State v. James Grate State v. Fuquan Cromwell (072750)

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 of New Jersey v. James Grate; State of New Jersey v. Fuquan Cromwell (A-47/48-13) (072750)

Argued October 21, 2014 -- Decided January 15, 2015

SOLOMON, J., writing for a unanimous Court.

In this appeal, the Court considers (1) whether the “knowingly” mens rea requirement of N.J.S.A. 2C:39-
5(e)(1) applies to both the possession of the firearm and the defendant’s presence at an educational institution; (2)
the constitutionality of N.J.S.A. 2C:39-5(i)’s mandatory minimum sentence in light of in Alleyne v. United States,
___ U.S. ___, 133 S. Ct. 2151 (2013); and (3) the propriety of a defendant’s sentence.

Defendants Fuquan Cromwell and James Grate were stopped by police officers on the campus of Drew
University during the attempted robbery of an acquaintance. Defendants were charged with various offenses,
including second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree unlawful
possession of a weapon at an educational institution, N.J.S.A. 2C:39-5(e)(1). With regard to the latter, the trial
judge instructed the jury that the State must prove “the defendant possessed the firearm in or upon the buildings or
grounds of any school, college, university, or other educational institution.” The judge did not ask the jury to decide
whether defendants were aware that they were on the property of an educational institution. The jury found
defendants guilty of second-degree unlawful possession of a weapon and third-degree unlawful possession of a
weapon at an educational institution, and acquitted them of the remaining charges.

At the sentencing hearing, Corporal Edwin Santana testified that defendants admitted they were members
of a local chapter of the Crips street gang and that both defendants had tattoos denoting their membership. The
judge found that aggravating factors five, a substantial likelihood that defendants were involved in organized
criminal activity, N.J.S.A. 2C:44-1(a)(5), three, the risk defendant will commit another offense, N.J.S.A. 2C:44-
1(a)(3), and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), applied to both defendants; that aggravating factor
six, the extent of the defendant’s prior criminal record, N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell; and that
no mitigating factors applied. After merging the possession convictions, the court sentenced Grate and Cromwell to
eight and nine years in prison, respectively. The court also ordered mandatory five-year parole disqualifiers under
N.J.S.A. 2C:39-5(i), finding it substantially likely that defendants were involved in organized criminal activity.

On appeal, defendants contended, among other things, that the jury charge for unlawful possession of a
weapon at an educational institution improperly failed to instruct the jury that the “knowingly” mens rea
requirement applied to the locational element of the crime. The Appellate Division rejected defendants’ arguments
and affirmed their convictions and sentences. The Court entered limited grants of certification. State v. Cromwell,
216 N.J. 361 (2013); State v. Grate, 216 N.J. 362 (2013).

HELD: (1) In order to prove a violation of N.J.S.A. 2C:39-5(e)(1), the State must prove beyond a reasonable doubt
both that a defendant knowingly possessed a firearm and that he or she did so while knowingly on the property of an
educational institution; (2) because the mandatory minimum sentence under N.J.S.A. 2C:39-5(i) is based on a
judicial finding of fact, rather than a finding by the jury, it is unconstitutional under Alleyne; and (3) Grate’s
sentence was not excessive because the trial court’s analysis of the aggravating and mitigating factors was supported
by the record.

1. N.J.S.A. 2C:39-5(e)(1) states, in relevant part, that “[a]ny person who knowingly has in his possession any
firearm in or upon any part of the buildings or grounds of any school, college, university or other educational
institution without the written authorization of the governing officer of the institution, is guilty of a crime of the
third degree.” Whether the culpability requirement of “knowingly” applies to the locational element of N.J.S.A.
2C:39-5(e)(1) is a question of statutory interpretation. As such, the Court attempts to discern and implement the
Legislature’s intent by first looking at the statute’s plain language and, if that language if ambiguous, by looking to

1
extrinsic sources. The Code prescribes rules for the “[c]onstruction of statutes with respect to culpability
requirements.” N.J.S.A. 2C:2-2(c). N.J.S.A. 2C:2-2(c)(1) applies to statutes that provide a culpability requirement
as to one but not all elements of the offense. N.J.S.A. 2C:2-2(c)(1) requires that such statutes be interpreted to apply
the stated culpability requirement to every material element of the offense if the offense does not distinguish among
them, and “unless a contrary purpose plainly appears.” Because N.J.S.A. 2C:39-5(e)(1) criminalizes even otherwise
lawful possession of a weapon if a defendant possesses the weapon at an educational institution, the locational
element is “material.” In addition, the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication that the
“possession” element has been distinguished from the “location” element. Both elements are contained within the
same clause, preceded by the adverb “knowingly.” Finally, no contrary purpose to applying the knowing
requirement to both material elements is plainly indicated. As a result, N.J.S.A. 2C:39-5(e)(1)’s knowing
requirement applies to both possession of a firearm and being at an educational institution. (pp. 13-16)

2. The Court rejects that the Legislature intended a defendant to be strictly liable for the locational element based on
the “essentially regulatory nature” of our gun control laws. Although the Court has described Chapter 39 sections
39-3 and 39-5 as containing “essentially regulatory offenses,” in doing so it explained that “they prohibit possession
of firearms and other weapons without regard to the individual's intent or purpose in possessing them.” State v.
Harmon, 104 N.J. 189, 197 (1986). Because N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A. 2C:2-2(c)(1),
requires only that the State prove defendants knowingly possessed the weapon while knowingly at an educational
institution, defendants’ intent or purpose in possessing the gun is not at issue here. The regulatory nature of the
offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of construction, nor does it alleviate the State of its burden to
prove defendants acted with the requisite culpability as to each element of the offense. In addition, State v. Smith,
197 N.J. 325 (2009), does not affect the Court’s interpretation of N.J.S.A. 2C:39-5(e)(1). In Smith, the Court
interpreted a different criminal statute and, based on statutory phrasing materially different than that found in
N.J.S.A. 2C:39-5(e)(1), held that the State did not have to prove that the defendant knew that the firearm he
possessed had been defaced. Id. at 326-27, 331-32. Because the State was required to prove that defendants were
knowingly at an educational facility in order to obtain a conviction under N.J.S.A. 2C:39-5(e)(1), the jury
instructions with respect to defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) warrant reversal, and the Court
vacates those convictions and remands for resentencing on the unlawful possession charges. (pp. 16-19)

3. N.J.S.A. 2C:39-5(i) requires the sentencing court to impose a period of parole ineligibility “if the court finds” a
substantial likelihood that the defendant is involved in organized criminal activity. Alleyne held that “any fact that
increases the mandatory minimum sentence is an ‘element’ that must be submitted to the jury” to be found beyond a
reasonable doubt. 133 S. Ct. at 2156. Alleyne therefore renders the imposition of a mandatory minimum sentence
under N.J.S.A. 2C:39-5(i) unconstitutional. The Court acknowledges that, “[i]n appropriate cases, a court has the
power to engage in judicial surgery or the narrow construction of a statute to free it from constitutional doubt or
defect.” State v. Fortin, 198 N.J. 619, 630 (2009) (quoting N.J. State Chamber of Commerce v. N.J. Election Law
Enforcement Comm’n, 82 N.J. 57, 75 (1980)) (internal quotation marks omitted). However, this procedure applies
only “if we fairly can do so.” Id. at 631. Here, N.J.S.A. 2C:39-5(i) unambiguously requires the imposition of a
mandatory minimum sentence based on a judicial finding of fact. Requiring a jury rather than a judge to make such a
finding would not merely be severing a constitutionally infirm portion of the sentencing statute, it would be rewriting
its essential requirements. That determination is for the Legislature. The Court vacates defendants’ sentences and
remands for resentencing for the unlawful possession convictions, without consideration of the mandatory minimum
sentence under N.J.S.A. 2C:39-5(i) and without the empaneling of a sentencing jury. (pp. 19-23)

4. Grate claims that his sentence was excessive. An appellate court reviews the trial court’s sentencing
determination under a deferential standard of review and is bound to affirm the sentence as long as the trial court
properly identifies and balances aggravating and mitigating factors that are supported by competent credible
evidence in the record. The trial court’s findings that aggravating factors three, five, and nine applied, and no
migrating factors applied, were amply supported by the record. Although a judicial finding of aggravating factor
five cannot be the basis of a mandatory minimum sentence, the sentencing court may nevertheless consider that
factor when deciding what sentence to impose within the statutory range. With the exception of the mandatory
minimum sentence imposed pursuant to N.J.S.A. 2C:39-5(i), the Court affirms Grate’s sentence. (pp. 23-26)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the
matter is REMANDED for a new trial on the charge of unlawful possession of a weapon at an educational facility
and for resentencing consistent with the Court’s opinion.

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 CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZ-
VINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.

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 SUPREME COURT OF NEW JERSEY
A-47/48 September Term 2013
072750

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES GRATE,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN CROMWELL, (a/k/a
FUGUAN CROMWELL, FUQUAN A.
CROMWELL, SAMAAD CROMWELL,
SAMAD CROMWELL, SAMAAD
LATHER, SAMADD N. J.L.,
SAMAAD N. LATHER),

Defendant-Appellant.

Argued October 21, 2014 – Decided January 15, 2015

On certification to the Superior Court,
Appellate Division.

Joshua D. Sanders, Assistant Deputy Public
Defender, argued the cause for appellant
Fuquan Cromwell (Joseph E. Krakora, Public
Defender, attorney).

Al Glimis, Assistant Deputy Public Defender,
argued the cause for appellant James Grate
(Joseph E. Krakora, Public Defender,
attorney; Mr. Glimis and Kevin G. Byrnes,
Designated Counsel, on the briefs).

1
 John K. McNamara, Jr., Assistant
Prosecutor/Special Deputy Attorney General,
argued the cause for respondent (Fredric M.
Knapp, Morris County Prosecutor, attorney;
Mr. McNamara and Erin Smith Wisloff,
Assistant Prosecutor/Special Deputy Attorney
General, on the brief).

Jeffrey S. Mandel argued the cause for
amicus curiae Association of Criminal
Defense Lawyers of New Jersey (Cutolo
Mandel, attorneys; Mr. Mandel and Andrew
Stein, on the brief).

Alexander R. Shalom argued the cause for
amicus curiae American Civil Liberties Union
of New Jersey (Edward L. Barocas, Legal
Director, attorney).

Jennifer E. Kmieciak, Deputy Attorney
General, argued the cause for amicus curiae
Attorney General of New Jersey (John J.
Hoffman, Acting Attorney General, attorney).

JUSTICE SOLOMON delivered the opinion of the Court.

Following an attempted robbery of an acquaintance,

defendants Fuquan Cromwell and James Grate were stopped by

police officers on the campus of Drew University. The officers

discovered a gun under the driver’s seat of the acquaintance’s

car within reach of defendants. Defendants were arrested and

charged in a twelve-count indictment with various offenses,

including second-degree unlawful possession of a weapon and

third-degree unlawful possession of a weapon at an educational

institution.

2
 Defendants were tried jointly. The trial court in its

charge to the jury did not state that to find defendants guilty

of unlawful possession of a weapon at an educational facility,

N.J.S.A. 2C:39-5(e)(1), it must find defendants knew they were

at an educational facility. The jury convicted defendants of

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b), and third-degree unlawful possession of a weapon at an

educational institution, N.J.S.A. 2C:39-5(e)(1). Cromwell, who

had a prior felony conviction, was also convicted under N.J.S.A.

2C:39-7(b)(1), which bars persons convicted of any of the

offenses enumerated in the statute from possessing a weapon.

At the sentencing hearing, a witness testified that

defendants were members of a local chapter of the Crips street

gang. The trial court concluded that defendants were involved

in organized criminal activity, a finding requiring the

imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-

5(i). Their convictions and sentences were affirmed on appeal,

and we granted certification to resolve three issues.

The first issue requires us to construe the culpability

requirement under N.J.S.A. 2C:39-5(e)(1), which criminalizes the

knowing possession of a weapon at an educational institution.

We hold that in order to prove a violation of N.J.S.A. 2C:39-

5(e)(1), the State must prove beyond a reasonable doubt both

that a defendant knowingly possessed a weapon and that he or she

3
did so while knowingly on the property of an educational

institution. The jury instructions here, which did not specify

that the jury was required to find defendants were knowingly at

an educational institution, were therefore flawed, and

defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) must be

vacated.

Second, we consider the constitutional validity of N.J.S.A.

2C:39-5(i) in light of the recent Supreme Court decision in

Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L.

Ed. 2d 314 (2013). The Alleyne Court held that the imposition

of a mandatory minimum sentence based upon a fact that was not

submitted to the jury for determination beyond a reasonable

doubt violates the Sixth Amendment right to a jury trial. Id.

at __, 133 S. Ct. at 2155, 186 L. Ed. 2d at 321. The mandatory

minimum sentence under N.J.S.A. 2C:39-5(i) is based on a

judicial finding of fact and cannot survive constitutional

scrutiny. We therefore vacate defendants’ sentences and remand

for resentencing on the unlawful possession of a weapon

convictions.

The third issue is the propriety of Grate’s sentence.

Because we find the court’s findings were supported adequately

by evidence of record, we reject Grate’s argument that his

sentence was excessive and affirm as to the trial court’s

weighing and analysis of factors applicable to Grate’s sentence.

4
 I.

A.

The following facts are derived from the testimony given at

trial. In December 2008, Cromwell, Grate, and Cromwell’s

younger brother, J.L., approached C.A. while he was refueling

his car at a gas station. Cromwell asked C.A. to give them a

ride, and because C.A. knew Cromwell, he agreed. Soon after

driving away, Cromwell asked C.A. to give them money. C.A.,

believing Cromwell was joking, ignored the requests. Cromwell

then pulled out a gun, pointed it at C.A.’s head, and told him

to “[g]et the money up.” Because C.A. had no money with him and

feared for his life, he offered to drive to Drew University to

retrieve a credit card from his girlfriend, who lived on campus.

C.A. drove to the university, passed through a security

checkpoint, and parked outside of his girlfriend’s residence

hall. Although C.A.’s girlfriend was not home at the time, her

roommate allowed C.A. and Cromwell into the room. While

searching for his girlfriend’s credit card, C.A. surreptitiously

phoned William Humphries, a New Jersey State Police Detective

with whom C.A. was familiar from a prior arrest. Detective

Humphries did not answer, but called C.A. back soon thereafter.

C.A., claiming he was speaking to his uncle, was able to tell

Detective Humphries that he was being threatened by people who

5
were demanding money from him. Eventually, C.A.’s girlfriend

arrived and gave C.A. her credit card.

C.A. and Cromwell returned to C.A.’s car, but before they

could depart, Sergeant Joseph Cirella of the Madison Police

Department arrived and ordered everyone out of the car. Before

complying, defendants and J.L. told C.A. that, “if anything

[goes] down, this is your gun. It’s our word against yours.”

They got out of the car, and Sergeant Cirella had them lie face

down on the ground. After backup officers arrived and placed

C.A. in the backseat of the police cruiser, he reported that

there was a gun inside his car.

During a brief search of C.A.’s car, the officers found a

loaded nine-millimeter handgun under the driver’s seat. All

four men were handcuffed and taken to the police station, and

C.A.’s car was impounded. Shortly thereafter, Detective

Humphries arrived and drove C.A. home.

Defendants were each indicted on charges of first-degree

kidnapping, N.J.S.A. 2C:13-1(b)(2), (11); first-degree

carjacking, N.J.S.A. 2C:15-2(a)(1), (2), (4); first-degree

robbery, N.J.S.A. 2C:15-1(a)(2); third-degree terroristic

threats, N.J.S.A. 2C:12-3(a); fourth-degree aggravated assault,

N.J.S.A. 2C:12-1(b)(4); second-degree unlawful possession of a

weapon, N.J.S.A. 2C:39-5(b); and third-degree unlawful

possession of a weapon at an educational institution, N.J.S.A.

6
2C:39-5(e)(1). Cromwell was charged separately with second-

degree certain persons not to possess weapons, N.J.S.A. 2C:39-

7(b).

At trial, it was revealed that no latent fingerprints were

found on the gun because the textured surface of the handle made

fingerprints difficult to detect. Sergeant Cirella confirmed

that the gun was found under the driver’s seat and was

accessible to anyone riding in the backseat, but was difficult

to reach from the driver’s seat.

Testifying in his own defense, Grate denied that anyone had

pulled a gun on C.A. or demanded money from him. He claimed

that Cromwell had asked C.A. to give J.L. a ride home, and that

C.A. agreed to do so after he visited his cousin at college.

Grate stated that he believed C.A. was traveling to his cousin’s

home, and that he did not realize C.A. was traveling to a

college campus. He denied ever seeing the gun before appearing

in court for trial.

At the charge conference, the trial judge, noting that

there is no model jury charge for unlawful possession of a

weapon at an educational institution, settled on an instruction

that “has been drafted right out of the statute.” Without

objection, the judge instructed the jury that the State must

prove “the defendant possessed the firearm in or upon the

buildings or grounds of any school, college, university, or

7
other educational institution. In this case, the grounds of

Drew University.” The judge did not ask the jury to decide

whether defendants were aware that they were on the property of

an educational institution.

The jury found defendants guilty of second-degree unlawful

possession of a weapon and third-degree unlawful possession of a

weapon at an educational institution, but acquitted them of the

remaining charges. Cromwell later pled guilty to the separate

second-degree certain persons charge.

B.

At the sentencing hearing, the trial judge heard testimony

by Corporal Edwin Santana that defendants admitted they were

members of a local chapter of the Crips street gang known as “5

Deuce Hoova Crip” and that both defendants had a large “C”

tattooed on their chests, which denotes membership in that gang.

Corporal Santana then opined that, based upon his experience,

the Crips street gang is involved in organized criminal

activity. Relying on Corporal Santana’s testimony, the judge

found aggravating factor five, a substantial likelihood that

defendants were involved in organized criminal activity,

N.J.S.A. 2C:44-1(a)(5), applied to both defendants.

The court also found aggravating factors three, the risk

defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3),

and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9),

8
applied to both defendants. Next, the court found aggravating

factor six, the extent of the defendant’s prior criminal record,

N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell based upon

his three prior indictable convictions. The court found no

mitigating factors applied to either defendant.

After merging their convictions for possession while at an

educational institution with their convictions for unlawful

possession of a weapon, the court sentenced Grate and Cromwell

to eight and nine years in prison, respectively. Having found

that it was substantially likely defendants were involved in

organized criminal activity, the court made both sentences

subject to the mandatory five-year parole disqualifier under

N.J.S.A. 2C:39-5(i). In accordance with his plea agreement, the

court also sentenced Cromwell to a consecutive eighteen-month

prison sentence with no parole eligibility on the certain-

persons conviction.

C.

On appeal, defendants contended, among other things, that

the jury charge with respect to the unlawful possession of a

weapon at an educational institution was erroneous because it

failed to instruct the jury that in order to convict defendants

of that offense the State was required to prove that defendants

knew they were at an educational institution. After

consolidating their appeals, the Appellate Division rejected

9
defendants’ arguments and affirmed their convictions and

sentences in an unpublished opinion.

Cromwell filed a petition for certification with this

Court, raising the mens rea argument. In response to the United

States Supreme Court decision in Alleyne, which was released

five days after he filed his initial petition, Cromwell filed a

supplemental petition arguing that the mandatory minimum

sentence imposed under N.J.S.A. 2C:39-5(i) was unconstitutional.

We granted Cromwell’s petition, limited to the issues of whether

“the ‘knowingly’ mens rea requirement of N.J.S.A. 2C:39-5(e)(1),

third-degree unlawful possession of a weapon at an education

institution, appl[ies] to both the possession of the firearm and

the [defendant’s] presence at an educational institution”;

whether the sentencing court erred “in finding and applying the

aggravating factor of N.J.S.A. 2C:44-1(a)(5) (substantial

likelihood that defendant is involved in organized criminal

activity)”; and whether “the decision in Alleyne[, supra,]

render[s] the imposition of a mandatory minimum sentence invalid

under the Sixth Amendment of the United States Constitution.”

State v. Cromwell, 216 N.J. 361 (2013) (third alteration in

original).

Separately, Grate filed a petition for certification

asserting that his sentence was excessive, and joined in

Cromwell’s Alleyne argument. Initially, we granted

10
certification “limited to the issue of whether [Grate’s]

sentence was excessive.” State v. Grate, 216 N.J. 362 (2013).

Grate subsequently filed a motion to expand our grant of

certification to include the mens rea argument. By order dated

April 11, 2014, we expanded our limited grant of Grate’s

petition to include the mens rea argument raised by Cromwell.

We also granted motions by the Association of Criminal

Defense Lawyers (ACDL), the American Civil Liberties Union

(ACLU), and the Attorney General to appear as amici curiae.

II.

A.

With respect to the mens rea requirement of N.J.S.A. 2C:39-

5(e)(1), both defendants and the ACDL contend the trial court

improperly interpreted the statute to require the State to prove

only that they knowingly possessed a weapon and not that they

possessed the weapon while knowingly at an educational facility.

Defendants rely on N.J.S.A. 2C:2-2(c)(1), which provides that

“[w]hen the law defining an offense prescribes the kind of

culpability that is sufficient for the commission of an offense,

without distinguishing among the material elements thereof, such

provision shall apply to all the material elements of the

offense, unless a contrary purpose plainly appears.” Arguing

that the locational element of this offense is material and that

the statute fails to distinguish between its material elements,

11
defendants maintain the State was required to prove that

defendants knowingly possessed a weapon and that they did so

while knowingly at an educational institution.

Defendants also rely on N.J.S.A. 2C:2-2(c)(3), which

imposes a “knowing” culpability requirement where a statute

fails to specify a culpability requirement. Defendants

therefore contend that the State had to prove beyond a

reasonable doubt that they were knowingly present at an

educational facility, and that the trial court’s failure to

instruct the jury regarding that burden constitutes plain error.

The State counters that the plain language of N.J.S.A.

2C:39-5(e)(1) unambiguously provides a mens rea requirement to

the element of possession only, and that the locational element

merely describes the circumstances of the possession. The State

analogizes this statute to N.J.S.A. 2C:39-3(d), which states

that “[a]ny person who knowingly has in his possession any

firearm which has been defaced . . . is guilty of a crime of the

fourth degree.” The State relies upon State v. Smith, 197 N.J.

325, 332 (2009), a case in which we interpreted N.J.S.A. 2C:39-

3(d) to require proof only that a defendant knowingly possessed

a firearm, and not that the defendant knew the firearm was

defaced. The State argues that N.J.S.A. 2C:39-5(e)(1), like

N.J.S.A. 2C:39-3(d), contains an independent clause that

includes a mens rea requirement, followed by a subordinate

12
clause containing no mens rea requirement. The State adds that

the regulatory nature of this State’s gun control laws is

largely unconcerned with the intent of the individual carrying a

firearm.

B.

Whether the culpability requirement of “knowingly” applies

to the locational element of N.J.S.A. 2C:39-5(e)(1) is a

question of statutory interpretation. As such, we review the

dispute de novo, unconstrained by deference to the decisions of

the trial court or the appellate panel. State v. Drury, 190

N.J. 197, 209 (2007). In doing so,

we attempt to discern and implement the
Legislature’s intent. Basic techniques of
statutory interpretation first require us to
look at a statute’s plain meaning, and, “[i]f
the meaning of the text is clear and
unambiguous on its face, [we] enforce that
meaning.” If the language is ambiguous or
“admits to more than one reasonable
interpretation, we may look to sources outside
the language to ascertain the Legislature’s
intent.” Such extrinsic sources, in general,
may include the statute’s purpose, to the
extent that it is known, and the relevant
legislative history.

[Ibid. (internal citations omitted).]

Furthermore, “[w]hen interpreting a penal statute, such as the

one we consider here, if plain meaning and extrinsic sources are

inadequate, we then ‘employ the canon of statutory construction

that counsels courts to construe ambiguities in penal statutes

13
in favor of defendant.’” Id. at 209-10 (quoting State v.

Reiner, 180 N.J. 307, 311 (2004) (footnote omitted)).

With those principles in mind, we turn to the statutory

language at issue here. N.J.S.A. 2C:39-5(e)(1) states, in

relevant part, that “[a]ny person who knowingly has in his

possession any firearm in or upon any part of the buildings or

grounds of any school, college, university or other educational

institution without the written authorization of the governing

officer of the institution, is guilty of a crime of the third

degree.”

The Code prescribes rules for the “[c]onstruction of

statutes with respect to culpability requirements.” N.J.S.A.

2C:2-2(c). N.J.S.A. 2C:2-2(c)(3) addresses “statutes not

stating [a] culpability requirement.” Because N.J.S.A. 2C:39-

5(e)(1) plainly sets forth a mens rea requirement for the first

element of this offense, the Appellate Division correctly

determined that N.J.S.A. 2C:2-2(c)(3) is inapplicable.

As set forth above, N.J.S.A. 2C:2-2(c)(1) applies to

statutes that provide a culpability requirement as to one but

not all elements of the offense. Specifically, N.J.S.A. 2C:2-

2(c)(1) requires the statute to be interpreted to apply the

stated culpability requirement as to every material element of

the offense if the offense does not distinguish among them, and

“unless a contrary purpose plainly appears.”

14
 The State does not dispute that the N.J.S.A. 2C:39-5(e)(1)

locational element is “material.” The Code defines “[m]aterial

element” as “an element that does not relate exclusively to the

statute of limitations, jurisdiction, venue or to any other

matter similarly unconnected with (1) the harm or evil[] . . .

sought to be prevented, or (2) the existence of a justification

or excuse.” N.J.S.A. 2C:1-14(i). Because N.J.S.A. 2C:39-

5(e)(1) criminalizes even otherwise lawful possession of a

weapon if a defendant possesses the weapon at or on the grounds

of an educational institution, we agree that the circumstances

of the possession are material to the offense. See State v.

Harmon, 104 N.J. 189, 202-03 (1986) (finding a defendant’s

intent to use a weapon for an unlawful purpose “clearly a

material element” of the offense of possession of a weapon for

an unlawful purpose).

The Appellate Division found N.J.S.A. 2C:2-2(c)(1) “does

not apply because N.J.S.A. 2C:39-5(e)(1) distinguishes ‘among

the material elements’ of the offense.” However, careful review

of the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication

that the “possession” element is clearly distinguishable from

the “location” element. Both elements are contained within the

same clause, preceded by the adverb “knowingly.” We therefore

reject the Appellate Division’s conclusion that N.J.S.A. 2C:2-

2(c)(1) does not apply, and find N.J.S.A. 2C:39-5(e)(1) does not

15
distinguish between its material elements. As a result, to

obtain a conviction under N.J.S.A. 2C:39-5(e)(1) the State was

required to prove defendants knowingly possessed a firearm while

knowingly at an educational institution unless the statute

plainly evidences a contrary purpose, N.J.S.A. 2C:2-2(c)(1).

We find no such contrary purpose is plainly indicated. The

State, emphasizing the “essentially regulatory nature” of our

gun control laws, urges us to consider N.J.S.A. 2C:39-5(e)(1) in

conjunction with other sections of Chapter 39 to find the

Legislature intended a defendant to be strictly liable for the

locational element of N.J.S.A. 2C:39-5(e)(1). Although we have

described sections 39-3 and 39-5 as containing “essentially

regulatory offenses,” in doing so we explained that “they

prohibit possession of firearms and other weapons without regard

to the individual's intent or purpose in possessing them.”

Harmon, supra, 104 N.J. at 197; accord State v. Brims, 168 N.J.

297, 313 (2001).

The State correctly notes that the offense at issue here is

distinguishable from the offense of possession of a weapon for

an unlawful purpose, N.J.S.A. 2C:39-5(d), in that the State need

not prove defendants’ intent or purpose in possessing the gun.

However, N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A.

2C:2-2(c)(1), requires only that the State prove defendants

knowingly possessed the weapon while knowingly at an educational

16
institution. A person acts “knowingly with respect to the

nature of his conduct or the attendant circumstances if he is

aware that his conduct is of that nature, or that such

circumstances exist, or he is aware of a high probability of

their existence.” N.J.S.A. 2C:2-2(b)(2). Accordingly,

defendants’ intent or purpose in possessing the gun is not at

issue here -- only that defendants were aware of what they were

doing and where they were doing it. The regulatory nature of

the offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of

construction, nor does it alleviate the State of its burden to

prove defendants acted with the requisite culpability as to each

element of the offense.

The State also argues that our decision in Smith, supra,

requires a finding that the Legislature did not intend the

knowing culpability requirement to apply to the locational

element of N.J.S.A. 2C:39-5(e)(1). In Smith, we considered and

rejected a defendant’s claim that N.J.S.A. 2C:39-2(d), which

prohibits any person from “knowingly ha[ving] in his possession

any firearm which has been defaced,” required the State to prove

he knew the firearm had been defaced. Smith, supra, 197 N.J. at

326-27.

In Smith, we began our analysis by first determining what

the term “knowingly” modified. Id. at 331. We noted “the

Legislature placed the term ‘knowingly’ immediately before the

17
phrase, ‘has in his possession a firearm,’” followed by the

“subordinate phrase, ‘which has been defaced,’ that describes

further the nature of the proscribed item.” Id. at 332.

The State argues that here, as in Smith, the statute at

issue places the term “knowingly” immediately before the phrase

“has in his possession any firearm,” followed by the subordinate

clause “in or upon any part of the buildings or grounds of any

school, college, university or other educational institution.”

However, the locational element of N.J.S.A. 2C:39-5(e)(1) is not

contained in a subordinate clause. Rather, as set forth above,

“in or upon any part” of an educational facility expresses a

separate material element of the offense. Indeed, it is the

locational element of N.J.S.A. 2C:39-5(e)(1) that distinguishes

ordinary possession, which need not be unlawful itself, from the

wrongdoing sought to be addressed under the statute, namely the

harm possession of a firearm presents at a setting like an

educational facility. Thus, unlike the statute at issue in

Smith, N.J.S.A. 2C:39-5(e)(1) does not criminalize the

possession of a certain type of weapon, but rather the

possession of a weapon at a particular place.

In any event, as discussed above, the Legislature clearly

expressed an intent to apply the culpability requirement stated

as to one element to each other material element. N.J.S.A.

2C:2-2(c)(1). “[O]ur goal is to discern and implement the

18
intent of the Legislature.” Smith, supra, 197 N.J. at 332. The

State was therefore required to prove defendants were knowingly

at an educational facility in order to obtain a conviction under

N.J.S.A. 2C:39-5(e)(1). Accordingly, we find the jury

instructions with respect to defendants’ convictions under

N.J.S.A. 2C:39-5(e)(1) warrant reversal, and we are constrained

to vacate those convictions and remand for resentencing on the

unlawful possession charges.

Having determined that remand for resentencing is

necessary, we next address defendants’ sentencing arguments.

III.

A.

Defendants, joined by the ACLU, contest the imposition of

their mandatory minimum terms of imprisonment under N.J.S.A.

2C:39-5(i). That statute requires the sentencing court to

impose a period of parole ineligibility “if the court finds” a

substantial likelihood that the defendant is involved in

organized criminal activity.

Defendants and amici rely principally on Alleyne, supra,

which provides that “any fact that increases the mandatory

minimum sentence is an ‘element’ that must be submitted to the

jury” to be found beyond a reasonable doubt. ___ U.S. at ___,

133 S. Ct. at 2156, 186 L. Ed. 2d at 321 (overruling Harris v.

United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524

19
(2002)). Applying Alleyne’s holding to N.J.S.A. 2C:39-5(i),

defendants contend that the imposition of mandatory minimum

sentences based upon a judicial finding that they were involved

in organized crime violated their Sixth Amendment rights.1

The State, joined by the Attorney General, concedes that

Alleyne renders N.J.S.A. 2C:39-5(i) unconstitutional as written.

Nevertheless, the State asks this Court to graft onto N.J.S.A.

2C:39-5(i) a requirement that a jury find that a defendant was

involved in organized criminal activity before requiring the

imposition of a mandatory minimum prison term.

B.

We agree with defendants that Alleyne renders the

imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-

5(i) unconstitutional. Further, there is no dispute that

Alleyne, which was decided during the pendency of defendants’

appeal, applies to defendants’ convictions. See State v.

Wessells, 209 N.J. 395, 412 (2012) (“[I]t is now well-

established that ‘a new rule for the conduct of criminal

prosecutions is to be applied retroactively to all cases, state

1 To the extent that Cromwell also challenges application of
aggravating factor five, N.J.S.A. 2C:44-1(a)(5) (substantial
likelihood that defendant is involved in organized criminal
activity), we note that a sentencing court may consider this
factor when deciding what sentence to impose within the
statutory range. Post at ___ (slip op. at 24) (citing State v.
Natale, 184 N.J. 458, 472, 481-82 (2005)).
20
or federal, pending on direct review or not yet final, with no

exception for cases in which the new rule constitutes a “clear

break” with the past.’” (quoting Griffith v. Kentucky, 479 U.S.

314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987))).

The question thus becomes whether it is within this Court’s

purview to amend the statute as the State requests.2

Given the clear statement of legislative intent in N.J.S.A.

2C:39-5(i), we decline the State’s invitation to perform

“judicial surgery.” We acknowledge that, “[i]n appropriate

cases, a court has the power to engage in judicial surgery or

the narrow construction of a statute to free it from

constitutional doubt or defect.” State v. Fortin, 198 N.J. 619,

630 (2009) (quoting N.J. State Chamber of Commerce v. N.J.

Election Law Enforcement Comm’n, 82 N.J. 57, 75 (1980))

(internal quotation marks omitted). However, this procedure

applies only “if we fairly can do so.” Id. at 631.

In State v. Natale, 184 N.J. 458 (2005), we considered the

constitutional validity of our sentencing statutes providing for

the imposition of a sentence beyond the presumptive statutory

2 Additionally, the State and amici raise numerous preemptory
arguments with respect to the constitutional validity of the
discretionary parole disqualifier under N.J.S.A. 2C:43-6(b) and
certain applications of the Graves Act not applicable to this
case. Because defendants were not sentenced under either of
those provisions, we decline to address those arguments here.
See State v. Nero, 195 N.J. 397, 412 n.5 (2008).
21
term based on a judicial finding of one or more aggravating

factors. We held that our sentencing provisions allowing for

the imposition of a sentence beyond that which is allowed by the

jury verdict violated the Sixth Amendment, as expressed in

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.

2d 403 (2004). Natale, supra, 184 N.J. at 481-82. In striking

the pertinent sentencing provisions, we preserved the judge’s

discretion to balance the aggravating and mitigating factors in

considering the appropriate sentence within the applicable

statutory range. Id. at 488.

Here, N.J.S.A. 2C:39-5(i) unambiguously requires the

imposition of a mandatory minimum sentence based on a judicial

finding of fact. Requiring a jury rather than a judge to make

such a finding would not merely be severing a constitutionally

infirm portion of the sentencing statute, it would be rewriting

its essential requirements. There is no ambiguity in the

statute from which we can “assum[e] that the Legislature

intended to act in a constitutional manner.” Right to Choose v.

Byrne, 91 N.J. 287, 311 (1982). It is unclear “‘whether the

Legislature would want the statute to survive with appropriate

modifications rather than succumb to constitutional

infirmities.’” State v. Emmons, 397 N.J. Super. 112, 122 (App.

Div. 2007) (quoting Byrne, supra, 91 N.J. at 311), certif.

22
denied, 195 N.J. 421 (2008). Thus, that determination is for

the Legislature.

Because judicial rehabilitation is not an option, we are

compelled to vacate defendants’ sentences and remand for

resentencing for the unlawful possession convictions, without

consideration of the mandatory minimum sentence under N.J.S.A.

2C:39-5(i) and without the empaneling of a sentencing jury, as

the State requests.

IV.

In addition to the Alleyne issue discussed above, Grate

disputes the trial court’s assessment of the aggravating and

mitigating factors in his conviction for unlawful possession of

a handgun. Specifically, Grate contends there was insufficient

evidence to support the court’s finding of aggravating factors

three, the risk that he will reoffend, N.J.S.A. 2C:44-1(a)(3);

five, the substantial likelihood that he is involved in

organized criminal activity, N.J.S.A. 2C:44-1(a)(5); and nine,

the need for deterrence, N.J.S.A. 2C:44-1(a)(9).

It is well-established that appellate courts review the

trial court’s “sentencing determination under a deferential

standard of review.” State v. Lawless, 214 N.J. 594, 606 (2013)

(citing State v. Cassady, 198 N.J. 165, 180 (2009); State v.

O’Donnell, 117 N.J. 210, 215 (1989)). We are “bound to affirm a

sentence, even if [we] would have arrived at a different result,

23
as long as the trial court properly identifies and balances

aggravating and mitigating factors that are supported by

competent credible evidence in the record.” Ibid. (internal

quotation marks and citations omitted).

Here, there was ample evidence supporting the trial court’s

findings. Grate’s presentence report shows that he had been

charged with numerous indictable offenses on eight prior

occasions. Those charges resulted in two downgraded

convictions, the first for violent behavior and the second for

simple assault. In connection with the current offense, the

court’s finding that defendant was at a high risk to recidivate

was sound. Further, as the court noted, “handguns on a college

campus . . . is a dangerous situation, and absolutely cannot be

tolerated.” Accordingly, we find no basis to overturn the

court’s findings with respect to aggravating factors three and

nine.

We reiterate that a judicial finding of aggravating factor

five cannot be the basis of a mandatory minimum sentence. The

sentencing court may nevertheless consider this factor when

deciding what sentence to impose within the statutory range.

See Natale, supra, 184 N.J. at 472, 481-82 (“A judge is

authorized to impose a sentence within the range allowed by the

jury verdict[.]”). There was more than enough evidence

supporting the judge’s finding with respect to aggravating

24
factor five. Corporal Santana testified that Grate admitted to

being a member of the “5 Deuce Hoova Crip” street gang, and that

he had “body brandings” and a tattoo that identified him as a

member of that street gang. Based on this testimony, it was not

an abuse of discretion to find defendant was substantially

likely to have been involved in organized crime.

Grate also argues the sentencing court abused its

discretion in failing to consider evidence in support of

mitigating factors one, that he did not cause or threaten

serious harm, N.J.S.A. 2C:44-1(b)(1), and two, that he did not

contemplate that his conduct would cause or threaten serious

harm, N.J.S.A. 2C:44-1(b)(2). The sentencing court is required

to consider evidence of a mitigating factor and must apply

mitigating factors that “are amply based in the record.” State

v. Dalziel, 182 N.J. 494, 504-05 (2005); see also State v. Hess,

207 N.J. 123, 155 n.8 (2011) (noting same). Grate, however,

presents no evidence in support of his claim. In light of the

nature of the offense, we see no abuse of discretion in failing

to consider these mitigating factors.

Accordingly, with the exception of the mandatory minimum

sentence imposed pursuant to N.J.S.A. 2C:39-5(i), we affirm

Grate’s sentence.

V.

25
 For the foregoing reasons, the judgment of the Appellate

Division affirming defendants’ convictions for unlawful

possession of a weapon at an educational facility is reversed.

We remand for a new trial on the charge of unlawful possession

of a weapon at an educational facility, and for resentencing

consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON,
and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join
in JUSTICE SOLOMON’s opinion.

26
 SUPREME COURT OF NEW JERSEY

NO. A-47/48 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES GRATE,

Defendant-Appellant.
_______________________________
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN CROMWELL, (a/k/a
FUGUAN CROMWELL, FUQUAN A.
CROMWELL, SAMAAD CROMWELL,
SAMAD CROMWELL, SAMAAD
LATHER, SAMADD N. J.L.,
SAMAAD N. LATHER),

Defendant-Appellant.

DECIDED January 15, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Solomon
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY

AFFIRM IN PART/
CHECKLIST REVERSE IN PART/
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA X
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 7