STATE OF NEW JERSEY VS. LEON MACKÂ (16-02-0234, HUDSON COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3423-16T1
STATE OF NEW JERSEY,
Plaintiff-Appellant,
v.
LEON MACK,
Defendant-Respondent.
_____________________________
Submitted September 12, 2017 – Decided October 11, 2017
Before Judges Reisner and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Hudson County,
Indictment No. 16-02-0234.
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for appellant (Stephen A.
Pogany, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the brief).
Joseph E. Krakora, Public Defender, attorney
for respondent (Laura B. Lasota, Assistant
Deputy Public Defender, of counsel and on the
brief).
ER CURIAM
N.J.S.A. 2C:39-5(j) provides that the commission of certain
weapons offenses by a person who has a prior conviction of a crime
enumerated in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2,
is a first-degree crime. The question presented on this appeal
is whether N.J.S.A. 2C:39-5(j) is a substantive statute
identifying a separate crime, or a sentencing enhancement
provision.
We hold that N.J.S.A. 2C:39-5(j) is a substantive statute
identifying a separate crime subject to indictment and trial by
jury. We, therefore, reverse the April 13, 2017 order of the
trial court that dismissed defendant's indictment charging him
with first-degree knowing possession of a handgun by a person
previously convicted of a crime enumerated in NERA. On remand,
we direct that the trial court address defendant's separate
arguments to dismiss the indictment.
I.
On September 8, 2015, defendant Leon Mack allegedly attempted
to enter the Hall of Records in Essex County Courthouse. He had
a bag with him, which he put through the metal detector. An
officer noted that the bag appeared to have a weapon, and a search
of the bag revealed a .25 caliber semi-automatic pistol. Defendant
attempted to flee, but was apprehended.
A criminal background check disclosed that in 1991, defendant
had been convicted of second-degree aggravated assault. An
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examination of the handgun showed that it had allegedly been
defaced.
A grand jury issued two indictments charging defendant with
four crimes arising out of his conduct on September 8, 2015.
Indictment No. 16-02-234 charged defendant with one count of first-
degree unlawful possession of a weapon in violation of N.J.S.A.
2C:39-5(j). Indictment No. 16-02-0235 charged defendant with
second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-
5(b); fourth-degree possession of a defaced weapon, N.J.S.A.
2C:39-3(d); and fourth-degree resisting arrest, N.J.S.A. 2C:29-
2(a)(2).
Defendant moved to dismiss Indictment No. 16-02-0234, arguing
that the underlying predicate offense, a 1991 conviction of second-
degree aggravated assault, did not subject him to a charge under
N.J.S.A. 2C:39-5(j) because NERA was not enacted until 1997. The
trial court never reached that issue. Instead, the trial court
held, sua sponte, that N.J.S.A. 2C:39-5(j) was a sentencing statute
and not a substantive statute identifying a separate crime.
Consequently, the trial court dismissed the indictment charging
defendant with a separate crime under N.J.S.A. 2C:39-5(j).
On leave granted, the State appeals and argues that N.J.S.A.
2C:39-5(j) establishes a separate crime subject to indictment and
trial by jury. Defendant agrees with the State that N.J.S.A.
3 A-3423-16T1
2C:39-5(j) is a separate crime. Defendant, however, argues that
we should affirm the dismissal of the indictment on separate
grounds. Specifically, defendant contends that because the
underlying predicate act —– second-degree aggravated assault —–
resulted from a conviction in 1991, he is not subject to N.J.S.A.
2C:39-5(j). Defendant asserts that subsection j refers to NERA,
and NERA was enacted in 1997. Moreover, defendant points out that
NERA first listed specific crimes, such as second-degree
aggravated assault, in a 2001 amendment.
II.
Whether N.J.S.A. 2C:39-5(j) is a substantive provision
identifying a crime or a sentencing enhancement provision is a
question of law, which we review de novo. See, e.g., State v.
Maurer, 438 N.J. Super. 402, 411 (App. Div. 2014). Both the
statute's plain language and its legislative history support the
interpretation that N.J.S.A. 2C:39-5(j) is a substantive provision
identifying a separate crime. Viewing subsection j in the context
of another provision in the same statutory section is also
instructive. Finally, such an interpretation is consistent with
and supported by the established interpretation of the analogous
criminal statute of certain persons not to possess weapons,
N.J.S.A. 2C:39-7.
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A. The Plain Language and Legislative History
Statutory interpretation starts with the plain language of
the statute. State v. Malik, 365 N.J. Super. 267, 274 (App. Div.
2003), certif. denied, 180 N.J. 354 (2004). N.J.S.A. 2C:39-5(j)
provides:
A violation of subsections a., b., c. or f.
of this section by a person who has a prior
conviction of any of the crimes enumerated in
subsection d. of §2 of P.L. 1997, c. 117
([N.J.S.A.] 2C:43-7.2) is a first degree
crime.
The language "first degree crime" plainly means that subsection j
is identifying a separate substantive crime.
That plain reading is supported by the statute's legislative
history. Subsection j was added to N.J.S.A. 2C:39-5 in 2013, as
part of L. 2013, c. 113, § 1. Cannel, New Jersey Criminal Code
Annotated, comment 1 on N.J.S.A. 2C:39-5 (2017). The statement
supporting that amendment provided, in relevant part:
This bill upgrades the crime of unlawful
possession of a firearm to a first degree
crime in certain circumstances and amends
various penalty provisions under the Graves
Act.
The provisions of the bill make it a crime of
the first degree for a person to unlawfully
possess a machine gun, handgun, rifle or
shotgun, or an assault firearm following a
conviction for a crime enumerated in
subsection d. of §2 of P.L. 1997, c. 117
([N.J.S.A.] 2C:43-7.[2]) (the No Early Release
Act.) Under current law, violations of these
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provisions are either a second degree offense,
in the case of machine guns, handguns and
assault firearms, or a third degree offense,
in the case of rifles and shotguns.
[Sponsor Statement on S2804, 2013 Leg., 215th
Sess. 1 (N.J. 2013).]
Comparing subsection j with subsection i of the same statutory
section also supports our interpretation. Compare N.J.S.A. 2C:39-
5(i), with N.J.S.A. 2C:39-5(j). Subsection i expressly identifies
the "sentencing court" as the fact finder. In that regard, the
subsection states in relevant part:
The sentencing court shall make a finding on
the record as to whether the aggravating
circumstances set forth in paragraph (5) of
subsection a. of N.J.S.A. 2C:44-1 applies, and
the court shall presume that there is a
substantial likelihood that the defendant is
involved in organized criminal activity if
there is a substantial likelihood that the
defendant is a member of an organization or a
group that engages in criminal activity. The
prosecution at the sentencing hearing shall
have the initial burden of producing evidence
or information concerning defendant's
membership in such an organization or group.
[N.J.S.A. 2C:39-5(i).1]
1
Subsection i was held unconstitutional in State v. Grate, 220
N.J. 317 (2015), because it required a sentencing judge to impose
a period of parole ineligibility based on a finding by the judge,
rather than by a jury, that the defendant was involved in organized
criminal activity. Id. at 334. Thus, the Court held that
subsection i violated the Sixth Amendment of the Constitution. Id.
6 A-3423-16T1
In contrast, subsection j never mentions a sentencing court.
Instead, the statute plainly states that it is creating a "first
degree crime[.]" N.J.S.A. 2C:39-5(j).
Instead of considering the plain wording of the statute or
its history, the trial court appears to have assumed —– mistakenly
—– that because a defendant's criminal history may properly be
considered as a sentencing factor, see N.J.S.A. 2C:44-1(a)(6),
subsection j was probably a sentencing statute because it
referenced a defendant's prior conviction. Thus, in dismissing
defendant's indictment, the trial court cited Apprendi v. New
Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000),
for the proposition 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." Id. at 490. The trial court
read the holding in Apprendi as authorizing a court to use prior
convictions in sentence enhancing determinations.
The Apprendi Court's holding followed its decision in
Almendarez-Torres v. United States, 523 U.S. 224, 118 S. Ct. 1219,
140 L. Ed. 2d 350 (1998), which held that a defendant's prior
conviction was not an element of a substantive offense, but rather
a sentencing enhancement provision. In so holding, the Almendarez-
Torres Court considered the language used in the statute, the
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title of the statute ("Criminal penalties for reentry of certain
deported aliens"), the congressional intent to enhance penalties
rather than create a new offense, and the absence of other federal
statutes that include a defendant's prior conviction as an element
of the offense. Id. at 230-34.
N.J.S.A. 2C:39-5(j) is distinguishable from the statute at
issue in Almendarez-Torres for two reasons. First, the plain
language of N.J.S.A. 2C:39-5(j) demonstrates that the addition of
subsection j created a separate substantive crime. Second, the
legislative history of the 2013 amendment, including the sponsor
statement, shows the Legislature's intent to create a new first-
degree crime, not a sentencing enhancement provision.
B. The Analogous Certain Persons Offense
Finally, contrary to the trial court's analysis, interpreting
N.J.S.A. 2C:39-5(j) as a substantive criminal statute is
consistent with the established interpretation of the analogous
crime of certain persons not to possess weapons, N.J.S.A. 2C:39-
7. To establish a defendant's guilt under that statute, the State
must prove beyond a reasonable doubt that defendant possessed a
firearm and he had been previously convicted of an enumerated
crime. State v. Ragland, 105 N.J. 189, 194 (1986). See Model
Jury Charge (Criminal), "Certain Persons Not to Have Weapons"
(2005). Similar to the certain persons offense, N.J.S.A. 2C:39-
8 A-3423-16T1
5(j) requires proof that defendant possessed a particular type of
firearm and defendant is "a person who has a prior conviction of
any of the crimes enumerated" in NERA.
In summary, we hold that N.J.S.A. 2C:39-5(j) identifies a
substantive crime. Accordingly, we reverse the trial court's
April 13, 2017 order in this matter.
III.
Defendant argues that we should go on to address the arguments
that he made in support of his motion to dismiss the indictment
charging him with violating N.J.S.A. 2C:39-5(j). The State also
urges us to exercise our discretionary original jurisdiction under
Rule 2:10-5. In contrast to defendant, however, the State argues
that we should deny defendant's motion to dismiss the indictment
for substantive reasons. We decline this invitation. Instead,
we remand this matter to the trial court directing that the court
address and rule on the arguments presented by defendant in his
motion to dismiss the indictment charging him with violating
N.J.S.A. 2C:39-5(j).
Reversed and remanded. We do not retain jurisdiction.
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