State of New Jersey v. Keith Drake

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1514-14T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, February 24, 2016

v. APPELLATE DIVISION

KEITH DRAKE,

Defendant-Appellant.
__________________________________

Argued October 6, 2015 – Decided February 24, 2016

Before Judges Hoffman, Leone and Whipple.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County,
Indictment No. 05-09-2224.

Stephen W. Kirsch, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Kirsch, of counsel and on the
brief).

Sara M. Quigley, Deputy Attorney General,
argued the cause for respondent (John J.
Hoffman, Acting Attorney General, attorney;
Ms. Quigley, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Keith Drake was sentenced for committing second-

degree sexual assault under N.J.S.A. 2C:14-2(c)(1). The court
imposed a minimum term of 85% of the sentence, and a three-year

term of parole supervision, pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. Defendant filed a motion to correct

an illegal sentence, asserting that NERA only applies to second-

degree sexual assault under N.J.S.A. 2C:14-2(c)(1) if a

defendant is simultaneously sentenced for second-degree sexual

assault under N.J.S.A. 2C:14-2(b). We reject defendant's

reading of NERA, and affirm the denial of defendant's motion.

I.

Our prior opinion upholding defendant's conviction included

the following facts. On March 30, 2005, J.H., an eighteen-year-

old high school student, went to visit defendant's mother at her

home. When J.H. arrived, defendant's mother was not home, but

defendant was there. Defendant, who was thirty-five years old

at the time, attempted to kiss J.H. Defendant blocked the door

when she tried to leave. Despite her protests, defendant

grabbed her, straddled her, pulled down her pants, and began

performing oral sex on her. J.H. tried to push off the much

larger defendant, but he was able to hold her down. Defendant

then attempted to penetrate J.H.'s vagina with his penis, but

she testified that defendant "didn't go all the way in." After

ejaculating on her shirt, and confirming this was her first

sexual experience, he allowed her to leave.

2 A-1514-14T4
 Defendant was charged with third-degree criminal restraint,

N.J.S.A. 2C:13-2 (count one), second-degree sexual assault by

vaginal penetration using physical force or coercion, N.J.S.A.

2C:14-2(c)(1) (count two), and second-degree sexual assault by

performing cunnilingus using physical force or coercion,

N.J.S.A. 2C:14-2(c)(1) (count three). The jury acquitted

defendant on the first two counts, but convicted him on count

three.

Defendant's prior record included five juvenile

adjudications, twelve disorderly-persons convictions, and nine

indictable convictions in New Jersey. He also had four Florida

convictions, a federal conviction, and four open New Jersey

indictments. The trial court found defendant was a persistent

offender under N.J.S.A. 2C:44-3(a), and sentenced him to an

extended term of seventeen years in prison.

Defendant's trial counsel acknowledged that defendant's

conviction carried with it "a No Early Release Act 85 percent

sentence." The trial court agreed that N.J.S.A. 2C:14-2(c)(1)

"falls directly under NERA," so "the crime for which the

defendant was convicted automatically activates an 85 percent

period of parole ineligibility under the No Early Release Act,"

N.J.S.A. 2C:43-7.2(d)(8). Thus, the court found that "the No

Early Release Act applies," and imposed an 85% minimum term

3 A-1514-14T4
sentence and a three-year period of parole supervision under

NERA, N.J.S.A. 2C:43-7.2(a), (c). The court also imposed

community supervision for life and registration under Megan's

Law, N.J.S.A. 2C:7-1 to -23.

On appeal, defendant did not challenge the applicability of

NERA. We affirmed his conviction, but remanded to reconsider

other aspects of this sentence. State v. Drake, No. A-6507-06

(App. Div. Oct. 27, 2008), certif. denied, 197 N.J. 477 (2009).

Ultimately, on February 17, 2011, the trial court reduced

defendant's sentence to sixteen years in prison, and imposed an

85% minimum term sentence and three years of parole supervision,

reiterating that NERA "applies pursuant to N.J.S.A. 2C:43-

7.2(d)(8)."

Defendant filed a petition for post-conviction relief,

challenging his conviction, but not his sentence. We affirmed

the denial of his petition. State v. Drake, No. A-1821-12 (App.

Div. Apr. 24, 2014), certif. denied, 220 N.J. 40 (2014).

On February 28, 2014, defendant filed a pro se motion to

correct an illegal sentence. He argued he could not be

sentenced under NERA unless he was convicted under both N.J.S.A.

2C:14-2(c)(1) and 2C:14-2(b). Judge Verna G. Leath ultimately

denied the motion by order dated October 28, 2014.

4 A-1514-14T4
 Defendant's appeal was originally heard before an Excessive

Sentencing Oral Argument panel pursuant to Rule 2:9-11. It was

then transferred to the plenary calendar for briefing and oral

argument. In his counseled brief, defendant raises one point:

DEFENDANT'S MOTION TO CORRECT AN ILLEGAL
SENTENCE SHOULD HAVE BEEN GRANTED. HIS NERA
85% PAROLE BAR WAS ILLEGALLY IMPOSED BECAUSE
THE GOVERNING STATUTE REQUIRES A DEFENDANT
TO BE CONVICTED OF VIOLATIONS OF BOTH
"SUBSECTION B. OF N.J.S. 2C:14-2 AND
PARAGRAPH (1) OF SUBSECTION C. OF N.J.S.
2C:14-2" IN ORDER FOR NERA TO APPLY.

Defendant's pro se brief raises the same point in his own words:

THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL
SENTENCE SHOULD HAVE BEEN REVERSE DUE TO THE
VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS GUARANTEE OF DUE PROCESS. THE
DEFENDANT IS CONSEQUENTLY SERVING AN ILLEGAL
SENTENCE CONTRARY TO N.J.S.A. 2C:43-7.2.
MANDATORY SERVICES OF 85 PERCENT OF SENTENCE
FOR CERTAIN OFFENSES STATUTE REQUIRES A
DEFENDANT TO BE CONVICTED OF BOTH VIOLATION
IN SUBSECTION d. (8) OF N.J.S.A. 2C:43-7.2.
(SUBSECTION B. OF N.J.S.2C:14-2 AND
PARAGRAPH (1) OF SUBSECTION C. OF N.J.S.
2C:14-2, SEXUAL ASSAULT) IN ORDER FOR NERA
TO APPLY. FOR THESE REASONS, THE DEFENDANT
RESPECTFULLY REQUEST THAT HIS BRIEF TO
CORRECT AN ILLEGAL SENTENCE BE GRANTED IN
IT'S ENTIRETY.

II.

We must consider whether defendant's sentence is illegal.

"[A] truly 'illegal' sentence can be corrected 'at any time.'"

State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-

10(b)(5)). "[A]n illegal sentence is one that 'exceeds the

5 A-1514-14T4
maximum penalty provided in the Code for a particular offense'

or a sentence 'not imposed in accordance with law.'" Id. at 45

(quoting State v. Murray, 162 N.J. 240, 247 (2000)). A sentence

"not imposed in accordance with law" includes "a disposition

[not] authorized by the Code." Murray, supra, 162 N.J. at 247.

The question of what crimes are covered by NERA "is an

issue of statutory construction; our review is therefore de

novo." State v. Olivero, 221 N.J. 632, 638 (2015). Whether

defendant's sentence is unconstitutional is also an issue of law

subject to de novo review. State v. Pomianek, 221 N.J. 66, 80

(2015). We must hew to that standard of review.

Because "this is a case of statutory interpretation," our

task "'is to discern and give effect' to the Legislature's

intent." State v. Munafo, 222 N.J. 480, 488 (2015) (citation

omitted). "To begin, we look at the plain language of the

statute." Ibid. "Statutory language is to be interpreted 'in a

common sense manner to accomplish the legislative purpose.'"

Olivero, supra, 221 N.J. at 639 (citation omitted). "We do not

support interpretations that render statutory language as

surplusage[.]" Burgos v. State, 222 N.J. 175, 203 (2015). "In

addition, we will not interpret a statute in a way that 'leads

to an absurd result.'" State v. Williams, 218 N.J. 576, 586

(2014) (citation omitted). "If the language is unclear, courts

6 A-1514-14T4
can turn to extrinsic evidence for guidance, including a law's

legislative history." Munafo, supra, 222 N.J. at 488. "But a

court may not rewrite a statute or add language that the

Legislature omitted." Ibid.

III.

Under the plain language of N.J.S.A. 2C:43-7.2, NERA

applies to second-degree sexual assault under N.J.S.A. 2C:14-

2(c)(1). Subsection a. of N.J.S.A. 2C:43-7.2 requires that "[a]

court imposing a sentence of incarceration for a crime of the

first or second degree enumerated in subsection d. of this

section shall fix a minimum term of 85% of the sentence imposed,

during which the defendant shall not be eligible for parole."

Subsection b. similarly requires that "[t]he minimum term

required by subsection a. of this section shall be fixed as a

part of every sentence of incarceration imposed upon every

conviction of a crime enumerated in subsection d. of this

section[.]" N.J.S.A. 2C:43-7.2(b) (emphasis added). Subsection

d. requires that "[t]he court shall impose sentence pursuant to

subsection a. of this section upon conviction of the following

crimes or an attempt or conspiracy to commit any of these

crimes[.]" N.J.S.A. 2C:43-7.2(d) (emphasis added). Among the

"following crimes" "enumerated in subsection d." is "paragraph

(1) of subsection c. of N.J.S. 2C:14-2, sexual assault[.]"

7 A-1514-14T4
N.J.S.A. 2C:43-7.2(d)(8). Because N.J.S.A. 2C:14-2(c)(1) is "a

crime of the . . . second degree enumerated in subsection d.,"

NERA applies. N.J.S.A. 2C:43-7.2(a), (b), (d).

Defendant's contrary argument turns on his parsing of how

N.J.S.A. 2C:14-2(c)(1) is enumerated in N.J.S.A. 2C:43-

7.2(d)(8), particularly the use of "and." To put the issue in

context, subsection d. of N.J.S.A. 2C:43-7.2 currently lists the

following crimes:

(1) N.J.S. 2C:11-3, murder;

(2) N.J.S. 2C:11-4, aggravated manslaughter
or manslaughter;

(3) N.J.S. 2C:11-5, vehicular homicide;

(4) subsection b. of N.J.S. 2C:12-1,
aggravated assault;

(5) subsection b. of section 1 of P.L. 1996,
c. 14 (C. 2C:12-11), disarming a law
enforcement officer;

(6) N.J.S. 2C:13-1, kidnapping;

(7) subsection a. of N.J.S. 2C:14-2,
aggravated sexual assault;

(8) subsection b. of N.J.S. 2C:14-2 and
paragraph (1) of subsection c. of N.J.S.
2C:14-2, sexual assault;

(9) N.J.S. 2C:15-1, robbery;

(10) section 1 of P.L. 1993, c. 221 (C.
2C:15-2), carjacking;

(11) paragraph (1) of subsection a. of
N.J.S. 2C:17-1, aggravated arson;

8 A-1514-14T4
 (12) N.J.S. 2C:18-2, burglary;

(13) subsection a. of N.J.S. 2C:20-5,
extortion;

(14) subsection b. of section 1 of P.L.
1997, c. 185 (C. 2C:35-4.1), booby traps in
manufacturing or distribution facilities;

(15) N.J.S. 2C:35-9, strict liability for
drug induced deaths;

(16) section 2 of P.L. 2002, c. 26 (C.
2C:38-2), terrorism;

(17) section 3 of P.L. 2002, c. 26 (C.
2C:38-3), producing or possessing chemical
weapons, biological agents or nuclear or
radiological devices;

(18) N.J.S. 2C:41-2, racketeering, when it
is a crime of the first degree;

(19) subsection i. of N.J.S. 2C:39-9,
firearms trafficking; or

(20) paragraph (3) of subsection b. of
N.J.S. 2C:24-4, causing or permitting a
child to engage in a prohibited sexual act,
knowing that the act may be reproduced or
reconstructed in any manner, or be part of
an exhibition or performance.

Defendant argues that by using "and" rather than "or" in

N.J.S.A. 2C:43-7.2(d)(8), the Legislature intended that

defendants convicted of sexual penetration using physical force

under N.J.S.A. 2C:14-2(c)(1) would be subject to NERA only if

they were simultaneously sentenced for "sexual contact with a

9 A-1514-14T4
victim who is less than 13 years old and the actor is at least

four years older than the victim" under N.J.S.A. 2C:14-2(b).

However, defendant's parsing fails to interpret the

statutory language "'in a common sense manner to accomplish the

legislative purpose.'" Olivero, supra, 221 N.J. at 639

(citation omitted). The obvious legislative purpose of N.J.S.A.

2C:43-7.2(d) was to list the statutory citation in the Criminal

Code, and name of the crime, for every crime to which NERA

applies. Where the Legislature intended every crime encompassed

in a Criminal Code section to be covered by NERA, the

Legislature simply listed the section and the name of the

crime(s). See N.J.S.A. 2C:43-7.2(d)(1)-(3), (6), (9), (12),

(15)-(17). Where the Legislature intended NERA to apply only to

a crime under one subsection, it listed only the specific

subsection and the name of the crime(s). See N.J.S.A. 2C:43-

7.2(d)(4)-(5), (7), (10)-(11), (13)-(14), (19)-(20).1

N.J.S.A. 2C:43-7.2(d)(8) was the only instance in which

NERA applied to more than one subsection, but not to all

subsections, of the same crime, namely second-degree sexual

1
In N.J.S.A. 2C:43-7.2(d)(18), the Legislature listed the
particular degree of the racketeering crime rather than a
subsection because the Criminal Code distinguished violent
racketeering from racketeering by giving them different degrees,
without putting them in separate subsections. See N.J.S.A.
2C:41-2, -3(a).

10 A-1514-14T4
assault. In that unique situation, the Legislature took the

common-sense approach of providing that NERA applied to both

"subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection

c. of N.J.S. 2C:14-2, sexual assault." N.J.S.A. 2C:43-

7.2(d)(8).

Despite the unique situation posed by N.J.S.A. 2C:43-

7.2(d)(8), defendant looks to other situations in N.J.S.A.

2C:43-7.2(d) where the Legislature uses "or." From those

different situations, he infers that the Legislature's use of

"and" in N.J.S.A. 2C:43-7.2(d)(8) shows an intent to require a

defendant be convicted of two crimes for NERA to be applicable.

Defendant's implausible inference ignores that the word choice

may differ merely because the situations differ. The

Legislature used "or" between the names of separate crimes

covered by the same section or subsection of the Criminal Code,

such as "N.J.S. 2C:11-4, aggravated manslaughter or

manslaughter." N.J.S.A. 2C:43-7.2(d)(2); see also N.J.S.A.

2C:43-7.2(d)(14), (17), (20) (replicating "or" from the

descriptions of the crimes in the cited Criminal Code section or

subsection). The Legislature also used "or" between the

subparts of N.J.S.A. 2C:43-7.2(d) to make clear that NERA

applies to all the crimes listed in N.J.S.A. 2C:43-7.2(d)(1)

through (19) "or" (20).

11 A-1514-14T4
 In any event, if the Legislature had stated that NERA

applied to "N.J.S. 2C:11-4, aggravated manslaughter and

manslaughter," defendant could not plausibly suggest that NERA

would not apply unless a defendant committed both aggravated

manslaughter and manslaughter. Similarly, if the Legislature

had stated that NERA applied to all the crimes listed in

N.J.S.A. 2C:43-7.2(d)(1) through (19) "and" (20), defendant

could not plausibly suggest that a defendant had to commit all

twenty crimes to be subject to NERA.

That is because "'[t]he words "or" and "and" are ofttimes

used interchangeably, and the determination of whether the word

"and" as used in a statute should be read in the conjunctive or

disjunctive depends primarily upon the legislative intent.'"

Pine Belt Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J.

564, 578 (1993) (quoting Howard v. Harwood's Rest. Co., 25 N.J.

72, 88 (1957)); accord State v. Carreon, 437 N.J. Super. 81, 87

(App. Div. 2014). Thus, "it is a well recognized principle of

statutory construction" that "and" can be read as "or" "if to do

so is consistent with the legislative intent." N.J. State Bd.

of Optometrists v. Koenigsberg, 33 N.J. Super. 387, 394 (App.

Div. 1954) (citing Murphy v. Zink, 136 N.J.L. 235 (Sup. Ct.

1947), aff’d, 136 N.J.L. 635 (E. & A. 1948)). "The context of

the language and the words surrounding the disputed portion

12 A-1514-14T4
[using 'and'] can be used to evidence an intention to create a

disjunctive meaning." Garden State Land Co. v. City of

Vineland, 368 N.J. Super. 369, 378 (App. Div. 2004) (citing Pine

Belt Chevrolet, supra, 132 N.J. at 578-79). Further, "'and' may

be read as 'or' if necessary to carry out the legislative

intent." Cruz v. Trotta, 363 N.J. Super. 353, 359 (App. Div.

2003) (citing Howard, supra, 25 N.J. at 88).

For example, in State v. Regis, 208 N.J. 439 (2011), our

Supreme Court held that, despite the use of the word "and" in

N.J.S.A. 39:4-88(b), "the better construction of the statute is

that it consists of two separate, independent clauses, each of

which addresses a distinct offense." Id. at 447. The Court

concluded that "[t]he Legislature's choice to combine these two

clauses in a single sentence, connected by the word 'and' rather

than divided into separate sentences, does not alter the

analysis." Id. at 448 (citing Pine Belt Chevrolet, supra, 132

N.J. at 578). Similarly, we held that in N.J.S.A. 2C:7-2(d),

"the word 'and' must be equated to the conjunction 'or' to give

the statute its proper meaning and effect." State v. Leahy, 381

N.J. Super. 106, 112 (App. Div. 2005) (citing Howard supra, 25

N.J. at 88), certif. denied, 186 N.J. 245 (2006).

Here, both context and intent show the better reading of

N.J.S.A. 2C:43-7.2(d) is that NERA applies to each and every

13 A-1514-14T4
crime listed, including N.J.S.A. 2C:14-2(b) and N.J.S.A. 2C:14-

2(c)(1). Subsections a. and b. of NERA provide that an 85%

minimum-term sentence must be imposed if a defendant is being

sentenced for each ("a crime") and "every conviction of a crime

enumerated under subsection d." N.J.S.A. 2C:43-7.2(a), (b).

Because N.J.S.A. 2C:14-2(c)(1) is one of the "crimes" enumerated

in N.J.S.A. 2C:43-7.2(d), the Legislature intended that NERA

apply.

We should effectuate that intent even if the Legislature

should not have used both "and" and "or" in compiling its

lengthy list of crimes. For example, in Koenigsberg, supra, we

found the Legislature's use of both "and" and "or" in its long

list of covered acts was "subject to criticism from the

standpoint of construction," and its use of "and" "le[ft]

something to be desired in the way of surface consistency with

the various 'or's.'" 33 N.J. Super. at 394. Nonetheless, we

applied the "well recognized principle of statutory

construction" and read the "and" as an "or" because that was

"consistent with the legislative intent." Ibid.

Moreover, defendant's contrary interpretation "'leads to an

absurd result.'" Williams, supra, 218 N.J. at 586 (citation

omitted). Defendant's reading creates the anomaly that a

defendant who commits a crime listed in N.J.S.A. 2C:43-7.2(d) is

14 A-1514-14T4
not subject to NERA unless he simultaneously committed a second

crime. The absurdity of that result becomes even more apparent

when the other provisions of NERA are considered. If a

defendant were to violate both of those subsections of second-

degree sexual assault listed in N.J.S.A. 2C:43-7.2(d)(8), he

would have to "commit[] an act of sexual penetration" using

"physical force or coercion," while "commit[ting] an act of

sexual contact with a victim who is less than 13 years old[.]"

N.J.S.A. 2C:14-2(b), (c)(1). However, a defendant who "commits

an act of sexual penetration" where "[t]he victim is less than

13 years old" is guilty of aggravated sexual assault under

N.J.S.A. 2C:14-2(a)(1), and thus is already subject to NERA

under N.J.S.A. 2C:43-7.2(d)(7). Thus, defendant's reading would

render N.J.S.A. 2C:43-7.2(d)(8) superfluous. "We decline to

interpret [NERA] in a manner that would render 'words in [the]

statute surplusage.'" See State v. Patterson, 435 N.J. Super.

498, 517 (App. Div. 2014) (quoting Shelton v. Restaurant.com,

Inc., 214 N.J. 419, 440 (2013)).

To avoid such fatal superfluity, defendant posits unlikely

scenarios. He argues that there might be cases where N.J.S.A.

2C:43-2(d)(7) did not apply to such a defendant if a jury

verdict or plea deal were somehow to result in second-degree

convictions for both N.J.S.A. 2C:14-2(b) and (c)(1), rather than

15 A-1514-14T4
the equivalent first-degree conviction under N.J.S.A. 2C:14-

2(a)(1). Defendant also argues that his reading would cover the

situation where a defendant committed sexual contact with a

victim younger than thirteen years old, then committed forcible

penetration when the child was older, and then both crimes were

prosecuted together. However, there is no indication that the

Legislature was trying to address inconsistent jury verdicts,

unusual plea deals, or delayed prosecutions when it "amended

NERA to specifically enumerate the first- and second-degree

offenses to which NERA applies." State v. Parolin, 171 N.J.

223, 232 (2002) (citing L. 2001, c. 129 (eff. June 29, 2001)).

Defendant's strained arguments further illustrate the absurdity

of his reading.

Even if defendant's parsing showed that the plain language

of N.J.S.A. 2C:43-7.2 "'is not clear or if it is susceptible to

more than one plausible meaning,' [we] may look to extrinsic

evidence such as legislative history to determine legislative

intent." Olivero, supra, 221 N.J. at 639 (citation omitted).

"A court may also turn to extrinsic evidence 'if a literal

reading of the statute would yield an absurd result,

particularly one at odds with the overall statutory scheme.'"

In re N.B., 222 N.J. 87, 98-99 (2015) (citation omitted). Thus,

we "may turn to such extrinsic guides as legislative history,

16 A-1514-14T4
including sponsor statements and committee reports." Wilson ex

rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012).

Here, that legislative history shows that our plain reading

serves, and defendant's reading contravenes, the Legislature's

intent.

"NERA was enacted primarily because of New Jersey's

alarmingly high rate of parolee recidivism." State v. Thomas,

166 N.J. 560, 569 (2001). "To reduce recidivism, NERA increases

the real time period of incarceration of defendants who commit

[certain] first- and second-degree . . . crimes by requiring

that such defendants serve at least eighty-five percent of the

sentence imposed." State v. Johnson, 182 N.J. 232, 238 (2005).

When originally enacted in 1997, subsection a. of N.J.S.A.

2C:43-7.2 applied "if the crime is a violent crime as defined in

subsection d. of this section." L. 1997, c. 117, § 2 (eff. June

9, 1997) (emphasis added). Subsection d. originally provided:

"violent crime" means 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. "Violent crime"
also includes any aggravated sexual assault
or sexual assault in which the actor uses,
or threatens the immediate use of, physical
force.

[Ibid. (emphasis added).]

17 A-1514-14T4
 Because second-degree sexual assault under N.J.S.A. 2C:14-

2(c)(1) requires that the actor commit an act of sexual

penetration using "physical force or coercion," most or all

violations of N.J.S.A. 2C:14-2(c)(1) were already covered by the

original version of NERA. See Thomas, supra, 166 N.J. at 573-74

(holding that the original version of NERA applied if "the

elements of the sexual offense charged against a defendant . . .

contain as an element proof of any one or more of the NERA

factors," or if there is "proof of an independent act of force

or violence or a separate threat of immediate physical force");

see also State v. Mosley, 335 N.J. Super. 144, 152 (App. Div.

2000), certif. denied, 167 N.J. 633 (2001) (noting the NERA's

requirement of "use or threat of immediate use of physical force

is an element . . . of sexual assault as defined by N.J.S.A.

2C:14-2c(1)").

Thereafter, the State took the position that NERA applied

to second-degree sexual assault under N.J.S.A. 2C:14-2(b), which

provides that "[a]n actor is guilty of sexual assault if he

commits an act of sexual contact with a victim who is less than

13 years old and the actor is at least four years older than the

victim." In Thomas, we rejected that position because no

physical force was used, and we distinguished In Re M.T.S., 129

N.J. 422 (1992), which considered what constituted physical

18 A-1514-14T4
force under N.J.S.A. 2C:14-2(c)(1). See State v. Thomas, 322

N.J. Super. 512, 515-16, 519-20 (App. Div. 1999), aff’d, 166

N.J. 560, 574 (2001) (holding that "NERA would apply to the

M.T.S.-type cases under today's ruling"). In Mosley, we

similarly ruled that NERA did not apply in a case of aggravated

sexual assault by penetration of a minor less than thirteen

years old, N.J.S.A. 2C:14-1(a)(1), again contrasting that "use

or threat of immediate use of physical force is an element . . .

of sexual assault as defined by N.J.S.A. 2C:14-2c(1)." Mosley,

supra, 335 N.J. Super. at 152.

Assembly Bill No. A3201 (Feb. 5, 2001) was introduced to

amend NERA, and to overturn Thomas and Mosley, as well as our

decision that NERA did not apply to murder in State v. Manzie,

335 N.J. Super. 267 (App. Div. 2000), aff'd by equally divided

court, 168 N.J. 113 (2001). See Parolin, supra, 171 N.J. at 232

(NERA "was changed in response to the Appellate Division

decisions in" Manzie, Mosley, and Thomas). The appended

sponsor's statement explained that "several recent Appellate

Division decisions have held that in its present form, NERA is

inapplicable to certain crimes." Sponsor's Statement Appended

to Assemb. B. No. A3201, at 9 (Feb. 5, 2001) [hereinafter

Appended Sponsor's Statement to Assemb. B. No. A3201]. In

particular, the sponsor explained that in Mosley and Thomas,

19 A-1514-14T4
 the Appellate Division held that NERA does
not apply to cases where the defendant is
guilty of sexual assault under N.J.S.A.
2C:14-2 on grounds that the victim is under
the age of 13, since the current language of
NERA requires the element of some additional
"physical force."

In order to overcome the issues raised
by these cases and clarify the provisions of
[NERA], this bill would amend NERA to
specifically list the crimes that are
intended to be encompassed by the statute.

[Ibid.]

The bill specifically proposed to amend NERA to apply to

both "subsection b. of N.J.S. 2C:14-2 and paragraph (1) of

subsection c. of N.J.S. 2C:14-2, sexual assault." Assemb. B.

No. A3201, at 3 (Feb. 5, 2001). The bill also listed nine other

crimes by their statutory sections or subsections. Ibid.2 The

Assembly's Law and Public Safety Committee and Appropriations

Committee reported the bill favorably, proposing the same

statutory language about sexual assault and giving the same

explanation in their committee reports, but adding five more

crimes to be covered by NERA. Assemb. B. No. A3201 (1st reprint

Mar. 1, 2001); Assemb. L. & Pub. Safety Comm. Statement to

Assemb. B. No. A3201, at 1-2 (Feb. 26, 2001) [hereinafter

2
A parallel bill proposing the same statutory language about
sexual assault, with an identical sponsor's statement, was later
introduced in the Senate. S.B. No. S2233, at 3-4 (Mar. 26,
2001).

20 A-1514-14T4
Assemb. L. & Pub. Safety Comm. Statement]; Assemb.

Appropriations Comm. Statement to Assemb. B. No. A3201, at 1-2

(June 4, 2001).3 Both houses then passed the Assembly Bill. L.

2001, c. 129, § 1 (eff. June 29, 2001) [hereinafter "the 2001

amendment"].4

The 2001 amendment replaced the requirement in N.J.S.A.

2C:43-7.2(a) that the crime be "a violent crime as defined in

subsection d." with the requirement that the crime be

"enumerated in subsection d." Ibid. Subsection d. was amended

to replace its definition of "violent crime" with the list of

crimes enumerated in N.J.S.A. 2C:43-7.2(d)(1) through (15).

Ibid. As amended, subsections a., b., and d. all provided that

a court shall impose an 85% minimum term for the crimes

enumerated in subsection d., including "subsection b. of N.J.S.

2C:14-2 and paragraph (1) of subsection c. of N.J.S. 2C:14-2,

sexual assault." Ibid.5

3
The Senate Judiciary Committee favorably reported a substitute
bill and statement identical to those reported by the Assembly
Committees. S.B. Nos. S2087 & S2233, at 2-3 (June 11, 2001); S.
Judiciary Comm. Statement to S.B. Nos. S2087 & S2233, at 1-2
(June 11, 2001) [hereinafter S. Judiciary Comm. Statement].
4
The other amendment of NERA in 2001 simply reworded some of its
parole language. See L. 2001 c. 79, § 16 (eff. Sept. 1, 2001).
5
Subsequent amendments altered the citation form in N.J.S.A.
2C:43-7.2(d)(5), added the crimes enumerated in N.J.S.A. 2C:43-
7.2(d)(16)-(20), and moved the "or", originally between
(continued)

21 A-1514-14T4
 This legislative history supports our reading of the plain

meaning of N.J.S.A. 2C:43-7.2. First, second-degree sexual

assault using physical force in violation of N.J.S.A. 2C:14-

2(c)(1) was already covered by NERA before the 2001 amendment,

coverage that the legislative history assumed would continue.

Second, one of the major goals of the 2001 amendment was to

extend the same coverage to second-degree sexual assault against

a victim under thirteen years old in violation of N.J.S.A.

2C:14-2(b) by overturning our decision in Thomas. Third, the

legislative history indicated an intent to expand the

application of NERA, not only to cover both N.J.S.A. 2C:14-2(b)

and (c)(1), but initially nine other crimes, then fourteen other

crimes, and now nineteen other crimes.

This legislative history is wholly contrary to defendant's

reading of N.J.S.A. 2C:43-7.2. Under his reading, the 2001

amendment would remove NERA's pre-existing coverage of N.J.S.A.

2C:14-2(c)(1) when there is no indication of any intent to do so

in the legislative history. His reading would also defeat one

of the major goals of the 2001 amendment, to ensure that every

(continued)
subsections (d)(14) and (15), to between subsections (d)(19) and
(20) at the end of the expanded list. Those amendments did not
otherwise alter subsections a., b., or d. L. 2002, c. 26, § 19
(eff. June 18, 2002); L. 2007, c. 341, § 6 (eff. Jan. 13, 2008);
L. 2013, c. 111, § 3 (eff. Nov. 1, 2013); L. 2013, c. 136, § 4
(eff. Aug. 14, 2013).

22 A-1514-14T4
defendant convicted solely of N.J.S.A. 2C:14-2(b) would receive

a NERA sentence. Moreover, his reading would find an intent to

restrict the crimes to which NERA is applicable, despite the

clear legislative intent to expand the number of such crimes.

As Judge Leath noted, "to accept the defendant's argument would

mean that the legislature only intended to make a small number

of second-degree sexual assaults subject to NERA." That is

contrary to the legislative history.

In addition, the legislative history confirms that "[t]he

Legislature oftentimes use[d] 'or' and 'and' interchangeably" in

promulgating the 2001 amendment. Carreon, supra, 437 N.J.

Super. at 87. For example, when the legislative committees

added the language in N.J.S.A. 2C:43-7.2(d)(2) on which

defendant relies, making NERA applicable to "(2) N.J.S.A. 2C:11-

4, aggravated manslaughter or manslaughter," Assemb. B. No.

A3201, at 2 (Feb. 26, 2001); S.B. No. S2233, at 3 (Mar. 26,

2001), the committee reports described that subsection as "(2)

N.J.S.A. 2C:11-4 (aggravated manslaughter and manslaughter)."

Assemb. L. & Pub. Safety Comm. Statement, supra, at 2 (emphasis

added); S. Judiciary Comm. Statement, supra, at 1 (emphasis

added).

Similarly, just after the Assembly Bill was introduced, a

bill was introduced in the Senate which similarly sought to

23 A-1514-14T4
"amend the provisions of [NERA] concerning sexual assaults in

light of recent cases holding the act inapplicable to defendants

who commit sexual assaults against certain young victims,"

citing Mosley and Thomas. Sponsor's Statement Appended to S.B.

No. S2087, at 3 (Feb. 8, 2001) [hereinafter Appended Sponsor's

Statement to S.B. No. S2087]. This bill proposed simply to

amend N.J.S.A. 2C:43-7.2 to "add specific statutory citations to

sexual assault crimes, providing that NERA would apply to 'any

aggravated sexual assault or sexual assault pursuant to

paragraph (1) or paragraphs (3) through (7) of subsection a. of

N.J.S. 2C:14-2; subsection b. of N.J.S. 2C:14-2; or paragraph

(1) of subsection c. of N.J.S. 2C:14-2.'" Appended Sponsor's

Statement to S.B. No. S2087, supra, at 3-4 (emphasis added).6

When the Senate Judiciary Committee adopted the Assembly's

language as a committee substitute, its report did not indicate

it was changing its intent and now providing that NERA would

only apply if a defendant was convicted of both subsection b. of

N.J.S. 2C:14-2 and paragraph (1) of subsection c. of N.J.S.

2C:14-2. See S. Judiciary Comm. Statement, supra, at 1-2.

6
Notably, the original Assembly Bill and sponsor statement
provided that NERA would apply to "paragraph (1) and paragraphs
(3) through (7) of subsection a. of N.J.S. 2C:14-2, aggravated
sexual assault." Assemb. B. No. A3201, at 3 (Feb. 5, 2001)
(emphasis added); Appended Sponsor's Statement to Assemb. B. No.
A3201, supra, at 9.

24 A-1514-14T4
 Therefore, we find the Legislature intended that a

defendant would be subject to NERA if he violated any one of

"subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection

c. of N.J.S. 2C:14-2, sexual assault." N.J.S.A. 2C:43-

7.2(d)(8).

Defendant argues it would be absurd for the Legislature to

make NERA applicable to second-degree sexual assault where the

"victim is less than 13 years old," N.J.S.A. 2C:14-2(b), and

applicable where "[t]he actor uses physical force or coercion,"

N.J.S.A. 2C:14-2(c)(1), but not where a defendant violates the

other subsections of N.J.S.A. 2C:14-2(c). However, those other

subsections do not concern the two things the Legislature was

most concerned about — victims under thirteen years old, and the

use of physical force.7

Thus, whether we look solely at the plain language of NERA,

or examine its legislative history, or apply the canons of

statutory interpretation requiring us to avoid surplusage and

absurd results, it is clear that NERA applies to a defendant

7
Instead, the other subsections concern the misuse of
relationships: a supervisory or disciplinary relationship over
detainees; such a relationship, or a familial or guardianship
relationship, with a victim over sixteen years old; and the
relationship of an adult to a victim between thirteen and
sixteen years old. N.J.S.A. 2C:14-2(c)(2), (3), (4). Those
subsections were not covered by NERA before or after the 2001
amendment. See Thomas, supra, 166 N.J. at 572.

25 A-1514-14T4
convicted of second-degree sexual assault under N.J.S.A. 2C:14-

2(c)(1).

Accordingly, we decline defendant's invitation to apply the

rule of lenity. "That doctrine 'holds that when interpreting a

criminal statute, ambiguities that cannot be resolved by either

the statute's text or extrinsic aids must be resolved in favor

of the defendant.'" State v. Rangel, 213 N.J. 500, 515 (2013)

(citation omitted). "'It does not invariably follow, that every

time someone can create an argument about the meaning of a penal

sanction, the statute is impermissibly vague, or that the lowest

penalty arguably applicable must be imposed.'" Olivero, supra,

221 N.J. at 639-40 (citation omitted). "Instead, the rule of

lenity is applied only if a statute is ambiguous, and that

ambiguity is not resolved by a review of 'all sources of

legislative intent.'" Ibid. (citation omitted). Here, the

statute's text and all extrinsic aids show defendant was

properly sentenced under NERA.

We have also considered, and now reject, the arguments in

defendant's pro se brief. Because defendant's NERA sentence was

not illegal, his counsel at his resentencing was not ineffective

for not raising defendant's current argument. Defendant makes

unsupported reference to the Eighth and Fourteenth Amendments of

the United States Constitution, but "NERA survives Eighth

26 A-1514-14T4
Amendment scrutiny." State v. Johnson, 166 N.J. 523, 548

(2001). Defendant's remaining pro se arguments are without

sufficient merit to warrant further discussion. R. 2:11-

3(e)(2).

Affirmed.

27 A-1514-14T4