dissenting.
Defendant Aurelio Ray Cagno, a reputed member of the criminal organization La Cosa Nostra (LCN), was charged in a January 2003 Monmouth County indictment with the 1993 murder of James Randazzo, N.J.S.A. 2C:11-3(a)(l) and (2), and with first-degree racketeering conspiracy, N.J.S.A. 2C:41-2(e).1 Whereas murder has no statute of limitations, N.J.S.A 2C:l-6(a)(l), racketeering conspiracy has a five-year limitation period, N.J.S.A. 2C:l-6(b)(l). At defendant’s 2004 trial, the State had to prove that defendant was involved in a RICO conspiracy within the five-year period before the return of the indictment. To ensure that the statute of limitations had not lapsed on the RICO conspiracy, the State presented a staged courtroom event from defendant’s 2002 trial on a predecessor indictment that had ended in a mistrial.
At defendant’s 2002 trial, the State placed on the stand Salvatore Lombardino, a then incarcerated organized-crime member and defendant’s purported cohort. The State knew that Lombardino would not testify, even if ordered to do so. As expected, Lombardino refused to testify. In addition, Lombardino made several friendly gestures toward defendant, whom he had known for several decades.
At defendant’s 2004 trial, the court permitted the State to introduce Lombardino’s 2002 courtroom silence and gestures as evidence that, even then, he and defendant were involved in a conspiracy to cover up their alleged prior misdeeds. By this reckoning, Lombardino always could be counted on to extend the conspiracy — place him on the stand, he remains silent, and the clock is revived.
*526I believe that the introduction of this evidence to manipulate an extension of the statute of limitations period on the racketeering conspiracy charge violated several principles of law. First, Lombardino’s silence on the stand should not have been admissible as evidence of defendant’s guilt. Second, the introduction of this evidence violated defendant’s constitutional right of confrontation. Lombardino’s refusal to testify precluded defendant from cross-examining Lombardino and having him explain the reasons for his silence and gestures. Third, Lombardino’s silence on the stand and the friendly gestures did not constitute a co-conspirator’s statement falling within the co-conspirator’s exception to the hearsay rule. Last, Lombardino’s silence and gestures demonstrate only Lombardino’s state of mind, which cannot be imputed to defendant.
Prosecuting purported members of organized crime is an important objective of law enforcement, but suspending constitutional protections and our rules of evidence to do so undermines the integrity of the criminal justice process. That is too high a price to pay to obtain a conviction. I therefore respectfully dissent.
I.
A.
At defendant’s 2004 trial, the court charged the jury that the State could not prosecute defendant on the RICO charge unless the conspiracy had continued past January 2,1998. The jury was told that the State had to prove beyond a reasonable doubt “an overt act in furtherance of the conspiracy or some other evidence of the vitality of the conspiracy after January 2.” (Emphasis added). The court instructed the jury that the State had alleged five overt acts, only two of which occurred after January 2, 1998. Those two overt acts concerned Lombardino’s refusal to testify and his gestures at defendant’s June 2002 murder and racketeering conspiracy tidal. Beyond Lombardino’s refusal to testify at that trial, the State did not present any evidence of defendant’s *527conduct after January 2, 1998 that would have supported defendant’s participation in a conspiracy. Although instructed that the alleged conspiracy “only terminate[sj when the agreement to conduct the affairs of the racketeering enterprise through a pattern of racketeering activities is abandoned by the defendant and by those about with whom he conspired,” the jury was reminded that the State was required to “prove beyond a reasonable doubt that the conspiracy continued after January [2], 1998.”
B.
The State offered the testimony of two witnesses to describe what occurred when Lombardino was called to the stand on June 13 and 18, 2002. On June 13, as Lombardino came into the courtroom, he smiled at defendant, and defendant smiled back. While on the stand, Lombardino, who had been granted immunity, was asked questions about the Randazzo murder. He refused to answer, even after the entry of an order compelling him to do so. After Lombardino left the stand, as he passed in front of defendant, “he gave a thumbs up sign and said hang in there kid.” Lombardino smiled and winked at defendant, who then smiled back.
On June 18, Lombardino was brought back into the courtroom and again refused to testify. As he was exiting the courtroom, Lombardino “looked over at [defendant], gave him kind of a small smile, wink and head nod with a thumbs up sign. And basically uttered ... keep your head up, kid. Keep it up, kid or words to that effect.” Defendant looked up, smiled, and gave a “small nod.”
The State argued that Lombardino’s June 2002 refusal to testify, gestures, and remarks were evidence that the racketeering conspiracy continued after January 2, 1998, and therefore the prosecution was not foreclosed by the statute of limitations. The State asserted that Lombardino’s silence was a display of loyalty to LCN and of his solidarity with defendant, and evidenced that the racketeering conspiracy was ongoing — even in the courtroom.
*528That argument, however, cannot surmount constitutional and evidential barriers.
II.
A.
First, Lombardino’s courtroom silence should not have been admissible against defendant to prove an ongoing conspiracy. Just as it is clear that the State cannot use a defendant’s failure to testify as evidence of his guilt, Griffin v. California, 380 U.S. 609, 613-15, 85 S.Ct. 1229, 1232-33, 14 L.Ed.2d 106, 109-10 (1965), neither can the State tell the jury to infer a defendant’s guilt from a witness’s refusal to testify. In State v. Bums, we held that a trial court must instruct the jury not to draw any inferences, for or against a defendant, even when a witness’s refusal to testify is not justified by any privilege. 192 N.J. 312, 333, 334-35, 929 A.2d 1041 (2007). The problem with silence is that it can be “insolubly ambiguous,” and therefore to draw any negative inference, particularly when the witness is not subject to cross-examination, is inherently unfair. Cf. State v. Lyle, 73 N.J. 403, 410, 375 A.2d 629 (1977) (‘“[Ejvery postarrest silence is insolubly ambiguous because of what the State is required to advise the person arrested.’ ” (quoting Doyle v. Ohio, 426 U.S. 610, 617, 96 S.Ct. 2240, 2244, 49 L.Ed.2d 91, 97 (1976))).
Lombardino was not called at defendant’s 2004 trial; the State admittedly had no expectation that Lombardino would testify. But, by the State’s logic, Lombardino could have been called to the stand if only so his refusal could be used as evidence that the conspiracy was ongoing and therefore the statute of limitations continued to run.
At oral argument before this Court, the State acknowledged that when it put Lombardino on the stand in June 2002, it had no expectation that he would testify given that he had refused to do so in the past. In essence, Lombardino became a convenient prop *529for the State — a silent figure plopped on the stand, who always would serve the purpose of extending the statute of limitations.
The inference drawn from his silence was clearly used to add “critical weight” to the State’s case — and without affording defendant the opportunity for cross-examination. See Burns, supra, 192 N.J. at 333-34, 929 A.2d 1041 (noting that reversal is warranted if “ ‘inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination’ ” (quoting Namet v. United States, 373 U.S. 179, 187, 83 S.Ct. 1151, 1155, 10 L.Ed.2d 278, 284 (1963))). The Confrontation Clause bars “admission of an out-of-court ‘testimonial’ statement permitted by state hearsay rules, unless the person who made the statement is unavailable to testify at trial and the defendant had a prior opportunity to cross-examine that person.” State ex rel. J.A, 195 N.J. 324, 328, 949 A.2d 790 (2008) (citing Crawford v. Washington, 541 U.S. 36, 50-52, 124 S.Ct. 1354, 1363-64, 158 L.Ed.2d 177, 192-93 (2004)). Defendant never had the opportunity to cross-examine Lombardino, either before or during his 2004 trial.
B.
Although Lombardino’s silence, gestures, and off-hand remarks were used against defendant, evidently in violation of defendant’s confrontation rights, the majority disposes of this issue by finding that “[t]o the extent that such conduct and gestures were testimonial, statements of a co-conspirator in furtherance of the conspiracy are an exception to hearsay, and their admission does not violate the Confrontation Clause.” Ante at 520, 49 A.3d at 407. Lombardino’s gestures and remarks, however, clearly do not fit within the co-conspirator hearsay exception.
Under N.J.R.E. 803(b)(5), a statement is not excluded by the hearsay rule if it was “made at the time the party and the declarant were participating in a plan to commit a crime or civil wrong and ... made in furtherance of that plan.” A co-conspira*530tor’s statement is admissible pursuant to N.J.R.E. 803(b)(5) when the State establishes that (1) the statement was “ ‘made in furtherance of the conspiracy’ (2) the statement was “ ‘made during the course of the conspiracy’ and (3) there is “ ‘evidence, independent of the hearsay, of the existence of the conspiracy and [the] defendant’s relationship to it.’ ” State v. Taccetta, 301 N.J.Super. 227, 251, 693 A.2d 1229 (App.Div.) (quoting State v. Phelps, 96 N.J. 500, 509-10, 476 A.2d 1199 (1984)), certif. denied, 152 N.J. 188, 704 A.2d 18 (1997).
First, the majority does not explain how Lombardino’s silence on the stand can constitute a statement for purposes of the co-conspirator exception to the hearsay rule. Under our hearsay rules, a “statement” is defined as “(1) an oral or written assertion or (2) nonverbal conduct of a person if it is intended by him as an assertion.” N.J.R.E. 801(a)(1). No case to my knowledge suggests that refusing to testify — silence—is the type of nonverbal conduct that would constitute a “statement” by a witness that can be used to impute guilt to a defendant.
Second, while the State presented independent evidence to demonstrate that defendant participated in a racketeering conspiracy in the 1980s and early-to-mid 1990s, Lombardino’s courtroom appearance in June 2002 was the only specific evidence offered in support of an ongoing conspiracy after January 2, 1998. It bears mentioning that, as of June 2002, both Lombardino and defendant had been incarcerated for more than five years.2 By the time *531defendant stood trial in 2004, they had each been incarcerated for over seven years. While defendant’s status as an inmate is not conclusive proof that he was no longer involved in the conspiracy, the burden remained on the State to present some proof that he was.
Even federal courts that presume a defendant continues in a RICO conspiracy until he proves otherwise, see, e.g., United States v. Yannotti, 541 F.3d 112, 123 (2d Cir.2008), have required some evidence of the conspiracy’s continued existence during a long period of incarceration, see, e.g., United States v. Morales, 185 F.3d 74, 80-81 (2d Cir.1999).3 That evidence need not be much. For example, the State could have offered evidence to show that defendant communicated with members of LCN while he was incarcerated. See, e.g., United States v. Perez-Guerrero, 334 F.3d 778, 781-82 (8th Cir.2003) (describing evidence, including letter from defendant to co-conspirator, which demonstrated that defendant continued to direct operations of drug ring while imprisoned). Alternatively, the State could have offered proof that defendant took steps before his incarceration to protect his stake in the enterprise or provide for its continued operation. See, e.g., United States v. Agueci, 310 F.2d 817, 839 (2d Cir.1962) (describing evidence that defendant designated specific individuals “to look after his interest in the conspiracy after his incarceration”).
Here, however, the State offered no proof that defendant had contact with Lombardino or any other member of LCN during that time. In short, the State did not offer any evidence to *532suggest that defendant played any role in the conspiracy during his seven years of incarceration before his 2003 indictment.
To say that the mere existence of LCN, without more, is proof beyond a reasonable doubt that defendant continued to conspire from his jail cell past January 2, 1998 stretches conspiracy law beyond its recognized boundaries. Therefore, because the co-conspirator exception requires that the statement be made during the course of the conspiracy, and Lombardino’s “statement” itself is the only evidence that the conspiracy existed at that point in time, it cannot be admitted under the co-conspirator exception.
C.
Last, by imputing Lombardino’s courtroom silence as evidence of defendant’s guilt, the State, in essence, is improperly conflating Lombardino’s state of mind with that of defendant. Lombardino’s state of mind cannot be imputed to defendant under N.J.R.E. 803(c)(3). See State v. McLaughlin, 205 N.J. 185, 210-11, 14 A.3d 720 (2011). The State presented no evidence that defendant had any control over Lombardino’s assertion of silence.
During summation, the State described Lombardino’s gestures and remarked that, taken in context, “at the very minimum it shows that Lombardino is perpetuating the rules of [LCN].” Realistically, that is all it can show, for the State did not show that defendant had any control over Lombardino’s behavior. Is the evidence of the conspiracy that defendant smiled back at Lombardino, a Mend whom he had not seen in years? Was defendant required to sit stone-faced whenever Lombardino entered or left the courtroom, lest any reaction at all be construed as evidence of a conspiracy? The use of these instinctive, non-culpable human reactions to prove guilt is very troubling.
III.
Lombardino’s courtroom silence and gestures on June 13 and 18, 2002 should not have been admitted at defendant’s trial. *533Because the jury was not required to indicate how it came to the conclusion that the conspiracy fell within the statute of limitations, we cannot know whether the improper use of Lombardino’s courtroom appearance proved to be the critical piece of evidence in convicting defendant.
I conclude that defendant’s conviction was procured by improper means. I therefore respectfully dissent.
For affirmance — Justices LaVECCHIA, HOENS, PATTERSON and Judge WEFING (temporarily assigned) — 4.
For reversal — Justice ALBIN — 1.
Not Participating — Chief Justice RABNER.
The racketeering conspiracy charge finds its source in the New Jersey Racketeer Influenced and Corrupt Organizations Act (RICO), NASA. 2C:4t-l to -6.2.
On October 4, 1994, Lombardino pleaded guilty in federal court to conspiracy to commit murder in aid of racketeering and other charges concerning Randazzo’s death. On February 1, 1995, he was sentenced to 204 months in prison. He was released on December 10, 2009. See Inmate Locator, Fed. Bureau of Prisons, http://www.bop.gov/iloc2/LocateInmate.jsp (last visited July 30, 2012).
On November 27, 1995, defendant pleaded guilty in federal court to conspiracy to commit murder in aid of racketeering in connection with Vincent Angellino's death. He was sentenced on January 31, 1997 to sixty months in prison. Defendant was released from federal prison on February 4, 2000. After just twenty days on supervised release, he was incarcerated in the Monmouth County *531Correctional Institution for the present offense, where he remained until he was convicted and sentenced to state prison.
In Morales, the Second Circuit reversed the defendants' conviction for a RICO conspiracy due to the "dearth of evidence” that the conspiracy "continued during the seven-year period that the defendants were incarcerated.” 185 F.3d at 81. In particular, the Morales court noted that the government failed to "even establish that the defendants ever called one another or a mutual contact while in prison.” Ibid.