NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4486-15T2
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
ALEXIS CANADAS,
Defendant-Appellant.
_________________________________
Submitted September 26, 2017 – Decided July 11, 2018
Before Judges Carroll and Leone.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Indictment Nos.
15-02-0231 and 16-01-0056.
Joseph E. Krakora, Public Defender, attorney
for appellant (Daniel V. Gautieri, Assistant
Deputy Public Defender, of counsel and on the
briefs).
Robert D. Laurino, Acting Essex County
Prosecutor, attorney for respondent (Barbara
A. Rosenkrans, Special Deputy Attorney
General/Acting Assistant Prosecutor, of
counsel and on the briefs).
Appellant filed a pro se supplemental brief.
PER CURIAM
Defendant Alexis Canadas was convicted of weapons offenses
under two indictments. He appeals his judgments of conviction
dated May 20 and May 23, 2016. We affirm his convictions, and
remand for the court to vacate his sentences and resentence him.
I.
The trial testimony included the following facts. On the
night of August 16, 2014, Detectives Anna Colon and Angel Pared
of the Newark Police Department's Firearm Interdiction Team were
on patrol with Rutgers University Police Officer Michael
Prendeville in an unmarked vehicle. A speeding Acura swerved
around them on the right and cut in front of them.
Detective Colon pulled over the Acura for improper passing
and failure to signal. Defendant was the driver, and co-defendant
Michael Muniz was the passenger.
Detective Colon approached the Acura. Through the open
driver's window she saw defendant hunched over and moving his
right arm even though his registration and insurance documents
were already on his lap. Colon shone her flashlight into the car
and saw the handle of a handgun under the driver's seat.
Detective Colon had defendant exit the vehicle. She shouted
the police codes for "arrest" and "firearm." Detective Pared had
Muniz exit the Acura and handcuffed him. Officer Prendeville
handcuffed defendant.
2 A-4486-15T2
Detective Colon testified that as the defendants were being
handcuffed, defendant became upset and started shouting. Colon
could not remember "specifically the words that he said," "but he
made it known that the gun was his and not his brother's." The
court sustained Muniz's objection to the word "brother." Detective
Pared testified he did not "remember the specific words that
[defendant] said," but he said "[s]omething in th[e] nature" of
"that's my gun." Officer Prendeville testified defendant said
something which "went to the fact that the gun was his."
A Crime Scene officer came, photographed the gun under the
seat, and then removed the handgun, a .40 caliber pistol with a
defaced serial number. The gun had a bullet in the chamber and
fourteen bullets in the magazine, including two hollow-point
bullets. Neither defendant nor Muniz had a permit for the handgun.
Defendant had previously been convicted of crimes covered by the
No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d).
Indictment No. 15-02-0231 charged defendant and Muniz with
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b); fourth-degree possession of hollow-nose bullets, N.J.S.A.
2C:39-3(f); fourth-degree possession of a defaced firearm,
N.J.S.A. 2C:39-3(d); and fourth-degree possession of a large-
capacity magazine, N.J.S.A. 2C:39-3(j). Indictment No. 16-01-0056
charged defendant with first-degree unlawful possession of a
3 A-4486-15T2
handgun by a person with a prior conviction of a NERA crime,
N.J.S.A. 2C:39-5(j).
At the trial on Indictment No. 15-02-0231, the court dismissed
the magazine charge. The jury convicted defendant of the remaining
charges but acquitted Muniz. In a bifurcated trial, the same jury
convicted defendant of the charge in Indictment No. 16-01-0056.
Under Indictment No. 15-02-0231, for the second-degree
offense, the trial court sentenced defendant to an extended term
of eighteen years in prison with nine years of parole
ineligibility. The court imposed on each fourth-degree offense a
concurrent eighteen-month term. For Indictment No. 16-01-0056's
first-degree offense, the court sentenced defendant to an extended
term of thirty years in prison, with fifteen years of parole
ineligibility, to run concurrently with the sentences under the
other indictment.
Defendant appeals, raising the following points:
POINT I – A NEW TRIAL MUST BE ORDERED BECAUSE,
AFTER THE JUDGE SUBSTITUTED A JUROR AND
DIRECTED THAT THE JURORS COMMENCE THEIR
DELIBERATIONS FROM THE BEGINNING, HE PREVENTED
THE POSSIBILITY THAT THE NEWLY RECONSTITUTED
JURY COULD COMMENCE ITS DELIBERATIONS ANEW BY
THEN PROCEEDING TO PLAYBACK TESTIMONY THAT HAD
BEEN REQUESTED BY THE PRIOR JURY. (Not Raised
Below).
POINT II – CANADAS WAS DEPRIVED OF THE
EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
ATTORNEY TOLD THE JURORS IN SUMMATION THAT THE
4 A-4486-15T2
STATE'S BURDEN TO PROVE GUILT BEYOND A
REASONABLE DOUBT AMOUNTS TO A 75% OR GREATER
PROBABILITY OF GUILT. THE COURT DEPRIVED
CANADAS OF DUE PROCESS AND A FAIR JURY TRIAL
WHEN IT FAILED TO CORRECT THE ERROR, THEREBY
LOWERING THE STATE'S BURDEN OF PROOF. (Not
Raised Below).
POINT III – THE EXTENDED-TERM SENTENCE IMPOSED
FOR POSSESSION OF A HANDGUN BY SOMEONE WHO HAS
PREVIOUSLY BEEN CONVICTED OF A NO-EARLY-
RELEASE-ACT OFFENSE, N.J.S.A. 2C:39-5j, IS
ILLEGAL BECAUSE THE OFFENSE DOES NOT COME
WITHIN THE GRAVES ACT.
II.
Defendant first challenges the trial court's playback of
testimony even though an alternate was substituted between the
granting of the jury's request for the playback and the playback
itself. In the trial on Indictment No. 15-02-0231, after the
alternates were sequestered, the jury began its deliberations
after lunch. Shortly before 3:40 p.m., after deliberating for
what Muniz's counsel later estimated was about three hours, the
jury asked three questions. The second question asked: "We, the
jury, have a question regarding testimony by several law
enforcement officers who heard Alex Canadas's claim that the gun
was his and NOT HIS 'BROTHER'S.' May we have this testimony
provided to us and/or read back to us?"
The trial court and counsel discussed the questions. It was
agreed the court should play back for the jury the testimony by
5 A-4486-15T2
the three officers about defendant's statements. However, because
it would take time to isolate that testimony, it was agreed to
send the jury home and resume the next day. In the presence of
the jurors and alternates, the court discussed the jury's questions
and its answers, and said of the requested testimony: "come back
tomorrow, and then we will have that information. We will play
it back for you."
The next morning, the trial court and counsel reviewed the
recordings and isolated the requested testimony. The court
informed counsel that juror #11 was now in the hospital. The
court proposed to replace juror #11 with one of the alternates,
to read the Model Jury Charge (Criminal), "Judge’s Instructions
When Alternate Juror Empaneled After Deliberations Have Begun"
(Jan. 14, 2013), and to "play back for the jurors the testimony."
Both defense counsel said they had no objection to seating an
alternate or giving the instruction. Both defendant's counsel and
Muniz's counsel requested that the court pause the playback to
give a curative instruction about the word "brother."
The trial court informed the jury that Juror #11 had been
excused, that the alternate had been seated, and that the court
would give the jury the requested playback. The court then gave
the reconstituted jury the model instruction, including:
6 A-4486-15T2
[A]s of this moment, you are a new jury, and
you must start your deliberations all over
again. The parties have the right to a verdict
reached by 12 jurors who have had the full
opportunity to deliberate from start to
finish. The alternate juror . . . has had no
knowledge of your earlier deliberations.
Consequently, the new deliberating jury must
start over at the very beginning of
deliberations. Each member of the original
deliberating jury must set aside and disregard
whatever may have occurred and anything which
may have been said in the jury room following
my instructions to you. You must give no
weight to any opinion expressed by Juror
Number 11 during deliberations before that
juror was excused. Together as a new jury you
must consider all evidence presented at trial
as part of your full and complete
deliberations until you reach a verdict.
Then the audio recording of the requested testimony was played
once in open court. When the playback referenced the term
"brother," the court stopped the tape and instructed the jury that
there had been no evidence of a familial relationship and that
they should disregard the term. When the playback was over, the
court again instructed the jurors that the alternate was "not a
part of your discussions yesterday, and that is why you are
directed now to start deliberating anew."
The reconstituted jury deliberated for about fifty minutes,
got lunch, resumed deliberations, and reached a verdict. Although
the time was not recorded, the trial prosecutor estimated the jury
returned its verdicts at 3:00 p.m.
7 A-4486-15T2
On appeal, defendant claims that by allowing the playback
requested by the original jury, the trial court deprived defendant
of his right to have the seated alternate fully engage in
collective and mutual deliberations with the other jurors.
However, at trial, defendant did not object to the playback to the
reconstituted jury, instead agreeing the playback should be
interrupted to address the defense objection to the word "brother."
Defendant must overcome the invited error doctrine. "Under
that settled principle of law, trial errors that 'were induced,
encouraged or acquiesced in or consented to by defense counsel
ordinarily are not a basis for reversal on appeal.'" State v.
A.R., 213 N.J. 542, 561 (2013) (citation omitted). Defendant's
counsel consented to or acquiesced in the playback to the
reconstituted jury, asking the playback be interrupted to address
the objection to the word "brother." See id. at 563 (finding
defense counsel encouraged or '[a]t the very least, consented or
acquiesced to" allowing the jury erroneously to playback video-
recorded statements in the jury room by saying "[t]hey might be
able to look at that"). "Under those circumstances, defendant
invited the very error he now considers so egregious to warrant a
new trial." Ibid. Moreover, the playback arguably served
defendant's strategy in summation of highlighting that the
officers could not remember or agree on "exactly what was said,"
8 A-4486-15T2
and suggesting that the jurors "can ask to have Officer Colon's
testimony played back for you." See id. at 562 (rejecting
defendant's challenge to a playback in part because defense counsel
said the jury "'probably should review the tape again'" of the
defendant's confession because it would show he was tired).
Accordingly, defendant "is barred from raising an objection for
the first time on appeal" about the playback under the invited
error doctrine. Id. at 561 (citation omitted). Defendant does
not fall within the exception to the doctrine because replaying
testimony that was already heard by the jurors, including the
alternate, did not "cut mortally" into defendant's rights and did
"not constitute a 'fundamental miscarriage of justice.'" Id. at
562 (citation omitted).
Even if the invited error doctrine does not bar defendant's
claim, he did not object and thus must show "plain error." R.
2:10-2; see State v. Fortin, 178 N.J. 540, 625 (2004). Under the
plain error standard, "defendant has the burden to show that there
is an error, that the error is 'clear' or 'obvious,' and that the
error has affected 'substantial rights.'" State v. Chew, 150 N.J.
30, 82 (1997) (quoting, and ruling "our law is the same" as, United
States v. Olano, 507 U.S. 725, 734 (1993)); see State v. Morton,
155 N.J. 383, 421 (1998). An error is not clear or obvious "unless
the error is clear under current law" at the time of appellate
9 A-4486-15T2
consideration. Olano, 507 U.S. at 734; see Henderson v. United
States, 568 U.S. 266, 279 (2013); Johnson v. United States, 520
U.S. 461, 468 (1997). To show an effect on substantial rights,
defendant has the burden of proving the error was "clearly capable
of producing an unjust result[.]" R. 2:10-2; see State v. Weston,
222 N.J. 277, 294-95 (2015).
Defendant has not shown any of the requirements for plain
error. First, he has not shown the trial court erred in granting
the jury's request for a playback. "Juries routinely ask to review
trial testimony when they deliberate. Absent 'some unusual
circumstance,' those requests should be granted." State v. Miller,
205 N.J. 109, 119-20, 122 (2011) (citation omitted). "Courts
should honor a jury's specific request to hear only limited parts
of a witness' testimony — provided . . . that playback includes
relevant direct and cross examination." Id. at 123. Trial
"[c]ourts have broad discretion as to whether and how to conduct
read-backs and playbacks." Id. at 122. The court's decision is
reviewed for "an abuse of discretion." State v. W.B., 205 N.J.
588, 623 (2011).
The trial court did not abuse its broad discretion by granting
the original jury's request for a playback. Such "requests are a
clear sign that the evidence sought is important to the
deliberative process. They also reflect the reality that jurors
10 A-4486-15T2
cannot be expected to have perfect recall of every bit of evidence
introduced during a trial." Miller, 205 N.J. at 120.
Nor was it an abuse of discretion, once the trial court had
granted the original jury's request for a playback, to do the
promised playback after the alternate had been substituted. An
alternate is required to receive the same information as the
sitting jury to ensure the alternate will have the same
informational foundation if the alternate is later substituted.
State v. Miller, 76 N.J. 392, 407 (1978) (ruling "alternate jurors
should have been brought into the courtroom to hear [any
supplemental] charge"); 32 N.J. Practice, Criminal Practice and
Procedure § 20:38, at 561-62 (Leonard N. Arnold) (2018) ("If the
deliberating jury has a question, then at the time the question
is answered . . . the alternate jurors must be present").
Readbacks and playbacks are part of that informational foundation,
and thus should occur in the presence of the alternates even before
they are seated as jurors. Thus, there was no reason not to do
the playback once the alternate was seated. The court was not
required to do the playback only for the original jurors and create
an unequal foundation, or to refuse the promised playback and deny
the jurors important information.
Defendant argues the request for a readback showed the
original jury was well-entrenched in the deliberations. However,
11 A-4486-15T2
our Supreme Court has upheld the substitution of an alternate
immediately after a readback, finding "[t]he jury's request for a
readback regarding the identification of defendants suggests that
the jury had not resolved that critical issue." State v. Williams,
171 N.J. 151, 168-69 (2002) (finding "the precise number of hours
and minutes of the prior deliberations are less important because"
of the readback, which showed "[t]he jury could not have reached
a determination of guilt or innocence"). Applying Williams, the
Court has upheld the substitution of an alternate for an ill juror
on the fifth day of deliberations after readbacks. State v. Ross,
218 N.J. 130, 138, 152-53 (2014). Here, the jury had deliberated
only three hours before the readback request and alternate's
substitution, and then deliberated for about the same period before
reaching a verdict. See Williams, 171 N.J. at 169 (finding no
plain error where "the jury deliberated for a length of time
equivalent to that spent in deliberations before the readback").
The facts here bear no resemblance to the cases defendant
cites, which held an alternate could not be substituted because
the deliberations had gone too far for the alternate to have "a
realistic opportunity to share in the deliberative process."
Williams, 171 N.J. at 170. Cf. State v. Jenkins, 182 N.J. 112,
132-33 (2004) (citation omitted) (reversing because the colloquy
with the discharged juror "strongly suggests that eleven jurors
12 A-4486-15T2
already had made up their minds to convict defendant"); State v.
Corsaro, 107 N.J. 339, 351, 354 (1987) (reversing because the jury
had already returned a partial verdict); State v. Williams, 377
N.J. Super. 130, 150 (App. Div. 2005) (reversing because "the jury
had been deliberating for approximately twelve hours," had been
given the instruction for deadlocked juries, and convicted one
hour after the alternate was added).1
When an alternate is substituted, the trial court should
create "an environment so that the mutual or collective nature of
the jury's deliberations is preserved and remains intact until a
final determination is reached." Corsaro, 107 N.J. at 349. The
court did so by giving the strong model instruction explaining to
the reconstituted jury how "you are a new jury, and you must start
your deliberations all over again," and by reiterating after the
playback that "you are directed now to start deliberating anew."
See Ross, 218 N.J. at 140, 147, 151; cf. State v. Trent, 79 N.J.
251, 254-55, 257 (1979) (reversing because the court did not
instruct the jury to begin anew and instead instructed the
alternate to "'continue with deliberations with the jury'").
1
Moreover, after our decision in Williams, our Supreme Court
overruled an Appellate Division decision "to the extent that it
generally barred trial courts from substituting a juror and
directing new deliberations, by virtue of the fact that the
original jury had reached an initial impasse and was charged" with
the deadlocked jury instruction. Ross, 218 N.J. at 153-55.
13 A-4486-15T2
Defendant argues Juror #11 may have expressed an opinion in
then original jury on whether to have a playback. However, an
original jury's opinion that a playback was needed does not deprive
a seated alternate or a reconstituted jury of the ability to
deliberate. See Ross, 218 N.J. at 151; Williams, 171 N.J. at 169-
70. In any event, the trial court instructed the original jurors
to "disregard whatever may have occurred and anything which may
have been said in the jury room," and to "give no weight to any
opinion expressed by Juror Number 11." Thus, there was no error.
Second, defendant has not shown that any error is "clear
under current law" at the time of appellate consideration. Olano,
507 U.S. at 734. He cannot cite, and we cannot find, any New
Jersey case barring courts from performing a previously-granted
readback or playback merely because an alternate has been seated.
Third, defendant has not shown any error was "clearly capable
of producing an unjust result." R. 2:10-2. He cannot show he was
prejudiced by the single playback in open court of an audio
recording of testimony the jury and the alternate had already
heard. See Weston, 222 N.J. at 293-94, 300 (finding no plain
error where the judge erroneously had the jury replay videos of
two accusers' statements even though the jury did not request a
replay, and the court erroneously allowed the jury to play the
DVDs in the jury room); W.B., 205 N.J. at 623 (finding "no basis
14 A-4486-15T2
to reverse defendant's convictions, even if the videotape [of the
defendant's confession] was not admitted into evidence, merely
because the jury saw the playback of a videotaped statement that
already had been played to it as part of the State's case").
Moreover, we must "assess '"the overall strength of the State's
case."'" Weston, 222 N.J. at 295 (citations omitted). The State's
evidence was strong: defendant was seen sitting in the driver's
seat apparently putting the handgun under his seat, three officers
saw the handgun under his seat, and he admitted the gun was his.
Accordingly, he has not met the requirements for plain error.
III.
Next, defendant claims his trial counsel was ineffective.
"Generally, ineffective assistance of counsel claims are not
entertained on direct appeal 'because such claims involve
allegations and evidence that lie outside the trial record.'"
State v. Allah, 170 N.J. 269, 285 (2002) (citation omitted).
"However, when the trial itself provides an adequately developed
record upon which to evaluate defendant's claims, appellate courts
may consider the issue on direct appeal." State v. Castagna, 187
N.J. 293, 313 (2006).
To show ineffective assistance of counsel, defendant must
satisfy the two-prong test set forth in Strickland v. Washington,
466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The
15 A-4486-15T2
defendant must demonstrate first that counsel's performance was
deficient, i.e., that 'counsel made errors so serious that counsel
was not functioning as the "counsel" guaranteed the defendant by
the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2009)
(quoting Strickland, 466 U.S. at 687). Second, "a defendant must
also establish that the ineffectiveness of his attorney prejudiced
his defense. 'The defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different.'" Id. at 279-
80 (quoting Strickland, 466 U.S. at 694). This "is an exacting
standard: '[t]he error committed must be so serious as to undermine
the court's confidence in the jury's verdict or the result
reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting
Castagna, 187 N.J. at 315).
"[C]ourts are permitted leeway to choose to examine first
whether a defendant has been prejudiced, and if not, to dismiss
the claim without determining whether counsel's performance was
constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350
(2012) (citing Strickland, 466 U.S. at 697). We do so here.
During his summation in the trial of Indictment 15-02-0231,
defendant's trial counsel told the jury: "the Judge will instruct
you about that, about beyond a reasonable doubt. But I like to
16 A-4486-15T2
. . . think of it as on a scale of one to 100, beyond a reasonable
doubt is, like, 75 or above. So that's a high standard[.]"
We do not approve of such an attempt to reduce reasonable
doubt to percentages. We cannot say what if any reason counsel
had for his argument. However, even if counsel's description of
reasonable doubt was deficient, defendant cannot show prejudice
because the trial court properly defined reasonable doubt for the
jury.
Just before opening statements, the court gave all jurors the
full, model instruction on reasonable doubt. Model Jury Charge
(Criminal), "Preliminary Instructions To The Jury" (rev. May 12,
2014). In particular, the court defined that "[a] reasonable
doubt is an honest and reasonable uncertainty in your minds about
the guilt of the defendants[.]" The court explained that "proof
beyond a reasonable doubt . . . leaves you firmly convinced of the
defendant's guilt." The court made clear:
If, based on your consideration of the
evidence you are firmly convinced that a
defendant is guilty of the crime charged, then
you must find him guilty. If, on the other
hand, you are not firmly convinced of the
defendant's guilt, you must give the defendant
the benefit of the doubt and find him not
guilty.
[(emphasis added).]
17 A-4486-15T2
During closing arguments, defendant's counsel told the jury
"[t]he Judge is going to instruct you about what reasonable doubt
is." Muniz's counsel told the jury to "follow the law that the
Judge gives you."
After the closing arguments, the trial court gave the jury
the model instructions.2 The court told the jurors it was
instructing them on "the principles of law applicable in this
case," and that:
You must accept and apply this law for this
case as I give it to you in this charge. Any
ideas that you may have of what the law is or
what the law should be or any statements by
the attorneys as to what the law may be must
be disregarded by you if they are in conflict
with my charge.
[(emphasis added).]
The court then reiterated the same definition and explanations of
reasonable doubt, mirroring the model charge.
The trial court also instructed the jury that "[a]rguments,
statements, remarks, openings and summations of counsel" were not
evidence, and that: "Whether or not the defendant has been proven
guilty beyond a reasonable doubt is for you to determine based on
2
Model Jury Charge (Criminal), "Criminal Final Charge Parts 1 &
2 (General Information to Credibility of Witnesses)" (rev. May 12,
2014); Model Jury Charge (Criminal), "Criminal Final Charge Part
3 (Criminal Offenses to Where More than One Defendant)" (rev. Jan.
14, 2013); Model Jury Charge (Criminal), "Criminal Final Charge
Part 4 (Deliberations to Jury Questions)" (rev. Jan. 14, 2013).
18 A-4486-15T2
all the evidence presented during the trial. Any comments by
counsel are not controlling." The judge repeatedly instructed the
jurors that "You must accept the law as given to you by me"; that
they must rule "based on the law as I will give it to you"; and
that in deliberating "[y]ou are to apply the law as I have
instructed you." The court also gave the jury written copies of
these instructions.
The trial court's preliminary instructions and final charge
both accurately defined reasonable doubt. State v. Wakefield, 190
N.J. 397, 469-70 (2007). Moreover, the court repeatedly told the
jury to disregard "any statements by the attorneys as to what the
law may be must be . . . if they are in conflict with [the]
charge." See State v. Lester, 271 N.J. Super. 289, 292 (App. Div.
1994). Therefore, we must "presume the jury followed the court's
instructions." State v. Smith, 212 N.J. 365, 409 (2012) (presuming
the jury followed the trial court's instruction "that the remarks
made by the attorneys in their summations were not evidence").
Applying that presumption, we have rejected a similar claim
in State v. Powell, 294 N.J. Super. 557 (App. Div. 1996). There,
in both opening statements and in summation, co-defendant's
attorney told the jury the standard of proof beyond a reasonable
doubt was "not one hundred percent . . . but it's somewhere between
seventy and one hundred percent, somewhere." Id. at 566. We
19 A-4486-15T2
rejected the defendant's claim, even though the attorney during
opening statement and in summation "clearly misstated the concept
of reasonable doubt, [because] the judge told the jury in no
uncertain terms that it should follow his instructions, not those
given by the attorneys. The judge's definition of reasonable
doubt was accurate. We presume that the jury followed the judge's
instructions." Ibid.
Defendant claims the prosecutor told the jury defendant's
trial counsel properly defined reasonable doubt. However, the
prosecutor commented only that trial counsel in closing "said
maybe beyond a reasonable doubt is about 75 percent, ladies and
gentlemen. Now think about that number, 75 percent. The State
in this case proved these elements beyond a reasonable doubt,
almost to a near certainty . . . . certainly more than [trial
counsel] is advocating for you to find." The prosecutor's
comments, while regrettable, ultimately asserted the State's proof
met the proper standard, approaching "yet not necessarily to an
absolute certainty." Model Jury Charge (Criminal), "Reasonable
Doubt" (rev. Feb. 24, 1997). In any event, the trial court told
the jury to follow its correct instructions despite any comments
by the attorneys, which included the prosecutor.
As the jury was properly instructed on reasonable doubt,
defendant's claim of structural error is inapposite. Structural
20 A-4486-15T2
error exists "only in a very limited class of cases." State v.
Camacho, 218 N.J. 533, 549 (2014) (quoting Johnson, 520 U.S. at
468). Such extreme cases can include "defective" reasonable-doubt
instructions, but do not include improper arguments by counsel,
which are not reversible error if not prejudicial. Id. at 547-
50. Because defendant has not shown prejudice, his ineffectiveness
claim fails.
IV.
Defendant's sentencing claims raise issues of statutory
interpretation involving a recently-enacted offense, N.J.S.A.
2C:39-5(j). "'[B]ecause statutory interpretation involves the
examination of legal issues,'" we apply "'a de novo standard of
review.'" State v. Nance, 228 N.J. 378, 393 (2017) (citation
omitted). We must hew to that standard of review.
A court's responsibility "is to give effect
to the intent of the Legislature." To do so,
we start with the plain language of the
statute. If it clearly reveals the
Legislature's intent, the inquiry is over. If
a law is ambiguous, we may consider extrinsic
sources including legislative history. We
also look to extrinsic aids if a literal
reading of the law would lead to absurd
results.
[State v. Harper, 229 N.J. 228, 237 (2017)
(citations omitted).]
21 A-4486-15T2
A.
Defendant's pro se brief argues that he could not be sentenced
as a first-degree offender under N.J.S.A. 2C:39-5(j). However,
defendant was convicted of the second-degree offense of knowingly
possessing a handgun without first having obtained a permit, in
violation of subsection (b) of N.J.S.A. 2C:39-5. He was also
convicted under N.J.S.A. 2C:39-5(j), which provides: "A violation
of subsection a., b., c. or f. of this section by a person who has
a prior conviction of any of the crimes enumerated in [NERA] is a
first degree crime." Ibid. Defendant had at least two 1998
convictions for NERA crimes: aggravated assault with a firearm,
N.J.S.A. 2C:12-1(b)(4); and aggravated assault with serious bodily
injury, N.J.S.A. 2C:12-1(b)(1). See N.J.S.A. 2C:43-7.2(d)(4).
Therefore, under the plain statutory language, he could be
sentenced under N.J.S.A. 2C:39-5(j) as a first-degree offender.
Defendant contends neither of his 1998 offenses should count
because N.J.S.A. 2C:39-5(j) like other statutes should preclude
use of prior convictions more than ten years old. He cites the
"Three Strikes" section, N.J.S.A. 2C:43-7.1, which provides:
The provisions of this section shall not apply
. . . unless the crime for which the defendant
is being sentenced was committed either within
10 years of the date of the defendant’s last
release from confinement for commission of any
crime or within 10 years of the date of the
commission of the most recent of the crimes
22 A-4486-15T2
for which the defendant has a prior
conviction.
[N.J.S.A. 2C:43-7.1(c).]
He also cites the "persistent offender" subsection, N.J.S.A.
2C:44-3(a), which allows an extended term if the defendant was
"convicted on at least two separate occasions of two crimes . . .
if the latest in time of these crimes or the date of the defendant’s
last release from confinement, whichever is later, is within 10
years of the date of the crime for which the defendant is being
sentenced." Ibid.
However, N.J.S.A. 2C:39-5(j) contains no such language
imposing a ten-year limitation. "[A] court may not rewrite a
statute or add language that the Legislature omitted." State v.
Munafo, 222 N.J. 480, 488 (2015). N.J.S.A. 2C:39-5(j) is not
ambiguous, so the rule of lenity is inapplicable. Nor is it absurd
to have a recidivist statute without such a ten-year limitation.
Defendant argues N.J.S.A. 2C:39-5(j) and the statutes he
cites are "in pari materia" and thus "'construed together as a
"unitary and harmonious whole."'" Marino v. Marino, 200 N.J. 315,
330 (2009) (citation omitted). "Resort to this maxim . . . is
helpful when the Legislature's intent is unclear," but N.J.S.A.
2C:39-5(j) is clear. See ibid. Moreover, the three-strikes and
persistent-offender provisions defendant cites are not in pari
23 A-4486-15T2
materia with N.J.S.A. 2C:39-5(j)'s firearm upgrade; they were
enacted many years before and do not "'relate to the same person
or thing, to the same class of persons or things, or have the same
purpose or object.'" See ibid. (citation omitted). "[T]he
language used in each of the sections, the selection of different
words, and the Legislature's expression of a different preference
in one section than in the other[s] makes plain that they are not
designed to serve a common purpose." See id. at 331. We may not
"apply[] this maxim of statutory construction . . . [to]
inappropriately import concepts from one statutory provision into
a separate provision with a different objective or intent." Ibid.
B.
Defendant's counseled brief argues the trial court erred in
imposing an extended-term thirty-year prison sentence for
defendant's conviction under N.J.S.A. 2C:39-5(j). The court based
the extended term on N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:44-3 as
amended in the Graves Act, L. 1981, c. 31, and thereafter.
N.J.S.A. 2C:43-6(c) provides for imprisonment and a mandatory
minimum term for defendants who commit enumerated firearm crimes:
[a] person who has been convicted under
subsection b. or d. of N.J.S.2C:39-3,
subsection a. of N.J.S.2C:39-4, subsection a.
of section 1 of P.L.1998, c.26 (C.2C:39-4.1),
subsection a., b., c., or f. of N.J.S.2C:39-
5, subsection a. or paragraph (2) or (3) of
subsection b. of section 6 of P.L.1979, c.179
24 A-4486-15T2
(C.2C:39-7), or subsection a., b., e. or g.
of N.J.S.2C:39-9, or of a crime under any of
the following sections: 2C:11-3, 2C:11-4,
2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a.,
2C:15-1, 2C:18-2, 2C:29-5[.]
[N.J.S.A. 2C:43-6(c) (emphasis added).]
N.J.S.A. 2C:43-6(c) requires an extended-term sentence for
an enumerated firearm crime if the defendant was previously
convicted of an offense involving use or possession of a firearm:
A person who has been convicted of an offense
enumerated by this subsection and who used or
possessed a firearm during its commission,
attempted commission or flight therefrom and
who has been previously convicted of an
offense involving the use or possession of a
firearm as defined in 2C:44-3d., shall be
sentenced by the court to an extended term as
authorized by 2C:43-7c., notwithstanding that
extended terms are ordinarily discretionary
with the court.
[N.J.S.A. 2C:43-6(c) (emphasis added).]
N.J.S.A. 2C:44-3(d) defines such a "[s]econd offender with a
firearm":
[t]he defendant is at least 18 years of age
and has been previously convicted of any of
the following crimes: 2C:11-3, 2C:11-4, 2C:12-
1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1,
2C:18-2, 2C:29-5, 2C:39-4a., or has been
previously convicted of an offense under Title
2A of the New Jersey Statutes or under any
statute of the United States or any other
state which is substantially equivalent to the
offenses enumerated in this subsection and he
used or possessed a firearm, as defined in
2C:39-1f., in the course of committing or
25 A-4486-15T2
attempting to commit any of these crimes,
including the immediate flight therefrom.
[N.J.S.A. 2C:44-3(d) (emphasis added).]
N.J.S.A. 2C:44-3 mandates a defendant covered by N.J.S.A.
2C:44-3(d) must receive a mandatory extended term if he or she is
being sentenced for an offense enumerated in N.J.S.A. 2C:43-6(c):
If the grounds specified in subsection d. are
found, and the person is being sentenced for
commission of any of the offenses enumerated
in N.J.S.2C:43-6c. or N.J.S.2C:43-6g., the
court shall sentence the defendant to an
extended term as required by N.J.S.2C:43-6c.
or N.J.S.2C:43-6g., and application by the
prosecutor shall not be required.
[N.J.S.A. 2C:44-3 (emphasis added).]
Defendant was over eighteen years old and had previously been
convicted of aggravated assault with a firearm, N.J.S.A. 2C:12-
1(b)(4), a qualifying prior offense under N.J.S.A. 2C:44-3(d).
Thus, the trial court properly imposed a mandatory extended-term
sentence for his conviction under Indictment No. 15-02-0231 for
second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-
5(b), a firearm crime enumerated in N.J.S.A. 2C:43-6(c).
The trial court also imposed a mandatory extended-term
sentence on his conviction under Indictment No. 16-01-0056 for
N.J.S.A. 2C:39-5(j). However, N.J.S.A. 2C:43-6(c) includes
26 A-4486-15T2
"subsection a., b., c., or f. of N.J.S. 2C:39-5," but not
subsection (j), among the enumerated firearm crimes.3
The trial court erred in imposing a mandatory extended-term
sentence on a firearm crime not enumerated in N.J.S.A. 2C:43-6(c).
That section clearly and unambiguously lists only "subsection a.,
b., c., or f. of N.J.S. 2C:39-5" among the enumerated firearm
crimes eligible for such terms. Ibid. "'[I]f the meaning of the
text is clear and unambiguous on its face, [we must] enforce that
meaning.'" State v. Grate, 220 N.J. 317, 330 (2015) (citation
omitted). "Because the Graves Act extended term sentencing
provisions enumerate the crimes that trigger such sentences, and
because [N.J.S.A. 2C:39-5(j)] is not so enumerated," defendant's
sentence for that crime "should have been imposed without a Graves
Act extended term." See State v. Livingston, 340 N.J. Super. 133,
140 (App. Div. 2001), aff'd, 172 N.J. 209, 215-16 (2002).
We similarly reversed a mandatory extended-term sentence
imposed where "th[e] list of offenses eligible for a mandatory
extended term [in N.J.S.A. 2C:43-6(f)] does not list the public
3
N.J.S.A. 2C:39-5(j) also is not enumerated in N.J.S.A. 2C:43-
6(g), which provides for imprisonment and a minimum term for "[a]ny
person who has been convicted under subsection a. of N.J.S.2C:39-
4 or of a crime under any of the following sections: N.J.S.2C:11-
3, N.J.S.2C:11-4, N.J.S.2C:12-1b., N.J.S.2C:13-1, N.J.S.2C:14-
2a., N.J.S.2C:14-3a., N.J.S.2C:15-1, N.J.S.2C:18-2, N.J.S.2C:29-
5, N.J.S.2C:35-5[.]"
27 A-4486-15T2
facility offense, N.J.S.A. 2C:35-7.1." State v. Patterson, 435
N.J. Super. 498, 516 (App. Div. 2014). Courts "cannot rewrite a
criminal statute to increase sentencing penalties that do not
appear clearly on the face of that statute." Ibid. (quoting State
v. Gelman, 195 N.J. 475, 487 (2008)).
The trial court offered several reasons why the first-degree
offense should be eligible for an extended term. First, the court
stated: "even though the legislature doesn't include Section (j)
in the mandatory extended term provisions of N.J.S.A. 2C:44-3,
. . . it doesn't make sense that the mandatory extended term
provisions should not apply." However, it was not absurd for the
Legislature to impose different penalties on firearms offenders,
repeat firearms offenders, and firearm offenders with serious
prior crimes. The Legislature penalized the possession of certain
firearms as second- or third-degree offenses in N.J.S.A. 2C:39-
5(a), (b), (c), and (f). By including those offenses in N.J.S.A.
2C:43-6(c)'s list, the Legislature required an extended-term
sentence if the defendant had previously committed certain
offenses while using or possessing a firearm. The Legislature
enacted N.J.S.A. 2C:39-5(j) to increase those offenses to a first-
degree offense if the defendant previously committed one of the
serious crimes subject to NERA even if a firearm was not involved.
28 A-4486-15T2
The Legislature could rationally believe that creating a first-
degree offense provided sufficient punishment.
Patterson faced a similar situation where the Legislature
created an increased-grade offense and did not include it in the
list of offenses eligible for a mandatory extended term which
included its predicate offense. The Legislature penalized drug
distribution in N.J.S.A. 2C:35-5. The Legislature included
N.J.S.A. 2C:35-5 in N.J.S.A. 2C:43-6(f)'s list of offenses
requiring an extended-term sentence if the defendant previously
committed certain drug offenses. The Legislature later created a
higher-grade offense in N.J.S.A. 2C:35-7.1 for a violation of
N.J.S.A. 2C:35-5 if the defendant committed it within 500 feet of
a public facility. We held the increased-grade crime "cannot be
subject to a mandatory extended term under [N.J.S.A. 2C:43-6(f)]
as currently written." Patterson, 435 N.J. Super. at 516.
Second, the trial court saw no reason for N.J.S.A. 2C:43-6(c)
to differentiate N.J.S.A. 2C:39-5(j) from "subsection a., b., c.,
or f. of" N.J.S.A. 2C:39-5, because those subsections "merely
identify the particular type of weapon that is involved," namely
machine guns, handguns, shotguns, rifles and shotguns, and assault
firearms, respectively. However, that is a valid reason to
differentiate N.J.S.A. 2C:39-5(j), because it does not penalize
the possession of a particular type of firearm, but merely creates
29 A-4486-15T2
a higher-graded offense penalizing such possession if the
defendant committed certain prior offenses.
Third, the trial court could not "fathom a scenario where the
legislat[ors] intended to omit a firearms offense from the Graves
Act, especially after they enhanced the penalty and applied it to
more crimes." However, N.J.S.A. 2C:43-6(c) does not include all
firearm offenses, as it also omits N.J.S.A. 2C:39-5(e). Moreover,
examination of the act and its legislative history shows that the
Legislature created N.J.S.A. 2C:39-5(j), and simultaneously
revised N.J.S.A. 2C:43-6(c)'s list of crimes subject to extended
terms, but did not add N.J.S.A. 2C:39-5(j) to that list.
N.J.S.A. 2C:39-5(j) was enacted on August 8, 2013, by L.
2013, c. 113, § 1. That 2013 act also amended the enumerated
crimes in N.J.S.A. 2C:43-6(c): "A person who has been convicted
under subsection b. or d. of N.J.S.2C:39-3, subsection a. of
N.J.S.2C:39-4, subsection a. of section 1 of P.L.1998, c.26
(C.2C:39-4.1), subsection a., b., [or] c., or f. of N.J.S.2C:39-
5[.]" L. 2013, c. 113, § 2 (advance law indicating additions and
[deletions]). The act thus added N.J.S.A. 2C:39-5(f), an assault
firearm offense, to the list of enumerated crimes, but did not add
the newly-enacted N.J.S.A. 2C:39-5(j) to that list. We read the
Legislature's choice to add only N.J.S.A. 2C:39-5(f) to N.J.S.A.
2C:43-6(c) "as proof that the Legislature intended to specify
30 A-4486-15T2
offenses subject to the mandatory extended term, rather than
leaving to the courts to draw such inferences." See Patterson,
435 N.J. Super. at 517.
The legislative history discussed the enactment of N.J.S.A.
2C:39-5(j) and the addition of N.J.S.A. 2C:39-5(f) to N.J.S.A.
2C:43-6(c), with no suggestion N.J.S.A. 2C:39-5(j) was also added.
The statements appended to the bill throughout its consideration
stated that the bill "upgrades the crime of unlawful possession
of a firearm to a first degree crime in certain circumstances and
amends various penalty provisions under the Graves Act." Sponsors'
Statement Appended to S. 2804 8 (May 13, 2013); S. L. & Pub. Safety
Comm. Statement to S. 2804 1 (May 21, 2013); Assemb. L. & Pub.
Safety Comm. Statement to S. 2804 1 (June 6, 2013). The statements
first explained the enactment of N.J.S.A. 2C:39-5(j):
The provisions of the bill make it a crime of
the first degree for a person to unlawfully
possess a machine gun, handgun, rifle or
shotgun, or an assault firearm following a
conviction for a crime enumerated in
subsection d. of section 2 of P.L.1997, c. 117
(C.2C:43-7.1) (the No Early Release Act.)
Under current law, violations of these
provisions are either a second degree offense,
in the case of machine guns, handguns and
assault firearms, or a third degree offense,
in the case of rifles and shotguns.
[Ibid.]
31 A-4486-15T2
The statements also stated "the bill adds the unlawful possession
of an assault firearm to the list of crimes for which Graves Act
sentencing applies." Ibid.4 The legislative history makes no
mention of including N.J.S.A. 2C:39-5(j) as an enumerated offense
under N.J.S.A. 2C:43-6(c).
Fourth, the trial court assumed the Legislature required an
extended term for N.J.S.A. 2C:39-5(j) "in response to the scourge
of . . . violence which plagues our country." However, the
legislative history made no mention of that scourge. In any event,
the Legislature's addition of N.J.S.A. 2C:39-5(j) was a
substantial step to combatting gun possession by defendants who
have committed serious crimes by making it a first-degree offense,
and thus increasing the range of imprisonment to ten-to-twenty
years from the third-degree offenses' three-to-five years and the
second-degree offenses' five-to-ten years. Compare N.J.S.A.
2C:39-5(j) with N.J.S.A. 2C:39-5(a), (b), (c) and (f); see N.J.S.A.
2C:43-6(a).
The trial court's reading authorizing an extended term for
an offense under N.J.S.A. 2C:39-5(j) would increase the range of
imprisonment to twenty-years-to-life. See N.J.S.A. 2C:43-7(a)(3),
4
Identical language appeared in the statements accompanying the
identical Assembly bill. Sponsors' Statement Appended to A. 4152
8 (June 6, 2013); Assemb. L. & Pub. Safety Comm. Statement to A.
4152 1 (June 6, 2013).
32 A-4486-15T2
(c). Nothing in the act or its legislative history even hints the
Legislature intended such a dramatic increase.
Even "if there were ambiguity in the statutory provisions
that we have analyzed, we would be guided by the doctrine of lenity
because we are construing a criminal statute." State v. Rangel,
213 N.J. 500, 515 (2013). "[T]he rule of lenity derives from the
principle that '[n]o one shall be punished for a crime unless both
that crime and its punishment are [not] clearly set forth in
positive law.'" State v. Regis, 208 N.J. 439, 451-52 (2011)
(citation omitted). "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.'" Rangel, 213 N.J. at 515 (citation omitted).
"Thus, even if [N.J.S.A. 2C:43-6(c)'s] text was ambiguous, the
rule of lenity would require us to interpret [it] as inapplicable
to [N.J.S.A. 2C:39-5(j)], given the absence of any contrary
legislative history." See Patterson, 435 N.J. Super. at 518.
Thus, we reject the trial court's reasons.
The State contends the trial court's interpretation
effectuates the goal of the Graves Act, because "the Graves Act
approach is deterrence through the promise of imprisonment." State
v. Des Marets, 92 N.J. 62, 71 (1983). However, when the Graves
Act was passed, N.J.S.A. 2C:43-6(c) enumerated only one firearm
33 A-4486-15T2
offense, N.J.S.A. 2C:39-4(a). L. 1981, c. 31, § 1. The
Legislature subsequently amended N.J.S.A. 2C:43-6(c) to add
particular firearm offenses as enumerated offenses. L. 2007, c.
341 § 5; L. 2013, c. 113, § 2. Moreover, the issue before us is
not the intent of the 1981 Graves Act, but of the 2013 act. That
act increased deterrence and imprisonment by creating N.J.S.A.
2C:39-5(j)'s first-degree offense, but pointedly did not add it
to N.J.S.A. 2C:43-6(c)'s list.
The State says it strains credulity that the Legislature
attached different punishments for unlawful possession of a
firearm by a recidivist depending on whether the prior conviction
was for unlawful possession of a firearm or a NERA crime. However,
the issue here is not the Legislature's rationales for (1)
requiring an extended term under N.J.S.A. 2C:43-6(c) where the
prior conviction involved a firearm, and (2) creating a first-
degree offense in N.J.S.A. 2C:39-5(j) where the prior conviction
was a NERA crime. Rather, the issue is whether the Legislature
intended to both create a new first-degree offense and require an
extended term for that offense.
The State also cites Judge Learned Hand's comment that
"[t]here is no surer way to misread any document than to read it
literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944)
(Hand, J., concurring), aff'd on other grounds sub nom., Gemsco,
34 A-4486-15T2
Inc. v. Walling, 324 U.S. 244 (1945). However, Judge Hand's
witticism must be viewed in context, lest it be misused to
disregard the Legislature's language and intent. Judge Hand made
clear that the legislators' "words are by far the most decisive
evidence of what they would have done," and that he "should have
had the utmost compunction in disregarding the explicit language
[of the statute], were it not for its legislative history."
Guiseppi, 144 F.2d at 623-24. Here, there is no legislative
history justifying the reading of the trial court and the State,
which contradicts the plain language of the act.
Finally, the State complains that applying N.J.S.A. 2C:43-
6(c) as written unduly constrains the court's sentencing range.
However, the ten-to-twenty-year sentencing range provided by
N.J.S.A. 2C:39-5(j) for a recidivist's possession of a firearm is
exceeded by only a few, very serious offenses. In any event, such
a complaint should be addressed to the Legislature.
Accordingly, we remand to the trial court with instructions
to vacate defendant's sentences under both indictments and
resentence without imposing an extended term on his conviction
under N.J.S.A. 2C:39-5(j).5
5
"A defendant may be sentenced to multiple mandatory extended
terms in the same proceeding," but "N.J.S.A. 2C:44-5(a)(2) bars
the imposition of a discretionary extended term when . . . the
35 A-4486-15T2
V.
The judgments of conviction give defendant 109 days of jail
credit for August 16 to October 14, 2014, and February 12 to March
31, 2016. However, the trial court at sentencing awarded an
additional forty-two days of jail credit from March 31 to the May
13, 2016 sentencing. Moreover, defendant asked for additional
jail credit for his custody on other charges from January 3 to
June 19, 2015. The State now agrees defendant should receive
credit for those 168 days. The court shall ensure those additional
amounts of jail credit are reflected on the new judgments.
The parties' remaining arguments lack sufficient merit to
warrant discussion. R. 2-11(e)(2).
Defendant's convictions are affirmed, and the case is
remanded to vacate his sentences and resentence him. We do not
retain jurisdiction.
trial court is obliged to impose a mandatory extended term on
another offense in the same proceeding." State v. Robinson, 217
N.J. 594, 597-98 (2014).
36 A-4486-15T2