State of New Jersey v. Jamel Carlton

Opinion

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0532-22

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMEL CARLTON, a/k/a JAMEL A. CARLTON, JAMAL CARLTON, and GHOST J,

Defendant-Appellant. _________________________

Argued October 16, 2024 – Decided November 27, 2024 Resubmitted December 19, 2024 – Decided December 19, 2024

Before Judges Sumners, Susswein and Perez Friscia.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 20-12-0711.

Michael Timothy Denny, Assistant Deputy Public Defender, argued the cause for appellant (Jennifer N. Sellitti, Public Defender, attorney; Michael Timothy Denny, of counsel and on the briefs).

David M. Galemba, Deputy Attorney General, argued the cause for respondent (Matthew J. Platkin, Attorney General, attorney; Mercedes Robertson, Deputy Attorney General, of counsel and on the brief).

Appellant filed a pro se supplemental brief. The opinion of the court was delivered by

SUSSWEIN, J.A.D.

Defendant Jamel Carlton appeals from his jury trial convictions for

aggravated sexual assault, sexual assault, aggravated assault, burglary, and

criminal restraint against an Atlantic City casino-hotel housekeeper. The State

presented surveillance video recordings captured by multiple cameras

throughout the casino-hotel. The State also introduced DNA evidence showing

that defendant sexually penetrated the victim, and photographic evidence of her

injuries, corroborating her testimony that the encounter was violent and not

consensual. The trial judge sentenced defendant as a persistent offender to a

forty-two-year prison term.

Defendant contends for the first time on appeal that his Confrontation

Clause rights were violated when the trial judge allowed the jury to hear lay

opinion testimony regarding the identification of the suspect shown on

surveillance video. He also contends the trial judge erred by preventing him

from introducing evidence about the victim's prior sexual conduct and from

discussing a newspaper article from 2005 describing prostitution activities at

the same casino-hotel where the present crimes were committed in February

2018—thirteen years after the article was published. In a self-represented

A-0532-22 2 brief, defendant raises several other contentions, including allegations of

prosecutorial misconduct. After carefully reviewing the record in light of the

parties' arguments and governing legal principles, we affirm defendant's

convictions.

Defendant also challenges his forty-two-year extended term sentence as

a persistent offender. In his initial appeal brief, defendant argued the trial

judge erred in finding that he was a persistent offender under N.J.S.A. 2C:44 -

3(a) based on two prior New York felony convictions—one committed in 2006

and the other committed in 2011. He also argued the trial judge abused her

discretion by electing to impose an extended term of imprisonment after

finding that defendant was eligible for an enhanced sentence as a persistent

offender.

After the initial briefs were filed, the United States Supreme Court

decided Erlinger v. United States, 602 U.S. 821 (2024), holding that under the

Fifth and Sixth Amendments, a jury—not a sentencing judge—must decide

whether prior convictions used to establish the basis for enhanced sentencing

had been committed on separate occasions. The majority in Erlinger explained

that the Supreme Court was not creating a new rule, but merely applying

constitutional principles it had previously announced following its

A-0532-22 3 groundbreaking decision, Apprendi v. New Jersey, 530 U.S. 466 (2000). It is

undisputed, however, that Erlinger abrogates New Jersey Supreme Court

precedent that embraced a contrary interpretation of the Apprendi doctrine,

State v. Pierce, 188 N.J. 155 (2006). Erlinger thus necessitates a significant

change to New Jersey practices and procedures for imposing a persistent-

offender extended term of imprisonment under N.J.S.A. 2C:44-3(a).1

The State acknowledges the Erlinger rule applies retroactively to

"pipeline" cases and thus, defendant's Fifth and Sixth Amendment rights were

violated when the judge rather than a jury decided that he was eligible for a

persistent offender extended term. The Attorney General nonetheless urges us

to apply the harmless constitutional error doctrine to affirm defendant's

extended-term sentence.

To be sure, the approach advocated by the Attorney General would

conserve substantial judicial and prosecutorial resources by obviating the need

to remand an untold number of pipeline cases for new jury trials. We are

nonetheless unpersuaded the harmless constitutional error doctrine can be

applied in this case without eviscerating the Erlinger rule. We are concerned

1 We presume the Erlinger rule also applies to New Jersey's "three strikes" law, N.J.S.A. 2C:43-7.1, which likewise requires a finding that the prior crimes were committed on "separate occasions." A-0532-22 4 that the essential nature of a harmless error analysis—which focuses on

whether the same outcome would have been reached if the error had not

occurred—runs counter to the Erlinger Court's stern admonition that "[t]here

is no efficiency exception to the Fifth and Sixth Amendments." 602 U.S. at

842. The Court added, "[i]n a free society respectful of the individual, a

criminal defendant enjoys the right to hold the government to th e burden of

proving its case beyond a reasonable doubt to a unanimous jury of his peers

'regardless of how overwhelmin[g]' the evidence may seem to a judge." Ibid.

(alteration in original) (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).

Furthermore, the Attorney General candidly acknowledged at oral

argument that its harmless error argument would likely apply to most pipeline

cases. That suggests, as a practical matter, the harmless error exception might

swallow the rule, rendering hollow its retroactive application.

In the absence of further guidance from the United States Supreme Court

on permissible exemptions to the Erlinger rule, we are constrained to vacate

defendant's persistent-offender extended-term sentence and remand to the Law

Division with instructions on how to remedy the constitutional violation.

I.

We discern the following facts and procedural history from the record.

A-0532-22 5 A.

The victim, N.K., 2 was employed as a housekeeper at a casino-hotel. On

February 10, 2018, defendant approached her while she was working on the

fourth floor. He asked her to assist him in accessing room 496, claiming that

his girlfriend was inside. N.K. advised that she could not assist him because she

did not have the key to that room. She instructed defendant to go to the hotel

front desk to obtain a new key card.

Defendant left the fourth floor but returned after approximately ten

minutes. He informed N.K. that he could not obtain a new key card at the front

desk because he did not have identification. N.K. suggested that defendant

knock on the door so that his girlfriend would let him in.

N.K. went about her work cleaning rooms assigned to her, eventually

moving to room 495. While cleaning that room, N.K. retrieved supplies from

her cart in the hallway, but only after checking to see if defendant had left the

area. N.K. opened the door "just enough . . . to get out of the door to get

supplies." Suddenly, defendant jumped on top of her, covered her mouth and

nose, and threw her onto the floor inside the room.

2 We use initials to protect the identity of the sexual assault victim. R. 1:38- 3(c)(12). A-0532-22 6 Defendant punched N.K. repeatedly, dragged her to the bathroom by her

hands, and banged her head. Defendant then dragged the victim out of the

bathroom towards the bed and threw her to the floor. Defendant removed her

pants, underwear, and socks while telling her that he was going to rape her. N.K.

repeatedly testified that she thought she was going to die.

Next, defendant threw N.K. onto the bed face up and covered her nose and

mouth. N.K. felt suffocated. While continuing to cover the victim's nose and

mouth, defendant inserted his penis into her vagina. Defendant also kissed her

foot and licked her toe. Defendant instructed her not to tell anyone about the

rape and threatened to kill her if she did.

N.K. testified the sexual assault occurred "[a]round eleven" in the morning

or "a little bit after." She could not recall the duration of the attack because she

"was so scared at that moment."

After the attack, N.K. heard a door close and believed defendant had left

the hotel room. When she tried to get out of the room, she realized defendant

was in the bathroom. Defendant ordered her to lie back down on the bed face

down. While she was on the bed, defendant searched through her bag, found a

cellphone, and discarded it in the trash bin.

A-0532-22 7 When N.K. believed that defendant had finally left the room, she locked

the door, retrieved her cellphone, and called her supervisor. She requested her

supervisor come up to the fourth floor because "someone raped . . . and

assault[ed] [her]." The housekeeping supervisor arrived at the fourth floor and

saw N.K. sitting against the open door to room 495, crying. The housekeeping

supervisor testified that she saw a "red mark on [N.K.'s] face" that looked like

"she [had] been punched." N.K. informed her that defendant had taken her "key

card and i[P]od." The housekeeping supervisor relayed this information to

security and her manager, and police were called.

The security supervisor at the casino-hotel, one of the security personnel

on scene at room 495, testified that he received a dispatch call around 11:30 a.m.

reporting "[t]hat a room attendant had been assaulted." He entered the room and

saw the housekeeping supervisor consoling N.K., who appeared "[d]istraught,"

"very upset," and was "crying a lot." He also noticed "a red mark on her cheek."

The security supervisor was present when N.K. provided a description of

defendant and informed security that defendant had attempted to gain access to

room 496. N.K. described the assailant as a Black man with a medium build

wearing an earring, gray hoodie, and black pants and shoes. The security

supervisor also contacted the front desk and spoke with a hotel receptionist who

A-0532-22 8 confirmed that a male, later identified as defendant, "attempt[ed] to get a key ...

[to] gain access to [room 496]," but did not have access to rooms 495 and 496,

or the fourth floor.

A hotel receptionist who worked the front lobby on February 10, 2018

testified that she was approached by a man who requested access to room 496.

She described the man as a "difficult guest." The receptionist asked defendant

for his identification and confirmed that his name was not on the reservation for

the room. She also called room 496 but no one answered. Although defendant

was insistent, the receptionist informed him that she was unable to provide him

with a room key. Defendant walked away "upset" and "frustrated."

Emergency medical and Atlantic City Police Department (ACPD)

personnel responded to the scene of the attack. An ACPD detective testified

that N.K. appeared "distraught," "upset," and had "swelling to the jaw area."

Based on the description of the attacker that N.K. provided, the detective

reviewed hotel surveillance video and identified the suspect. According to the

detective, casino security personnel were aware of the suspect's identity from a

domestic violence incident that occurred earlier that morning. The detective

testified that he reviewed the surveillance footage, which showed a man wearing

a "gr[a]y sweatshirt, black pants[,] and black colored Air Jordan sneakers" with

A-0532-22 9 "a doo-rag on at the time" moving through the casino and stairwell. At trial, the

detective identified defendant as the man in the video.

The detective asked casino security to "locate all video footage of

[defendant] from . . . before and after the assault." A security specialist

employed by the casino reviewed the video surveillance footage to locate the

suspect based on a photograph of defendant. He provided a DVD to ACPD

containing the video surveillance files.

At trial, the State played for the jury portions of the video surveillance

video files and the security specialist provided narration. The video showed two

men, including the one the security specialist was "following," in an elevator

located on the second floor of the casino-hotel at 10:09 a.m. The man was

wearing a gray hoodie, black pants, and black shoes, similar to the description

given by N.K.

At 10:11 a.m., the suspect exited the elevator and entered a different

elevator, eventually arriving on the fourth floor at 10:17 a.m. Around 10:26

a.m., the suspect is seen re-entering the elevator on the fourth floor, taking it to

the second floor, walking to the front desk, and speaking with a hotel

receptionist. The suspect left the front desk at 10:28 a.m. and attempted to use

an elevator to travel to another hotel floor, but that attempt was unsuccessful

A-0532-22 10 without a room key.3 At 10:30 a.m., the suspect got off the elevator at the eighth

floor. Once on the eighth floor, the suspect entered an emergency exit stairwell,

which, the security specialist testified, "was the closest stairwell to [room 496]."

At 11:22 a.m., the suspect was seen running down the second-floor

hallway, no longer wearing the gray hoodie or dark gray polo underneath. The

security specialist testified that the other floors in that part of the hotel did not

have surveillance cameras like the second floor.

Video shows that at 11:23 a.m., the suspect ran out of the hotel's second

floor to the parking garage while holding the dark gray polo shirt. When another

camera records the suspect approaching the parking garage elevators, the

suspect is no longer holding the polo shirt. The suspect then exited the garage

through a stairwell and ran across the street off the property.

The security specialist testified that, based on his observation of the

suspect's missing polo shirt, he went to the third floor of the parking garage to

look for it and found a gray polo hoodie in the trash can. The ACPD detective

3 The security specialist testified that an individual without a key card could gain access to another hotel floor if another hotel guest selected that floor or if the elevator was called to that floor while the key-less individual was in the elevator. A-0532-22 11 also testified that a gray sweatshirt was found on the eighth floor and was

recovered from lost-and-found.

Forensic evidence was recovered from the victim's person. Medical

personnel transported N.K. by ambulance to the Atlantic City Medical Center,

where a certified sexual assault nurse examiner conducted a forensic sexual

assault examination. As part of that examination, the nurse photographed N.K.'s

injuries. The photos show abrasions to her left temple and right wrist; bruising

on the left side of her neck, as well as her knee, legs, and left hand and wrist;

and redness on her left cheek. The nurse also performed a gynecological

examination, collecting swabs of N.K.'s vagina and cervix as well as her mouth

and right toes.

The swabs were submitted to the New Jersey State Police Office of

Forensic Sciences (NJSP OFS) for analysis. The results indicated that sperm

was located on the vaginal swabs, cervical swabs, and N.K.'s underwear. The

vaginal, cervical, and foot swabs, in addition to a portion of N.K.'s underwear,

were sent to the NJSP OFS DNA Laboratory for further testing. A NJSP OFS

forensic scientist and expert in the field of forensic DNA analysis determined

defendant was the source of the sperm fractions found on the vaginal, cervical,

and foot swabs, as well as on N.K.'s underwear.

A-0532-22 12 While enroute to the hospital to interview N.K., the ACPD detective

spotted defendant on the 1800 block of Atlantic Avenue. Photographs of

defendant were taken during that encounter. Those photos depict defendant

wearing a white t-shirt, black pants, and Air Jordan sneakers.

B.

Defendant was charged in a superseding indictment with first-degree

aggravated sexual assault, N.J.S.A. 2C:14-2(a)(3) (count one); second-degree

sexual assault, N.J.S.A. 2C:14-2(c)(l) (count two); second-degree burglary,

N.J.S.A. 2C:18-2(a)(l) (count three); third-degree aggravated assault, N.J.S.A.

2C:12-1(b)(7) (count four); third-degree criminal restraint, N.J.S.A. 2C:13-

2(a) (count five); fourth-degree obstructing administration of law, N.J.S.A.

2C:29-l(a) (count six); and a disorderly persons offense for resisting arrest, N.J.

S.A. 2C:29-2(a)(1).

A jury trial was held in March 2022. The jury found defendant guilty on

counts one through five. On September 7, 2022, the trial judge sentenced

defendant to an extended term of imprisonment as a persistent offender,

N.J.S.A. 2C:44-3(a). After merger, on count one, the judge imposed an

aggregate term of forty-two years in prison subject to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2. The judge further imposed parole supervision

A-0532-22 13 for life, N.J.S.A. 2C:43-6.4, and ordered defendant to abide by the requirements

of Megan's Law, N.J.S.A. 2C:7-1 to -23. On counts four and five, the judge

sentenced defendant to two five-year prison terms to run concurrently with each

other and the sentence imposed on count one. The judge dismissed count six

and the disorderly persons offense. This appeal followed.

II.

Defendant raises the following contentions for our consideration in his

counseled brief:

POINT I

THE STATE IMPROPERLY BOLSTERED ITS CASE WITH INADMISSABLE HEARSAY AND INADMISSIBLE LAY OPINION TESTIMONY IMPLICATING THE DEFENDANT AS THE PERPETRATOR IN VIOLATION OF THE CONFRONTATION CLAUSE AND N.J.R.E. 701.

A. [The ACPD Detective] And [The Security Specialist]'s Identifications Of The Man In The Video As Carlton Violated N.J.R.E. 701.

B. Admission Of [The ACPD Detective] And [The Security Specialist]'s Hearsay Testimony That [The Casino-Hotel]'s Had Identified Carlton As The Suspect Violated The Confrontation Clause.

POINT II

THE TRIAL COURT VIOLATED DEFENDANT'S RIGHT TO A COMPLETE DEFENSE BY

A-0532-22 14 LIMITING THE EVIDENCE REGARDING PROSTITUTION.

POINT III

DEFENDANT'S EXTENDED TERM SENTENCE OF 42 YEARS WITH AN 85% PAROLE DISQUALIFIER IS MANIFESTLY EXCESSIVE.

Defendant raises the following additional contentions in his self-

represented brief:

POINT I

Whether Defendant's right to Miranda was violated under the Constitution of New Jersey and the Constitution of [the] United States.

POINT II

Whether Defendant was denied his right to be free from unreasonable search and seizure under the United States Constitution and the New Jersey Constitution.

POINT III

Whether Defendant['s] right to Speedy Trial was denied under the Due Process of Law.

POINT IV

Whether Trial Court erred when it allowed the DNA into evidence.

A-0532-22 15 POINT V

Whether Trial Court erred when it refused to put the time of the crime in the Jury Charge denying defendant an unfair Jury and Due Process of Law.

POINT VI

Whether Prosecutorial Misconduct led to defendant being found Guilty by an unfair Jury.

POINT VII

Whether the Defendant was denied his right to Discovery.

Defendant raises the following contention in an initial supplemental brief

filed by leave granted following the United States Supreme Court's decision in

Erlinger4:

POINT I

THE FIFTH AND SIXTH AMENDMENTS AND APPRENDI V. NEW JERSEY, 530 U.S. 466 (2000), REQUIRE THAT A JURY DECIDE THE

4 We note both parties submitted abbreviated supplemental briefs. Defendant submitted a thirteen-page brief along with his motion for leave to file a supplemental brief, which we granted. We directed the State to file a responsive supplemental brief no longer than fifteen pages. We did not permit a reply brief. We add that neither party requested oral argument. We sua sponte scheduled oral argument limited to the Erlinger-related issues. Five weeks after we heard oral argument, defendant submitted a letter-brief along with a motion for leave to file a second supplemental brief. We accepted the second supplemental brief for filing and directed the State to file a reply brief. A-0532-22 16 EXISTANCE OF THE FACTS NECESSARY TO ESTABLISH THE PREDICATE FOR AN EXTENDED TERM UNDER N.J.S.A. 2C:44-3A.

By leave granted after oral argument on this appeal, defendant raises the

following new contention in a second supplemental brief:

THIS COURT CANNOT REWRITE THE PLAIN LANGUAGE OF THE PERSISTENT OFFENDER STATUTE, AND THERE IS NO AUTHORITY FOR A COURT TO EMPANEL A JURY TO DETERMINE WHETHER A DEFENDANT QUALIFIES AS A PERSISTENT OFFENDER.

III.

We first address defendant's contention that his Confrontation Clause

rights were violated when two State witnesses testified about how they became

aware that defendant was the suspect. Prior to trial, defendant moved to

preclude the State from referring to a domestic violence incident that led to the

identification of defendant as the person who sexually assaulted N.K. On the

morning of the sexual assault, defendant was involved in a domestic violence

episode with his girlfriend in room 496. Defendant was arrested at the hotel at

approximately 5:30 a.m. and released from police custody at 9:00 a.m. He then

returned to the casino-hotel and attempted to regain entry to his girlfriend’s hotel

room.

A-0532-22 17 During the in limine hearing, the State agreed not to present any evidence

of the domestic violence incident or arrest in its case-in-chief. The State also

agreed that officers would testify only generally that they were aware of

defendant as the suspect. Defense counsel did not object to the State pursuing

that approach. Nor did defendant object when the State's witnesses testified that

casino security personnel were familiar with defendant and provided a picture

of him to police officers to assist in the sexual assault investigation. Defendant

claims for the first time on appeal that this testimony violated his confrontation

rights.

"The Confrontation Clause 'prohibit[s] the use of out-of-court testimonial

hearsay, untested by cross-examination, as a substitute for in-court testimony.'"

State v. Williams, 219 N.J. 89, 98 (2014) (quoting State ex rel. J.A., 195 N.J.

324, 342 (2008)). But "[t]he right of confrontation, like other constitutional

rights, may be waived by the accused." Ibid. A defendant can waive this right

"by failure to object to the offending evidence[.]" Melendez-Diaz v.

Massachusetts, 557 U.S. 305, 313 n.3 (2009). Indeed, our Supreme Court has

stated that "[t]he defendant always has the burden of raising [their]

Confrontation Clause objection[.]" Williams, 219 N.J. at 99 (citing Melendez-

Diaz, 557 U.S. at 328). Articulated another way, generally, a defendant "must

A-0532-22 18 attempt to exercise [their] confrontation right and object when necessary, if

[they] wish[] later to claim that [they were] denied that right." State v. Wilson,

227 N.J. 534, 543 (2017) (quoting Williams, 219 N.J. at 93).

Furthermore, it is well-recognized that as a matter of trial strategy, defense

counsel may refrain from raising a Confrontation Clause objection to testimony

"that may inure to the advantage of the defendant." Williams, 219 N.J. at 99.

"[W]hen a defendant later claims that a trial court was mistaken for allowing

[them] to pursue a chosen strategy—a strategy not unreasonable on its face but

one that did not result in a favorable outcome—[their] claim may be barred by

the invited-error doctrine." Id. at 100 (citing State v. A.R., 213 N.J. 542, 561-

62 (2013), then citing N.J. Div. of Youth & Family Servs. v. M.C. III, 201 N.J.

328, 340 (2010)).

"The invited error doctrine is intended to 'prevent defendants from

manipulating the system' and will apply 'when a defendant in some way has led

the court into error' while pursuing a tactical advantage that does not work as

planned." Ibid. (quoting A.R., 213 N.J. at 561-62). Thus, "if a party has 'invited'

the error, he is barred from raising an objection for the first time on appeal."

A.R., 213 N.J. at 561 (citing M.C. III, 201 N.J. at 342).

A-0532-22 19 Here, defendant failed to raise any objection to the ACPD detective's and

the security specialist's testimony that the casino-hotel was aware of the

suspect's identity as defendant and provided them with a known image of

defendant. Defendant now asserts for the first time on appeal that no person

from the casino-hotel testified about how they were able to identify defendant

as the suspect or why they were in possession of a photograph of him to share

with police. But defendant's pretrial motion to preclude any mention of the

domestic violence incident is the reason why the State did not elicit this

information before the jury.

We add that several casino security officers testified at trial. Defendant

thus had the opportunity to cross-examine them about how they were aware of

defendant, why they had a picture of him, and most importantly, how they were

able to identify him as a suspect. We are satisfied the defense made a strategic

decision not to object to their sanitized testimony and not to explore the true

basis for their knowledge on cross-examination.

For the sake of argument, were we to assume that the officer's testimony

was improper under the Confrontation Clause, "[w]hen a defendant does not

object to an alleged error at trial, such error is reviewed under the plain error

standard." State v. Singh, 245 N.J. 1, 13 (2021) (citing R. 2:10-2); see also State

A-0532-22 20 v. Nelson, 173 N.J. 417, 471 (2002) (holding that a failure to object to testimony

permits an inference that any error in admitting the testimony was not

prejudicial).

"Plain error is a high bar[.]" State v. Santamaria, 236 N.J. 390, 404

(2019). "Under that standard, an unchallenged error constitutes plain error if it

was 'clearly capable of producing an unjust result.'" Singh, 245 N.J. at 13

(quoting R. 2:10-2). "Thus, the error will be disregarded unless a reasonable

doubt has been raised whether the jury came to a result that it otherwise might

not have reached." Ibid. (quoting State v. R.K. 220 N.J. 444, 456 (2015)).

Importantly, moreover, "[t]o determine whether an alleged error rises to

the level of plain error, it 'must be evaluated in light of the overall strength of

the State's case.' " Id. at 13-14 (quoting State v. Sanchez-Medina, 231 N.J. 452,

468 (2018)). In the context of the identification of the culprit, "when a case is

fortified by substantial credible evidence—for example, direct identification of

the defendant—the testimony is not likely to be prejudicial under the 'plain error'

rule." State v. Irving, 114 N.J. 427, 448 (1989) (citing State v. Douglas, 204

N.J. Super. 265, 275 (App. Div. 1985)).

Here, there was substantial credible evidence—indeed, overwhelming

evidence—identifying defendant as the person who sexually assaulted N.K.

A-0532-22 21 Defendant's DNA was found in the semen deposited in the victim's cervix,

vagina, and underwear. Additionally, defendant was the source of the DNA

found on N.K.'s foot, which corroborates the victim's claim that the perpetrator

licked it.

IV.

We turn next to defendant's contention that the trial judge erred by

allowing law enforcement officers at trial to present inappropriate lay opinion

testimony in violation of the Confrontation Clause and N.J.R.E. 701. Defendant

raises two distinct arguments regarding testimony related to the surveillance

video. He first contends that the ACPD detective and the casino-hotel security

specialist both offered improper lay opinion testimony in violation of N.J.R.E.

701 as to the identity of the suspect in the surveillance videos. He also claims

that the security specialist's testimony that the hoodie sweatshirt he found in the

parking garage trash can resembled the shirt he observed "the subject" wearing

and carrying in the surveillance video also violated N.J.R.E. 701. We address

each argument in turn.

A-0532-22 22 A.

The State argues that both the security specialist and the detective

presented fact testimony—not opinion testimony—explaining what they did

when they were informed that casino-hotel personnel were aware of the suspect's

identity and were provided with a photograph of the suspect, known to be

defendant. But even accepting, for purposes of argument, that their testimony

was improper as to the identity of the suspected rapist, the admission of the

testimony challenged for the first time on appeal does not rise to the level of

plain error.

In Singh, a detective testifying at trial referred to the suspect in the video

as "the defendant" twice in narrating the surveillance footage. 245 N.J. at 18.

The Supreme Court determined that although it was error for the detective to

refer to an individual depicted in the surveillance video as the defendant during

the narration of that video, "that error was harmless given the fleeting nature of

the comment and the fact that the detective referenced defendant as 'the suspect'

for the majority of his testimony." Id. at 17.

As in Singh, the security specialist referred to the person in the

surveillance video as "the subject" for the majority of his narration testimony.

He only referred to the person in the video as "Jamel" once.

A-0532-22 23 Afterwards, the detective—who did not provide any narration of the

surveillance video—testified that he was made aware of the identity of the

suspect as defendant, and, upon reviewing the surveillance video, observed that

"Mr. Carlton . . . he had on a gr[a]y sweatshirt, black pants and black colored

Air Jordan sneakers[.]" In all, defendant was referred to by name as the person

depicted in the surveillance video twice by two separate witnesses who testified

several days apart from one another.

We do not mean to suggest those references to defendant by name or by

using the phrase "the defendant" were appropriate. But in light of the

overwhelming evidence of defendant's guilt established through competent

admissible testimony, we decline to invalidate the jury verdict based on these

isolated misstatements. See id., 245 N.J. at 13-14 ("[t]o determine whether an

alleged error rises to the level of plain error, it 'must be evaluated in light of the

overall strength of the State's case.'") (quoting State v. Sanchez-Medina, 231

N.J. at 468).

B.

We next address whether the security specialist's testimony regarding the

shirt found in a trash can was improper lay opinion. Lay witness opinion

testimony is governed by N.J.R.E. 701. As the Court emphasized in Singh, "lay

A-0532-22 24 opinion testimony can be admitted only 'if it falls within the narrow bounds of

testimony that is based on the perception of the witness and that will assist the

jury in performing its function.'" Singh, 245 N.J. at 14 (quoting State v.

McLean, 205 N.J. 438, 456 (2011)). "The first prong of N.J.R.E. 701 requires

the witness's opinion testimony to be based on the witness's 'perception,' which

rests on the acquisition of knowledge through use of one's sense of touch, taste,

sight, smell or hearing." Ibid. (citing McLean, 205 N.J. at 457). "[L]ay opinion

testimony is limited to what was directly perceived by the witness and may not

rest on otherwise inadmissible hearsay." Id. at 14-15 (citing McLean, 205 N.J.

at 460).

The second requirement is that lay-witness opinion testimony be "limited

to testimony that will assist the trier of fact either by helping to explain the

witness's testimony or by shedding light on the determination of a disputed

factual issue." Id. at 15 (quoting McLean, 205 N.J. at 458).

In Singh, the Court concluded that a detective's testimony comparing the

sneakers he observed on surveillance video to the sneakers he observed

defendant wearing when he arrested defendant was proper lay opinion testimony

under N.J.R.E. 701. 245 N.J. at 18-19. First, the Court determined the detective

had first-hand knowledge of what the sneakers looked like, having seen them on

A-0532-22 25 defendant. Id. at 19-20. The Court thus concluded that the detective's "lay

opinion as to the similarities between the sneakers from the surveillance footage

and the sneakers he saw that night was rationally based on his perception[.]"

Ibid.

As to the second prong in the N.J.R.E. 701 framework, the Singh Court

found that the detective's testimony as to the similarities between the sneakers

was helpful to the jury because he "had first-hand knowledge of what the

sneakers looked like[.]" Id. at 20. The Court reasoned that "[s]imply because

the jury may have been able to evaluate whether the sneakers were similar to

those in the video does not mean that [the detective's] testimony was unhelpful[,]

[n]or does it mean that [the detective's] testimony usurped the jury's role in

comparing the sneakers." Ibid.

In the matter before us, the security specialist's testimony likewise

satisfies the requirements of N.J.R.E. 701. He testified that he observed the

"subject" on the third floor of the parking garage with a polo shirt in his hand

during one portion of the video surveillance, but a few seconds later in the next

camera view, defendant was no longer holding the shirt. The security specialist

testified that based on this observation, he went to the third floor of the parking

A-0532-22 26 garage, checked a trash can located at the entrance, and found "[t]he missing

shirt from the video frame" which "appeared to be a gr[a]y polo hoodie."

While those circumstances are distinguishable from what occurred in

Singh, we are not persuaded that a different result must be reached simply

because the security specialist did not personally see defendant wearing the gray

polo hoodie. All that is required is that the witness have "first-hand knowledge"

as to what the item of clothing looked like. That requirement was satisfied when

the security specialist retrieved the discarded shirt.

Furthermore, although the hoodie was admitted into evidence for the jury

to make its own comparison, Singh made clear that circumstance does not

automatically mean that the security specialist's testimony was unhelpful or

usurped the jury's role. The Court stressed, "[t]here is no requirement in

N.J.R.E. 701 that the testifying lay witness be superior to the jury in evaluating

an item." Singh, 245 N.J. at 19.

In this instance, because defendant failed to object, the trial judge had no

opportunity to address the N.J.R.E. 701 issue and make findings. We are

satisfied that because the security specialist had "first-hand knowledge" of what

the gray polo hoodie looked like after finding it discarded in the trash can, his

A-0532-22 27 comparison of the retrieved hoodie to the one shown in the video was helpful to

the jury in evaluating whether the hoodies were similar.

Finally, and at the risk of undue repetition, even if this portion of the

security specialist's testimony were deemed to be improper, such error does not

amount to plain error in light of the overwhelming evidence, including DNA

evidence, that it was defendant who sexually assaulted the victim.

V.

That brings us to defendant's contention the trial judge erred in preventing

the defense from introducing into evidence a newspaper article from 2005

discussing a prostitution operation controlled by casino hosts, 5 and by

precluding the defense from presenting forensic evidence showing an

unidentified minor DNA profile found on N.K's cervical swab.

A trial judge's evidentiary rulings should be upheld "absent a showing of

an abuse of discretion." State v. Perry, 225 N.J. 222, 233 (2016) (citations

omitted). The law is well-settled that an appellate court should not substitute its

judgment for that of the trial judge unless the trial judge's ruling is "so wide of

5 The article discussed how three former casino hosts from the same casino- hotel where the present incident occurred were "blacklisted" by the Casino Control Commission because they recruited Malaysian and East Asian women for a brothel in Philadelphia. A-0532-22 28 the mark that a manifest denial of justice resulted." Ibid. (quoting State v.

Marrero, 148 N.J. 469, 484 (1997)).

A.

We conclude the trial judge did not abuse her discretion in preventing

defendant from cross-examining witnesses about an article published thirteen

years prior to the sexual assault of N.K. The trial judge found that the article

has no nexus to the present case, "which involves a middle[-]aged woman who

is an employee of the casino, who has no prior arrests or record of prostitution."

We do not hesitate to conclude the trial judge properly precluded any such

evidence concerning past casino-related prostitution activities given that there

was no evidence that N.K. was involved in prostitution.

B.

We next address the trial judge's decision to preclude evidence of a minor

unidentified DNA profile that was detected on a swab obtained from N.K.'s

cervix. Defendant argued the third-party DNA could have identified another

person as the assailant, or additional parties who might have testified N.K. was

providing sex in exchange for money at the casino-hotel.

"The introduction of evidence of a victim's prior sexual conduct is

governed by New Jersey's Rape Shield Law, N.J.S.A. 2C:14-7[.]" Perry, 225

A-0532-22 29 N.J. at 234. That statute "is designed to deter the unwarranted and unscrupulous

foraging for character-assassination information about the victim and does not

permit introduction of evidence of the victim's past sexual conduct to cast the

victim as promiscuous or of low moral character." Ibid. (citations and internal

quotations omitted).

The statute "defines 'sexual conduct' as 'any conduct or behavior relating

to sexual activities of the victim, including but not limited to previous or

subsequent experience of sexual penetration or sexual contact, use of

contraceptives, sexual activities reflected in gynecological records, living

arrangement and life style." Perry, 225 N.J. at 234 (quoting N.J.S.A. 2C:14-

7(f)). In the present matter, the minor DNA profile found from a swab of the

victim's cervix falls squarely within the statutory definition. See id. at 240

(finding a semen stain found on the victim's underwear falls under the definition

of sexual conduct).

Determining the admissibility of evidence of a victim's prior sexual

conduct requires a two-step analysis: (1) whether the evidence is relevant and

necessary to resolve a material issue in light of other evidence that is available

to address that issue; and (2) whether the probative value of the contested

evidence outweighs the prejudicial effect to the victim in the context of the Rape

A-0532-22 30 Shield Law. Id. at 236-37. "The determination of whether evidence of a victim's

prior sexual conduct is admissible 'is exquisitely fact-sensitive' and 'depends on

the facts of each case.'" Id. at 238 (quoting State v. J.D., 211 N.J. 344, 358

(2012)). Under the first prong, N.J.R.E. 401 defines relevant evidence as

"evidence having a tendency in reason to prove or disprove any fact of

consequence to the determination of the action." See State v. Jenewicz, 193 N.J.

440, 457-58 (2008). That analysis focuses on "the logical connections between

the proffered evidence and a fact in issue." State v. Schnabel, 196 N.J. 116, 130

(2008) (quoting State v. Williams, 190 N.J. 114, 123 (2007)).

The second prong requires the court to determine whether the probative

value of the contested evidence outweighs its prejudicial effect on the victim.

Perry, 225 N.J. at 237 (citing State v. Budis, 125 N.J. 519, 532 (1991)). "Under

the Rape Shield Law, the probative value of the victim's prior sexual conduct

'depends on clear proof that the conduct occurred, that it is relevant to a material

issue in the case, and that it is necessary to a defense.'" Ibid. (quoting State v.

J.A.C., 210 N.J. 281, 300 (2012)). On the other hand, "[t]he prejudice

contemplated by the Rape Shield Law includes the trauma to the victim, the

degree to which the evidence sought to be admitted would invade the victim's

privacy, the 'impact of a given ruling on a victim reporting sexual abuse,' as well

A-0532-22 31 as the need to guard victims from excessive cross-examination and prevent

undue jury confusion." Ibid. (quoting J.A.C., 210 N.J. at 300).

In Perry, the defendant sought to admit evidence of an unknown man's

semen deposited on the victim's shorts, claiming it was relevant to support his

theory of either consent or third-party guilt. 225 N.J. at 240. Our Supreme

Court stressed that there was nothing in the record to indicate when the semen

was deposited on the shorts, and all the challenged evidence showed was "that

some unknown individual engaged in a sexual act with [the victim] at some

unknown time." Id. at 241. The Court further reasoned that "without proof that

the semen [was] in any way related to the crime here, the DNA evidence of the

semen stain on [the victim]'s shorts was not relevant to the issue the jury had to

decide[.]" Id. at 242. The Court ultimately determined "the proffered evidence

was irrelevant to defendant's consent defense, fails to support the defense of

third-party guilt, and was, therefore, properly excluded." Id. at 243.

For essentially the same reasons explained in Perry, here, the trial judge

properly denied defendant's attempts to admit the DNA evidence of the

unidentified minor profile found on N.K.'s cervical swab. There was no

evidence of when it was deposited or who deposited it.

A-0532-22 32 That conclusion is not undermined by defendant's allegation that

"defendant's sexual involvement with the victim centered around receiving sex

in exchange for money" and his assertion that the third-party DNA would

confirm the victim was providing sex for money while working at the casino-

hotel. Even assuming, just for the sake of argument, that N.K. had engaged in

consensual sex with another party in exchange for money, that evidence would

not be admissible to prove the victim had consensual sex with defendant. See

State v. Clowney, 299 N.J. Super. 1, 15-16 (App. Div. 1997) (excluding

evidence of victim's prior acts of sex with others for money as it was

inadmissible to prove the victim had consensual sex with defendant). In sum,

the trial judge did not abuse her discretion in precluding the evidence defendant

sought to use against the victim.

VI.

We need only briefly address the contentions raised in defendant's self-

represented submission. Those arguments lack sufficient merit to warrant

extensive discussion. See R. 2:11-3(e)(2).

A-0532-22 33 A.

Defendant asserts for the first time on appeal that his Miranda6 rights were

violated, claiming that he was not advised of those rights. That assertion is

belied by the record, which clearly shows that he was advised of his rights and

invoked the right to counsel, declining to provide a statement to police. In short,

no statement was given to police and thus no statement was offered into evidence

at trial.

B.

Defendant contends that evidence establishing probable cause for the

search warrant was falsified. Defendant moved to suppress the DNA evidence

obtained pursuant to a search warrant and requested a Franks7 hearing alleging

the warrant contained false or fictitious statements of material fact. Specifically,

defendant points to what he characterizes as an inconsistency between what the

victim said and what was contained in the affidavit in support of the sea rch

warrant: the victim told police that the person who assaulted her was wearing a

6 Miranda v. Arizona, 384 U.S. 436 (1966). 7 Franks v. Delaware, 438 U.S. 154 (1978). Our Supreme Court adopted the Franks test in State v. Howery, 80 N.J. 563 (1979). A-0532-22 34 gray sweater with a hood and black pants, whereas the affidavit stated the

suspect was wearing a gray hooded sweatshirt and black jeans.

The trial judge denied defendant's request for a Franks hearing, finding

that defendant failed to make the requisite showing that a false statement was

made deliberately or in reckless disregard of the truth. The trial judge reasoned

that although jeans and pants, as well as a sweater and sweatshirt, are diff erent

things, the inconsistencies were "nominal." The trial judge added that even if

there were something "more nefarious" here, there was other information in the

affidavit that amply established probable cause to support issuance of the

warrant.

We agree with the trial judge that defendant failed to establish by a

preponderance of the evidence that the allegedly false statement in the affidavit

was made either deliberately or in reckless disregard of the truth. See State v.

Desir, 245 N.J. 179, 195-99 (2021). We also agree that even assuming for the

sake of argument that defendant had established the first prong of the

Franks/Howery test, any such false statement was not material in view of

additional information in the warrant application that established probable cause

to justify the warrant. See id. at 197.

A-0532-22 35 C.

Defendant alleges the State violated his right to a speedy trial. See Barker

v. Wingo, 407 U.S. 514 (1972). But he cites to no instances in which the State

caused any of the delay he now complains about. His speedy trial claim is

therefore baseless.

D.

Defendant claims for the first time on appeal that the trial judge erred by

"refus[ing] to put the time of the crime in the [j]ury [c]harge." It is well -settled

that "[i]f the defendant does not object to the [jury] charge at the time it is given,

there is a presumption that the charge was not error and was unlikely to prejudice

the defendant's case." State v. Singleton, 211 N.J. 157, 182 (2012) (citing State

v. Macon, 57 N.J. 325, 333-34 (1971)). Accordingly, "[a]ppellate review applies

the plain-error standard when a defendant fails to object to a given jury charge."

Ibid. (citing R. 1:7-2, then citing State v. Wakefield, 190 N.J. 397, 473 (2007)).

At trial, defendant did not challenge the jury instruction on the grounds it

failed to mention the time of the crime. Nor did defendant request that the judge

give such an instruction. In any event, it would have been inappropriate for the

trial judge to instruct the jury on when exactly the sexual attack occurred. The

A-0532-22 36 time at which the crime was committed is a question of fact for the jury to

determine based on the evidence presented.

Notably, during their deliberations, the jury asked for the time at which

defendant was seen running down the stairwell. In response to that jury request,

the prosecutor and defense counsel agreed it was appropriate to show the jury

the relevant surveillance footage clip which included timestamps rather than

specifically tell the jury the time at which that event occurred.

In sum, the trial judge did not commit error much less plain error by not

instructing the jury on when the crime occurred.

E.

Defendant claims the prosecutor committed misconduct on several

occasions. "[P]rosecutorial misconduct can be a ground for reversal where the

prosecutor's misconduct was so egregious that it deprived the defendant of a fair

trial." State v. Frost, 158 N.J. 76, 83 (1999). We are satisfied that defendant's

allegations are meritless.

Defendant baldly claims the prosecutor committed misconduct by being

aware of the fact that defendant had been identified as the suspect because of

the domestic violence incident that occurred several hours before the attack upon

N.K. But of course, a prosecutor is permitted to know facts that would be unduly

A-0532-22 37 prejudicial if revealed to the jury. It was also not misconduct for the prosecutor

to seek a superseding indictment to remove all references to the domestic

violence incident that appeared in the initial indictment. That was done to

safeguard defendant's right to a fair trial, not to gain an unfair advantage.

Defendant also alleges the prosecutor committed misconduct by not

turning over fourth-floor surveillance footage. The security specialist testified,

however, there was no surveillance camera coverage on the fourth floor. The

State consistently represented, moreover, there was no surveillance footage of

the fourth-floor hallway. There is, of course, no obligation under our State's

"open-file approach to pretrial discovery in criminal matters," State v.

Hernandez, 225 N.J. 451, 461 (2016), to turn over something that does not exist.

To the extent we have not specially addressed them, any additional claims

of prosecutorial misconduct or other trial errors lack sufficient merit to warrant

discussion. R. 2:11-3(e)(2).

A-0532-22 38 VII.

We next turn our attention to defendant's sentencing arguments.

Following the jury verdict, the State in accordance with Rule 3:21-4(e)8 filed a

motion to sentence defendant to an extended term as a persistent offender

pursuant to N.J.S.A. 2C:44-3(a). In support of its motion, the State relied on

two certified judgments of conviction from New York as well as a printout of

defendant's criminal history. Those documents revealed a New York felony

conviction on February 26, 2007 for third-degree9 robbery committed on

September 20, 2006 and a New York felony conviction on November 17, 2011

for fourth-degree possession of stolen property committed on May 10, 2011.

The trial judge granted the State's motion to sentence defendant to a

8 Rule 3:21-4(e) provides that a motion for an extended term must be filed "within 14 days of the of the entry of the defendant's guilty plea or the return of the verdict." In light of Erlinger, this provision has become obsolete since the prosecutor's decision to seek—or at least preserve the option to seek—a persistent-offender extended term must now be made at a much earlier stage of the prosecution considering the requirement, discussed in section IX, infra, that a grand jury, not just a petit jury, must find certain facts to establish eligibility for a persistent-offender extended term. We recommend the Supreme Court Criminal Practice Committee revise or replace the current rule to account for the new procedures that are needed to comply with Erlinger. 9 We note that degree classifications under New York law are different from the classifications set forth in N.J.S.A. 2C:43-1(a) and N.J.S.A. 2C:43-6(a).

A-0532-22 39 discretionary extended term as a persistent offender and sentenced defendant to

forty-two years in prison, subject to NERA.

In his initial appeal brief, defendant argues the forty-two-year sentence is

manifestly excessive. He also contends the trial judge erred in determining

defendant was eligible for an extended term as a persistent offender, arguing

that although "the third-degree charge in New York is called robbery, the

elements of the crime itself are nearly the same as New Jersey's theft from a

person charge . . . N.J.S.A. 2C:20-2(b)(d)," which is designated under New

Jersey law as a third-degree crime, as distinct from robbery, N.J.S.A. 2C:15-1,

which is designated as either a first or second-degree crime.10

Defendant also argues that because both New York convictions were for

non-violent property crimes, the trial judge should not have relied on them to

impose an enhanced sentence. Finally, defendant argues in his initial counseled

brief that the trial judge failed to provide reasons to impose the discretionary

10 But even accepting, for argument's sake, that defendant's New York robbery conviction is congruent to a third-degree theft-from-a-person crime under New Jersey law, the fact remains that the New York conviction was punishable by more than one year in prison under New York law, which is all that matters for deciding whether a conviction in another jurisdiction is a prior crime when determining whether a defendant is a persistent offender. See Section X, infra, discussing N.J.S.A. 2C:44-4(c). A-0532-22 40 extended term after having found defendant eligible for a persistent -offender

sentence.

A.

As we have noted, on June 21, 2024—after both defendant and the State

filed their initial briefs in this appeal—the United States Supreme Court decided

Erlinger, which held that a jury, not the sentencing judge, must decide the

existence of the facts necessary to establish the grounds for a sentence

enhancement based on prior convictions for offenses committed on separate

occasions. 602 U.S. at 849.

In Apprendi, the United States Supreme Court changed the legal landscape

for imposing enhanced sentences. The Court held that "[o]ther than the fact of

a prior conviction, any fact that increases the penalty for a crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved beyond

a reasonable doubt." 530 U.S. at 490. Erlinger is the latest in a series of

Supreme Court decisions explaining that, under the Apprendi doctrine, a jury

must find the facts necessary for sentencing enhancements. In Almendarez-

Torres v. United States, 523 U.S. 224 (1998), the Court focused on an exception

contemplated in the initial formulation of the basic Apprendi rule. Specifically,

A-0532-22 41 the Court in Almendarez-Torres reiterated and amplified that the "fact of an

earlier conviction" need not be submitted to a jury. 523 U.S. at 224.

In Erlinger, the Court considered the boundaries of that exception,

addressing whether a judicial determination that past offenses had been

committed on different occasions, which is necessary for enhanced sentencing

under the federal Armed Career Criminal Act (ACCA),11 violated the

defendant's Fifth and Sixth Amendment rights. Erlinger, 602 U.S. at 830-34.

The majority in Erlinger explained, "[v]irtually 'any fact' that 'increase[s] the

prescribed range of penalties to which a criminal defendant is exposed' must be

resolved by a unanimous jury beyond a reasonable doubt (or freely admitted in

a guilty plea)." Id. at 834 (alteration in original) (quoting Apprendi, 530 U.S. at

490).

11 ACCA provides, in pertinent part:

In the case of a person who violates section 922(g) of this title and has three previous convictions by any court referred to in section 922(g)(1) of this title for a violent felony or a serious drug offense, or both, committed on occasions different from one another, such person shall be fined under this title and imprisoned not less than fifteen years. . . .

[18 U.S.C. § 924(e)(1).] A-0532-22 42 The majority rejected the government's argument that the "different

occasions" inquiry falls under the Almendarez-Torres exception. Id. at 836-38.

The majority emphasized that Almendarez-Torres recognizes a "narrow

exception" that permits "judges to find only 'the fact of a prior conviction.'"

Ibid. (quoting Alleyne v. United States, 570 U.S. 99, 111, n.1 (2013)). The

majority explained that "[a] judge may 'do no more, consistent with the Sixth

Amendment, than determine what crime, with what elements, the defendant was

convicted of.'" Id. at 831, n.3 (quoting Mathis v. United States, 579 U.S. 500,

511-12 (2016)).

The Erlinger majority concluded the enhanced sentence imposed in that

case was unconstitutional because:

To determine whether Mr. Erlinger's prior convictions triggered ACCA's enhanced penalties, the district court had to do more than identify his previous convictions and the legal elements required to sustain them. It had to find that those offenses occurred on at least three separate occasions. And, in doing so, the court did more than Almendarez-Torres allows.

[Id. at 838-38.]

In reaching that conclusion, the Erlinger majority acknowledged that to

determine the fact of a prior conviction, a sentencing judge may "need to know

the jurisdiction in which the defendant's crime occurred and its date in order to

A-0532-22 43 ascertain what legal elements the government had to prove to secure a conviction

in that place at that time." Id. at 839. The majority also recognized that to obtain

that information, a sentencing judge "may sometimes consult 'a restricted set of

materials,' often called Shepard12 documents, that include judicial records, plea

agreements, and colloquies between a judge and the defendant." Ibid.

(quotations omitted). Importantly, however, the Erlinger majority emphasized:

None of that . . . means that a court may use Shepard documents or any other materials for any other purpose. To ensure compliance with the Fifth and Sixth Amendments, a sentencing judge may use the information [the judge] gleans from Shepard documents for the "limited function" of determining the fact of a prior conviction and the then-existing elements of that offense. "[N]o more" is allowed. In particular, a judge may not use information in Shepard documents to decide "what the defendant . . . actually d[id]," or the "means" or "manner" in which [the defendant] committed [their] offense in order to increase the punishment to which [the defendant] might be exposed.

[Id. at 839-40 (citations omitted).]

Applying those principles to the facts in the case before it, the Erlinger

majority concluded:

To determine what legal elements attached to Mr. Erlinger's decades-old offenses, the court might have needed to consult Shepard documents to ascertain the jurisdiction in which they occurred and the date on

12 Shepard v. United States, 544 U.S. 13 (2005). A-0532-22 44 which they happened. But the court had no need or authority "to go any further," and assume for itself the responsibility of deciding whether Mr. Erlinger's past offenses differed enough in time, location, character, and purpose to have transpired on different occasions. Let alone undertake that inquiry all with an eye toward increasing his punishment. The Fifth and Sixth Amendments "contemplat[e] that a jury—not a sentencing court—will find such facts, unanimously and beyond a reasonable doubt."

[Id. at 840 (citations omitted).]

B.

The New Jersey persistent offender statute provides that upon application

of the prosecuting attorney, a person may be sentenced to an extended term of

imprisonment if the individual "has been convicted of a crime of the first, second

or third degree and is a persistent offender." N.J.S.A. 2C:44-3(a). The statute

further defines a "persistent offender" as:

[A] person who at the time of the commission of the crime is 21 years of age or over, who has been previously convicted on at least two separate occasions of two crimes, committed at different times, when he was at least 18 years of age, 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.]

A-0532-22 45 At the time of defendant's sentencing hearing, our Supreme Court's

decision in Pierce controlled. The Pierce Court held that a sentencing court

"does not engage in impermissible fact-finding when it assesses a prior record

of convictions and determines that a defendant is statutorily eligible for a

discretionary extended-term as a persistent offender." 188 N.J. at 158. The

Court added there was "no Sixth Amendment violation in the sentencing court's

consideration of objective facts about defendant's prior convictions, such as the

dates of convictions, his age when the offenses were committed, and the

elements and degrees of the offenses, in order to determine whether he qualifies

as a 'persistent offender.'" Id. at 163. Without question, Erlinger abrogates the

rule announced in Pierce with respect to the dates of convictions and a

defendant's age when the offenses were committed. 13

C.

The State argues in its initial supplemental brief that defendant's "newly

minted argument that his extended-term sentence is unconstitutional comes too

late." We disagree and decline to impose a procedural bar that would

13 As we explain in Section X, Almendarez-Torres and Erlinger permit a judge to make findings concerning the elements of the earlier crime of conviction. The statutorily-defined elements of a crime are pure legal matters determined by reading the plain text of a statute. See also infra, note 15. A-0532-22 46 categorically deny defendant a remedy for the constitutional violation that

occurred in this case. We see no basis to fault the trial judge, prosecutor,

defendant, or his counsel for following the clear rule our Supreme Court

announced in Pierce and "for not anticipating a change in law." See State v.

Harris, 181 N.J. 391, 436 (2004). While we might be prepared to apply plain

error analysis in these circumstances, see United States v. Cotton, 535 U.S. 625

(2002), we are not prepared to categorically disregard an uncontroverted

constitutional error simply because no one had the prescience to foretell the

holding in Erlinger. Cf. R. 2:10-2.

D.

Turning to the substantive merits of defendant's constitutional challenge

to his extended-term sentence, as we have noted, the Attorney General

acknowledges the Erlinger rule applies retroactively to persistent-offender

cases, like this one, that are still in the direct appeal "pipeline." See State v.

Wessells, 209 N.J. 395, 412 (2012) (noting that new rules "for the conduct of

criminal prosecutions" are to "be applied retroactively to all cases, state or

federal, pending on direct review or not yet final, with no exception for cases in

which the new rule constitutes a 'clear break' with the past.") (quoting Griffith

v. Kentucky, 479 U.S. 314, 328 (1987)). See also State v. Grate, 220 N.J. 317,

A-0532-22 47 335 (2015) (affording pipeline retroactivity to Alleyne,14 570 U.S. at 99), and

State v. Natale, 184 N.J. 458, 494 (2005) (affording pipeline retroactivity to

Blakely v. Washington, 542 U.S. 296 (2004)). The Attorney General also

acknowledges that defendant's Fifth and Sixth Amendment rights as explained

in Erlinger were violated when the trial judge, rather than a jury, made factual

findings regarding extended-term eligibility beyond the fact of his prior

convictions.

Before we address the Attorney General's harmless constitutional error

argument, we deem it important to point out that our persistent offender statute

requires proof beyond that a defendant committed the prior crimes on separate

occasions. N.J.S.A. 2C:44-3(a) prescribes the following fact-sensitive elements,

each of which a unanimous jury must find beyond a reasonable doubt to establish

that a defendant is a persistent offender eligible for an extended term of

imprisonment: (1) the defendant must have been 21 years of age or older at the

time of the commission of the present first, second, or third degree crime for

which the extended term is sought; (2) the defendant must have been previously

convicted of predicate crimes on at least two separate occasions, meaning the

14 The Court in Alleyne applied Apprendi to any fact that increases a mandatory minimum sentence, overruling its prior decision in Harris v. United States, 536 U.S. 545 (2002). 570 U.S. at 103. A-0532-22 48 dates that the prior convictions were entered are different; (3) the defendant must

have committed the prior crimes at different times; (4) the defendant must have

been at least 18 years of age when the prior crimes were committed; and (5) the

latest of the prior crimes, or the date of the defendant's release from confinement

when applicable, whichever is later, is within ten years of the date of the crime

for which the defendant is being sentenced.

The foregoing factual predicates to enhanced-sentence eligibility are all

case-sensitive, meaning that they must be proved on a case-by-case basis by

means of the defendant's criminal history records, and cannot be established

solely by reading the text of a statute.15 See N.J.S.A. 2C:44-4(d) ("Any prior

conviction may be proved by any evidence, including fingerprint records made

in connection with arrest, conviction or imprisonment, that reasonably satisfies

the court that the defendant was convicted."). Consider, by way of example, a

person less than 18 years of age can be waived to adult court and convicted and

sentenced as an adult. See N.J.S.A. 2A:4A-26.1. In those circumstances, the

conviction would not constitute a prior crime for purposes of N.J.S.A. 2C:44 -

15 Thus, these predicate facts stand in contrast to the prior crimes' statutorily - defined elements or their statutorily-assigned degree, which determines the maximum sentence that can be imposed on those convictions. See, infra, section X. A-0532-22 49 3(a). We view the determination of a defendant's age at the time of the prior

crimes to be comparable, for purposes of Erlinger analysis, to the determination

of the dates of those prior crimes that are needed to establish that they were

committed on separate occasions.

Although the parties in their initial supplemental briefs focus on the

"separate occasions" prerequisite 16 specifically addressed in Erlinger's analysis

of ACCA, a unanimous jury must find beyond a reasonable doubt that all five

of the above-enumerated factual predicates are present, or the defendant must

admit these predicates as part of a knowing and voluntary waiver of the right to

a jury trial with respect to extended-term eligibility.

VIII.

That brings us to the Attorney General's principal argument that

"proceedings prior to the date of Erlinger,17 where a judge made the requisite

16 Defendant in the last paragraph of his initial supplemental brief also mentions the remoteness element in N.J.S.A. 2C:44-3(a), which requires that the latest prior crime or release from prison, whichever is later, occurred within ten years of the present crime. 17 As we explain in section VIII(C), infra, the Attorney General appears to be arguing that the harmless error doctrine does not apply equally to cases where the sentencing hearing occurs after Erlinger was decided. Rather, the Attorney General's harmless-constitutional-error argument seems to be confined to "pipeline" cases. A-0532-22 50 'separate occasions' findings at sentencing, are subject to harmless error

analysis." In support of that contention, the Attorney General cites to Chief

Justice Roberts' one-paragraph concurring opinion in Erlinger and to Justice

Kavanaugh's dissenting opinion. The Attorney General also cites to the Erlinger

oral argument transcript, which purports to show that the parties generally

agreed that harmless error review is permitted. 18

The Attorney General argues because the Erlinger majority "neither

repudiated nor otherwise contested" the applicability of the harmless error

analysis, we may then excuse the constitutional violation in this instance as

harmless error on the grounds that "no 'rational jury' could have found that

defendant committed the two prior offenses at the same time." The outcome of

this issue hinges on whether we accept the premise that Erlinger violations are

amenable to harmless error analysis; to borrow the phraseology our Supreme

Court used repeatedly in Pierce, 188 N.J. at 163, 167, 169, there is no reasonable

doubt the "objective" facts of defendant's criminal background establish that he

is a persistent offender withing the meaning of N.J.S.A. 2C:44-3(a). The critical

18 See Transcript of Oral Argument at 16, 24-25, 44-45, 101-02, Erlinger v. United States, 602 U.S. 821(2024) (No. 23-370). A-0532-22 51 question is whether the harmless constitutional error doctrine can be invoked to

excuse the failure to have a jury decide those facts.

A.

The harmless constitutional error doctrine is well-accepted in both federal

and New Jersey jurisprudence. As our Supreme Court noted in State v.

Camacho,"[t]he [United States] Supreme Court has emphasized that 'most

constitutional errors can be harmless,' and are therefore not subject to automatic

reversal." 218 N.J. 533, 547 (2014) (quoting Arizona v. Fulminante, 499 U.S.

279, 306 (1991)). That said, the only mention of the harmless constitutional

error doctrine in Erlinger is in the Chief Justice's succinct concurring opinion

that incorporates by reference an argument raised in Justice Kavanagh's

dissenting opinion. Cf. State v. Masi, 72 N.J. Super. 55, 58 (Law Div. 1962)

(noting that language in a United States Supreme Court concurring opinion was

persuasive but not binding upon the court); Guido v. Duane Morris, LLP, 202

N.J. 79, 91 n.4 (2010) ("A dissent, of course, is not precedent."). As the

Attorney General acknowledges, the harmless constitutional error doctrine was

not mentioned at all in the majority opinion that announced the constitutional

rule we are now charged to enforce and safeguard.

A-0532-22 52 The majority opinion's silence on the question of harmless constitutional

error is conspicuous, especially considering that opinion comments freely and

repeatedly on other points made in the other Justices' opinions. It appears,

moreover, the majority made a conscious decision not to address whether and in

what circumstances an Erlinger violation might be deemed harmless error. The

majority opinion tellingly states, "[w]hile recognizing Mr. Erlinger was entitled

to have a jury resolve ACCA's [separate] occasions inquiry unanimously and

beyond a reasonable doubt, we decide no more than that." 602 U.S. at 835.

The Attorney General posits the majority's silence signals acceptance of

the Chief Justice's concurring opinion. Perhaps. But it is equally plausible that

the majority meant to signal it was unwilling to embrace a harmless error

exception but was not prepared to tackle the issue directly at this time. Our task

in this appeal is to decide an important constitutional question based on legal

analysis of what is written in authoritative precedents, not conjecture based on

what is not said in those precedents. We decline to speculate on why the Erlinger

majority chose not to mention the harmless constitutional error doctrine.

B.

The State also relies on several New Jersey precedents to support its

contention the harmless constitutional error doctrine applies to Erlinger

A-0532-22 53 violations in pipeline case. For example, the State cites to State v. Johnson, 166

N.J. 523, 546 (2001), noting in that case, despite holding that NERA required a

jury determination that a defendant committed a "violent" crime before the

sentencing court could impose the statute's eighty-five percent period of parole

ineligibility,19 our Supreme Court concluded there was no need to disturb the

defendant's sentence "because the facts adduced at trial establish that the jury

made that finding [that the defendant committed a violent crime] beyond a

reasonable doubt."

Johnson is distinguishable from the case before us, however, because here

no evidence was introduced at trial on whether defendant's prior crimes occurred

at different times. Indeed, the jury was never told about defendant's prior

crimes. Accordingly, unlike the situation in Johnson, the jury made no finding

on the predicate facts needed to establish persistent-offender extended-term

eligibility.

The State's reliance on State v. Purnell, 161 N.J. 44 (1999), is also

unavailing. In that case, our Supreme Court ruled that the holding in State v.

19 NERA has since been amended. The revised NERA formulation avoids Apprendi issues by specifically designating the crimes that are subject to the eighty-five percent parole ineligibility feature, rather than requiring the sentencing judge to make a fact-sensitive finding that the present crime is "violent." A-0532-22 54 Anderson, 127 N.J. 191 (1992)—reallocating the fact-finding function from

judge to jury on the materiality element of perjury—did not command full

retroactive application because it was not "intended to enhance the reliability of

the fact-finding process." Purnell, 161 N.J. at 55. In the present matter,

however, we are not asked to afford "full" retroactivity to the Erlinger Rule, but

rather only pipeline retroactivity to cases pending on direct appeal. And in any

event, it does not matter whether the Erlinger rule enhances the reliability of the

fact-finding process. The Apprendi/Erlinger doctrine's undergirding rationale is

not that juries are better equipped than judges to determine the facts needed to

establish extended-term eligibility. Rather, the doctrine is based on the principle

that this fact-finding process falls within the realm of the Fifth and Sixth

Amendment right to a jury trial.

Nor are we persuaded by the Attorney General's argument that:

[a]lthough Erlinger now holds that a prior-offense element is an essential element that must be proven to a jury beyond a reasonable doubt, a prior-offense element is not "material," but rather an attendant circumstance that accordingly should be treated differently when considering whether its omission is subject to harmless error review.

We believe the distinction the Attorney General draws between various types of

elements misses the mark. Nothing in the Erlinger majority opinion suggests

A-0532-22 55 the constitutional rule it announced is somehow less important because the facts

that a jury must find do not fall under the rubric of "material" elements as

defined in N.J.S.A. 2C:1-14(i), as distinct from the term "element of an offense"

as defined in N.J.S.A. 2C:1-14(h). The terminology distinction the Attorney

General would have us draw seems unimportant considering that N.J.S.A. 2C:1-

13(a) requires all elements must be proved beyond a reasonable doubt.

More importantly, we read the majority opinion as establishing a

fundamental constitutional right, one not easily dispensed with. We see no point

in quarreling over the terminology used to characterize the "separate occasions"

fact specifically at issue in Erlinger. The majority could not have made more

plain that, under the Fifth and Sixth Amendments, a jury is required to find that

fact beyond a reasonable doubt as a precondition to imposing an enhanced

sentence under ACCA. Stated another way, the Erlinger rule remains a matter

of constitutional imperative regardless of whether the "separate occasion"

finding is characterized as a "material element," a mere "element," or an

"attendant circumstance."

The Attorney General also relies on the United States Supreme Court's

decision in Cotton in support of its argument that harmless error review applies

to Erlinger pipeline violations. In Cotton, the defendant was charged with

A-0532-22 56 "conspiracy to distribute and to possess with intent to distribute a 'detectable

amount ' of cocaine and cocaine base." 535 U.S. at 627-28. The jury found the

defendant guilty at trial. Id. at 628. At sentencing, the District Court judge

made a finding of drug quantity that implicated enhanced penalties under federal

law and thereupon sentenced the defendant to thirty-years imprisonment. Ibid.

The defendant did not object to the fact that the sentences were based on an

amount of drug quantity not alleged in the indictment. Ibid.

While the defendant's appeal was pending, the Court decided Apprendi.

Ibid. The defendant then argued in the Court of Appeals that his sentence was

invalid under Apprendi because the issue of drug quantity was neither alleged

in the indictment nor submitted to the petit jury. Id. at 628-29. In its decision,

the Court of Appeals first noted that because the defendant failed to raise the

argument regarding his sentence before the trial judge, plain error review

applied. Id. at 629. Applying that standard, the Court of Appeals vacated the

defendant's sentence, concluding that "because an indictment setting forth all

the essential elements of an offense is both mandatory and jurisdictional, . . . a

court is without jurisdiction to . . . impose a sentence for an offense not charged

in the indictment." Ibid. Such an error, the Court of Appeals added, seriously

A-0532-22 57 impacted "the fairness, integrity or public reputation of judicial proceedings."

Ibid.

The United States Supreme Court reversed. Ibid. After concluding that

the District Court judge did have jurisdiction, the Supreme Court also applied

the plain error test but found that while the error was indeed "plain," id. at 631-

32, it "did not seriously affect the fairness, integrity, or public reputation of

judicial proceedings." Id. at 632-33. The Court concluded that the evidence of

drug quantity presented at the defendant's trial was "overwhelming" and

"essentially uncontroverted." Id. at 633. Specifically, the Court referred to

testimony from police officers regarding the drugs seized, and the testimony

from one of the defendant's co-conspirator's regarding the amount she witnessed

being bagged. Ibid.

The situation in Cotton is starkly different from the facts in the matter

before us. In Cotton, the Court stressed that there was overwhelming evidence

of drug quantity presented at the defendant's trial. Ibid. Here, in contrast, the

jury heard no evidence concerning defendant's prior New York convictions.

Thus, while the facts needed to establish persistent-offender extended-term

eligibility may well be "overwhelming" and "essentially uncontroverted" as in

A-0532-22 58 Cotton, ibid.—a circumstance we discuss in the next subsection—those facts

were not presented to the jury, which is the crux of the Erlinger violation.

C.

That leads us to examine the fundamental essence of the harmless error

analysis, which considers, ultimately, whether the outcome would have been

different if the error had not occurred. Importantly, the Erlinger majority

explicitly rejected the argument that a jury verdict is not required when the

predicate facts for an enhanced sentence are so "'straightforward' that sending it

to a jury would be pointlessly inefficient." 602 U.S. at 839 (citation to amicus

brief omitted). The majority opinion later underscored that point, explaining:

Often, a defendant's past offenses will be different enough and separated by enough time and space that there is little question [the defendant] committed them on separate occasions. But none of that means a judge rather than a jury should make the call. There is no efficiency exception to the Fifth and Sixth Amendments. In a free society respectful of the individual, a criminal defendant enjoys the right to hold the government to the burden of proving its case beyond a reasonable doubt to a unanimous jury of his peers "regardless of how overwhelmin[g]" the evidence may seem to a judge.

[Id. at 842 (quoting Rose v. Clark, 478 U.S. 570, 578 (1986)).]

A-0532-22 59 That admonition is in tension—if not fundamentally inconsistent—with

the inherent focus in harmless error analysis on whether the outcome would

have been the same had the error not occurred considering the weight of the

properly-admitted evidence. In this instance, the Attorney General argues, "the

'overwhelming' and 'uncontested' evidence leaves no doubt that defendant was

a persistent offender," citing Neder v. United States, 527 U.S. 1, 17 (1999).

That assessment may well be true but begs the question of whether, after

Erlinger, the decision on extended-term eligibility can be kept entirely from a

jury and yet affirmed on the grounds the factual basis for an extended term is

overwhelming. Neder involved the failure to instruct the jury on an element

of the charged crime that was "uncontested and supported by overwhelming

evidence, such that the jury verdict would have been the same absent the error."

527 U.S. at 17. The Court concluded the error "did not contribute to the verdict

obtained," and thus was properly found to be harmless. Ibid. (quoting

Chapman v. California., 386 U.S. 18, 24 (1967)).

But even putting aside that in this case no evidence relevant to

defendant's persistent-offender status was presented to the jury, the Attorney

General's reasoning is hard to reconcile with the Erlinger majority's clear

holding that the "separate occasions" decision under ACCA had to be made by

A-0532-22 60 a jury "regardless of how overwhelming the evidence may seem to a judge."

Erlinger, 602 U.S. at 842 (quotation marks and citation omitted). 20

In view of the Erlinger majority's unambiguous rejection of the notion that

overwhelming evidence obviates the need to have a jury make the decision, we

are not convinced the constitutional violation in this case can be "disregarded"

under the plain error rule or any other species of harmless error analysis. Cf.

Rule 2:10-2 ("Any error or omission shall be disregarded by the appellate court

unless it is of such nature as to have been clearly capable of producing an unjust

result, but the appellate court may, in the interests of justice, notice plain error

not brought to the attention of the trial or appellate court."). Furthermore, as we

have noted, the Attorney General acknowledged at oral argument that its

harmless error argument would likely apply to the vast majority of pipeline

cases. As a practical matter, that suggests, if given a foothold in pipeline cases,

the harmless error exception might swallow the Erlinger rule.

20 We note that in the portion of his dissent discussing harmless error, Justice Kavanaugh reasons that "[i]n most (if not all) cases, the fact that a judge rather than a jury applied ACCA’s different-occasions requirement will be harmless. Whether prior felonies occurred on different occasions under ACCA is usually a straightforward question." Erlinger, 602 U.S. at 859 (Kavanaugh, J., dissenting). That rationale for applying the harmless error rule is at odds with the majority opinion's holding that a jury must make the enhanced sentence findings notwithstanding that the outcome is straightforward. Id. at 841. A-0532-22 61 More fundamentally, we are not convinced from our reading of the

Erlinger majority opinion that the Fifth and Sixth Amendment right to have a

jury decide fact-sensitive enhanced-sentence eligibility is less important or

inviolable than the right to have a jury decide the fact-sensitive question of

guilt. Certainly, denying a criminal defendant a jury trial on the question of

factual guilt can never be deemed harmless constitutional error on the grounds

that the State's proofs are so overwhelming as to render a guilty verdict a

foregone conclusion. A key question the State's harmless constitutional error

argument raises, therefore, is whether the Fifth and Sixth Amendment rights

recognized in Erlinger regarding the determination of enhanced-sentence

eligibility are deserving of less vigorous protection than the right to a jury trial

on factual guilt or innocence.

Based on the opinion's clear directive, we are reticent to conclude that

the Erlinger majority meant for the constitutional rights recognized in

Apprendi and its progeny to be treated essentially as a second-class version of

the right to a jury trial. Nothing in the majority opinion supports that

proposition, and much of the opinion affirmatively contradicts it, including the

section in the opinion that recounts the origins, evolution, and historical

importance of the right to a jury trial. See Section II(A), id. at 828-834. We

A-0532-22 62 presume that section would not have been included in the majority opinion if

it was the majority's intent to relegate Apprendi-related jury-trial rights to

second-class status as compared to the right to a jury trial on the question of

guilt or innocence.

Relatedly, the Attorney General's argument suggests the harmless-

constitutional-error doctrine should be applied more liberally to pipeline cases

than to cases involving the prospective application of the Erlinger rule. The

Attorney General's supplemental brief acknowledges that while the trial

judge's persistent-offender decision was "in accordance with established

practice, that decision is now error under Erlinger because defendant's appeal

is on direct review." In the next sentence, the supplemental brief continues,

"[b]ut proceedings prior to the date of Erlinger, where a judge made the

requisite 'separate occasions' findings at sentencing, are subject to harmless

error analysis." The implication is that harmless error analysis either will not

apply to proceedings after the date of Erlinger or it will be applied in a different

way.

If that is indeed the Attorney General's position, we are unpersuaded.

The retroactive application of a constitutional rule to a pipeline case means,

simply, the rule applies in that case, presumably with full force and effect. We

A-0532-22 63 do not understand pipeline retroactivity to mean that the constitutional rule

when applied retrospectively is somehow softened or otherwise enforced less

rigorously than in cases where the rule will be applied prospectively. Rather,

as we see it, once there is a concession that a constitutional right was violated,

that violation is either harmless or not regardless of when it was committed.

While we are mindful of the administrative burdens that will result from

remanding a potentially large number of pipeline cases for new jury trials, we

are not prepared to hold that the defendants in pipeline case are entitled to less

vigorous protection of their Fifth and Sixth Amendment rights than defendants

whose crimes, indictments, or trials happen to occur after June 21, 2024. See

Erlinger, 602 U.S. at 842 ("There is no efficiency exception to the Fifth and

Sixth Amendments."). The notion that there can be any such differentiated

enforcement of the Erlinger rule would suggest that there is another de facto

retroactivity option, 21 namely partial or attenuated application of a rule to cases

21 The range of retroactivity options includes prospective application only, "full" retroactive application to all cases, including those where the direct appeal has already been decided (e.g., post-conviction relief cases), and pipeline retroactive application to cases where a direct appeal has not yet been decided. See State v. Knight, 145 N.J. 233, 251 (1996) (enumerating the alternatives available which are purely prospective, prospective, pipeline retroactive, and fully retroactive); State v. Dock, 205 N.J. 237, 256 (2011) (explaining the four options in any case to determine the retroactive effect of a new rule of criminal procedure). A-0532-22 64 pending direct appeal. We are not familiar with any such permutation in New

Jersey or federal retroactivity jurisprudence.

We do not mean to suggest that the harmless constitutional error doctrine

can never apply to an Erlinger violation. But this is not a situation, for

example, where a jury was provided with a flawed special verdict form or

faulty instructions that were not objected to by the defense. 22 Nor is this a

situation where a jury was asked to make findings on some but not all the facts

needed to establish the basis for an enhanced sentence. Here, none of the

required findings that we have enumerated were submitted to a jury. The

violation, in other words, amounts to a complete and absolute denial of the

right to a jury trial on the sentence-enhancement determination.

For all these reasons, we decline to put the cart before the proverbial horse

by excusing the failure to have a jury decide defendant's extended-term

eligibility on the grounds that affording a new jury trial on remand is highly

22 We offer no guidance in this opinion on the jury instructions that should be given in cases that are remanded for new jury trials whose scope is limited to determining whether the defendant is eligible for an extended term as a persistent offender. We expect the Supreme Court Model Jury Charge (Criminal) Committee and Supreme Court Criminal Practice Committee will, respectively, develop model jury charges, special verdict forms, and uniform practices and procedures for cases remanded to rectify violations of the Erlinger rule. A-0532-22 65 unlikely to produce a different result than the one reached by the sentencing

judge. Until the United States Supreme Court has an opportunity to more fully

address the practical implications of the Erlinger rule, including whether and in

what circumstances harmless error analysis is appropriate, we decline to

disregard the uncontroverted constitutional violation that occurred in this case.

IX.

Defendant argues in his initial supplemental brief he also was denied the

right to have a grand jury determine the facts needed to establish extended-term

eligibility. During oral argument, the Attorney General acknowledged that

going forward, the facts that a petit jury must find under the Erlinger rule must

also be presented to and found by a grand jury. 23 See State v. Rodriguez, 234

N.J. Super. 298, 304-05 (App. Div. 1989) ("Generally, facts which will

aggravate the crime of which a defendant is accused and enhance the punishment

to which he will be subject are said to be an 'element' of the offense, N.J.S.A.

23 We note there is precedent for "bifurcating" a presentation to a grand jury so that the grand jury first determines whether there is probable cause the defendant committed an offense and then separately considers whether there is probable cause to believe the defendant has prior conviction(s) when that is an element of the crime charged. We understand that process occurs routinely in cases where a defendant is indicted for possession of a firearm by a previously - convicted person (commonly referred to as the "certain persons" offense), N.J.S.A. 2C:39-7. A-0532-22 66 2C:1-14(h), and must therefore be charged in the indictment.") (citing State v.

Ingram, 98 N.J. 489 (1985)); see also State v. Franklin, 184 N.J. 516, 534 (2005)

("That a defendant possessed a gun during the commission of a crime is a fact

that must be presented to a grand jury and found by a petit jury beyond a

reasonable doubt if the court intends to rely on it to impose a sentence exceeding

the statutory maximum.").

The question remains what to do about pipeline cases. We hold that in

cases such as this one that are remanded, the lack of a grand jury determination

regarding extended-term eligibility will be rendered harmless not because the

relevant facts are straightforward, but rather because a unanimous petit jury

applying a much higher standard of proof than the one needed to return an

indictment will find those facts. Stated another way, we see no need to remand

for both a grand jury and petit jury to make the factual determinations that

Erlinger requires.

We add that in these pipeline cases, a new indictment is not needed to

provide defendants notice of the facts that must be considered by a grand jury

going forward. See State v. LeFurge, 101 N.J. 404, 415 (1986) (holding that the

grand jury right is fulfilled when an indictment "inform[s] the defendant of the

offense charged against him, so that he may adequately prepare his defense" and

A-0532-22 67 is "sufficiently specific" both "to enable the defendant to avoid a subsequent

prosecution for the same offense" and "'to preclude the substitution by a trial

jury of an offense which the grand jury did not in fact consider or charge.'")

(quoting first State v. Lefante, 12 N.J. 505, 509 (1953) and then State v. Boratto,

80 N.J. 506, 519 (1979)). Relatedly, pipeline cases such as this one have been

scrutinized by a judge who has reviewed defendant's eligibility for an extended

term of imprisonment. In these circumstances, defendant is on clear notice as

to the fact-sensitive questions that a petit jury must resolve on remand; there is

no need for further clarification in the form of an indictment.

In sum, despite our reluctance to embrace the harmless constitutional error

doctrine to avoid a rash of new jury trials, we confidently apply the harmless

error principle to grand jury proceedings in pipeline cases in view of the well -

established principle that when a petit jury finds a defendant guilty, errors before

a grand jury are deemed harmless. See State v. Simon, 421 N.J. Super. 547, 551

(App. Div. 2011) (noting that "a guilty verdict is universally considered to

render error in the grand jury process harmless"); State v. Ball, 268 N.J. Super.

72, 120 (App. Div. 1993) (concluding that "procedural irregularities in a grand

jury proceeding are rendered harmless where defendant is ultimately found

A-0532-22 68 guilty by a petit jury"); see also State v. Warmbrun, 277 N.J. Super. 51, 61 (App.

Div. 1994).

X.

Having addressed the constitutional issues broached in Erlinger, we take

a step back to address defendant's contention raised in his initial appeal brief

that his prior New York convictions do not satisfy the requirements for

persistent-offender extended-term eligibility. That contention lacks merit.

N.J.S.A. 2C:44-4(c) provides that "[a] conviction in another jurisdiction shall

constitute a prior conviction of a crime if a sentence of imprisonment in excess

of one year was authorized under the law of the other jurisdiction." Our review

of the relevant New York statutes shows that for both of defendant's prior

crimes, the maximum sentence authorized by statute was in excess of one year.

Specifically, defendant has two felony convictions for robbery in t he third

degree, N.Y. Penal Law § 160.05, and criminal possession of a stolen property

(credit card) in the fourth degree, N.Y. Penal Law § 165.45. See N.Y. Penal

Law § 70.00. (listing authorized sentencing of imprisonment for felonies).

In the interests of completeness, we deem it necessary to consider

whether, under the Erlinger framework, it is for a judge or jury to determine that

the authorized sentence for an out-of-state conviction exceeds one year of

A-0532-22 69 imprisonment. Although we exercise great caution before allowing a judge to

decide any prerequisite to persistent-offender eligibility, we are satisfied that

the maximum sentence authorized by another state's law is not a case-sensitive

factual question akin to, for example, when a criminal act was committed or

when a defendant was found guilty by a jury verdict or guilty plea. See supra

note 15. Rather, we deem the determination of the maximum authorized

sentence for a prior crime to be a pure legal matter comparable to ascertaining

the elements of the predicate offense. We note in this regard the majority in

Erlinger re-affirmed that under the Almendarez-Torres exemption from the

strictures of the Apprendi rule, a judge may determine "the fact of a prior

conviction and the then-existing elements of that offense." Erlinger, 602 U.S.

at 839 (emphasis added) (citing Descamps v. United States, 570 U.S. 254, 260

(2013)). The majority added, "[u]nder that exception, a judge may "do no more,

consistent with the Sixth Amendment, than determine what crime, with what

elements, the defendant was convicted of." Ibid. (emphasis added) (citing

Mathis, 579 U.S. at 511-12).

Accordingly, and even at the risk of stretching the Almendarez-Torres

exception slightly, we deem the statutorily-prescribed maximum authorized

sentence for a crime for which the defendant has already been convicted by jury

A-0532-22 70 verdict or guilty plea is comparable to the statutorily-prescribed elements of that

crime. Because both circumstances are pure legal questions determined solely

by reading statutory plain text, a judge both can and should decide them.

XI.

Finally, we consider what the appropriate remedy should be for the

Erlinger violation. Having determined the constitutional violation in this case

should not be excused under the harmless constitutional error doctrine, it is clear

defendant's extended-term sentence must be vacated. The question then

becomes whether to remand for a jury trial to determine his eligibility for an

extended term as a persistent offender or forego persistent-offender

enhancement because the statutory language that a court determine defendant's

eligibility is not amenable to a saving construction, thus requiring a remand for

the trial court to impose a sentence within the "ordinary" range, see N.J.S.A.

2C:43-6(a).

Defendant argues in his second supplemental brief that the latter option is

required because N.J.S.A. 2C:44-3(a) "makes no provision for empanelment of

a jury solely to determine whether defendant qualifies for the extended term

sentence." Defendant asserts that "[t]he persistent offender statute

unambiguously provides that if the court 'finds one or more of the grounds

A-0532-22 71 specified in subsection a,' which defines a persistent offender, then the court

may sentence the defendant to an extended term." Defendant contends the plain

language24 of the statute precludes us from interpreting it to permit a jury, rather

than a court, to make the required findings to establish eligibility for an extended

term of imprisonment as a persistent offender. The consequence of defendant's

plain language contention is that N.J.S.A. 2C:44-3(a) cannot be applied to him—

24 Although the general rule is that courts do not resort to extrinsic interpretative aids when statutory text is unambiguous, see Malzberg v. Josey, 473 N.J. Super. 537, 546 (App. Div. 2022), we note the legislative history of N.J.S.A. 2C:44 -3 confirms the Legislature made a conscious election to have judges rather than juries determine whether to impose a persistent offender extended term of imprisonment. See The New Jersey Penal Code: Final Report of the New Jersey Criminal Law Revision Commission, Vol. II: Commentary at 329 (1971) (Final Report). The Final Report explains with respect to proposed 2C:44-3, "[t]he Code calls for court determination of these issues [referring to the various extended term provisions] rather than a jury verdict." Ibid. It further explains, "[t]he Code's view is based on the position that 'since the issue bears entirely on the nature of the sentence, rather than on guilt or innocence, we see no reason why a jury trial should be accorded in a system where questions of sentence otherwise are for determination by the Court.'" Ibid. (citing MPC T.D. 2, p. 42 (1954)). That determination presupposed the Constitution does not accord any such right. Of course, the drafters of the 1954 Model Penal Code and 1971 Final Report had no way of knowing the United States Supreme Court decades later would hold that a jury must make certain factual findings for the persistent offender enhanced sentence as a matter of constitutional right. As we explain, our construction of N.J.S.A. 2C:44-3(a) is fundamentally consistent with the Legislature's clearly expressed intention that the discretion to impose the enhanced sentence should rest ultimately with a judge. A-0532-22 72 or any other defendant—unless and until the Legislature revises the statutory

framework to provide that a jury make the required factual findings.

We note that any such legislation could not be applied retroactively. See

State v. Brown, 245 N.J. 78, 88 (2021) (explaining that the prohibition against

ex post facto laws in the United States and New Jersey Constitutions

"proscribe[s] 'any statute which . . . makes more burdensome the punishment for

a crime, after its commission.'") (second alteration in original) (quoting Beazell

v. Ohio, 269 U.S. 167, 169 (1925)). Accordingly, if, as defendant contends, a

new persistent offender law is needed to comply with the Erlinger rule—as

opposed to construing the current statute to allow a jury to make the persistent

offender eligibility determination—defendant and other repeat offenders would

not face the prospect of such enhanced punishment unless they commit another

crime after the new statute's effective date.

To further put defendant's plain language argument in perspective, we

highlight the specific language in N.J.S.A. 2C:44-3 that renders the persistent

offender provision unconstitutional under Erlinger. The first sentence in the

first unlettered paragraph in N.J.S.A. 2C:44-3, which applies to several

A-0532-22 73 extended-term provisions including the persistent-offender enhancement,25

presently reads:

The court may, upon application of the prosecuting attorney, sentence a person who has been convicted of a crime of the first, second or third degree to an extended term of imprisonment if it finds one or more of the grounds specified in subsection a., b., c., or f. of this section.

[(Emphasis added to highlight the word that violates the Erlinger rule).]

A.

Defendant relies principally on our Supreme Court's decision in Grate to

support his arguments that: (1) he cannot be tried on the question of extended -

term eligibility under the current statutory framework; and (2) we are precluded

from performing "judicial surgery" on that framework to accommodate the

Erlinger rule. Defendant claims the Court in Grate "confronted a virtually

25 The first sentence in the opening paragraph in N.J.S.A. 2C:44-3 also applies to discretionary extended terms of imprisonment based on whether: the defendant is a "professional criminal" engaged in "continuing criminal activity in concert with two or more other persons" and has "knowingly devoted himself to criminal activity as a major source of livelihood," N.J.S.A. 2C:44-3(b); the defendant "committed the crime as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value the amount of which was unrelated to the proceeds of the crime," N.J.S.A. 2C:44-3(c); or the defendant committed certain designated crimes while in possession of a stolen vehicle, N.J.S.A. 2C:44-3(f). We have no occasion in this appeal to comment on these. A-0532-22 74 identical problem" to the one raised in his appeal. We disagree. On close

inspection, the circumstances extant in Grate are markedly different from the

situation now before us. Furthermore, defendant does not address other New

Jersey Supreme Court precedents that allowed judicial modification of

sentencing enhancement statutes to render them constitutional under the

Apprendi doctrine. Those cases, which we discuss in subsection XI(B),

convince us that Grate focused on the specific statute before it and did not

announce a per se rule precluding judicial modification of statutes that violate

Apprendi principles.

The Grate Court addressed a constitutional challenge to N.J.S.A. 2C:39-

5(i), which required imposition of a minimum period of parole ineligibility "'if

the court finds' a substantial likelihood that the defendant is involved in

organized criminal activity." 220 N.J. at 334 (quoting N.J.S.A. 2C:39-5(i)).

Specifically, that statute mandated imposition of a five-year minimum term of

parole ineligibility:

A-0532-22 75 if the court finds that the aggravating circumstance set forth in . . . N.J.S.[A.] 2C:44-1[(a)(5)] applies. 26 . . . The sentencing court shall make a finding on the record as to whether the aggravating circumstance set forth in . . . N.J.S.[A.] 2C:44-1[(a)(5)] applies, and the court shall presume that there is a substantial likelihood that the defendant is involved in organized criminal activity if there is a substantial likelihood that the defendant is a member of an organization or group that engages in criminal activity. The prosecution at the sentencing hearing shall have the initial burden of producing evidence or information concerning the defendant's membership in such an organization or group.

[N.J.S.A. 2C:39-5(i).]

Grate held that the United States Supreme Court's decision in Alleyne,

which extended the Apprendi doctrine to mandatory minimum sentences,

rendered N.J.S.A. 2C:39-5(i) unconstitutional. See supra note 14. Further, the

Grate Court "decline[d] the State's invitation to perform 'judicial surgery.'" Id.

at 335. The Court acknowledged that, "[i]n appropriate cases, a court has the

power to engage in judicial surgery or the narrow construction of a statute to

free it from constitutional doubt or defect." Ibid. (quoting State v. Fortin, 198

26 N.J.S.A. 2C:44-1(a)(5) establishes a sentencing aggravating factor when "[t]here is a substantial likelihood that the defendant is involved in organized criminal activity." The constitutionality of that aggravating factor is not in question. Rather, the Apprendi-Alleyne problem arose in N.J.S.A. 2C:39-5(i) because that aggravating circumstance was the fact-sensitive predicate for a mandatory minimum term of imprisonment and parole ineligibility. A-0532-22 76 N.J. 619, 630 (2009)). "However," the Court cautioned, "this procedure applies

only 'if we can fairly do so.'" Ibid. (quoting Fortin, 198 N.J. at 631). See also

State v. Higginbotham, 475 N.J. Super. 205, 222 (App. Div. 2023) (citing Grate

and adding that the determination of whether a court "fairly can do so" is "based

on the Legislature's purpose in enacting the statute").

Because N.J.S.A. 2C:39-5(i) unambiguously required the imposition of a

mandatory minimum sentence based on a judicial finding of fact, the Grate Court

concluded that "[r]equiring a jury rather than a judge to make such a finding

would not merely be severing a constitutionally infirm portion of the sentencing

A-0532-22 77 statute,27 it would be rewriting its essential requirements." Id. at 336. The Court

added:

There is no ambiguity in the statute from which we can "assum[e] that the Legislature intended to act in a constitutional manner." Right to Choose v. Byrne, 91 N.J. 287, 311 (1982). It is unclear "'whether the Legislature would want the statute to survive with appropriate modifications rather than succumb to constitutional infirmities.'" State v. Emmons, 397 N.J. Super. 112, 122 (App. Div. 2007) (quoting Byrne, supra, 91 N.J. at 311), certif. denied, 195 N.J. 421 (2008). Thus, that determination is for the Legislature.

[Ibid.]

We do not read the Court's admonition about "rewriting [a constitutionally

infirm statute's] essential requirements" to categorically preclude a judicial

27 We also note the Legislature's mandate regarding partial unconstitutionality which provides:

If any title, subtitle, chapter, article or section of the Revised Statutes, or of any statute or any provision thereof, shall be declared to be unconstitutional, invalid or inoperative, in whole or in part, by a court of competent jurisdiction, such title, subtitle, chapter, article, section or provision shall, to the extent that it is not unconstitutional, invalid or inoperative, be enforced and effectuated, and no such determination shall be deemed to invalidate or make ineffectual the remaining titles, subtitles, chapters, articles, sections or provisions.

[N.J.S.A. 1:1-10.] A-0532-22 78 construction that reallocates factfinding to a jury when that is constitutionally

required, especially since other Court opinions embraced that construction to

save statutes from nullification under the Apprendi doctrine. See Section XI(B).

Nothing in Grate suggests the Court intended to overturn those prior precedents,

which defendant did not cite. Rather, Grate acknowledged the long-accepted

principle that "judicial surgery" is permissible provided it is clear that "the

Legislature would want the statute to survive with appropriate modifications

rather than succumb to constitutional infirmities." Grate, 220 N.J. at 336. Thus,

Grate did not abrogate the well-settled principle that:

Even though a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of this Court to so construe the statute as to render it constitutional if it is reasonably susceptible to such interpretation." Accord State v. LeFurge, 101 N.J. 404, 423 (1986); Town Tobacconist v. Kimmelman, 94 N.J. 85, 104 (1983). In determining whether a statute is susceptible to a construction that sustains its constitutionality, our primary focus must be on whether the Legislature would prefer the statute to survive as construed. Right to Choose v. Byrne, 91 N.J. 287, 311(1982).

[State v. Dillihay, 127 N.J. 42, 52 (1992) (quoting State v. Profaci, 56 N.J. 346, 350 (1970)).]

See also State v. Pomianek, 221 N.J. 66, 91 (2015) (The Court "assume[s] that

the Legislature would want us to construe [the bias intimidation statute, N.J.S.A.

A-0532-22 79 2C:16-1] in a way that conforms to the Constitution.") (citing State v. Johnson,

166 N.J. 523, 540-41 (2001)).

The task thus falls upon us to discern the Legislature's preference with

respect to judicial construction of the persistent offender provision in light of

Erlinger. We begin by recognizing that the legislative purpose undergirding the

persistent offender statute is to protect the public by deterring and incapacitating

repeat offenders. In State v. Dunbar, the Court acknowledged with respect to

its interpretation of the persistent offender provision that:

the general mandate in New Jersey [is] that the provisions of the Code be interpreted to further the general purposes of sentencing as defined in N.J.S.A. 2C:1-2(b), including the insurance of "the public safety by preventing the commission of offenses through the deterrent influence of sentences imposed and the confinement of offenders when required in the interest of public protection."

[108 N.J. 80, 90 (1987) (quoting N.J.S.A. 2C:1-2(b)).]

In State v. Clarity, we further explained "[p]ersistent-offender statutes serve to

deter individuals with criminal histories from further criminal behavior by

giving notice that they may be subject to extended prison terms for subsequent

crimes." 454 N.J. Super. 603, 610-11 (App. Div. 2018). We added, "[t]he

[persistent offender] statute was intended to create the judicial discretion to

A-0532-22 80 impose an extended term on an individual incapable of living a law -abiding life

for a significant period of time." Id. at 610.

One of the key questions defendant's plain language argument raises is

whether that public safety objective would best be served by waiting for the

Legislature to determine whether to replace N.J.S.A. 2C:44-3(a) with a new

Erlinger-compliant statute, or by interpreting the current statute essentially to

replace the word "it" in the first sentence of N.J.S.A. 2C:44-3 with the phrase "a

jury" with respect to the persistent offender finding. While the reflexive answer

to that question may seem self-evident, we proceed to address it more

analytically, starting with a close examination of the holding in Grate, the

precedent defendant principally relies upon. That approach leads us to compare

the specific statutory provisions at issue in Grate and the matter before us.

While N.J.S.A. 2C:39-5(i) and N.J.S.A. 2C:44-3(a) both run afoul of

Apprendi principles, there are significant structural and substantive differences

between these two sentencing provisions. Notably, N.J.S.A. 2C:39-5(i) required

a factual finding that is qualitatively different from the predicate findings

N.J.S.A. 2C:44-3(a) requires. The determination of whether there is "a

substantial likelihood that the defendant is involved in organized criminal

activity" is hardly "straightforward," to borrow the characterization used

A-0532-22 81 repeatedly in Erlinger. On the contrary, the organized-crime sentence

enhancement provision could significantly enlarge the breadth and scope of a

bifurcated jury trial, potentially opening a floodgate of contested evidence

concerning a defendant's personal background to prove affiliation with a street

gang, traditional organized crime family, or other "criminal organization or

group."

That problem is amplified by the fact that the penal code does not define

the terms "organized criminal activity," "criminal organization" or

"membership." 28 Cf. N.J.S.A. 2C:33-29(a) (defining "criminal street gang");

N.J.S.A. 2C:41-1(a) (defining "[r]acketeering activity"); and N.J.S.A. 2C:41-

1(c) (defining "enterprise" for purposes of a racketeering prosecution). It thus

would have fallen upon courts to fill the void by devising adequately precise

definitions and by providing suitably detailed instructions to guide a jury's

deliberations.

28 It is unclear under N.J.S.A. 2C:39-5(i) whether an occasional or casual relationship with a criminal organization would have been sufficient to constitute "membership," or whether, at the other extreme, the State would have been required to prove, for example, that the defendant was a ranked member of a street gang or a "made" member of a traditional organized crime crew. It appears prosecutors only rarely applied for an enhanced sentence under N.J.S.A. 2C:39-5(i) and so reviewing courts had little opportunity to address its scope in published decisions. A-0532-22 82 Considering these practical concerns, it is not surprising the Court in Grate

ultimately determined it was unclear whether the Legislature would want to

assign juries the responsibility to determine whether there is a substantial

likelihood a defendant is involved in organized criminal activity. We add, with

the benefit of hindsight, the Legislature never amended N.J.S.A. 2C:39-5(i) to

render it constitutional after Grate rendered it constitutionally invalid.

The far-ranging trial proofs that might be needed to establish a defendant's

membership in a criminal organization for purposes of N.J.S.A. 2C:39-5(i) stand

in stark contrast to the simple proofs needed to establish that a defendant is a

persistent offender as defined in N.J.S.A. 2C:44-3(a).29 Indeed, as we have

noted, our Supreme Court in Pierce aptly described those facts as "objective."

188 N.J. at 163. While the majority in Erlinger made clear the proofs must be

presented to a jury even though they are "straightforward," 602 U.S. at 849, it

can hardly be disputed the case-sensitive facts at issue under N.J.S.A. 2C:44-

3(a) are indeed straightforward—and typically uncontroverted—based on

fingerprint-verified criminal history records and the defendant's date of birth.

29 We note there is no need for courts to compose new definitions to guide juries' deliberations. The operative terms in N.J.S.A. 2C:44-3(a) are already defined. See, e.g., N.J.S.A. 44-4(b) and (c) (defining the terms "prior conviction of a crime" and "prior conviction in another jurisdiction"). A-0532-22 83 Aside from differences in the nature of the proofs needed to impose

enhanced punishment under N.J.S.A. 2C:44-3(a) as compared to N.J.S.A.

2C:39-5(i), there are other significant differences between these two statutes that

lead us to a different outcome than the one reached in Grate. For example,

N.J.S.A. 2C:39-5(i) triggered a mandatory minimum sentence. The persistent-

offender provision, in contrast, merely makes a defendant eligible for an

extended term of imprisonment to be imposed, ultimately, in the discretion of

the sentencing court. Construing the persistent offender statute to allow a jury

to perform the factfinding function, therefore, would not restrict the ambit of

judicial sentencing discretion. Quite the opposite. Interpreting N.J.S.A. 2C:4 4-

3(a) to comply with Erlinger would expand, not reduce, a judge's discretionary

sentencing authority by affording an extended-term option that otherwise would

not be authorized. Thus, any reservations the Judiciary and Legislature may

have with respect to mandatory sentencing are not implicated here. Cf. Pierce,

188 N.J. at 170 (noting, "we rid our sentencing practice of any ambiguity

suggestive of a Sixth Amendment transgression by means of a remedy that

preserves what, we believe, the Legislature would prefer—keeping the exercise

of sentencing discretion in the hands of courts, not juries") (citing Natale, 184

N.J. at 486). We reiterate and stress that the legislative history of N.J.S.A.

A-0532-22 84 2C:44-3(a) confirms the Legislature meant to authorize enhanced punishment

for persistent offenders while preserving judicial sentencing discretion. See

supra note 24.

Furthermore, N.J.S.A. 2C:39-5(i) relied on a "presumption" and expressly

imposed only an initial burden of production on the State. Those features would

raise constitutional concerns if applied in the context of a jury trial. Thus, to

render the statute suitable for a jury determination applying the proof-beyond-

a-reasonable-doubt standard that Apprendi and Alleyne required, significant

portions of N.J.S.A. 2C:39-5(i) would have to be surgically deleted. It would

not be enough, in other words, merely to substitute the term "jury" for "court."

In sharp contrast, our construction of N.J.S.A. 2C:44-3(a) to save it from

constitutional demise is achieved, essentially, by modifying a single word in the

statutory text.

B.

As the Attorney General correctly notes in his second supplemental reply

brief, New Jersey Supreme Court precedents besides Grate provide guidance on

when it is appropriate for a reviewing court to construe statutory language to

remedy an Apprendi-related infirmity. In Johnson, for example, the Court

addressed an Apprendi challenge to the original version of NERA. 166 N.J. at

A-0532-22 85 530. See supra note 19 (noting NERA has since been amended). The pre-2001

version required a court to find the present offense was a "violent crime." The

Johnson Court held "the factual predicate for a NERA sentence must be found

by a jury under the 'beyond a reasonable doubt' standard." Id. at 544. However,

the Court did not intimate much less hold that it had no authority to construe the

NERA text to remedy the constitutional infirmity by requiring a jury to make

the predicate finding rather than a court. On the contrary, the Court explained,

"[w]e solicit the recommendation of our Criminal Practice Committee

concerning appropriate procedures, including a NERA jury charge, that will

satisfy the requirements of subsection (e) of NERA as thus construed." Id. at

544 (emphasis added). The Court added, "[w]e are confident that the Legislature

would far prefer our construction of NERA to its potential invalidation under

the Due Process Clause." Ibid.

Relatedly, in State v. Natale (I), 178 N.J. 51 (2003) (per curiam), the Court

confirmed that NERA could be construed to permit a jury rather than a court to

make a required predicate finding when it held:

On remand, the State may elect not to proceed to a trial on a NERA predicate in which case the trial court must resentence defendant without application of NERA. In the event that the State seeks to have the court impose a NERA sentence, the court shall try the NERA issue to a jury and the jury shall determine, applying the

A-0532-22 86 beyond-a-reasonable-doubt standard, whether defendant attempted to cause serious bodily injury or whether defendant caused serious bodily injury upon the victim during the commission of second-degree aggravated assault.

[178 N.J. at 54.]

And in State v. Franklin, 184 N.J. 516 (2005), the Court addressed the

impact of Apprendi on the Graves Act second-offender enhanced sentence

provision codified in N.J.S.A. 2C:43-6(c), (d), which requires the prosecutor to

"establish by a preponderance of the evidence that the weapon used or possessed

was a firearm" and expressly provides that factual predicate is to be made by

"the court."

Notwithstanding the plain language of the statute, the Court did not

hesitate to construe N.J.S.A. 2C:43-6(d) so that it

no longer will empower judges to decide whether a defendant possessed or used a gun in second-offender cases. In the future, if the State intends to seek an extended term under the Graves Act, it must obtain an indictment charging possession or use of the gun in the commission of one of the designated crimes and then submit the charge to the jury.

[Id. at 539-40.]

Importantly for purposes of the matter before us, the Court in Franklin

emphasized, "[w]e will conform the Graves Act to the Constitution in the way

A-0532-22 87 we believe the Legislature would have intended under the present circumstances,

rather than let the second-offender provision perish completely." Id. at 539.

C.

Finally, defendant's reliance on a recent New York trial court decision,

People v. Banks, 218 N.Y.S.3d 519 (N.Y. Sup. Ct. 2024), does not persuade

us.30 The trial judge in Banks addressed Erlinger in the context of a New York

persistent offender statute that expressly barred a jury trial, requiring that the

hearing "must be before the court without a jury." Id. at 528 (quoting N.Y. Crim.

Proc. Law § 400.15(7)(a)). In view of that explicit prohibition, the judge

reasoned that a "saving construction" was not possible. Id. at 533.

The judge also reasoned that "the People's proposal—just go ahead and

hold a jury trial—leaves countless questions unanswered, calling for the court

to make a slew of policy decisions properly left to the Legislature." Id. at 529.

The judge noted, for example, questions concerning the number of peremptory

30 Defendant also cites in his second supplemental brief to State v. Anderson, 552 P.3d 803 (Wash. Ct. App. 2024). However, Anderson did not involve an Erlinger violation and has no bearing on the matter before us. A-0532-22 88 challenges that should be afforded, and what venue the matter should be heard

in. Ibid. The judge also stressed the lack of model jury charges. 31 Ibid.

Here, although our Legislature purposefully assigned the factfinding task

to courts and not to juries, see supra note 24, nothing in the text or legislative

history of N.J.S.A. 2C:44-3(d) suggests the Legislature meant to categorically

prohibit a jury from playing a role in the persistent offender decision -making

process if such a role were ever held to be constitutionally required. Clearly,

the commentary in the 1971 Final Report presupposed that a defendant has no

constitutional right to have the sentencing issue decided by a jury. See Final

Report at 329 ("[S]ince the issue bears entirely on the nature of the sentence,

rather than guilt or innocence, we see no reason why a jury should be accorded

in a system where questions of sentence otherwise are for determination by the

Court."). But at the risk of stating the obvious, there would indeed be a "reason

31 As we indicated in note 22, supra, we acknowledge that model jury charges should be drafted to ensure statewide uniformity and avoid errors in instructing the jury. Model jury charges for bifurcated trials after Erlinger would serve as a useful aid to trial courts but the absence of an approved model jury charge does not, of course, preclude a jury trial. See State v. Concepcion, 111 N.J. 373, 379 (1988) (noting that model jury charges are often helpful to trial judges in performing the important function of charging a jury); State v. R.B., 183 N.J. 308, 325 (2005) (noting that the process to adopt model jury charges is "comprehensive and thorough"); State v. O'Donnell, 255 N.J. 60, 79 (2023) (holding that "model [jury] charges are not binding statements of law"). A-0532-22 89 why a jury should" find the required predicate facts if—as eventually

happened—the United States Constitution were interpreted to accord such a

right.

Furthermore, none of the practical questions the New York judge in Banks

identified dissuade us from our conclusion that N.J.S.A. 2C:44-3(a) can and

should be construed to fulfil the Legislature's public safety objectives in

providing for enhanced punishment of persistent offenders. We note that in

Johnson, our Supreme Court acknowledged similar practical concerns. Its

response was to solicit recommendations concerning appropriate procedures,

166 N.J. at 544, not to give up on saving an important sentencing statute.

D.

In sum, considering the full gamut of our State's "judicial surgery"

jurisprudence in view of the specific sentencing enhancement statute presently

before us, we conclude it is not "unclear whether the Legislature would want the

[persistent-offender] statute to survive with appropriate modifications rather

than succumb to constitutional infirmities." Grate, 220 N.J. at 336 (quotation

marks omitted). Indeed, it seems implausible the Legislature would prefer to

have a large number of recidivist offenders avoid the prospect of enhanced

punishment when all that is needed to remedy the Erlinger infirmity is to

A-0532-22 90 interpret N.J.S.A. 2C:44-3(a) to allow a jury to make objective and

straightforward factual findings.

Articulated another way, defendant is entitled to have a jury decide his

eligibility for a persistent offender extended term of imprisonment. He is not

entitled to escape the consequences of his criminal history. Allowing the

persistent offender statutory framework to "perish," as the Court in Franklin

phrased it, 184 N.J. at 539, would needlessly extend a windfall to defendant and

a host of other recidivist offenders at the expense of public safety. That, we are

not prepared to do.

XII.

For the foregoing reasons, we vacate defendant's extended term sentence

and remand for further proceedings in accordance with the Erlinger rule to have

a jury determine whether defendant is eligible for enhanced punishment as a

persistent offender. We note the State on remand may elect to forego pursuing

an extended term. In that event, defendant shall be resentenced within the

"ordinary" range, see N.J.S.A. 2C:43-6(a), for the crimes he was convicted.

We further note the parties may enter into a negotiated post-conviction

agreement to avoid the need to convene a jury to decide whether defendant is

eligible for an extended term as a persistent offender. If any such post -

A-0532-22 91 conviction agreement contemplates that defendant may be sentenced to an

extended term as a persistent offender, the defendant must admit to the facts

establishing persistent-offender eligibility in a manner consistent with the entry

of a knowing and voluntary guilty plea pursuant to Rule 3:9-2, including the

requirement for the defendant to acknowledge the "factual basis" for the plea.

If the State elects to seek imposition of the persistent-offender extended

term and there is no post-conviction agreement, the trial judge shall convene a

jury for trial limited to the question of whether defendant meets the definition

of a persistent offender set forth in N.J.S.A. 2C:44-3(a). The State shall have

the burden of proving beyond a reasonable doubt all facts and circumstances

needed to establish extended-term eligibility under N.J.S.A. 2C:44-3(a),

including not only that the prior convictions were entered on separate occasions

and the prior crimes were committed at different times, but also that defendant

was 21 years of age or older when the present crime was committed, that

defendant was at least eighteen years of age when the prior crimes were

committed, and that the latest of the prior convictions or the date of defendant's

last release from confinement, whichever is later, is within ten years of the date

of the crime for which defendant is being sentenced.

A-0532-22 92 We note in the interest of completeness that under the Erlinger framework

as applied to N.J.S.A. 2C:44-3(a), the jury decides only if defendant is eligible

for a discretionary extended term as a persistent offender. The trial judge retains

discretion to decide whether to impose an extended term on a defendant that a

unanimous jury finds to be eligible for an enhanced sentence. The judge

likewise retains discretion, subject to the rules governing sentencing decisions,

in determining the length of the sentence within the extended term range, see

N.J.S.A. 2C:43-7(a).

Affirmed in part, reversed in part, and remanded for further proceedings

consistent with this opinion. We do not retain jurisdiction.

A-0532-22 93