State in the Interest of K.O., a Minor (070406)

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

State in the Interest of K.O., a minor (A-28-12) (070406)

Argued September 23, 2013 -- Decided February 24, 2014

LaVECCHIA, J., writing for the Court.

The issue in this appeal is whether N.J.S.A. 2A:4A-44(d)(3) requires two previous adjudications or whether
the adjudication for which a juvenile presently is being sentenced may itself count as the second predicate offense
that qualifies the juvenile for an extended-term sentence.

On July 20, 2009, Kyle1 was adjudged delinquent for committing an act that would have constituted
second-degree robbery if committed by an adult. That adjudication subjected him to a maximum period of
incarceration of three years under section 4A-44(d)(1)(d) of the Juvenile Justice Code (Code), N.J.S.A. 2A:4A-20 to
-90. On July 27, 2009, at a disposition hearing, the State moved for the imposition of an extended term of
incarceration under section 4A-44(d)(3) of the Code, which authorizes the Family Part court to impose an extended-
term sentence on a juvenile adjudged delinquent of a qualifying present offense if the court “finds that the juvenile
was adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would
constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility.”

Kyle had been adjudicated delinquent on three occasions prior to the offense giving rise to this appeal. The
first two adjudications involved minor offenses that did not meet section 4A-44(d)(3)’s predicate requirement of
first- or second-degree offense adjudications. Also, neither of those adjudications resulted in his commitment to a
juvenile detention facility. However, in March 2008 Kyle was adjudged delinquent of second-degree aggravated
assault and was sentenced, consistent with a plea-agreement, to twenty-four months’ incarceration at the New Jersey
Training School. Kyle was subsequently placed in the Juvenile Intensive Supervision Program (JISP). On March 3,
2009, Kyle’s participation in the program was terminated after he was deemed noncompliant. The Family Part
court, however, dismissed the JISP violation and discharged the few months remaining on Kyle’s sentence, noting
his approaching eighteenth birthday. Less than two months later, Kyle committed the act of delinquency resulting in
his current sentence and this appeal.

In respect of the challenged sentence, the disposition court held, after taking Kyle’s prior adjudication on
the second-degree aggravated assault charge and the present adjudication into consideration, that as a matter of law
Kyle was extended-term eligible under N.J.S.A. 2A:4A-44(d)(3). The court sentenced Kyle to the maximum
permissible term of three years at a juvenile detention facility pursuant to N.J.S.A. 2A:4A-44(d)(1) with an
additional two-year extended term pursuant to section 4A-44(d)(3).

Kyle appealed his sentence and the Appellate Division affirmed. In re K.O., 424 N.J. Super. 555 (App.
Div. 2012). The panel interpreted section 4A-44(d)(3) as permitting the imposition of an extended term whenever
there are two separate occasions of a first- or second-degree offense, one of which involved a period of
incarceration. Noting that section 4A-44(d)(3) does not refer to previous or prior offenses, the panel rejected the
argument that section 4A-44(d)(3) requires two previous adjudications in order for a juvenile to be extended-term
eligible for a present adjudication. The panel found that Kyle qualified for an extended term and that the trial court
committed no abuse of discretion.

The Supreme Court granted Kyle’s petition for certification. 212 N.J. 460 (2012).

1
Kyle is a fictitious name for K.O., the young man who brought this appeal before the Court.

1
HELD: N.J.S.A. 2A:4A-44(d)(3) requires two separate previous predicate adjudications for the imposition of an
extended-term sentence on a juvenile, including one that resulted in incarceration in a juvenile or adult facility,
exclusive of the adjudication for which the disposition court is sentencing the juvenile.

1. Because statutory interpretation involves the examination of legal issues, it is considered a question of law.
Accordingly, a de novo standard of review applies on appeal. Statutory language should be given its ordinary
meaning and be construed in a common-sense manner. The Court’s overriding goal is to discern and effectuate the
legislative intent underlying the statutory provision at issue. Where the language is unclear or ambiguous, or if the
Legislature’s intention is otherwise uncertain, resort may be had to extrinsic aids to “assist [the Court] in [its]
understanding of the Legislature’s will.” Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264 (2008). (pp. 9-10)

2. Under N.J.S.A. 2A:4A-44(d)(3), an extended term may be imposed “if [the court] finds that the juvenile was
adjudged delinquent on at least two separate occasions, for offenses which, if committed by an adult, would
constitute a crime of the first or second degree, and was previously committed to an adult or juvenile facility.” In
this part of the statute, the Legislature has moved to the past tense, and not just for the past adjudication but also for
the additional requirement that at least one such adjudication resulted in commitment to a juvenile or adult facility.
The words refer to someone who “was adjudicated” and “was previously committed” on at least one such occasion
to a facility. Both conditions clearly are from the person’s past and do not naturally suggest the inclusion of the
present adjudication before the disposition court. The Court is unpersuaded that the failure to include the word
“previously” twice when identifying the two required findings compels a plain language reading that the present
adjudication may count as one of two separate offenses. The language of section 4A-44(d)(3) points to a natural
reading that does not favor the State’s position or the extended-term sentence imposed on Kyle. To the extent one
could argue that there is some ambiguity in the text of the section, the Court may resort to legislative history. Here,
legislative history is silent on the specific issue before the Court. Further, to the extent that section 4A-44(d)(3) is
not a model of perfect clarity, because it is a juvenile justice statute involving among the most severe sanctions that
can be imposed on a juvenile, principles of lenity deserve consideration. To the extent that reasonable people can
differ on whether the Legislature indeed intended to allow for an extended-term sentence for individuals like Kyle,
who have only one previous separate predicate offense, not including the offense for which they are being
sentenced, the Court concludes that the more lenient construction of the statute should pertain. N.J.S.A. 2A:4A-
44(d)(3) requires two separate previous predicate adjudications, including one that resulted in incarceration in a
juvenile or adult facility, exclusive of the adjudication for which the disposition court is sentencing the juvenile.
The imposition of an extended term for Kyle transgresses that interpretation of the statute. The Court therefore
reverses the extended-term sentence imposed. (pp. 10-19)

The judgment of the Appellate Division is REVERSED.

CHIEF JUSTICE RABNER filed a separate, CONCURRING opinion, stating that because he does not
believe the language of N.J.S.A. 2A:4A-44(d)(3) leads to one clear interpretation, he turns directly to the rule of
lenity in the absence of definitive legislative history.

JUSTICES ALBIN and PATTERSON, and JUDGES RODRÍGUEZ and CUFF (both temporarily
assigned) join in JUSTICE LaVECCHIA’s opinion. CHIEF JUSTICE RABNER filed a separate, concurring
opinion.

2
SUPREME COURT OF NEW JERSEY
A-28 September Term 2012
070406

STATE OF NEW JERSEY
IN THE INTEREST OF
K.O., a minor.

Argued September 23, 2013 -- Decided February 24, 2014

On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 424 N.J. Super. 555 (2012).

Alyssa A. Aiello, Assistant Deputy Public
Defender, argued the cause for appellant
K.O. (Joseph E. Krakora, Public Defender,
attorney).

Frank J. Ducoat, Deputy Attorney General,
argued the cause for respondent State of New
Jersey (John J. Hoffman, Acting Attorney
General, attorney).

JUSTICE LaVECCHIA delivered the opinion of the Court.

Like adult offenders, juveniles adjudged delinquent can be

sentenced to an extended-term custodial sentence. The Juvenile

Justice Code (Code), N.J.S.A. 2A:4A-20 to -90, authorizes the

imposition of an extended-term sentence in two situations and,

in this matter, we must construe the statutory prerequisites for

one of them.

N.J.S.A. 2A:4A-44(d)(3) authorizes the Family Part court to

impose an extended-term sentence on a juvenile adjudged

1
delinquent of a qualifying present offense if the court “finds

that the juvenile was adjudged delinquent on at least two

separate occasions, for offenses which, if committed by an

adult, would constitute a crime of the first or second degree,

and was previously committed to an adult or juvenile facility.”

Here, we are called on to determine whether section 4A-44(d)(3)

requires two previous adjudications or whether the adjudication

for which the juvenile presently is being sentenced may itself

count as the second predicate offense.

The facts and procedural history to the sentencing that

gives rise to the legal question before the Court can be briefly

summarized.

On April 29, 2009, Kyle2 was charged in a Burlington County

Juvenile Complaint with conduct that, if committed by an adult,

would have constituted first-degree robbery contrary to N.J.S.A.

2C:15-1. At a hearing conducted on July 20, 2009, the Family

Part court, after finding the State had failed to establish

beyond a reasonable doubt that the robbery had been committed

with intent to kill or inflict serious bodily injury, adjudged

Kyle delinquent for committing an act that would have

2
We use the fictitious name Kyle, as did the Appellate Division,
to refer to K.O., the young man who brought this appeal before
our Court.

2
constituted second-degree robbery if committed by an adult.

That adjudication subjected him to a maximum period of

incarceration of three years. N.J.S.A. 2A:4A-44(d)(1)(d). If

he had been adjudged, as charged, of the equivalent of a first-

degree offense, he would have been subject to a maximum period

of incarceration of four years. N.J.S.A. 2A:4A-44(d)(1)(c).

A disposition hearing was conducted on July 27, 2009, and

the State moved for the imposition of an extended term of

incarceration under section 4A-44(d)(3), which provides in full:

Upon application by the prosecutor, the
court may sentence a juvenile who has been
convicted of a crime of the first, second,
or third degree if committed by an adult, to
an extended term of incarceration beyond the
maximum set forth in [N.J.S.A.
2A:4A-44(d)(1)], if it finds that the
juvenile was adjudged delinquent on at least
two separate occasions, for offenses which,
if committed by an adult, would constitute a
crime of the first or second degree, and was
previously committed to an adult or juvenile
facility. The extended term shall not
exceed five additional years for an act
which would constitute murder and shall not
exceed two additional years for all other
crimes of the first degree or second degree,
if committed by an adult, and one additional
year for a crime of the third degree, if
committed by an adult.

[N.J.S.A. 2A:4A-44(d)(3).]

Thus, the State’s application sought to have Kyle sentenced to a

maximum extended-term sentence totaling five years of

incarceration.

3
Kyle had been adjudged delinquent on three occasions prior

to the offense giving rise to this appeal. The first two

adjudications involved minor offenses that did not meet section

4A-44(d)(3)’s predicate requirement of first- or second-degree

offense adjudications: (1) in April 2007 Kyle was adjudged

delinquent for disturbing the peace, a disorderly persons

offense; and (2) in August 2007 Kyle was adjudged delinquent on

a fourth-degree riot complaint. Also, neither of those

adjudications resulted in his commitment to a juvenile detention

facility.

However, in March 2008 Kyle was adjudged delinquent of

second-degree aggravated assault and was sentenced, consistent

with a plea agreement, to twenty-four months’ incarceration at

the New Jersey Training School. As part of the plea agreement

in that matter, the State agreed not to oppose recall of Kyle

and the other individuals sentenced along with him. See State

ex rel. R.M., 141 N.J. 434, 453 (1995) (discussing Family Part’s

authority “to recall cases previously decided and to modify

dispositions previously ordered”). In September 2008, after

Kyle had served six months of his custodial sentence, the court

conducted a recall hearing and ordered his release and placement

4
in the Juvenile Intensive Supervision Program (JISP).3 However,

Kyle was noncompliant and failed to complete JISP. After being

charged with violation of JISP, his participation was terminated

on March 3, 2009. Noting Kyle’s approaching eighteenth

birthday, the Family Part court dismissed the JISP violation and

discharged the few months remaining on Kyle’s sentence while

cautioning Kyle to remain offense free. Less than two months

later, Kyle committed the act of delinquency resulting in his

current sentence and this appeal.

In respect of the challenged sentence, the disposition

court held, after taking Kyle’s prior adjudication on the

second-degree aggravated assault charge and the present

adjudication into consideration, that as a matter of law Kyle

was extended-term eligible under N.J.S.A. 2A:4A-44(d)(3). The

court sentenced Kyle to the maximum permissible term of three

3
JISP is a statewide dispositional alternative to juvenile
detention that exposes offenders to intensive rehabilitation
techniques regarded as “more stringent than juvenile probation,
but less rigid than detention or commitment.” The Juvenile
Intensive Supervision Program, (JISP), New Jersey Courts,
http://www.judiciary.state.nj.us/probsup/jisp_intro.htm (last
visited Jan. 31, 2014). “JISP works cooperatively with the
Family Court and community agencies to provide support services
to assist participants and their families. These vital
relationships help to connect participants with necessary
education and health services that will enhance their potential
for success.” Ibid. The program includes the monitoring of
required school or work attendance, community service, curfew
requirements, substance abuse or mental health treatment, and
victim restitution. Ibid.

5
years at a juvenile detention facility pursuant to N.J.S.A.

2A:4A-44(d)(1) with an additional two-year extended term

pursuant to N.J.S.A. 2A:4A-44(d)(3).

Kyle appealed his sentence and the Appellate Division

affirmed. In re K.O., 424 N.J. Super. 555, 566 (App. Div.

2012). With respect to the statutory analysis, the panel

compared section 4A-44(d)(3)’s language to that contained in the

other section authorizing an extended-term sentence for juvenile

adjudications, N.J.S.A. 2A:4A-44(d)(4).4 The panel interpreted

section 4A-44(d)(3) as permitting the imposition of an extended

term whenever there are two separate occasions of a first- or

second-degree offense, one of which involved a period of

incarceration. Noting that section 4A-44(d)(3) does not refer

to previous or prior offenses, the panel rejected the argument

4
N.J.S.A. 2A:4A-44(d)(4) provides that

[u]pon application by the prosecutor, when a
juvenile is before the court at one time for
disposition of three or more unrelated
offenses which, if committed by an adult,
would constitute crimes of the first, second
or third degree and which are not part of
the same transaction, the court may sentence
the juvenile to an extended term of
incarceration not to exceed the maximum of
the permissible term for the most serious
offense for which the juvenile has been
adjudicated plus two additional years.

[N.J.S.A. 2A:4A-44(d)(4).]

6
that section 4A-44(d)(3) requires two previous adjudications in

order for a juvenile to be extended-term eligible for a present

adjudication. Applying that approach to extended-term

eligibility under section 4A-44(d)(3), the panel found that Kyle

qualified and that the trial court committed no abuse of

discretion in imposing an extended-term sentence in Kyle’s case.

Kyle filed a petition for certification challenging his

eligibility for an extended-term sentence under section

4A-44(d)(3). On November 9, 2012, we granted certification in

this matter. 212 N.J. 460 (2012).

II.

Kyle contends on appeal that he does not meet the

requirements for an extended-term sentence set forth in N.J.S.A.

2A:4A-44(d)(3) because he did not have two prior delinquency

adjudications for conduct equivalent to first- or second-degree

offenses at the time of the disposition hearing. Kyle argues

that a juvenile’s current offense should not qualify as one of

the two predicate offenses required to impose an extended term

under section 4A-44(d)(3).

He supports this contention by relying on the section’s

plain language and legislative history, which, he contends,

express a legislative intent “to punish repetitive offenders.”

In advancing a plain language argument, Kyle contends that the

7
use of past tense in section 4A-44(d)(3) implies a requirement

that the qualifying offenses must have been prior offenses. He

claims that the Appellate Division placed undue weight on the

absence of the terms “prior” or “previous” within section

4A-44(d)(3). He further argues that, when section 4A-44(d)(3)

is read in concert with section 4A-44(d)(4), it becomes clear

that the Legislature did not intend for the instant offense to

qualify as one of the two predicate offenses required under

section 4A-44(d)(3). In the alternative, Kyle argues that the

rule of lenity should apply if the Court finds ambiguity in the

language of section 4A-44(d)(3).

The State argues that section 4A-44(d)(3) should be read to

allow for the imposition of an extended term so long as there

are two separate qualifying offenses, inclusive of the instant

offense. Thus, the State’s interpretation would require only

two separate delinquency proceedings. The State relies on the

plain language of the statute, emphasizing the Legislature’s use

of “separate” instead of “prior” or “previous” when discussing

qualifying offenses. The State also finds support for its

construction of section 4A-44(d)(3) in the statute’s legislative

history. The State contends that Kyle’s arguments regarding the

Legislature’s use of past tense and the applicability of the

rule of lenity are without merit.

8
III.

Because statutory interpretation involves the examination

of legal issues, it is considered a question of law. McGovern

v. Rutgers, 211 N.J. 94, 107-08 (2012). Accordingly, a de novo

standard of review applies on appeal. Ibid.; see also State v.

Gandhi, 201 N.J. 161, 176 (2010).

In statutory interpretation, a court’s role “is to

determine and effectuate the Legislature’s intent.” Allen v. V

& A Bros., 208 N.J. 114, 127 (2011). The first step toward that

end is to consider the plain language of the statute. Norfolk

S. Ry. Co. v. Intermodal Props., LLC, 215 N.J. 142, 166 (2013)

(quoting Pizzullo v. N.J. Mfrs. Ins. Co., 196 N.J. 251, 264

(2008)). Statutory language should be given its ordinary

meaning and be construed in a common-sense manner. N.J. Dep’t

of Envtl. Prot. v. Huber, 213 N.J. 338, 365 (2013); N.E.R.I.

Corp. v. N.J. Highway Auth., 147 N.J. 223, 236 (1996). Further,

when construing the Legislature’s words, every effort should be

made to avoid rendering any part of the statute superfluous.

See Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.

576, 587 (2013) (noting “bedrock assumption” that Legislature

did not use meaningless or unnecessary language).

In sum, our overriding goal is to discern and effectuate

the legislative intent underlying the statutory provision at

issue. N.J. Dep’t of Children & Families, Div. of Youth &

9
Family Servs. v. A.L., 213 N.J. 1, 20 (2013). Our role is not

to “rewrite a plainly-written enactment of the Legislature []or

[to] presume that the Legislature intended something other than

that expressed by way of the plain language.” DiProspero v.

Penn, 183 N.J. 477, 492 (2005) (first alteration in original)

(internal quotation marks omitted). Where the language is

unclear or ambiguous, or if the Legislature’s intention is

otherwise uncertain, resort may be had to extrinsic aids to

“assist us in our understanding of the Legislature’s will.”

Pizzullo, supra, 196 N.J. at 264; see also Roberts v. State,

Div. of State Police, 191 N.J. 516, 521 (2007); DiProspero,

supra, 183 N.J. at 492.

IV.

In the statutory construction question at issue, we

consider a sentencing provision in the legislative scheme

governing the dispensing of juvenile justice. The

rehabilitation of juvenile offenders is the goal of the juvenile

justice system. See State ex rel. C.V., 201 N.J. 281, 295

(2010); State ex rel. J.D.H., 171 N.J. 475, 483 (2002). The

Code balances its intention to act in the best interests of the

juvenile and to promote his or her rehabilitation with the need

to protect the public welfare. See N.J.S.A. 2A:4A-21

(enumerating Code’s purposes). While rehabilitation of

juveniles has historically been at the heart of juvenile

10
justice, see In re Gault, 387 U.S. 1, 15-16, 87 S. Ct. 1428,

1437, 18 L. Ed. 2d 527, 539 (1967), modern experiences with

serious juvenile crimes have elevated the importance of punitive

sanctions in juvenile dispositions, see State v. Presha, 163

N.J. 304, 314 (2000) (noting that “punishment has now joined

rehabilitation as a component of the State’s core mission with

respect to juvenile offenders”). This Court has noted that the

Legislature underscored that the Code’s sanctions are not just

for the purpose of accomplishing rehabilitation but are also

“designed to promote accountability and protect the public.”

State v. Franklin, 175 N.J. 456, 466 (2003) (quoting language

added in 1995 to statement of Code’s purposes in N.J.S.A.

2A:4A-21(b)). In this matter, we must construe a clearly

punitive sanction available under the Code -- one included in

the Code when it was adopted in 1982 that enables the Family

Part court to impose an extended-term sentence on a juvenile.

N.J.S.A. 2A:4A-44(d)(3) bears repeating in full:

11
exceed five additional years for an act
which would constitute murder and shall not
exceed two additional years for all other
crimes of the first degree or second degree,
if committed by an adult, and one additional
year for a crime of the third degree, if
committed by an adult.

[N.J.S.A. 2A:4A-44(d)(3).]

Our duty to discern and implement the legislative intent

underlying this authorization for an extended-term sentence

compels us to seek that intent from the words used in the

statute. See Norfolk, supra, 215 N.J. at 166. From a plain

language reading, the statute addresses the disposition stage of

the offense for which the juvenile is being sentenced. The

statute requires the filing of an application for an extended-

term sentence by the prosecutor after the juvenile has been

adjudged to have committed what would have been the equivalent

of a first-, second-, or third-degree crime if committed by an

adult. Thus, the statute envisions that the extended-term

application is to be made after the adjudication is complete and

while the disposition of the present offense is taking place.

The Legislature clearly has demarked the “present” offense in

its discussion in this part of the statute.

The plain language of the statute then requires certain

findings by the disposition court. An extended term may be

imposed “if [the court] finds that the juvenile was adjudged

delinquent on at least two separate occasions, for offenses

12
which, if committed by an adult, would constitute a crime of the

first or second degree, and was previously committed to an adult

or juvenile facility.” In this part of the statute, the

Legislature has moved to the past tense, and not just for the

past adjudication but also for the additional requirement that

at least one such adjudication resulted in commitment to a

juvenile or adult facility. The words refer to someone who “was

adjudicated” and “was previously committed” on at least one such

occasion to a facility.

The rules of statutory construction require deference to

the words chosen by the Legislature. Statutory language is

entitled to its ordinary meaning and to be given a common-sense

construction. See Huber, supra, 213 N.J. at 365; Smith v.

Fireworks by Girone, Inc., 180 N.J. 199, 216 (2004). In

following that precept, we give great weight to the difference

in verb tenses used by the Legislature in this statute. The

Legislature first used the “has been convicted” language when

referring to the present offense for which the court is

considering the prosecutor’s application for an extended term.

The Legislature then switched to past tense when referring to

the two findings from the person’s past that the court must make

in order to declare the person eligible for an extended term.

As to the latter, the Legislature used past tense two times,

requiring that the person (1) “was adjudicated” delinquent on at

13
least two separate occasions for offenses of a certain grade if

committed by an adult, and (2) “was previously committed” to an

adult or juvenile facility. Both conditions clearly are from

the person’s past and do not naturally suggest the inclusion of

the present adjudication before the disposition court,

especially when the Legislature had just used a different tense

to describe the instant offense. We glean from this that the

Legislature intentionally went out of its way to differentiate

between the instant offense and the qualifying predicate

offenses. That interpretation is a common-sense application of

the section’s language and it advances a discernible public

policy. The Legislature wanted to address individuals who have

not learned from their past serious adjudications that have

included time spent incarcerated pursuant to a previously

imposed order of commitment.

We are unpersuaded that the failure to include the word

“previously” twice when identifying the two required findings

compels a plain language reading that the present adjudication

may count as one of two separate offenses. Indeed, in

considering this argument made on the basis of an omitted word,

we note that the Legislature did not use that same language

construction in the companion section of 4A-44(d)(4) when it

expressly dealt with the imposition of an extended-term sentence

in sentencing for multiple unrelated crimes before the court in

14
a single sentencing proceeding. It is a guiding principle in

achieving the goal of fulfilling the legislative intent

underlying a statute that a provision be considered in light of

its surrounding statutory provisions. Huber, supra, 213 N.J. at

365 (stating we must examine statutory “language sensibly, in

the context of the overall scheme in which the Legislature

intended the provision to operate”).

In section 4A-44(d)(4), when addressing a juvenile who has

engaged in a spree of qualifying offenses, the Legislature has

authorized the imposition of an extended-term sentence on the

basis of the present offenses by using language that clearly and

unambiguously captures the instant offenses with which the

disposition court is dealing. Moreover, section 4A-44(d)(4)

refers to those offenses as ones for which the juvenile “has

been adjudicated,” just as section 4A-44(d)(3) does when

describing the instant offense.

The language of section 4A-44(d)(3), in referring in past

tense to the previous separate adjudications that must provide

the predicate for an extended term to be imposed on the instant

offense, points to a natural reading that does not favor the

State’s position or the extended-term sentence imposed on Kyle.

Our goal is to effectuate legislative intent based on our best

assessment of the words used by the Legislature. We have done

that. To the extent one could argue that there is some

15
ambiguity in the text of the section, we may resort to

legislative history. Here, legislative history is silent on the

specific issue before us. Accepted forms of legislative history

such as sponsor or committee statements addressing the question

presented about section 4A-44(d)(3) do not exist. To the extent

that the State points to subsequent study commissions that have

examined progress made in combatting juvenile crime and

dispensing juvenile justice, those reports are not indicative of

legislative intent. They do not represent contemporaneous

expressions of intent by the Legislature that enacted or amended

the legislation in question. We may not consider them of value

in ascertaining legislative intent.5 See State v. Trump Hotels &

Casino Resorts, 160 N.J. 505, 550-51 (1999) (Handler, J.,

dissenting) (asserting statements made after enactment of

constitutional amendment not part of legislative history); see

also Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447

U.S. 102, 117, 100 S. Ct. 2051, 2061, 64 L. Ed. 2d 766, 778

(1980) (noting “the views of a subsequent Congress form a

hazardous basis for inferring the intent of an earlier one”).

5
Even if we were to consider the subsequent studies as
indicative of legislative intent, we do not find them to be
supportive of the State’s interpretation of section 4A-44(d)(3)
in this instance.

16
Further, to the extent that section 4A-44(d)(3) is not a

model of perfect clarity, because it is a juvenile justice

statute involving among the most severe sanctions that can be

imposed on a juvenile, principles of lenity deserve

consideration. A court may apply the doctrine of lenity when

construing an ambiguous criminal statute. State v. Rangel, 213

N.J. 500, 515 (2013). “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.’” Ibid. (quoting State v.

Gelman, 195 N.J. 475, 482 (2008)). The doctrine is founded on

two guiding principles. The first is the important concept that

a criminal defendant is entitled to “fair warning . . . of what

the law intends to do if a certain line is passed.” Gelman,

supra, 195 N.J. at 482 (omission in original) (quoting United

States v. Bass, 404 U.S. 336, 348, 92 S. Ct. 515, 522, 30 L. Ed.

2d 488, 496 (1971)) (internal quotation marks omitted). The

second guiding principle is the notion that the Legislature, and

not the courts, should define the contours of criminal activity.

That principle is founded upon society’s “instinctive distaste

against men [and women] languishing in prison unless the

lawmaker has clearly said they should.” Id. at 482-83

(alteration in original) (quoting Bass, supra, 404 U.S. at 348,

17
92 S. Ct. at 523, 30 L. Ed. 2d at 497) (internal quotation marks

omitted).

Here, in interpreting an aspect of the Code affecting the

dispensing of justice to juveniles, where rehabilitation

concerns are at their highest in the criminal justice sphere, we

decline to give this statute its harshest possible reading.

Notwithstanding the important role that punishment now plays in

the juvenile justice system, see Presha, supra, 163 N.J. at 314,

principles of statutory construction still govern, including the

principle of lenity when construing a criminal statute. To the

extent that reasonable people can differ on whether the

Legislature indeed intended to allow for an extended-term

sentence for individuals like Kyle, who have only one previous

separate predicate offense, not including the offense for which

they are being sentenced, we conclude that the more lenient

construction of the statute should pertain.

We therefore hold that N.J.S.A. 2A:4A-44(d)(3) requires two

separate previous predicate adjudications, including one that

resulted in incarceration in a juvenile or adult facility,

exclusive of the adjudication for which the disposition court is

sentencing the juvenile. The imposition of an extended term for

Kyle transgresses that interpretation of the statute. We

therefore reverse the extended-term sentence imposed.

18
V.

The judgment of the Appellate Division is reversed.

JUSTICES ALBIN and PATTERSON, and JUDGES RODRÍGUEZ and CUFF
(both temporarily assigned) join in JUSTICE LaVECCHIA’s opinion.
CHIEF JUSTICE RABNER filed a separate, concurring opinion.

19
SUPREME COURT OF NEW JERSEY
A-28 September Term 2012
070406

STATE OF NEW JERSEY
IN THE INTEREST OF
K.O., a minor.

CHIEF JUSTICE RABNER, concurring.

Reasonable people can disagree about whether N.J.S.A.

2A:4A-44(d)(3) requires one or two separate, prior juvenile

adjudications before an extended term of incarceration can be

imposed. The statute provides as follows:

[N.J.S.A. 2A:4A-44(d)(3) (emphases
added).]

The majority presents a strong case as to why two

prior predicates are required. It focuses on the different verb

tenses in the statute, which are underscored above. Ante at __-

__ (slip op. at 13-15).

1
Another persuasive reading of the statute focuses on

the word “previously.” The Legislature inserted the term only

once: to establish that a juvenile must have been “previously”

incarcerated. The word does not appear in the clause that

states “the juvenile was adjudged delinquent on at least two

separate occasions.” Thus, the Legislature required two

juvenile adjudications but did not say both must have occurred

“previously.” As the Appellate Division noted, “the Legislature

could easily have” said so had it meant to. In re K.O., 424

N.J. Super. 555, 561 (App. Div. 2012). Instead, it omitted the

very limiting term it used later in the same section. For this

and other reasons, the appellate panel concluded that the

pending offense may count as a predicate for an extended

term. Id. at 564.

Because both interpretations of this criminal statute

are reasonable, and because the legislative history does not

resolve this dispute, the doctrine of lenity applies. See State

v. Rangel, 213 N.J. 500, 515 (2013); State v. Shelley, 205 N.J.

320, 324 (2011). As a result, the ambiguity in the statute

should be resolved in defendant’s favor. Rangel, supra, 213

N.J. at 515 (citing State v. Gelman, 195 N.J. 475, 482 (2008)).

I agree with the majority’s discussion of the doctrine

of lenity. See ante at __-__ (slip op. at 17-18). My

difference with the majority is slight. It concludes that the

2
statutory language is plain and considers the rule of lenity to

the extent one might find the law ambiguous. Ibid. Because I

do not believe the language of the statute leads to one clear

interpretation, I turn directly to the rule of lenity in the

absence of definitive legislative history.

For the above reasons, I concur in the result the

majority reaches and would reverse the judgment of the Appellate

Division.

3
SUPREME COURT OF NEW JERSEY

NO. A-28 SEPTEMBER TERM 2012
ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY
IN THE INTEREST OF
K.O., a minor.

DECIDED February 24, 2014
Chief Justice Rabner PRESIDING
OPINION BY Justice LaVecchia
CONCURRING OPINION BY Chief Justice Rabner
DISSENTING OPINION BY

CHECKLIST REVERSE CONCUR
CHIEF JUSTICE RABNER (X) X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUDGE RODRÍGUEZ (t/a) X
JUDGE CUFF (t/a) X
TOTALS 6