State of New Jersey v. Gary Twiggs

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4417-14T1
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Appellant, March 22, 2016
v. APPELLATE DIVISION
GARY TWIGGS,
Defendant-Respondent.
________________________________
Submitted February 9, 2016 – Decided March 22, 2016
Before Judges Reisner, Leone and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Cape May County, Indictment
No. 14-12-01014.
John J. Hoffman, Acting Attorney General,
attorney for appellant (Joseph A. Glyn,
Deputy Attorney General, of counsel and on
the brief).
Cooper Levenson, P.A., attorneys for
respondent (Steven E. Rosenfeld, on the
brief).
The opinion of the court was delivered by
WHIPPLE, J.A.D.
The State appeals from an April 27, 2015 order dismissing
an indictment charging defendant with conspiracy to commit
robbery. The trial court dismissed the indictment because the
State initiated its prosecution beyond the time permitted by the
criminal statute of limitations, N.J.S.A. 2C:1-6. Contrary to
the State's argument, we hold that the statutory tolling
provision in N.J.S.A. 2C:1-6, for situations in which "the
actor" is identified by means of DNA evidence, refers to the
individual whose DNA is analyzed. It does not apply to a third
party identified by that individual. Consequently, we affirm.
I.
We discern the following facts from the record. On June
16, 2009, defendant met S.T.1 in a Wildwood Crest parking lot to
purchase 150 tablets of prescription painkillers. As defendant
and S.T. talked in the parking lot, a man wearing a mask
approached, pointed a handgun at S.T. and defendant, and ordered
them into defendant's vehicle. After defendant and S.T. entered
the vehicle, the masked man demanded their money, cell phones,
and the drugs that S.T. was about to sell to defendant. After
the man left with the money, cell phones, and drugs, S.T.
attempted to chase him on foot but was unable to apprehend the
masked gunman.
S.T. reported the robbery of his money and cell phone to
the Wildwood Crest Police Department (the Department), which
1
In the context of this case, S.T. was a crime victim, and his
identity is irrelevant to our decision.
2 A-4417-14T1
initiated an investigation. Several officers went to the scene
of the crime and found a mask and gloves, which S.T. identified
as belonging to the gunman. The officers submitted the gloves
and mask to the New Jersey State Police DNA Laboratory (the DNA
Lab), which extracted and analyzed DNA samples from hair found
on the articles found at the scene. No DNA matches were
available in the DNA Lab's database at that time, however. The
DNA Lab entered the DNA profile into the Combined DNA
Information System (CODIS).
Meanwhile, S.T. and defendant submitted to multiple
interviews at the Department. During these interviews, S.T.
admitted to police that he and defendant had met for the purpose
of conducting a drug sale. Defendant denied S.T.'s account of
the incident, leading police to suspect that he was involved in
the robbery. S.T. also told police that he personally believed
defendant was involved in planning the robbery. After sending
the mask and gloves to the DNA lab for inspection in July 2010,
the Department did not receive any further evidence until 2014.
On July 2, 2014, the Department received information from
the DNA Lab that it had matched DNA from the crime-scene with
DNA taken from Dillon Tracy after he was arrested for a
different offense in 2014. Tracy's DNA profile matched the
profile of the hair on the mask found in 2009, which the DNA Lab
3 A-4417-14T1
had entered into CODIS. Upon receiving this information, the
Department obtained a warrant to take a DNA sample from Tracy.
Defendant's DNA was not found or matched with a CODIS sample at
any point during this investigation.
When officers met with Tracy on July 19, 2014, he initially
refused to discuss the 2009 robbery. However, on September 16,
2014, Tracy told police that he was the masked gunman who robbed
defendant and S.T. Tracy also told police that defendant
arranged the robbery so they could both share in the drugs that
Tracy planned to steal. Tracy told police he stole defendant's
money and cell phone to make defendant appear to be a victim,
and that he threw his gun away after the robbery was completed.
Defendant was arrested on September 17, 2014 and charged with
conspiracy.
On December 2, 2014, the grand jury indicted defendant and
Tracy. The indictment charged both defendant and Tracy with
second-degree conspiracy under N.J.S.A. 2C:5-2a to commit first-
degree robbery in violation of N.J.S.A. 2C:15-1a. The
indictment also charged Tracy with first-degree robbery,
N.J.S.A. 2C:15-1a; unlawful possession of a handgun, N.J.S.A.
2C:39-5b; and possession of a firearm for an unlawful purpose,
N.J.S.A. 2C:39-4a. Tracy subsequently pled guilty to each of
these charges. On January 22, 2015, defendant filed a motion to
4 A-4417-14T1
dismiss the indictment on the basis that the State's claim was
barred by the general criminal statute of limitations. The
trial court heard argument on the motion on April 14, 2015 and
granted defendant's motion to dismiss because the State
initiated its prosecution outside of the time permitted by the
statute of limitations. The trial judge found that the
prosecution was initiated more than five years after the June
16, 2009 incident because the grand jury proceeding did not
start until December 2, 2014. The State appealed.
The State raises a single issue on appeal:
THE TRIAL COURT'S RULING THAT THE STATUTE OF
LIMITATIONS WAS NOT TOLLED WAS INCORRECT AND
THIS COURT SHOULD REINSTATE DEFENDANT'S
INDICTMENT.
II.
We review the trial court's dismissal of the indictment de
novo. A trial court's "interpretation of the law and the legal
consequences that flow from established facts are not entitled
to any special deference." State v. Pomianek, 221 N.J. 66, 80
(2015) (quoting Manalapan Realty v. Manalapan Twp. Comm., 140
N.J. 366, 378 (1995)).
The sole issue on appeal is the trial court's
interpretation of N.J.S.A. 2C:1-6(c), the criminal statute of
limitations. When interpreting statutes, our "overriding goal
is to give effect to the Legislature's intent." State v. D.A.,
5 A-4417-14T1
191 N.J. 158, 164 (2007) (citing DiProspero v. Penn, 183 N.J.
477, 492 (2005)). The best indicator of that intent is "the
plain [statutory] language chosen by the Legislature." State v.
Perry, 439 N.J. Super. 514, 523 (App. Div.), certif. denied, 222
N.J. 306 (2015) (citing State v. Gandhi, 201 N.J. 161, 176
(2010)). We thus read the text of a statute in accordance with
its ordinary meaning unless otherwise specified. Ibid.; see
also N.J.S.A. 1:1-1 (explaining that "words and phrases [in
statutes] shall be read and construed with their context, and
shall, unless inconsistent with the manifest intent of the
legislature or unless another or different meaning is expressly
indicated, be given their generally accepted meaning, according
to the approved usage of the language.").
In cases where a plain reading of the statute "leads to a
clear and unambiguous result, then the interpretive process
should end, without resort to extrinsic sources." D.A., supra,
191 N.J. at 164 (citation omitted). If, however, the plain
language of the statute is ambiguous, we may turn to extrinsic
evidence to determine the Legislature's intent in enacting the
statute. Ibid. Turning to such extrinsic evidence is also
necessary if a plain reading of a statute renders an absurd
result at odds with the Legislature's intent. Ibid. (citing
DiProspero, supra, 183 N.J. at 492); State v. Williams, 218 N.J.
6 A-4417-14T1
576, 586 (2014) (citation omitted). Such extrinsic evidence
includes "legislative history, committee reports, and
contemporaneous construction." DiProspero, supra, 183 N.J. at
492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J.
64, 75 (2004)). Such evidence aids us in elucidating the
Legislature's intent. We may not "rewrite a statute or add
language that the Legislature omitted." State v. Munafo, 222
N.J. 480, 488 (2015) (citations omitted).
Finally, in criminal cases where the statutory language is
ambiguous and extrinsic evidence is unhelpful in determining the
Legislature's intent in enacting the statute, we apply the rule
of lenity. We note that all penal statutes are to be strictly
construed. D.A., supra, 191 N.J. at 164 (citing State v.
Valentin, 105 N.J. 14, 17 (1987)). In so doing, where ambiguity
in statutory language persists after reference to the statute's
language and extrinsic evidence, we resolve the ambiguity "in
favor of anyone subjected to [that] criminal statute." Ibid.(citations omitted).
III.
N.J.S.A. 2C:1-6 provides the time limitations within which
a prosecution for a crime must be commenced. The crime at issue
here is conspiracy to commit robbery. Because the statute of
limitations does not provide a separate limitations period for
7 A-4417-14T1
conspiracy crimes, the general limitations period applies. The
State must thus commence a prosecution against a criminal
defendant within five years of the date that each element of the
crime has been completed. N.J.S.A. 2C:1-6(b)(1),(c). N.J.S.A.
2C:1-6(c), however, provides an exception to the categorical bar
against prosecution of such crimes after the passage of five
years. Specifically, the statute provides that
[t]ime starts to run on the day after the
offense is committed, except that when the
prosecution is supported by physical
evidence that identifies the actor by means
of DNA testing or fingerprint analysis, time
does not start to run until the State is in
possession of both the physical evidence and
the DNA or fingerprint evidence necessary to
establish the identification of the actor by
means of comparison to the physical
evidence.
The State asserts that this exception applies here, because
defendant's prosecution was the result of obtaining DNA
evidence. The State argues that the exception tolled the
commencement of the statute of limitations period. The State
argues that the exception overrides the five-year limitations
period. We disagree.
A.
We first read the plain language of N.J.S.A. 2C:1-6(c) to
derive the Legislature's intent in enacting the statute. Perry,
supra, 439 N.J. Super. at 523. The language of N.J.S.A. 2C:1-
8 A-4417-14T1
6(c) supports defendant's reading of the statutory exception:
that it only applies to persons whose DNA directly identifies
them as criminal actors, and does not apply to those who are
later named by those same criminal actors. First, the statutory
language at issue specifically refers to the identification of
"the actor." The term "actor" in this case refers only to an
individual who committed a criminal offense, and who is
"identifie[d] . . . by means of DNA testing or fingerprint
analysis." N.J.S.A. 2C:1-6(c). The natural and plain reading
of this language is that the exception only applies to those
criminal offenders who are directly identified by such evidence.
See State v. Gelman, 195 N.J. 475, 482 (2008) (explaining that
we give statutes "their ordinary and commonsense meaning.")
(citing DiProspero, supra, 183 N.J. at 492).
This reading is supported by other language in the statute.
N.J.S.A. 2C:1-6(c) provides that the statute's time limitations
do not begin to run "until the State is in possession of both
the physical evidence and the DNA or fingerprint evidence
necessary to establish the identification of the actor by means
of comparison to the physical evidence." This language
demonstrates that the Legislature intended for the exception to
apply when DNA evidence could be compared against physical
evidence to establish the identity of a criminal offender. In
9 A-4417-14T1
this case, there is no such physical evidence or DNA evidence
establishing defendant's identity as a criminal offender; the
only evidence that the State derived from the DNA evidence was
Tracy's identity, and, subsequently, his confession that he and
defendant conspired to commit robbery. There is no physical
evidence implicating defendant against which to compare DNA
evidence, and accordingly, the statute forecloses tolling the
statute of limitations for a prosecution against defendant.
We note here that, had there been no DNA evidence in this
case, no exception to the statutory limitations period would
apply. We cannot discern any legislative intent to relax the
limitations period merely because a person identified by DNA
evidence implicates a third party in a confession, when that
third party's involvement is not itself supported by direct DNA
evidence. To hold otherwise would be to override the entire
limitations period for any party accused of a crime when any
single defendant names another party in a confession. We thus
reject the State's argument.
B.
Although the plain language of the statute supports
defendant's interpretation of the statute, we also examine the
extrinsic evidence in light of the State's argument that the
plain language of the statute is ambiguous. When examining
10 A-4417-14T1
extrinsic evidence, we may look to several sources to clarify
the Legislature's intent in enacting a statute, "including
legislative history, committee reports, and contemporaneous
construction." DiProspero, supra, 183 N.J. at 492-93 (quoting
Faugno, supra, 182 N.J. at 75).
N.J.S.A. 2C:1-6 was first enacted in 1978. The exception
to the statute of limitations pertinent to this appeal was first
introduced in 2000; the exception was enacted by the Assembly
and Senate in 2002. A. 2658, 209th Leg. (N.J. 2002); S. 1516,
209th Leg. 2d Sess. (N.J. 2002). Both versions contained the
same language now reflected in N.J.S.A. 2C:1-6(c), which amended
the statute to read as follows:
[E]xcept that when the prosecution is
supported by physical evidence that
identifies the actor by means of DNA testing
or fingerprint analysis, time does not start
to run until the State is in possession of
both the physical evidence and the DNA or
fingerprint evidence necessary to establish
the identification of the actor by means of
comparison to the physical evidence.
[Ibid.]
This language, ultimately included in the statute, replaced
other language introduced earlier in the amendment's life cycle.
The earlier proposed language read as follows:
Notwithstanding the provisions of N.J.S.
2C:1-6 or any other law to the contrary, if
the identity of the person who commits a
crime is unknown when the crime is committed
11 A-4417-14T1
and physical evidence is collected which can
be tested for its DNA characteristics and
used to identify the person who committed
the crime, a prosecution for the crime may
be commenced at any time.
[S. 1516, 209th Leg., 1st Sess. (2000).]
The most specific indication of the Legislature's intent in this
case is the statement accompanying the amendment that the
Legislature passed. The statement accompanying the earlier
language provided that "[t]his bill would remove time
limitations on the prosecution of crimes when the person who
committed the crime is unknown at the time, but DNA evidence
collected at the crime scene can be used to identify the person
at a later date." Sponsors' Statement to S. 1516 (Sept. 14,
2000). The substitute version of the amendment, which was
ultimately adopted, was accompanied by a new sponsors' statement
which provided that the substituted amendment would "toll the
applicable statute of limitations for the commission of a crime
in certain cases until the State is in possession of DNA or
fingerprint evidence taken from the suspect." Sponsors'
Statement to S. 1516 (Jan. 3, 2002). No other amendment to the
DNA evidence exception to the statute of limitations has since
been proposed or enacted.
In using extrinsic evidence to interpret statutory
language, our Supreme Court has cautioned that, although
12 A-4417-14T1
helpful, such evidence has limitations. DiProspero, supra, 183
N.J. at 499 (citing Deaney v. Linen Thread Co., 19 N.J. 578,
584-85 (1955)). Such evidence represents the will of only a few
lawmakers, and may also be "contradictory, ambiguous, or
otherwise without substantial probative value in determining
legislative meaning." Ibid. (quoting Deaney, supra, 19 N.J. at
584-85). Accordingly, the court must exercise "considered
judgment" when considering such evidence. Ibid.In this case, we conclude that the legislative history of
N.J.S.A. 2C:1-6(c) supports the defendant's interpretation of
the statute. Although there are competing versions of the
legislative history, we focus on the 2001 sponsors' substituted
statement, which accompanied the amendment adopted by both of
our State's legislative bodies. The legislative intent in
passing the bill, according to the substituted statement, was to
"toll the applicable statute of limitations for the commission
of a crime in certain cases until the State is in possession of
DNA or fingerprint evidence taken from the suspect." Sponsors'
Statement to S. 1516 (Jan. 3, 2002) (emphasis added). This
language clearly demonstrates that the Legislature intended for
the exception to apply when DNA evidence directly identifies a
suspect, and not when DNA implicates another suspect, who in
turn implicates a defendant. In this case, there was no
13 A-4417-14T1
evidence "taken" from defendant; the DNA evidence and physical
evidence in this case only identified Tracy as a criminal actor.
The legislative intent in this case mirrors the meaning we
gleaned from the plain text: the DNA evidence exception only
applies when the DNA evidence can be compared against physical
evidence that directly identifies a defendant as a criminal
actor.
Although the language of the original sponsor's statement
and the substituted statement changed before the ultimate
enactment of the DNA exception, the substituted language does
not defeat this reading. The original sponsors' statement was
more specifically focused on the criminal defendant in a
particular criminal case than the current language, noting that
"[t]his bill would remove time limitations on the prosecution of
crimes when the person who committed the crime is unknown at the
time, but DNA evidence collected at the crime scene can be used
to identify the person at a later date." Sponsors' Statement to
S. 1516 (Sept. 14, 2000) (emphasis added). The language in the
current statement, however, does not shift the focus of the
statute away from the suspect; rather, the substituted language
specifically notes the time at which the exception to the
statute of limitations is triggered. See Sponsors' Statement to
S. 1516 (Jan. 3, 2002) (noting that the exception only triggers
14 A-4417-14T1
when the State is "in possession of DNA or fingerprint evidence
taken from the suspect."). We accordingly conclude that the
legislative history supports the trial judge's reading of
N.J.S.A. 2C:1-6(c).2
The State relies on State v. Rumblin, 166 N.J. 550 (2001),
arguing that Rumblin's construction of the term "actor" in
another section of the Criminal Code would provide a broad scope
under which the DNA exception to the statute of limitations
would operate.
We reject the State's argument. In Rumblin, our Supreme
Court explained how provisions of N.J.S.A. 2C:43-7.2 (the No
Early Release Act (NERA)) interacted with accomplice liability
provisions in our criminal code. Rumblin, supra, 166 N.J. at
551. The Court explained that the term "actor" was synonymous
with the term "defendant" for purposes of NERA, which includes
those who did not directly perpetrate criminal activity. Id. at
2
We note an additional practical consideration which supports
the logic of this statutory construction. The reliability of
DNA evidence justifies tolling the statute of limitations for an
actor whose DNA is later implicated as evidence of a crime. See
State v. Harvey, 151 N.J. 117, 158-59 (1997) (explaining that
DNA is generally reliable evidence that remains durable over an
extended period of time). This rationale, however, does not
apply with respect to a third party whom that criminal actor
implicates by confession; a co-defendant's incriminating
statements about a third party are not rendered significantly
more reliable by DNA evidence of the co-defendant's guilt.
15 A-4417-14T1
556. The State's reliance on Rumblin, however, is misplaced
because of the different contexts of the word "actor" in each
statute.3 In NERA, the word "actor" is placed next to words in
which accomplices could easily be understood to be actors; for
example, NERA would apply to actors who "cause" death, or an
actor who engages in criminal enterprise with others. N.J.S.A.
2C:43-7.2. As the Court noted in Rumblin, such a definition is
plausible when "viewing the term in its proper syntax[.]" 166
N.J. at 556.
The syntactical usage of the term "actor" is not the same
in the contexts of NERA and N.J.S.A. 2C:1-6(c). NERA subjected
convicted criminal defendants to an eighty-five percent parole
disqualifier if a criminal "actor" caused death, serious bodily
injury, used or threatened the use of a deadly weapon, or
committed aggravated sexual assault. Rumblin, supra, 166 N.J.
at 553. The Rumblin Court's focus on the word "actor" led it to
conclude that the terms "actor" and "defendant" were synonymous
for NERA purposes only. Id. at 555-56. The focus of the
3
NERA has been amended since our Supreme Court announced its
decision in State v. Rumblin, and the text no longer contains
the term "actor." In amending the statute, the Legislature
noted in its Statement that the purpose of the amendment was to
"specifically enumerate those violent first and second degree
crimes" to which NERA must be applied. Assembly Law and Public
Safety Committee's Statement to A.B. No. 3201 (2001).
Accordingly, we refer to the 2000 version of NERA when
considering the context of the word "actor" for NERA purposes.
16 A-4417-14T1
Court's inquiry was whether an "actor" could only be a principal
in a crime, or if an accomplice to a crime could also be an
"actor" for NERA purposes. Ibid. Such construction is sound
given the syntactical use of the word "actor" in NERA; the term
"actor" generally refers to all those involved in criminal
activity in the NERA context.
N.J.S.A. 2C:1-6(c) uses the term "actor" in a different
context, both syntactically and lexicologically. In the context
of the statute of limitations, the term "actor" is used directly
in conjunction with phrases discussing the identification of
that actor "by means of DNA testing or fingerprint analysis," or
"by means of comparison to the physical evidence." The use of
the phrase "actor" in this instance is more specific than the
use of the term in NERA and Rumblin, supra. Rather than
referring generally to those who perpetrate violent crime, an
"actor" in this instance is a person who is directly identified
by DNA evidence and physical evidence. Despite the construction
in Rumblin, the two uses of the term "actor" are different
enough to merit two different analyses because of the separate
contexts in which the statutes operate. Accordingly, we reject
the State's argument in this regard.
17 A-4417-14T1
C.
Finally, although we need not reach the issue of the rule
of lenity, we comment briefly on its application. The Supreme
Court has provided that all penal statutes are to be strictly
construed. D.A., supra, 191 N.J. at 164 (citing Valentin,
supra, 105 N.J. at 17). We apply standard canons of statutory
interpretation when construing such statutes, and we resolve any
ambiguity in a criminal statute "in favor of anyone subjected to
[that] criminal statute." Ibid. (citations omitted). The rule
of lenity only applies when the statutory text itself is
ambiguous, and the use of extrinsic aids has not provided
guidance. Ibid. Accordingly, it only applies when other canons
of statutory interpretation fail to yield a clear result.
The rule of lenity would foreclose us from adopting the
State's reading of N.J.S.A. 2C:1-6(c) if any ambiguity remained
after analyzing the plain statutory text and available extrinsic
evidence. The trial court's reading of the statute is the
narrowest reading available because it strictly limits the use
of DNA evidence to persons who the DNA evidence directly
identifies; such a reading does not permit the State to initiate
prosecutions against those who are not directly implicated in
criminal activity by DNA evidence.
Affirmed.
18 A-4417-14T1
LEONE, J.A.D., dissenting.
This case involves the interpretation of N.J.S.A. 2C:1-
6(c), in particular its use of the term "the actor." I dissent
because I cannot square the majority opinion's reasoning with
the Supreme Court's interpretation of the term "the actor" in
State v. Rumblin, 166 N.J. 550 (2001).
The Court in Rumblin had before it the original No Early
Release Act. N.J.S.A. 2C:43-7.2 (1997) (hereinafter NERA).
NERA required courts to impose a minimum parole ineligibility
term of 85% of the sentence "if the crime is a violent crime as
defined in subsection d. of this section." N.J.S.A. 2C:43-
7.2(a) (1997). NERA defined a "violent crime" as "any crime in
which the actor causes death, causes serious bodily injury as
defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens
the immediate use of a deadly weapon." N.J.S.A. 2C:43-7.2(d)
(1997) (emphasis added).
Like defendant here, the defendant in Rumblin helped to
plan an armed robbery that was carried out by somebody else.
Rumblin, supra, 166 N.J. at 552-53. The co-defendants carried,
threatened the use of, and used guns to pistol-whip and injure
the victim. Id. at 553. The defendant argued that "NERA does
not apply to unarmed accomplices because NERA limits its scope
to the 'actor' who causes death or serious bodily injury or uses
or threatens the use of a deadly weapon." Id. at 553 (quoting
N.J.S.A. 2C:43-7.2(d) (1997)).
Our Supreme Court in Rumblin "h[e]ld that NERA applies to
unarmed accomplices." Id. at 557. The Court "reject[ed]
defendant's contention that because NERA uses the word 'actor,'
NERA does not apply to accomplices" under N.J.S.A. 2C:2-6(b).
Id. at 555. The Court pointed out that "[t]he New Jersey Code
of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, uses the word
'actor' in at least eighty-seven subsections and in at least
seventy additional subparts." Id. at 555 & n.1. The Court
explained that "[i]n examining the statutory definition of the
word 'actor,' as well as viewing the term in its proper syntax,
it becomes clear that 'actor' is intended as a synonym for a
defendant regardless of whether he or she acts as a principal or
an accomplice." Id. at 555-56 (emphasis added) (citing N.J.S.A.
2C:1-14(e), (g), and (j), and N.J.S.A. 2C:14-1(a)). The Court
concluded "that the word 'actor' refers to a defendant-
perpetrator of an offense and includes both principals and
accomplices." Id. at 556 (emphasis added).
Thus, our Supreme Court in Rumblin held that "the actor"
was synonymous with "a defendant." Id. at 555-56. Applying the
2 A-4417-14T1
Court's definition of "the actor" to N.J.S.A. 2C:1-6(c), that
section would read:
when the prosecution is supported by
physical evidence that identifies [a
defendant] by means of DNA testing or
fingerprint analysis, time does not start to
run until the State is in possession of both
the physical evidence and the DNA or
fingerprint evidence necessary to establish
the identification of [a defendant] by means
of comparison to the physical evidence.
Under that reading, N.J.S.A. 2C:1-6(c) would permit the
prosecution here. The December 2, 2014 indictment charged both
defendant and Tracy with second-degree conspiracy under N.J.S.A.
2C:5-2(a) to commit first-degree robbery in violation of
N.J.S.A. 2C:15-1(a). Because the prosecution of defendant is
supported by physical evidence (the mask bearing DNA) that
identifies a defendant (Tracy) by means of DNA testing, the time
for prosecution would not start to run until the State was in
possession of both the physical evidence and the DNA evidence
necessary to establish the identification of a defendant (Tracy)
by comparison to the physical evidence.
Using the Supreme Court's definition of "the actor" here is
also supported by the other statutory sources cited by the Court
to justify its holding. Rumblin, supra, 166 N.J. at 555-56.
First, N.J.S.A. 2C:2-6 provides that "[a] person is legally
accountable for the conduct of another person" whether "[h]e is
3 A-4417-14T1
an accomplice of such other person" or "[h]e is engaged in a
conspiracy with such other person." N.J.S.A. 2C:2-6(b)(3), (4).
As "the word 'actor' . . . includes both principals and
accomplices," Rumblin, supra, 166 N.J. at 556, then it also
includes conspirators. See, e.g., State v. Harris, 141 N.J.
525, 548 (1995) (discussing whether "the actor's role was that
of principal, accomplice, or co-conspirator"). Like NERA,
N.J.S.A. 2C:1-6(c) "does not differentiate" based upon
classifications between "principal and accomplice" or
conspirator. See Rumblin, supra, 166 N.J. at 556.
Second, the statutory definitions of the word "actor" are
not limited to the person who acts. N.J.S.A. 2C:1-14(e)
("'Actor' includes, where relevant, a person guilty of an
omission[.]"); N.J.S.A. 2C:1-14(g) ("'actor' include[s] any
natural person"). N.J.S.A. 2C:14-1(a) defines "the actor" in
sex offenses as "a person accused of an offense proscribed under
this act." Substituting that definition for "the actor" in
N.J.S.A. 2C:1-6(c) would similarly permit the prosecution here.
Using the Supreme Court's definition of "the actor" here is
further supported because the Court reached that definition by
citing and examining all of the provisions using and defining
"actor" in the "New Jersey Code of Criminal Justice, N.J.S.A.
2C:1-1 to 104-9." Rumblin, supra, 166 N.J. at 555 & n.1.
4 A-4417-14T1
Moreover, the Legislature amended N.J.S.A. 2C:1-6(c) to use the
term "the actor" little more than one year after the Supreme
Court defined that term. The Legislature "is presumed to have
been 'thoroughly conversant with its own [prior] legislation and
the judicial construction of its statutes.'" J.S., supra, 223
N.J. at 75 (citation omitted); see also State v. Frye, 217 N.J.
566, 580 (2014).
As the majority opinion notes, the Supreme Court in Rumblin
also "view[ed] the term in its proper syntax." Rumblin, supra,166 N.J. at 556. However, the syntax of N.J.S.A. 2C:1-6(c) is
at least as favorable as the syntax of NERA to applying the
Court's definition of "the actor." N.J.S.A. 2C:1-6(c) simply
requires that "the prosecution is supported by physical evidence
that identifies the actor by means of DNA testing." This syntax
does not require the prosecution to be of "the actor."1 Nor does
1
By contrast, five States have written their statutes of
limitations' DNA exceptions to restrict the prosecution to the
person whose DNA is matched. Ark. Code Ann. § 5-1-109(i) (2015)
("an indictment or information [may be] filed against the
unknown person [if] the indictment contains the genetic
information of the unknown person"); Iowa Code § 802.2(1) (2016)
(tolling "if the person against whom the information or
indictment is sought is identified through the use of a DNA
profile"); Mich. Comp. Laws Serv. § 767.24(3)(b) (LexisNexis
2016) (if "evidence contains DNA that is determined to be from
an unidentified individual, an indictment against that
individual for the offense may be found"); Ohio Rev. Code Ann.
2901.13(D) (LexisNexis 2016) (if there is a DNA match "of an
identifiable person . . . , prosecution of that person" is
(continued)
5 A-4417-14T1
it require the prosecution to be based solely or even primarily
on the DNA match, but only "supported" by such evidence. Ibid.The Supreme Court in Rumblin could easily have read the
syntax of N.J.S.A. 2C:43-7.2(c) (1997) to impose NERA's
mandatory minimum sentence only on "the actor" who personally
used or threatened the use of the deadly weapon, or personally
caused death or serious bodily injury. The Court could have
viewed the Legislature's syntax as conveying an intent that the
actor who personally engages in that harmful conduct is more
culpable than an accomplice, who "may be found guilty of a lower
degree of a violent offense than a principal if the two did not
share the same mental culpability." Rumblin, supra, 166 N.J. at
556.
Instead, the Supreme Court held that NERA applied to an
accomplice who was not one of the "principals [who] purposely
attempted to inflict serious bodily harm, or were armed with, or
used, or threatened to use a deadly weapon." Id. at 555. The
Court applied NERA to the accomplice even though he only
"intended that the principals engage in the armed robbery and
(continued)
tolled); Wis. Stat. § 939.74(2d)(c) (2016) (tolling when "the
state may commence prosecution of the person who is the source
of the biological material"). Our Legislature did not do so,
though it knew how. See N.J.S.A. 2C:1-6(e) (referring to "a
prosecution against the accused").
6 A-4417-14T1
. . . acted purposely in planning, promoting, or facilitating
that robbery." Ibid.2
The Supreme Court "reasoned that 'the Legislature would not
have intended that the mastermind of an armed robbery could
avoid the consequences of [NERA] sentencing by having a
confederate carry out the crime.'" Id. at 556 (quoting State v.
Rumblin, 326 N.J. Super. 296, 302 (App. Div. 1999), aff’d, 166
N.J. 550 (2001)). The same reasoning could be employed here:
that the Legislature would not have intended that the mastermind
of an armed robbery could avoid prosecution under N.J.S.A. 2C:1-
6(c) by having a confederate carry out the crime.3
The Supreme Court based its reasoning on the general
purpose of the Act. "NERA intends to impose greater punishment
upon violent criminals." Id. at 556. The Court found "no
evidence in any of [the] legislative history that the
Legislature intended the word 'actor' to apply solely to
principals." Ibid. The Court applied to NERA its reasoning
construing the Graves Act: "Surely, the Legislature intended
2
The Court did not base its decision on the idea that the
accomplice "causes" the serious bodily injury by planning an
armed robbery, as suggested in the majority opinion.
3
According to Tracy, it was defendant's idea to get drugs by
setting up S.T. to rob him of his drugs. Defendant also
contacted S.T., picked a spot where they could meet for the fake
drug transaction, and then drove Tracy to a nearby location so
Tracy could commit the armed robbery.
7 A-4417-14T1
that . . . the Graves Act would apply in sentencing the
accomplice. If the Legislature had a contrary intent, it could
have said so. . . . The Legislature created no exception from
the Graves Act." Id. at 557 (quoting State v. White, 98 N.J.
122, 130 (1984)).
Here, the general purpose of the Legislature was to toll
the statute of limitation and allow prosecution "when the
prosecution is supported by" DNA testing. N.J.S.A. 2C:1-6(c).
There is no evidence here that the Legislature intended the word
"actor" to apply solely to principals. The Legislature created
no exception for conspirators or accomplices; if it had had such
an intent, it could have said so.
Indeed, the Legislature rejected language in the earlier
version of the proposed legislation tolling the statute of
limitations only "if the identity of the person who commits a
crime is unknown when the crime is committed and physical
evidence is collected which can be tested for its DNA
characteristics and used to identify the person who committed
the crime." Assemb. B. No. A2658, at 2 (June 29, 2000); S.B.
No. S1516, at 2 (Sept. 14, 2000) (emphasis added). The
Legislature replaced that language with the final language using
the less specific word "actor." S.B. No. S1516, at 2-3
8 A-4417-14T1
(substituted bill Mar. 26, 2001); Assemb. B. No. A2658, at 3
(1st reprint Dec. 6, 2001).4
The Legislature's rejection of "the person who committed
the crime" language, which arguably described a principal, in
favor of the less specific word "actor," which can describe
accomplices and conspirators, suggests an intent to apply
tolling to all actors involved in the crime, not merely
principals. "When a legislature includes limiting language in
an earlier version of a bill but omits it from the final
version, we may presume, absent contrary indicia, that no
limitation was intended." In re Grant of Charter Sch.
Application of Englewood on Palisades Charter Sch., 320 N.J.
4
By contrast, the statutes of limitations' DNA exceptions in
some other States provide that a prosecution for an offense may
be brought after DNA matching determines the identity of "the
defendant," Or. Rev. Stat. § 131.125(10) (2016); "the accused,"
Fla. Stat. § 775.15(15), (16) (2016), Ga. Code Ann. § 17-3-1(d)
(2015); "the offender," Haw. Rev. Stat. Ann. § 701-108(3)(c)
(LexisNexis 2015), 720 Ill. Comp. Stat. Ann. 5/3-5(a)
(LexisNexis 2016), Ind. Code Ann. § 35-41-4-2 (LexisNexis 2016),
Okla. Stat. tit. 22, § 152(C) (2015); "the perpetrator," 42 Pa.
Cons. Stat. § 5552(c.1) (2015), Utah Code Ann. § 76-1-302(3)
(LexisNexis 2015); "the suspect," Cal. Pen. Code § 803(g)(1)
(Deering 2016), Kan. Stat. Ann. § 21-5107(c)(1) (2015), La.
Stat. Ann. § 572(B) (2016), Mont. Code Ann. 45-1-205(9) (2015),
Wash. Rev. Code Ann. § 9A.04.080(3) (LexisNexis 2015); "a
suspect," N.M. Stat. Ann. § 30-1-9.2(A) (LexisNexis 2015); "the
person who committed the crime," Utah Code Ann. § 76-1-302(2)(a)
(LexisNexis 2015); and "the person who allegedly committed the
offense," Conn. Gen. Stat. § 54-193b (2015). Our Legislature
did not use any of these terms in N.J.S.A. 2C:1-6(c), instead
choosing the broader term "the actor."
9 A-4417-14T1
Super. 174, 197 (App. Div. 1999), aff’d o.b. as modified, 164
N.J. 314, 316 (2000); see, e.g., Stancil v. Ace USA, 211 N.J.
276, 278 (2012); State v. Gandhi, 201 N.J. 161, 182-83 (2010).
The accompanying legislative statements explained that the
final language "would toll the applicable statute of limitations
for the commission of a crime in certain cases until the State
is in possession of DNA or fingerprint evidence taken from the
suspect." Statement Accompanying S.B. No. S1516, at 3
(substituted bill Mar. 26, 2001); Assemb. Jud. Comm. Statements
to S.B. S1516 & Assemb. B. No. A2658, at 1 (Dec. 6, 2001)
[hereinafter collectively "Final Statements"]. The Final
Statements' "the suspect" is a broader term than "the person who
committed the crime," and could encompass an accomplice or
conspirator as well as a principal. In any event, the
Legislature chose to use an even broader term, "the actor," in
the statute. N.J.S.A. 2C:1-6(c).
The motion judge mistakenly relied on the original
sponsors' statements using the later-rejected "person who
committed the crime" language. Statement Accompanying Assemb.
B. No. A2658, at 2 (June 29, 2000); Statement Accompanying S.B.
No. S1516, at 2 (Sept. 14, 2000) [hereinafter collectively
10 A-4417-14T1
"Original Statements"].5 As the majority opinion recognizes,
little if any reliance can be placed on the Original Statements,
as the Legislature rejected it in favor of different language in
both the statute's text and the Final Statements.
The majority opinion does not directly cite, but echoes as
a practical consideration, the Original Statements' rationale:
Statutes of limitation establish a time
period following the commission of a crime
after which a prosecution cannot be
commenced. The traditional rationale for
these statutes is to protect defendants from
the use of "stale" evidence against them.
But this rationale has been weakened by
advances in DNA technology. DNA evidence
that has been properly collected, handled
and stored can reliably identify defendants
many years after a crime has been committed.
[Original Statements, supra.]
Notably, this rationale was not repeated in the final statement
accompanying the bill ultimately adopted. We should not adopt
that rationale when the Legislature did not.
Even if the Legislature had adopted that rationale, DNA
evidence that links a defendant to the scene of a crime is
usually not the sole or even the principal evidence of guilt of
a defendant. Rather, it must be combined with other evidence
5
Because the motion judge "resolved an issue of law in
construing a statute, [his] determinations are reviewed de
novo." In re Expungement Petition of J.S., 223 N.J. 54, 72
(2015). We must hew to that standard of review.
11 A-4417-14T1
and testimony showing guilt. See State v. Jones, 219 N.J. 298,
302, 314, 316 (2014) (repeatedly emphasizing that even in a
sexual assault, where DNA analysis showed the defendant's semen
was in the condom, "the DNA evidence was not dispositive,"
because "[t]his matter came down to a question of whom to
believe — defendant or his accuser").
For example, the DNA evidence here supported the
prosecution of defendant and Tracy, but would not be the
principal evidence against either. The principal evidence in
the robbery and conspiracy prosecution of Tracy or defendant
would be the testimony of S.T. that there was an armed robbery,
and the admission by Tracy that he and defendant conspired to
commit it. The DNA evidence merely would have corroborated
Tracy's admission, whether Tracy went to trial or testified
against defendant. Thus, the reliability of DNA evidence does
not dictate that the DNA tolling provision should be applied to
Tracy but not to defendant.6
In any event, the Supreme Court in Rumblin did not view
"the actor" as an ambiguous term, so its broad scope cannot be
constrained by legislative history. "It is only when a
6
Moreover, the wealth of evidence showing defendant's undisputed
presence at the scene of the robbery – including S.T.'s
testimony, the police investigation, and defendant's own
statements to the police — is no less reliable than the DNA
evidence showing Tracy's presence at the scene.
12 A-4417-14T1
statute's language is ambiguous that the Court should resort to
extrinsic aids, such as 'legislative history, committee reports,
and contemporaneous construction.'" State v. Regis, 208 N.J.
439, 447 (2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492-
93 (2005)). Nor can the rule of lenity be applied if "the
actor" as defined by the Supreme Court is not ambiguous. State
v. Munafo, 222 N.J. 480, 493 n.2 (2015).
The motion judge emphasized that N.J.S.A. 2C:1-6(c) refers
to "the actor" in the singular. The majority opinion notes that
the sponsors' statements for the amended bills referred to "the
suspect." Final Statements, supra. However, the Final
Statements, like the statutory language, does not restrict
prosecution to the actor or the suspect, but "toll[s] the
applicable statute of limitations for the commission of a
crime." Ibid.7
In any event, the Legislature has instructed that the
singular should be read as including the plural. "Whenever, in
describing or referring to any person [or] party, . . . any word
importing the singular number . . . is used, the same shall be
understood to include and to apply to several persons or parties
7
Similarly, the Original Statements, supra, stated that the
bills "remove[d] time limitations on the prosecution of crimes"
and provided that "authorities would not be barred from
prosecuting such crimes." Ibid.
13 A-4417-14T1
as well as to 1 person or party[.]" N.J.S.A. 1:1-2. To assume
there can only be one "actor" in a crime "runs counter to the
general rule of construction in . . . statutory interpretation
that singular terms in a statute include the plural form of the
term," Wiese v. Dedhia, 354 N.J. Super. 256, 261 (App. Div.
2002), certif. denied, 175 N.J. 546 (2003), and "is not
persuasive," State v. Toth, 354 N.J. Super. 13, 20 (App. Div.
2002).
Such an assumption also runs contrary to common sense and
common experience. Crimes are frequently committed by more than
one actor. Indeed, the crime of conspiracy requires that the
actor conspire and agree with "another person." N.J.S.A. 2C:5-
2(a); see also State v. Del Fino, 100 N.J. 154, 160 (1985).
Moreover, in crimes committed by multiple perpetrators,
interpreting the tolling provision to apply only to the actor
whose DNA is matched to physical evidence at the scene would
allow the other criminal participants to escape prosecution when
the DNA match solves a cold case. Such an interpretation would
enable the leaders of conspiracies to evade prosecution under
N.J.S.A. 2C:1-6(c) by having the crime committed by minions, who
alone could be prosecuted when the minion's DNA is matched.
Such an outcome would be avoided by applying the Supreme
Court's reasoning that the Legislature would not have intended
14 A-4417-14T1
that the mastermind could avoid the consequences of the DNA
tolling provision by having a confederate carry out the crime.
See Rumblin, supra, 166 N.J. at 555. Indeed, the Supreme Court
found the Legislature meant to include all accomplices in the
"actor," holding that "for NERA purposes principals and
accomplices are treated the same." Id. at 556.
By not applying here the Supreme Court's definition and
analysis in Rumblin, the majority opinion prevents the
prosecution of all other accomplices, co-conspirators, and
masterminds when DNA analysis cracks "dormant or 'cold' cases."
See State v. L.H., 206 N.J. 528, 532 (2011) (Long, J.,
concurring) (quoting id. at 550 (Rivera-Soto, J., concurring)).8
This ruling will significantly limit the ability to use N.J.S.A.
2C:1-6(c) to prosecute cold cases. See State v. Michaels, 219
N.J. 1, 48 (considering the "real likelihood that . . . dilemmas
may arise in cold cases" as a reason not to apply the
Confrontation Clause rigidly), cert. denied, __ U.S. __, 135 S.
Ct. 761, 190 L. Ed. 2d 635 (2014).
8
In L.H., all six Justices agreed to vacate the award to a
defendant, identified by DNA match ten years after the crime, of
gap-time credits, id. at 528, which the State argued
"neutralize[d] sentences on cold cases," id. at 542-43 (Rivera-
Soto, J., concurring).
15 A-4417-14T1
"[T]he Legislature [has] declared that 'DNA databanks are
an important tool in criminal investigations.'" State v.
O'Hagen, 189 N.J. 140, 148 (2007) (quoting N.J.S.A. 53:1-20.18).
The Supreme Court has made clear that "[t]here is no
constitutional bar to using [DNA test results] in helping to
solve a crime, regardless of when the crime was committed."
A.A. ex rel. B.A. v. Attorney Gen. of N.J., 189 N.J. 128, 140
(2007).9 The Legislature, which permits the prosecution of cold
cases such as homicide and aggravated sexual assault "at any
time," amended N.J.S.A. 2C:1-6 to toll the five-year statute of
limitations to permit prosecution of cold cases in all other
crimes "when the prosecution is supported by" a DNA match.
N.J.S.A. 2C:1-6(a), (c). Today's ruling significantly reduces
the ability to use that important tool in cold cases.
9
Indeed, some States have written their statutes of limitations'
DNA exceptions to authorize prosecutions without any limitation
on who is prosecuted. Del. Code Ann. tit. 11, § 205(i) (2016)
("a prosecution for any offense in this title may be commenced
within 10 years after it is committed if based upon forensic DNA
testing"); Minn. Stat. § 628.26(f) (2016) (exempting indictments
or complaints "if physical evidence is collected and preserved
that is capable of being tested for its DNA characteristics");
Tex. Code Crim. Proc. Ann. art. 12.01(1)(C)(i) (West 2016) (no
time limit if "during the investigation of the offense
biological matter is collected and subjected to forensic DNA
testing and the testing results show that the matter does not
match the victim or any other person whose identity is readily
ascertained").
16 A-4417-14T1
The case before us provides an example of the unfortunate
consequences of failing to apply the Supreme Court's definition
of "the actor." Even more compelling examples are easily
imagined. For example, several masked robbers shoot and
severely injure many jewelry store employees and customers. DNA
or fingerprint evidence from the steering wheel of the getaway
car is later matched to the getaway driver, which enables the
police to identify the shooters, who are found to have the guns
and jewels evidencing their guilt. Under the majority opinion,
however, only the getaway driver can be prosecuted. Similarly,
the kidnapping of a toddler is solved when the DNA or
fingerprint on the released child's clothing is later matched to
the spouse of the kidnapper, who was an accessory after the fact
but regretted her role and released the child. Even though the
ransom note is saved on the kidnapper's computer, only the
accessory after the fact can be prosecuted under the majority
opinion.
The majority opinion stresses that in this case, the DNA
evidence led simply to a confession which named defendant.
However, the testimony of an accomplice or co-conspirator is a
widely-used basis to prove criminal cases; it must "be given
careful scrutiny," but if believed it "alone" can be sufficient
to convict. Model Jury Charge (Criminal), "Testimony of a
17 A-4417-14T1
Cooperating Co-Defendant or Witness" at 2 (2006). Moreover, as
in the examples above, an actor's DNA evidence can lead to
indisputably reliable evidence against the mastermind or other
perpetrators, whose prosecution is foreclosed by the majority
opinion. Most importantly, we must consider whether the
Legislature intended that all other masterminds, principals,
accomplices and co-conspirators in all future cases be exempt
from prosecution whenever a DNA match of an actor cracks a cold
case.
Those unfortunate consequences would be avoided if the
Supreme Court's definition in Rumblin of "actor" was applied to
N.J.S.A. 2C:1-6(c). There are strong reasons to apply that
definition here. First, the Supreme Court looked beyond NERA to
how "actor" was used and defined throughout the New Jersey Code
of Criminal Justice. Second, the Legislature is presumed to
have known the Supreme Court's recent definition of "the actor"
when it used that term in N.J.S.A. 2C:1-6(c). Third, the
Legislature rejected more restrictive language when it adopted
the term. Finally, using the Supreme Court's definition serves
the Legislature's goal of using DNA evidence to solve cold
cases, and avoids the serious and unfortunate consequences
produced by the majority opinion's reading. For these reasons,
18 A-4417-14T1
I cannot join the majority opinion's view that the Supreme
Court's definition of "the actor" should not be applied here.
I respectfully dissent.
19 A-4417-14T1