convictions.
Before we address the Attorney General's harmless constitutional error
argument, we deem it important to point out that our persistent offender statute
14
The Court in Alleyne applied Apprendi to any fact that increases a
mandatory minimum sentence, overruling its prior decision in Harris v. United
States, 536 U.S. 545 (2002). 570 U.S. at 103.
A-0532-22
45
requires proof beyond that a defendant committed the prior crimes on separate
occasions. N.J.S.A. 2C:44-3(a) prescribes the following fact-sensitive
elements, each of which a unanimous jury must find beyond a reasonable
doubt to establish that a defendant is a persistent offender eligible for an
extended term of imprisonment: (1) the defendant must have been 21 years of
age or older at the time of the commission of the present first, second, or third
degree crime for which the extended term is sought; (2) the defendant must
have been previously convicted of predicate crimes on at least two separate
occasions, meaning the dates that the prior convictions were entered are
different; (3) the defendant must have committed the prior crimes at different
times; (4) the defendant must have been at least 18 years of age when the prior
crimes were committed; and (5) the latest of the prior crimes, or the date of the
defendant's release from confinement when applicable, whichever is later, is
within ten years of the date of the crime for which the defendant is being
sentenced.
The foregoing factual predicates to enhanced-sentence eligibility are all
case-sensitive, meaning that they must be proved on a case-by-case basis by
means of the defendant's criminal history records, and cannot be established
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46
solely by reading the text of a statute. 15 See N.J.S.A. 2C:44-4(d) ("Any prior
conviction may be proved by any evidence, including fingerprint records made
in connection with arrest, conviction or imprisonment, that reasonably satisfies
the court that the defendant was convicted."). Consider, by way of example, a
person less than 18 years of age can be waived to adult court and convicted
and sentenced as an adult. See N.J.S.A. 2A:4A-26.1. In those circumstances,
the conviction would not constitute a prior crime for purposes of N.J.S.A.
2C:44-3(a). We view the determination of a defendant's age at the time of the
prior crimes to be comparable, for purposes of Erlinger analysis, to the
determination of the dates of those prior crimes that are needed to establish
that they were committed on separate occasions.
Although the parties in their supplemental briefs focus on the "separate
occasions" prerequisite 16 specifically addressed in Erlinger's analysis of
ACCA, a unanimous jury must find beyond a reasonable doubt that all five of
15
Thus, these predicate facts stand in contrast to the prior crimes' statutorily-
defined elements or their statutorily-assigned degree, which determines the
maximum sentence that can be imposed on those convictions. See, infra,
section X.
16
Defendant in the last paragraph of his supplemental brief also mentions the
remoteness element in N.J.S.A. 2C:44-3(a), which requires that the latest prior
crime or release from prison, whichever is later, occurred within ten years of
the present crime.
A-0532-22
47
the above-enumerated factual predicates are present, or the defendant must
admit these predicates as part of a knowing and voluntary waiver of the right
to a jury trial with respect to extended-term eligibility.
VIII.
That brings us to the Attorney General's principal argument that
"proceedings prior to the date of Erlinger,17 where a judge made the requisite
'separate occasions' findings at sentencing, are subject to harmless error
analysis." In support of that contention, the Attorney General cites to Chief
Justice Roberts' one-paragraph concurring opinion in Erlinger and to Justice
Kavanaugh's dissenting opinion. The Attorney General also cites to the
Erlinger oral argument transcript, which purports to show that the parties
generally agreed that harmless error review is permitted. 18
The Attorney General argues because the Erlinger majority "neither
repudiated nor otherwise contested" the applicability of the harmless error
analysis, we may then excuse the constitutional violation in this instance as
17
As we explain in section VIII(C), infra, the Attorney General appears to be
arguing that the harmless error doctrine does not apply equally to cases where
the sentencing hearing occurs after Erlinger was decided. Rather, the Attorney
General's harmless-constitutional-error argument seems to be confined to
"pipeline" cases.
18
See Transcript of Oral Argument at 16, 24-25, 44-45, 101-02, Erlinger v.
United States, 602 U.S. 821(2024) (No. 23-370).
A-0532-22
48
harmless error on the grounds that "no 'rational jury' could have found that
defendant committed the two prior offenses at the same time." The outcome of
this issue hinges on whether we accept the premise that Erlinger violations are
amenable to harmless error analysis; to borrow the phraseology our Supreme
Court used repeatedly in Pierce, 188 N.J. at 163, 167, 169, there is no
reasonable doubt the "objective" facts of defendant's criminal background
establish that he is a persistent offender withing the meaning of N.J.S.A.
2C:44-3(a). The critical question is whether the harmless constitutional error
doctrine can be invoked to excuse the failure to have a jury decide those facts.
A.
The harmless constitutional error doctrine is well-accepted in both
federal and New Jersey jurisprudence. As our Supreme Court noted in State v.
Camacho,"[t]he [United States] Supreme Court has emphasized that 'most
constitutional errors can be harmless,' and are therefore not subject to
automatic reversal." 218 N.J. 533, 547 (2014) (quoting Arizona v. Fulminante,
499 U.S. 279, 306 (1991)). That said, the only mention of the harmless
constitutional error doctrine in Erlinger is in the Chief Justice's succinct
concurring opinion that incorporates by reference an argument raised in a
dissenting opinion. Cf. State v. Masi, 72 N.J. Super. 55, 58 (Law Div. 1962)
(noting that language in a United States Supreme Court concurring opinion
A-0532-22
49
was persuasive but not binding upon the court); Guido v. Duane Morris, LLP,
202 N.J. 79, 91 n.4 (2010) ("A dissent, of course, is not precedent."). As the
Attorney General acknowledges, the harmless constitutional error doctrine was
not mentioned at all in the majority opinion that announced the constitutional
rule we are now charged to enforce and safeguard.
The majority opinion's silence on the question of harmless constitutional
error is conspicuous, especially considering that opinion comments freely and
repeatedly on other points made in the other Justices' opinions. It appears,
moreover, the majority made a conscious decision not to address whether and
in what circumstances an Erlinger violation might be deemed harmless error.
The majority opinion tellingly states, "[w]hile recognizing Mr. Erlinger was
entitled to have a jury resolve ACCA's [separate] occasions inquiry
unanimously and beyond a reasonable doubt, we decide no more than that."
602 U.S. at 835.
The Attorney General posits the majority's silence signals acceptance of
the Chief Justice's concurring opinion. Perhaps. But it is equally plausible
that the majority meant to signal it was unwilling to embrace a harmless error
exception but was not prepared to tackle the issue directly at this time. Our
task in this appeal is to decide an important constitutional question based on
legal analysis of what is written in authoritative precedents, not conjecture
A-0532-22
50
based on what is not said in those precedents. We decline to speculate on why
the Erlinger majority chose not to mention the harmless constitutional error
doctrine.
B.
The State also relies on several New Jersey precedents to support its
contention the harmless constitutional error doctrine applies to Erlinger
violations in pipeline case. For example, the State cites to State v. Johnson,
166 N.J. 523, 546 (2001), noting in that case, despite holding that NERA
required a jury determination that a defendant committed a "violent" crime
before the sentencing court could impose the statute's eighty-five percent
period of parole ineligibility, 19 our Supreme Court concluded there was no
need to disturb the defendant's sentence "because the facts adduced at trial
establish that the jury made that finding [that the defendant committed a
violent crime] beyond a reasonable doubt."
Johnson is distinguishable from the case before us, however, because
here no evidence was introduced at trial on whether defendant's prior crimes
occurred at different times. Indeed, the jury was never told about defendant's
19
NERA has since been amended. The revised NERA formulation avoids
Apprendi issues by specifically designating the crimes that are subject to the
eighty-five percent parole ineligibility feature, rather than requiring the
sentencing judge to make a fact-sensitive finding that the present crime is
"violent."
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prior crimes. Accordingly, unlike the situation in Johnson, the jury made no
finding on the predicate facts needed to establish persistent-offender extended-
term eligibility.
The State's reliance on State v. Purnell, 161 N.J. 44 (1999), is also
unavailing. In that case, our Supreme Court ruled that the holding in State v.
Anderson, 127 N.J. 191 (1992)—reallocating the fact-finding function from
judge to jury on the materiality element of perjury—did not command full
retroactive application because it was not "intended to enhance the reliability
of the fact-finding process." Purnell, 161 N.J. at 55. In the present matter,
however, we are not asked to afford "full" retroactivity to the Erlinger Rule,
but rather only pipeline retroactivity to cases pending on direct appeal. And in
any event, it does not matter whether the Erlinger rule enhances the reliability
of the fact-finding process. The Apprendi/Erlinger doctrine's undergirding
rationale is not that juries are better equipped than judges to determine the
facts needed to establish extended-term eligibility. Rather, the doctrine is
based on the principle that this fact-finding process falls within the realm of
the Fifth and Sixth Amendment right to a jury trial.
Nor are we persuaded by the Attorney General's argument that:
[a]lthough Erlinger now holds that a prior-offense
element is an essential element that must be proven
to a jury beyond a reasonable doubt, a prior-offense
element is not "material," but rather an attendant
A-0532-22
52
circumstance that accordingly should be treated
differently when considering whether its omission
is subject to harmless error review.
We believe the distinction the Attorney General draws between various types
of elements misses the mark. Nothing in the Erlinger majority opinion
suggests the constitutional rule it announced is somehow less important
because the facts that a jury must find do not fall under the rubric of "material"
elements as defined in N.J.S.A. 2C:1-14(i), as distinct from the term "element
of an offense" as defined in N.J.S.A. 2C:1-14(h). The terminology distinction
the Attorney General would have us draw seems unimportant considering that
N.J.S.A. 2C:1-13(a) requires all elements must be proved beyond a reasonable
doubt.
More importantly, we read the majority opinion as establishing a
fundamental constitutional right, one not easily dispensed with. We see no
point in quarreling over the terminology used to characterize the "separate
occasions" fact specifically at issue in Erlinger. The majority could not have
made more plain that, under the Fifth and Sixth Amendments, a jury is
required to find that fact beyond a reasonable doubt as a precondition to
imposing an enhanced sentence under ACCA. Stated another way, the
Erlinger rule remains a matter of constitutional imperative regardless of
A-0532-22
53
whether the "separate occasion" finding is characterized as a "material
element," a mere "element," or an "attendant circumstance."
The Attorney General also relies on the United States Supreme Court's
decision in Cotton in support of its argument that harmless error review
applies to Erlinger pipeline violations. In Cotton, the defendant was charged
with "conspiracy to distribute and to possess with intent to distribute a
'detectable amount ' of cocaine and cocaine base." 535 U.S. at 627-28. The
jury found the defendant guilty at trial. Id. at 628. At sentencing, the District
Court judge made a finding of drug quantity that implicated enhanced penalties
under federal law and thereupon sentenced the defendant to thirty -years
imprisonment. Ibid. The defendant did not object to the fact that the
sentences were based on an amount of drug quantity not alleged in the
indictment. Ibid.While the defendant's appeal was pending, the Court decided Apprendi.
Ibid. The defendant then argued in the Court of Appeals that his sentence was
invalid under Apprendi because the issue of drug quantity was neither alleged
in the indictment nor submitted to the petit jury. Id. at 628-29. In its decision,
the Court of Appeals first noted that because the defendant failed to raise the
argument regarding his sentence before the trial judge, plain error review
applied. Id. at 629. Applying that standard, the Court of Appeals vacated the
A-0532-22
54
defendant's sentence, concluding that "because an indictment setting forth all
the essential elements of an offense is both mandatory and jurisdictional, . . . a
court is without jurisdiction to . . . impose a sentence for an offense not
charged in the indictment." Ibid. Such an error, the Court of Appeals added,
seriously impacted "the fairness, integrity or public reputation of judicial
proceedings." Ibid.The United States Supreme Court reversed. Ibid. After concluding that
the District Court judge did have jurisdiction, the Supreme Court also applied
the plain error test but found that while the error was indeed "plain," id. at
631-32, it "did not seriously affect the fairness, integrity, or public reputation
of judicial proceedings." Id. at 632-33. The Court concluded that the evidence
of drug quantity presented at the defendant's trial was "overwhelming" and
"essentially uncontroverted." Id. at 633. Specifically, the Court referred to
testimony from police officers regarding the drugs seized, and the testimony
from one of the defendant's co-conspirator's regarding the amount she
witnessed being bagged. Ibid.The situation in Cotton is starkly different from the facts in the matter
before us. In Cotton, the Court stressed that there was overwhelming evidence
of drug quantity presented at the defendant's trial. Ibid. Here, in contrast, the
jury heard no evidence concerning defendant's prior New York convictions.
A-0532-22
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Thus, while the facts needed to establish persistent-offender extended-term
eligibility may well be "overwhelming" and "essentially uncontroverted" as in
Cotton, ibid.—a circumstance we discuss in the next subsection—those facts
were not presented to the jury, which is the crux of the Erlinger violation.
C.
That leads us to examine the fundamental essence of the harmless error
analysis, which considers, ultimately, whether the outcome would have been
different if the error had not occurred. Importantly, the Erlinger majority
explicitly rejected the argument that a jury verdict is not required when the
predicate facts for an enhanced sentence are so "'straightforward' that sending
it to a jury would be pointlessly inefficient." 602 U.S. at 839 (citation to
amicus brief omitted). The majority opinion later underscored that point,
explaining:
Often, a defendant's past offenses will be different
enough and separated by enough time and space
that there is little question [the defendant]
committed them on separate occasions. But none
of that means a judge rather than a jury should
make the call. There is no efficiency exception to
the Fifth and Sixth Amendments. In a free society
respectful of the individual, a criminal defendant
enjoys the right to hold the government to the
burden of proving its case beyond a reasonable
doubt to a unanimous jury of his peers "regardless
of how overwhelmin[g]" the evidence may seem to
a judge.
A-0532-22
56
[Id. at 842 (quoting Rose v. Clark, 478 U.S. 570,
578 (1986)).]
That admonition is in tension—if not fundamentally inconsistent—with
the inherent focus in harmless error analysis on whether the outcome would
have been the same had the error not occurred considering the weight of the
properly-admitted evidence. In this instance, the Attorney General argues,
"the 'overwhelming' and 'uncontested' evidence leaves no doubt that
defendant was a persistent offender," citing Neder v. United States, 527 U.S.
1, 17 (1999). That assessment may well be true but begs the question of
whether, after Erlinger, the decision on extended-term eligibility can be kept
entirely from a jury and yet affirmed on the grounds the factual basis for an
extended term is overwhelming. Neder involved the failure to instruct the
jury on an element of the charged crime that was "uncontested and supported
by overwhelming evidence, such that the jury verdict would have been the
same absent the error." 527 U.S. at 17. The Court concluded the error "did
not contribute to the verdict obtained," and thus was properly found to be
harmless. Ibid. (quoting Chapman v. California., 386 U.S. 18, 24 (1967)).
But even putting aside that in this case no evidence relevant to
defendant's persistent-offender status was presented to the jury, the Attorney
General's reasoning is hard to reconcile with the Erlinger majority's clear
holding that the "separate occasions" decision under ACCA had to be made
A-0532-22
57
by a jury "regardless of how overwhelming the evidence may seem to a
judge." Erlinger, 602 U.S. at 842 (quotation marks and citation omitted). 20
In view of the Erlinger majority's unambiguous rejection of the notion
that overwhelming evidence obviates the need to have a jury make the
decision, we are not convinced the constitutional violation in this case can be
"disregarded" under the plain error rule or any other species of harmless error
analysis. Cf. Rule 2:10-2 ("Any error or omission shall be disregarded by the
appellate court unless it is of such nature as to have been clearly capable of
producing an unjust result, but the appellate court may, in the interests of
justice, notice plain error not brought to the attention of the trial or appellate
court."). Furthermore, as we have noted, the Attorney General acknowledged
at oral argument that its harmless error argument would likely apply to the vast
majority of pipeline cases. As a practical matter, that suggests, if given a
foothold in pipeline cases, the harmless error exception might swallow the
Erlinger rule.
20
We note that in the portion of his dissent discussing harmless error, Justice
Kavanaugh reasons that "[i]n most (if not all) cases, the fact that a judge rather
than a jury applied ACCA’s different-occasions requirement will be harmless.
Whether prior felonies occurred on different occasions under ACCA is usually
a straightforward question." Erlinger, 602 U.S. at 859 (Kavanaugh, J.,
dissenting). That rationale for applying the harmless error rule is at odds with
the majority opinion's holding that a jury must make the enhanced sentence
findings notwithstanding that the outcome is straightforward. Id. at 841.
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58
More fundamentally, we are not convinced from our reading of the
Erlinger majority opinion that the Fifth and Sixth Amendment right to have a
jury decide fact-sensitive enhanced-sentence eligibility is less important or
inviolable than the right to have a jury decide the fact-sensitive question of
guilt. Certainly, denying a criminal defendant a jury trial on the question of
factual guilt can never be deemed harmless constitutional error on the
grounds that the State's proofs are so overwhelming as to render a guilty
verdict a foregone conclusion. A key question the State's harmless
constitutional error argument raises, therefore, is whether the Fifth and Sixth
Amendment rights recognized in Erlinger regarding the determination of
enhanced-sentence eligibility are deserving of less vigorous protection than
the right to a jury trial on factual guilt or innocence.
Based on the opinion's clear directive, we are reticent to conclude that
the Erlinger majority meant for the constitutional rights recognized in
Apprendi and its progeny to be treated essentially as a second-class version
of the right to a jury trial. Nothing in the majority opinion supports that
proposition, and much of the opinion affirmatively contradicts it, including
the section in the opinion that recounts the origins, evolution, and historical
importance of the right to a jury trial. See Section II(A), id. at 828-834. We
presume that section would not have been included in the majority opinion if
A-0532-22
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it was the majority's intent to relegate Apprendi-related jury-trial rights to
second-class status as compared to the right to a jury trial on the question of
guilt or innocence.
Relatedly, the Attorney General's argument suggests the harmless-
constitutional-error doctrine should be applied more liberally to pipeline
cases than to cases involving the prospective application of the Erlinger rule.
The Attorney General's supplemental brief acknowledges that while the trial
judge's persistent-offender decision was "in accordance with established
practice, that decision is now error under Erlinger because defendant's appeal
is on direct review." In the next sentence, the supplemental brief continues,
"[b]ut proceedings prior to the date of Erlinger, where a judge made the
requisite 'separate occasions' findings at sentencing, are subject to harmless
error analysis." The implication is that harmless error analysis either will not
apply to proceedings after the date of Erlinger or it will be applied in a
different way.
If that is indeed the Attorney General's position, we are unpersuaded.
The retroactive application of a constitutional rule to a pipeline case means,
simply, the rule applies in that case, presumably with full force and effect.
We do not understand pipeline retroactivity to mean that the constitutional
rule when applied retrospectively is somehow softened or otherwise enforced
A-0532-22
60
less rigorously than in cases where the rule will be applied prospectively.
Rather, as we see it, once there is a concession that a constitutional right was
violated, that violation is either harmless or not regardless of when it was
committed.
While we are mindful of the administrative burdens that will result
from remanding a potentially large number of pipeline cases for new jury
trials, we are not prepared to hold that the defendants in pipeline case are
entitled to less vigorous protection of their Fifth and Sixth Amendment rights
than defendants whose crimes, indictments, or trials happen to occur after
June 21, 2024. See Erlinger, 602 U.S. at 842 ("There is no efficiency
exception to the Fifth and Sixth Amendments."). The notion that there can be
any such differentiated enforcement of the Erlinger rule would suggest that
there is another de facto retroactivity option, 21 namely partial or attenuated
application of a rule to cases pending direct appeal. We are not familiar with
any such permutation in New Jersey or federal retroactivity jurisprudence.
21
The range of retroactivity options includes prospective application only,
"full" retroactive application to all cases, including those where the direct
appeal has already been decided (e.g., post-conviction relief cases), and
pipeline retroactive application to cases where a direct appeal has not yet been
decided. See State v. Knight, 145 N.J. 233, 251 (1996) (enumerating the
alternatives available which are purely prospective, prospective, pipeline
retroactive, and fully retroactive); State v. Dock, 205 N.J. 237, 256 (2011)
(explaining the four options in any case to determine the retroactive effect of a
new rule of criminal procedure).
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61
We do not mean to suggest that the harmless constitutional error
doctrine can never apply to an Erlinger violation. But this is not a situation,
for example, where a jury was provided with a flawed special verdict form or
faulty instructions that were not objected to by the defense. 22 Nor is this a
situation where a jury was asked to make findings on some but not all the
facts needed to establish the basis for an enhanced sentence. Here, none of
the required findings that we have enumerated were submitted to a jury. The
violation, in other words, amounts to a complete and absolute denial of the
right to a jury trial on the sentence-enhancement determination.
For all these reasons, we decline to put the cart before the proverbial
horse by excusing the failure to have a jury decide defendant's extended -term
eligibility on the grounds that affording a new jury trial on remand is highly
unlikely to produce a different result than the one reached by the sentencing
judge. Until the United States Supreme Court has an opportunity to more fully
address the practical implications of the Erlinger rule, including whether and
22
We offer no guidance in this opinion on the jury instructions that should be
given in cases that are remanded for new jury trials whose scope is limited to
determining whether the defendant is eligible for an extended term as a
persistent offender. We expect the Supreme Court Model Jury Charge
(Criminal) Committee and Supreme Court Criminal Practice Committee will,
respectively, develop model jury charges, special verdict forms, and uniform
practices and procedures for cases remanded to rectify violations of the
Erlinger rule.
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62
in what circumstances harmless error analysis is appropriate, we decline to
disregard the uncontroverted constitutional violation that occurred in this case.
IX.
Defendant argues in his supplemental brief he also was denied the right
to have a grand jury determine the facts needed to establish extended-term
eligibility. During oral argument, the Attorney General acknowledged that
going forward, the facts that a petit jury must find under the Erlinger rule must
also be presented to and found by a grand jury. 23 See State v. Rodriguez, 234
N.J. Super. 298, 304-05 (App. Div. 1989) ("Generally, facts which will
aggravate the crime of which a defendant is accused and enhance the
punishment to which he will be subject are said to be an 'element' of the
offense, N.J.S.A. 2C:1-14(h), and must therefore be charged in the
indictment.") (citing State v. Ingram, 98 N.J. 489 (1985)); see also State v.
Franklin, 184 N.J. 516, 534 (2005) ("That a defendant possessed a gun during
the commission of a crime is a fact that must be presented to a grand jury and
23
We note there is precedent for "bifurcating" a presentation to a grand jury
so that the grand jury first determines whether there is probable cause the
defendant committed an offense and then separately considers whether there is
probable cause to believe the defendant has prior conviction(s) when that is an
element of the crime charged. We understand that process occurs routinely in
cases where a defendant is indicted for possession of a firearm by a
previously-convicted person (commonly referred to as the "certain persons"
offense), N.J.S.A. 2C:39-7.
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63
found by a petit jury beyond a reasonable doubt if the court intends to rely on
it to impose a sentence exceeding the statutory maximum.").
The question remains what to do about pipeline cases. We hold that in
cases such as this one that are remanded, the lack of a grand jury determination
regarding extended-term eligibility will be rendered harmless not because the
relevant facts are straightforward, but rather because a unanimous petit jury
applying a much higher standard of proof than the one needed to return an
indictment will find those facts. Stated another way, we see no need to remand
for both a grand jury and petit jury to make the factual determinations that
Erlinger requires.
We add that in these pipeline cases, a new indictment is not needed to
provide defendants notice of the facts that must be considered by a grand jury
going forward. See State v. LeFurge, 101 N.J. 404, 415 (1986) (holding that
the grand jury right is fulfilled when an indictment "inform[s] the defendant of
the offense charged against him, so that he may adequately prepare his
defense" and is "sufficiently specific" both "to enable the defendant to avoid a
subsequent prosecution for the same offense" and "'to preclude the substitution
by a trial jury of an offense which the grand jury did not in fact consider or
charge.'") (quoting first State v. Lefante, 12 N.J. 505, 509 (1953) and then
State v. Boratto, 80 N.J. 506, 519 (1979)). Relatedly, pipeline cases such as
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64
this one have been scrutinized by a judge who has reviewed defendant's
eligibility for an extended term of imprisonment. In these circumstances,
defendant is on clear notice as to the fact-sensitive questions that a petit jury
must resolve on remand; there is no need for further clarification in the form of
an indictment.
In sum, despite our reluctance to embrace the harmless constitutional
error doctrine to avoid a rash of new jury trials, we confidently apply the
harmless error principle to grand jury proceedings in pipeline cases in view of
the well-established principle that when a petit jury finds a defendant guilty,
errors before a grand jury are deemed harmless. See State v. Simon, 421 N.J.
Super. 547, 551 (App. Div. 2011) (noting that "a guilty verdict is universally
considered to render error in the grand jury process harmless"); State v. Ball,
268 N.J. Super. 72, 120 (App. Div. 1993) (concluding that "procedural
irregularities in a grand jury proceeding are rendered harmless where
defendant is ultimately found guilty by a petit jury"); see also State v.
Warmbrun, 277 N.J. Super. 51, 61 (App. Div. 1994).
X.
Having addressed the constitutional issues broached in Erlinger, we take
a step back to address defendant's contention raised in his initial appeal brief
that his prior New York convictions do not satisfy the requirements for
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65
persistent-offender extended-term eligibility. That contention lacks merit.
N.J.S.A. 2C:44-4(c) provides that "[a] conviction in another jurisdiction shall
constitute a prior conviction of a crime if a sentence of imprisonment in excess
of one year was authorized under the law of the other jurisdiction." Our
review of the relevant New York statutes shows that for both of defendant's
prior crimes, the maximum sentence authorized by statute was in excess of one
year. Specifically, defendant has two felony convictions for robbery in the
third degree, N.Y. Penal Law § 160.05, and criminal possession of a stolen
property (credit card) in the fourth degree, N.Y. Penal Law § 165.45. See
N.Y. Penal Law § 70.00. (listing authorized sentencing of imprisonment for
felonies).
In the interests of completeness, we deem it necessary to consider
whether, under the Erlinger framework, it is for a judge or jury to determine
that the authorized sentence for an out-of-state conviction exceeds one year of
imprisonment. Although we exercise great caution before allowing a judge to
decide any prerequisite to persistent-offender eligibility, we are satisfied that
the maximum sentence authorized by another state's law is not a case-sensitive
factual question akin to, for example, when a criminal act was committed or
when a defendant was found guilty by a jury verdict or guilty plea. See supra,
note 15. Rather, we deem the determination of the maximum authorized
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sentence for a prior crime to be a pure legal matter comparable to ascertaining
the elements of the predicate offense. We note in this regard the majority in
Erlinger re-affirmed that under the Almendarez-Torres exemption from the
strictures of the Apprendi rule, a judge may determine "the fact of a prior
conviction and the then-existing elements of that offense." Erlinger, 602 U.S.
at 839 (emphasis added) (citing Descamps v. United States, 570 U.S. 254, 260
(2013)). The majority added, "[u]nder that exception, a judge may 'do no
more, consistent with the Sixth Amendment, than determine what crime, with
what elements, the defendant was convicted of.'" Ibid. (emphasis added)
(citing Mathis, 579 U.S. at 511-12).
Accordingly, and even at the risk of stretching the Almendarez-Torres
exception slightly, we deem the statutorily-prescribed maximum authorized
sentence for a crime for which the defendant has already been convicted by
jury verdict or guilty plea is comparable to the statutorily-prescribed elements
of that crime. Because both circumstances are pure legal questions determined
solely by reading statutory plain text, a judge both can and should decide them.
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67
XI.
For the foregoing reasons, we vacate defendant's extended term sentence
and remand for further proceedings in accordance with the Erlinger rule to
have a jury determine whether defendant is eligible for enhanced punishment
as a persistent offender. We note the State on remand may elect to forego
pursuing an extended term. In that event, defendant shall be resentenced
within the "ordinary" range, see N.J.S.A. 2C:43-6(a), for the crimes he was
convicted.
We further note the parties may enter into a negotiated post-conviction
agreement to avoid the need to convene a jury to decide whether defendant is
eligible for an extended term as a persistent offender. If any such post -
conviction agreement contemplates that defendant may be sentenced to an
extended term as a persistent offender, the defendant must admit to the facts
establishing persistent-offender eligibility in a manner consistent with the
entry of a knowing and voluntary guilty plea pursuant to Rule 3:9-2, including
the requirement for the defendant to acknowledge the "factual basis" for the
plea.
If the State elects to seek imposition of the persistent-offender extended
term and there is no post-conviction agreement, the trial judge shall convene a
jury for trial limited to the question of whether defendant meets the definition
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of a persistent offender set forth in N.J.S.A. 2C:44-3(a). The State shall have
the burden of proving beyond a reasonable doubt all facts and circumstances
needed to establish extended-term eligibility under N.J.S.A. 2C:44-3(a),
including not only that the prior convictions were entered on separate
occasions and the prior crimes were committed at different times, but also that
defendant was 21 years of age or older when the present crime was committed,
that defendant was at least eighteen years of age when the prior crimes were
committed, and that the latest of the prior convictions or the date of
defendant's last release from confinement, whichever is later, is within ten
years of the date of the crime for which defendant is being sentenced.
We note in the interest of completeness that under the Erlinger
framework as applied to N.J.S.A. 2C:44-3(a), the jury decides only if
defendant is eligible for a discretionary extended term as a persistent offender.
The trial judge retains discretion to decide whether to impose an extended term
on a defendant that a unanimous jury finds to be eligible for an enhanced
sentence. The judge likewise retains discretion, subject to the rules governing
sentencing decisions, in determining the length of the sentence within the
extended term range, see N.J.S.A. 2C:43-7(a).
Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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