State in the Interest of K.O., a Minor (070406)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
State in the Interest of K.O., a minor (A-28-12) (070406)
Argued September 23, 2013 -- Decided February 24, 2014
LaVECCHIA, J., writing for the Court.
The issue in this appeal is whether N.J.S.A. 2A:4A-44(d)(3) requires two previous adjudications or whether
the adjudication for which a juvenile presently is being sentenced may itself count as the second predicate offense
that qualifies the juvenile for an extended-term sentence.
On July 20, 2009, Kyle1 was adjudged delinquent for committing an act that would have constituted
second-degree robbery if committed by an adult. That adjudication subjected him to a maximum period of
incarceration of three years under section 4A-44(d)(1)(d) of the Juvenile Justice Code (Code), N.J.S.A. 2A:4A-20 to
-90. On July 27, 2009, at a disposition hearing, the State moved for the imposition of an extended term of
incarceration under section 4A-44(d)(3) of the Code, which authorizes the Family Part court to impose an extended-
term sentence on a juvenile adjudged delinquent of a qualifying present offense if the court “finds that the juvenile
was adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would
constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility.”
Kyle had been adjudicated delinquent on three occasions prior to the offense giving rise to this appeal. The
first two adjudications involved minor offenses that did not meet section 4A-44(d)(3)’s predicate requirement of
first- or second-degree offense adjudications. Also, neither of those adjudications resulted in his commitment to a
juvenile detention facility. However, in March 2008 Kyle was adjudged delinquent of second-degree aggravated
assault and was sentenced, consistent with a plea-agreement, to twenty-four months’ incarceration at the New Jersey
Training School. Kyle was subsequently placed in the Juvenile Intensive Supervision Program (JISP). On March 3,
2009, Kyle’s participation in the program was terminated after he was deemed noncompliant. The Family Part
court, however, dismissed the JISP violation and discharged the few months remaining on Kyle’s sentence, noting
his approaching eighteenth birthday. Less than two months later, Kyle committed the act of delinquency resulting in
his current sentence and this appeal.
In respect of the challenged sentence, the disposition court held, after taking Kyle’s prior adjudication on
the second-degree aggravated assault charge and the present adjudication into consideration, that as a matter of law
Kyle was extended-term eligible under N.J.S.A. 2A:4A-44(d)(3). The court sentenced Kyle to the maximum
permissible term of three years at a juvenile detention facility pursuant to N.J.S.A. 2A:4A-44(d)(1) with an
additional two-year extended term pursuant to section 4A-44(d)(3).
Kyle appealed his sentence and the Appellate Division affirmed. In re K.O., 424 N.J. Super. 555 (App.
Div. 2012). The panel interpreted section 4A-44(d)(3) as permitting the imposition of an extended term whenever
there are two separate occasions of a first- or second-degree offense, one of which involved a period of
incarceration. Noting that section 4A-44(d)(3) does not refer to previous or prior offenses, the panel rejected the
argument that section 4A-44(d)(3) requires two previous adjudications in order for a juvenile to be extended-term
eligible for a present adjudication. The panel found that Kyle qualified for an extended term and that the trial court
committed no abuse of discretion.
The Supreme Court granted Kyle’s petition for certification. 212 N.J. 460 (2012).
1
Kyle is a fictitious name for K.O., the young man who brought this appeal before the Court.
1
HELD: N.J.S.A. 2A:4A-44(d)(3) requires two separate previous predicate adjudications for the imposition of an
extended-term sentence on a juvenile, including one that resulted in incarceration in a juvenile or adult facility,
exclusive of the adjudication for which the disposition court is sentencing the juvenile.
1. Because statutory interpretation involves the examination of legal issues, it is considered a question of law.
Accordingly, a de novo standard of review applies on appeal. Statutory language should be given its ordinary
meaning and be construed in a common-sense manner. The Court’s overriding goal is to discern and effectuate the
legislative intent underlying the statutory provision at issue. Where the language is unclear or ambiguous, or if the
Legislature’s intention is otherwise uncertain, resort may be had to extrinsic aids to “assist [the Court] in [its]
understanding of the Legislature’s will.” Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). (pp. 9-10)
2. Under N.J.S.A. 2A:4A-44(d)(3), an extended term may be imposed “if [the court] finds that the juvenile was
adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would
constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility.” In
this part of the statute, the Legislature has moved to the past tense, and not just for the past adjudication but also for
the additional requirement that at least one such adjudication resulted in commitment to a juvenile or adult facility.
The words refer to someone who “was adjudicated” and “was previously committed” on at least one such occasion
to a facility. Both conditions clearly are from the person’s past and do not naturally suggest the inclusion of the
present adjudication before the disposition court. The Court is unpersuaded that the failure to include the word
“previously” twice when identifying the two required findings compels a plain language reading that the present
adjudication may count as one of two separate offenses. The language of section 4A-44(d)(3) points to a natural
reading that does not favor the State’s position or the extended-term sentence imposed on Kyle. To the extent one
could argue that there is some ambiguity in the text of the section, the Court may resort to legislative history. Here,
legislative history is silent on the specific issue before the Court. Further, to the extent that section 4A-44(d)(3) is
not a model of perfect clarity, because it is a juvenile justice statute involving among the most severe sanctions that
can be imposed on a juvenile, principles of lenity deserve consideration. To the extent that reasonable people can
differ on whether the Legislature indeed intended to allow for an extended-term sentence for individuals like Kyle,
who have only one previous separate predicate offense, not including the offense for which they are being
sentenced, the Court concludes that the more lenient construction of the statute should pertain. N.J.S.A. 2A:4A-
44(d)(3) requires two separate previous predicate adjudications, including one that resulted in incarceration in a
juvenile or adult facility, exclusive of the adjudication for which the disposition court is sentencing the juvenile.
The imposition of an extended term for Kyle transgresses that interpretation of the statute. The Court therefore
reverses the extended-term sentence imposed. (pp. 10-19)
The judgment of the Appellate Division is REVERSED.
CHIEF JUSTICE RABNER filed a separate, CONCURRING opinion, stating that because he does not
believe the language of N.J.S.A. 2A:4A-44(d)(3) leads to one clear interpretation, he turns directly to the rule of
lenity in the absence of definitive legislative history.
JUSTICES ALBIN and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE LaVECCHIA’s opinion. CHIEF JUSTICE RABNER filed a separate, concurring
opinion.
2
SUPREME COURT OF NEW JERSEY
A-28 September Term 2012
070406
STATE OF NEW JERSEY
IN THE INTEREST OF
K.O., a minor.
Argued September 23, 2013 -- Decided February 24, 2014
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 424 N.J. Super. 555 (2012).
Alyssa A. Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
K.O. (Joseph E. Krakora, Public Defender,
attorney).
Frank J. Ducoat, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (John J. Hoffman, Acting Attorney
General, attorney).
JUSTICE LaVECCHIA delivered the opinion of the Court.
Like adult offenders, juveniles adjudged delinquent can be
sentenced to an extended-term custodial sentence. The Juvenile
Justice Code (Code), N.J.S.A. 2A:4A-20 to -90, authorizes the
imposition of an extended-term sentence in two situations and,
in this matter, we must construe the statutory prerequisites for
one of them.
N.J.S.A. 2A:4A-44(d)(3) authorizes the Family Part court to
impose an extended-term sentence on a juvenile adjudged
1
delinquent of a qualifying present offense if the court “finds
that the juvenile was adjudged delinquent on at least two
separate occasions, for offenses which, if committed by an
adult, would constitute a crime of the first or second degree,
and was previously committed to an adult or juvenile facility.”
Here, we are called on to determine whether section 4A-44(d)(3)
requires two previous adjudications or whether the adjudication
for which the juvenile presently is being sentenced may itself
count as the second predicate offense.
I.
The facts and procedural history to the sentencing that
gives rise to the legal question before the Court can be briefly
summarized.
On April 29, 2009, Kyle2 was charged in a Burlington County
Juvenile Complaint with conduct that, if committed by an adult,
would have constituted first-degree robbery contrary to N.J.S.A.
2C:15-1. At a hearing conducted on July 20, 2009, the Family
Part court, after finding the State had failed to establish
beyond a reasonable doubt that the robbery had been committed
with intent to kill or inflict serious bodily injury, adjudged
Kyle delinquent for committing an act that would have
2
We use the fictitious name Kyle, as did the Appellate Division,
to refer to K.O., the young man who brought this appeal before
our Court.
2
constituted second-degree robbery if committed by an adult.
That adjudication subjected him to a maximum period of
incarceration of three years. N.J.S.A. 2A:4A-44(d)(1)(d). If
he had been adjudged, as charged, of the equivalent of a first-
degree offense, he would have been subject to a maximum period
of incarceration of four years. N.J.S.A. 2A:4A-44(d)(1)(c).
A disposition hearing was conducted on July 27, 2009, and
the State moved for the imposition of an extended term of
incarceration under section 4A-44(d)(3), which provides in full:
Upon application by the prosecutor, the
court may sentence a juvenile who has been
convicted of a crime of the first, second,
or third degree if committed by an adult, to
an extended term of incarceration beyond the
maximum set forth in [N.J.S.A.
2A:4A-44(d)(1)], if it finds that the
juvenile was adjudged delinquent on at least
two separate occasions, for offenses which,
if committed by an adult, would constitute a
crime of the first or second degree, and was
previously committed to an adult or juvenile
facility. The extended term shall not
exceed five additional years for an act
which would constitute murder and shall not
exceed two additional years for all other
crimes of the first degree or second degree,
if committed by an adult, and one additional
year for a crime of the third degree, if
committed by an adult.
[N.J.S.A. 2A:4A-44(d)(3).]
Thus, the State’s application sought to have Kyle sentenced to a
maximum extended-term sentence totaling five years of
incarceration.
3
Kyle had been adjudged delinquent on three occasions prior
to the offense giving rise to this appeal. The first two
adjudications involved minor offenses that did not meet section
4A-44(d)(3)’s predicate requirement of first- or second-degree
offense adjudications: (1) in April 2007 Kyle was adjudged
delinquent for disturbing the peace, a disorderly persons
offense; and (2) in August 2007 Kyle was adjudged delinquent on
a fourth-degree riot complaint. Also, neither of those
adjudications resulted in his commitment to a juvenile detention
facility.
However, in March 2008 Kyle was adjudged delinquent of
second-degree aggravated assault and was sentenced, consistent
with a plea agreement, to twenty-four months’ incarceration at
the New Jersey Training School. As part of the plea agreement
in that matter, the State agreed not to oppose recall of Kyle
and the other individuals sentenced along with him. See State
ex rel. R.M., 141 N.J. 434, 453 (1995) (discussing Family Part’s
authority “to recall cases previously decided and to modify
dispositions previously ordered”). In September 2008, after
Kyle had served six months of his custodial sentence, the court
conducted a recall hearing and ordered his release and placement
4
in the Juvenile Intensive Supervision Program (JISP).3 However,
Kyle was noncompliant and failed to complete JISP. After being
charged with violation of JISP, his participation was terminated
on March 3, 2009. Noting Kyle’s approaching eighteenth
birthday, the Family Part court dismissed the JISP violation and
discharged the few months remaining on Kyle’s sentence while
cautioning Kyle to remain offense free. Less than two months
later, Kyle committed the act of delinquency resulting in his
current sentence and this appeal.
In respect of the challenged sentence, the disposition
court held, after taking Kyle’s prior adjudication on the
second-degree aggravated assault charge and the present
adjudication into consideration, that as a matter of law Kyle
was extended-term eligible under N.J.S.A. 2A:4A-44(d)(3). The
court sentenced Kyle to the maximum permissible term of three
3
JISP is a statewide dispositional alternative to juvenile
detention that exposes offenders to intensive rehabilitation
techniques regarded as “more stringent than juvenile probation,
but less rigid than detention or commitment.” The Juvenile
Intensive Supervision Program, (JISP), New Jersey Courts,
http://www.judiciary.state.nj.us/probsup/jisp_intro.htm (last
visited Jan. 31, 2014). “JISP works cooperatively with the
Family Court and community agencies to provide support services
to assist participants and their families. These vital
relationships help to connect participants with necessary
education and health services that will enhance their potential
for success.” Ibid. The program includes the monitoring of
required school or work attendance, community service, curfew
requirements, substance abuse or mental health treatment, and
victim restitution. Ibid.
5
years at a juvenile detention facility pursuant to N.J.S.A.
2A:4A-44(d)(1) with an additional two-year extended term
pursuant to N.J.S.A. 2A:4A-44(d)(3).
Kyle appealed his sentence and the Appellate Division
affirmed. In re K.O., 424 N.J. Super. 555, 566 (App. Div.
2012). With respect to the statutory analysis, the panel
compared section 4A-44(d)(3)’s language to that contained in the
other section authorizing an extended-term sentence for juvenile
adjudications, N.J.S.A. 2A:4A-44(d)(4).4 The panel interpreted
section 4A-44(d)(3) as permitting the imposition of an extended
term whenever there are two separate occasions of a first- or
second-degree offense, one of which involved a period of
incarceration. Noting that section 4A-44(d)(3) does not refer
to previous or prior offenses, the panel rejected the argument
4
N.J.S.A. 2A:4A-44(d)(4) provides that
[u]pon application by the prosecutor, when a
juvenile is before the court at one time for
disposition of three or more unrelated
offenses which, if committed by an adult,
would constitute crimes of the first, second
or third degree and which are not part of
the same transaction, the court may sentence
the juvenile to an extended term of
incarceration not to exceed the maximum of
the permissible term for the most serious
offense for which the juvenile has been
adjudicated plus two additional years.
[N.J.S.A. 2A:4A-44(d)(4).]
6
that section 4A-44(d)(3) requires two previous adjudications in
order for a juvenile to be extended-term eligible for a present
adjudication. Applying that approach to extended-term
eligibility under section 4A-44(d)(3), the panel found that Kyle
qualified and that the trial court committed no abuse of
discretion in imposing an extended-term sentence in Kyle’s case.
Kyle filed a petition for certification challenging his
eligibility for an extended-term sentence under section
4A-44(d)(3). On November 9, 2012, we granted certification in
this matter. 212 N.J. 460 (2012).
II.
A.
Kyle contends on appeal that he does not meet the
requirements for an extended-term sentence set forth in N.J.S.A.
2A:4A-44(d)(3) because he did not have two prior delinquency
adjudications for conduct equivalent to first- or second-degree
offenses at the time of the disposition hearing. Kyle argues
that a juvenile’s current offense should not qualify as one of
the two predicate offenses required to impose an extended term
under section 4A-44(d)(3).
He supports this contention by relying on the section’s
plain language and legislative history, which, he contends,
express a legislative intent “to punish repetitive offenders.”
In advancing a plain language argument, Kyle contends that the
7
use of past tense in section 4A-44(d)(3) implies a requirement
that the qualifying offenses must have been prior offenses. He
claims that the Appellate Division placed undue weight on the
absence of the terms “prior” or “previous” within section
4A-44(d)(3). He further argues that, when section 4A-44(d)(3)
is read in concert with section 4A-44(d)(4), it becomes clear
that the Legislature did not intend for the instant offense to
qualify as one of the two predicate offenses required under
section 4A-44(d)(3). In the alternative, Kyle argues that the
rule of lenity should apply if the Court finds ambiguity in the
language of section 4A-44(d)(3).
B.
The State argues that section 4A-44(d)(3) should be read to
allow for the imposition of an extended term so long as there
are two separate qualifying offenses, inclusive of the instant
offense. Thus, the State’s interpretation would require only
two separate delinquency proceedings. The State relies on the
plain language of the statute, emphasizing the Legislature’s use
of “separate” instead of “prior” or “previous” when discussing
qualifying offenses. The State also finds support for its
construction of section 4A-44(d)(3) in the statute’s legislative
history. The State contends that Kyle’s arguments regarding the
Legislature’s use of past tense and the applicability of the
rule of lenity are without merit.
8
III.
Because statutory interpretation involves the examination
of legal issues, it is considered a question of law. McGovern
v. Rutgers, 211 N.J. 94, 107-08 (2012). Accordingly, a de novo
standard of review applies on appeal. Ibid.; see also State v.
Gandhi, 201 N.J. 161, 176 (2010).
In statutory interpretation, a court’s role “is to
determine and effectuate the Legislature’s intent.” Allen v. V
& A Bros., 208 N.J. 114, 127 (2011). The first step toward that
end is to consider the plain language of the statute. Norfolk
S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 166 (2013)
(quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264
(2008)). Statutory language should be given its ordinary
meaning and be construed in a common-sense manner. N.J. Dep’t
of Envtl. Prot. v. Huber, 213 N.J. 338, 365 (2013); N.E.R.I.
Corp. v. N.J. Highway Auth., 147 N.J. 223, 236 (1996). Further,
when construing the Legislature’s words, every effort should be
made to avoid rendering any part of the statute superfluous.
See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.
576, 587 (2013) (noting “bedrock assumption” that Legislature
did not use meaningless or unnecessary language).
In sum, our overriding goal is to discern and effectuate
the legislative intent underlying the statutory provision at
issue. N.J. Dep’t of Children & Families, Div. of Youth &
9
Family Servs. v. A.L., 213 N.J. 1, 20 (2013). Our role is not
to “rewrite a plainly-written enactment of the Legislature []or
[to] presume that the Legislature intended something other than
that expressed by way of the plain language.” DiProspero v.
Penn, 183 N.J. 477, 492 (2005) (first alteration in original)
(internal quotation marks omitted). Where the language is
unclear or ambiguous, or if the Legislature’s intention is
otherwise uncertain, resort may be had to extrinsic aids to
“assist us in our understanding of the Legislature’s will.”
Pizzullo, supra, 196 N.J. at 264; see also Roberts v. State,
Div. of State Police, 191 N.J. 516, 521 (2007); DiProspero,
supra, 183 N.J. at 492.
IV.
In the statutory construction question at issue, we
consider a sentencing provision in the legislative scheme
governing the dispensing of juvenile justice. The
rehabilitation of juvenile offenders is the goal of the juvenile
justice system. See State ex rel. C.V., 201 N.J. 281, 295
(2010); State ex rel. J.D.H., 171 N.J. 475, 483 (2002). The
Code balances its intention to act in the best interests of the
juvenile and to promote his or her rehabilitation with the need
to protect the public welfare. See N.J.S.A. 2A:4A-21
(enumerating Code’s purposes). While rehabilitation of
juveniles has historically been at the heart of juvenile
10
justice, see In re Gault, 387 U.S. 1, 15-16, 87 S. Ct. 1428,
1437, 18 L. Ed. 2d 527, 539 (1967), modern experiences with
serious juvenile crimes have elevated the importance of punitive
sanctions in juvenile dispositions, see State v. Presha, 163
N.J. 304, 314 (2000) (noting that “punishment has now joined
rehabilitation as a component of the State’s core mission with
respect to juvenile offenders”). This Court has noted that the
Legislature underscored that the Code’s sanctions are not just
for the purpose of accomplishing rehabilitation but are also
“designed to promote accountability and protect the public.”
State v. Franklin, 175 N.J. 456, 466 (2003) (quoting language
added in 1995 to statement of Code’s purposes in N.J.S.A.
2A:4A-21(b)). In this matter, we must construe a clearly
punitive sanction available under the Code -- one included in
the Code when it was adopted in 1982 that enables the Family
Part court to impose an extended-term sentence on a juvenile.
N.J.S.A. 2A:4A-44(d)(3) bears repeating in full:
Upon application by the prosecutor, the
court may sentence a juvenile who has been
convicted of a crime of the first, second,
or third degree if committed by an adult, to
an extended term of incarceration beyond the
maximum set forth in [N.J.S.A.
2A:4A-44(d)(1)], if it finds that the
juvenile was adjudged delinquent on at least
two separate occasions, for offenses which,
if committed by an adult, would constitute a
crime of the first or second degree, and was
previously committed to an adult or juvenile
facility. The extended term shall not
11
exceed five additional years for an act
which would constitute murder and shall not
exceed two additional years for all other
crimes of the first degree or second degree,
if committed by an adult, and one additional
year for a crime of the third degree, if
committed by an adult.
[N.J.S.A. 2A:4A-44(d)(3).]
Our duty to discern and implement the legislative intent
underlying this authorization for an extended-term sentence
compels us to seek that intent from the words used in the
statute. See Norfolk, supra, 215 N.J. at 166. From a plain
language reading, the statute addresses the disposition stage of
the offense for which the juvenile is being sentenced. The
statute requires the filing of an application for an extended-
term sentence by the prosecutor after the juvenile has been
adjudged to have committed what would have been the equivalent
of a first-, second-, or third-degree crime if committed by an
adult. Thus, the statute envisions that the extended-term
application is to be made after the adjudication is complete and
while the disposition of the present offense is taking place.
The Legislature clearly has demarked the “present” offense in
its discussion in this part of the statute.
The plain language of the statute then requires certain
findings by the disposition court. An extended term may be
imposed “if [the court] finds that the juvenile was adjudged
delinquent on at least two separate occasions, for offenses
12
which, if committed by an adult, would constitute a crime of the
first or second degree, and was previously committed to an adult
or juvenile facility.” In this part of the statute, the
Legislature has moved to the past tense, and not just for the
past adjudication but also for the additional requirement that
at least one such adjudication resulted in commitment to a
juvenile or adult facility. The words refer to someone who “was
adjudicated” and “was previously committed” on at least one such
occasion to a facility.
The rules of statutory construction require deference to
the words chosen by the Legislature. Statutory language is
entitled to its ordinary meaning and to be given a common-sense
construction. See Huber, supra, 213 N.J. at 365; Smith v.
Fireworks by Girone, Inc., 180 N.J. 199, 216 (2004). In
following that precept, we give great weight to the difference
in verb tenses used by the Legislature in this statute. The
Legislature first used the “has been convicted” language when
referring to the present offense for which the court is
considering the prosecutor’s application for an extended term.
The Legislature then switched to past tense when referring to
the two findings from the person’s past that the court must make
in order to declare the person eligible for an extended term.
As to the latter, the Legislature used past tense two times,
requiring that the person (1) “was adjudicated” delinquent on at
13
least two separate occasions for offenses of a certain grade if
committed by an adult, and (2) “was previously committed” to an
adult or juvenile facility. Both conditions clearly are from
the person’s past and do not naturally suggest the inclusion of
the present adjudication before the disposition court,
especially when the Legislature had just used a different tense
to describe the instant offense. We glean from this that the
Legislature intentionally went out of its way to differentiate
between the instant offense and the qualifying predicate
offenses. That interpretation is a common-sense application of
the section’s language and it advances a discernible public
policy. The Legislature wanted to address individuals who have
not learned from their past serious adjudications that have
included time spent incarcerated pursuant to a previously
imposed order of commitment.
We are unpersuaded that the failure to include the word
“previously” twice when identifying the two required findings
compels a plain language reading that the present adjudication
may count as one of two separate offenses. Indeed, in
considering this argument made on the basis of an omitted word,
we note that the Legislature did not use that same language
construction in the companion section of 4A-44(d)(4) when it
expressly dealt with the imposition of an extended-term sentence
in sentencing for multiple unrelated crimes before the court in
14
a single sentencing proceeding. It is a guiding principle in
achieving the goal of fulfilling the legislative intent
underlying a statute that a provision be considered in light of
its surrounding statutory provisions. Huber, supra, 213 N.J. at
365 (stating we must examine statutory “language sensibly, in
the context of the overall scheme in which the Legislature
intended the provision to operate”).
In section 4A-44(d)(4), when addressing a juvenile who has
engaged in a spree of qualifying offenses, the Legislature has
authorized the imposition of an extended-term sentence on the
basis of the present offenses by using language that clearly and
unambiguously captures the instant offenses with which the
disposition court is dealing. Moreover, section 4A-44(d)(4)
refers to those offenses as ones for which the juvenile “has
been adjudicated,” just as section 4A-44(d)(3) does when
describing the instant offense.
The language of section 4A-44(d)(3), in referring in past
tense to the previous separate adjudications that must provide
the predicate for an extended term to be imposed on the instant
offense, points to a natural reading that does not favor the
State’s position or the extended-term sentence imposed on Kyle.
Our goal is to effectuate legislative intent based on our best
assessment of the words used by the Legislature. We have done
that. To the extent one could argue that there is some
15
ambiguity in the text of the section, we may resort to
legislative history. Here, legislative history is silent on the
specific issue before us. Accepted forms of legislative history
such as sponsor or committee statements addressing the question
presented about section 4A-44(d)(3) do not exist. To the extent
that the State points to subsequent study commissions that have
examined progress made in combatting juvenile crime and
dispensing juvenile justice, those reports are not indicative of
legislative intent. They do not represent contemporaneous
expressions of intent by the Legislature that enacted or amended
the legislation in question. We may not consider them of value
in ascertaining legislative intent.5 See State v. Trump Hotels &
Casino Resorts, 160 N.J. 505, 550-51 (1999) (Handler, J.,
dissenting) (asserting statements made after enactment of
constitutional amendment not part of legislative history); see
also Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447
U.S. 102, 117, 100 S. Ct. 2051, 2061, 64 L. Ed. 2d 766, 778
(1980) (noting “the views of a subsequent Congress form a
hazardous basis for inferring the intent of an earlier one”).
5
Even if we were to consider the subsequent studies as
indicative of legislative intent, we do not find them to be
supportive of the State’s interpretation of section 4A-44(d)(3)
in this instance.
16
Further, to the extent that section 4A-44(d)(3) is not a
model of perfect clarity, because it is a juvenile justice
statute involving among the most severe sanctions that can be
imposed on a juvenile, principles of lenity deserve
consideration. A court may apply the doctrine of lenity when
construing an ambiguous criminal statute. State v. Rangel, 213
N.J. 500, 515 (2013). “That doctrine ‘holds that when
interpreting a criminal statute, ambiguities that cannot be
resolved by either the statute’s text or extrinsic aids must be
resolved in favor of the defendant.’” Ibid. (quoting State v.
Gelman, 195 N.J. 475, 482 (2008)). The doctrine is founded on
two guiding principles. The first is the important concept that
a criminal defendant is entitled to “fair warning . . . of what
the law intends to do if a certain line is passed.” Gelman,
supra, 195 N.J. at 482 (omission in original) (quoting United
States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 522, 30 L. Ed.
2d 488, 496 (1971)) (internal quotation marks omitted). The
second guiding principle is the notion that the Legislature, and
not the courts, should define the contours of criminal activity.
That principle is founded upon society’s “instinctive distaste
against men [and women] languishing in prison unless the
lawmaker has clearly said they should.” Id. at 482-83
(alteration in original) (quoting Bass, supra, 404 U.S. at 348,
17
92 S. Ct. at 523, 30 L. Ed. 2d at 497) (internal quotation marks
omitted).
Here, in interpreting an aspect of the Code affecting the
dispensing of justice to juveniles, where rehabilitation
concerns are at their highest in the criminal justice sphere, we
decline to give this statute its harshest possible reading.
Notwithstanding the important role that punishment now plays in
the juvenile justice system, see Presha, supra, 163 N.J. at 314,
principles of statutory construction still govern, including the
principle of lenity when construing a criminal statute. To the
extent that reasonable people can differ on whether the
Legislature indeed intended to allow for an extended-term
sentence for individuals like Kyle, who have only one previous
separate predicate offense, not including the offense for which
they are being sentenced, we conclude that the more lenient
construction of the statute should pertain.
We therefore hold that N.J.S.A. 2A:4A-44(d)(3) requires two
separate previous predicate adjudications, including one that
resulted in incarceration in a juvenile or adult facility,
exclusive of the adjudication for which the disposition court is
sentencing the juvenile. The imposition of an extended term for
Kyle transgresses that interpretation of the statute. We
therefore reverse the extended-term sentence imposed.
18
V.
The judgment of the Appellate Division is reversed.
JUSTICES ALBIN and PATTERSON, and JUDGES RODRÍGUEZ and CUFF
(both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
CHIEF JUSTICE RABNER filed a separate, concurring opinion.
19
SUPREME COURT OF NEW JERSEY
A-28 September Term 2012
070406
STATE OF NEW JERSEY
IN THE INTEREST OF
K.O., a minor.
CHIEF JUSTICE RABNER, concurring.
Reasonable people can disagree about whether N.J.S.A.
2A:4A-44(d)(3) requires one or two separate, prior juvenile
adjudications before an extended term of incarceration can be
imposed. The statute provides as follows:
Upon application by the
prosecutor, the court may sentence a
juvenile who has been convicted of a crime
of the first, second, or third degree if
committed by an adult, to an extended term
of incarceration beyond the maximum set
forth in paragraph (1) of this subsection,
if it finds that the juvenile was adjudged
delinquent on at least two separate
occasions, for offenses which, if committed
by an adult, would constitute a crime of the
first or second degree, and was previously
committed to an adult or juvenile facility.
[N.J.S.A. 2A:4A-44(d)(3) (emphases
added).]
The majority presents a strong case as to why two
prior predicates are required. It focuses on the different verb
tenses in the statute, which are underscored above. Ante at __-
__ (slip op. at 13-15).
1
Another persuasive reading of the statute focuses on
the word “previously.” The Legislature inserted the term only
once: to establish that a juvenile must have been “previously”
incarcerated. The word does not appear in the clause that
states “the juvenile was adjudged delinquent on at least two
separate occasions.” Thus, the Legislature required two
juvenile adjudications but did not say both must have occurred
“previously.” As the Appellate Division noted, “the Legislature
could easily have” said so had it meant to. In re K.O., 424
N.J. Super. 555, 561 (App. Div. 2012). Instead, it omitted the
very limiting term it used later in the same section. For this
and other reasons, the appellate panel concluded that the
pending offense may count as a predicate for an extended
term. Id. at 564.
Because both interpretations of this criminal statute
are reasonable, and because the legislative history does not
resolve this dispute, the doctrine of lenity applies. See State
v. Rangel, 213 N.J. 500, 515 (2013); State v. Shelley, 205 N.J.
320, 324 (2011). As a result, the ambiguity in the statute
should be resolved in defendant’s favor. Rangel, supra, 213
N.J. at 515 (citing State v. Gelman, 195 N.J. 475, 482 (2008)).
I agree with the majority’s discussion of the doctrine
of lenity. See ante at __-__ (slip op. at 17-18). My
difference with the majority is slight. It concludes that the
2
statutory language is plain and considers the rule of lenity to
the extent one might find the law ambiguous. Ibid. Because I
do not believe the language of the statute leads to one clear
interpretation, I turn directly to the rule of lenity in the
absence of definitive legislative history.
For the above reasons, I concur in the result the
majority reaches and would reverse the judgment of the Appellate
Division.
3
SUPREME COURT OF NEW JERSEY
NO. A-28 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY
IN THE INTEREST OF
K.O., a minor.
DECIDED February 24, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY Chief Justice Rabner
DISSENTING OPINION BY
CHECKLIST REVERSE CONCUR
CHIEF JUSTICE RABNER (X) X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6
1