STATE OF NEW JERSEY VS. ALEXIS CANADAS (15-02-0231 AND 16-01-0056, ESSEX COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: July 11, 2018
• Docket: A-4486-15T2
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4486-15T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

ALEXIS CANADAS,

Defendant-Appellant.

_________________________________

Submitted September 26, 2017 – Decided July 11, 2018

Before Judges Carroll and Leone.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 15-02-0231 and 16-01-0056.

Joseph E. Krakora, Public Defender, attorney for appellant (Daniel V. Gautieri, Assistant Deputy Public Defender, of counsel and on the briefs).

Robert D. Laurino, Acting Essex County Prosecutor, attorney for respondent (Barbara A. Rosenkrans, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

Appellant filed a pro se supplemental brief.

PER CURIAM Defendant Alexis Canadas was convicted of weapons offenses

under two indictments. He appeals his judgments of conviction

dated May 20 and May 23, 2016. We affirm his convictions, and

remand for the court to vacate his sentences and resentence him.

I.

The trial testimony included the following facts. On the

night of August 16, 2014, Detectives Anna Colon and Angel Pared

of the Newark Police Department's Firearm Interdiction Team were

on patrol with Rutgers University Police Officer Michael

Prendeville in an unmarked vehicle. A speeding Acura swerved

around them on the right and cut in front of them.

Detective Colon pulled over the Acura for improper passing

and failure to signal. Defendant was the driver, and co-defendant

Michael Muniz was the passenger.

Detective Colon approached the Acura. Through the open

driver's window she saw defendant hunched over and moving his

right arm even though his registration and insurance documents

were already on his lap. Colon shone her flashlight into the car

and saw the handle of a handgun under the driver's seat.

Detective Colon had defendant exit the vehicle. She shouted

the police codes for "arrest" and "firearm." Detective Pared had

Muniz exit the Acura and handcuffed him. Officer Prendeville

handcuffed defendant.

2 A-4486-15T2 Detective Colon testified that as the defendants were being

handcuffed, defendant became upset and started shouting. Colon

could not remember "specifically the words that he said," "but he

made it known that the gun was his and not his brother's." The

court sustained Muniz's objection to the word "brother." Detective

Pared testified he did not "remember the specific words that

[defendant] said," but he said "[s]omething in th[e] nature" of

"that's my gun." Officer Prendeville testified defendant said

something which "went to the fact that the gun was his."

A Crime Scene officer came, photographed the gun under the

seat, and then removed the handgun, a .40 caliber pistol with a

defaced serial number. The gun had a bullet in the chamber and

fourteen bullets in the magazine, including two hollow-point

bullets. Neither defendant nor Muniz had a permit for the handgun.

Defendant had previously been convicted of crimes covered by the

No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(d).

Indictment No. 15-02-0231 charged defendant and Muniz with

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b); fourth-degree possession of hollow-nose bullets, N.J.S.A.

2C:39-3(f); fourth-degree possession of a defaced firearm,

N.J.S.A. 2C:39-3(d); and fourth-degree possession of a large-

capacity magazine, N.J.S.A. 2C:39-3(j). Indictment No. 16-01-0056

charged defendant with first-degree unlawful possession of a

3 A-4486-15T2 handgun by a person with a prior conviction of a NERA crime,

N.J.S.A. 2C:39-5(j).

At the trial on Indictment No. 15-02-0231, the court dismissed

the magazine charge. The jury convicted defendant of the remaining

charges but acquitted Muniz. In a bifurcated trial, the same jury

convicted defendant of the charge in Indictment No. 16-01-0056.

Under Indictment No. 15-02-0231, for the second-degree

offense, the trial court sentenced defendant to an extended term

of eighteen years in prison with nine years of parole

ineligibility. The court imposed on each fourth-degree offense a

concurrent eighteen-month term. For Indictment No. 16-01-0056's

first-degree offense, the court sentenced defendant to an extended

term of thirty years in prison, with fifteen years of parole

ineligibility, to run concurrently with the sentences under the

other indictment.

Defendant appeals, raising the following points:

POINT I – A NEW TRIAL MUST BE ORDERED BECAUSE, AFTER THE JUDGE SUBSTITUTED A JUROR AND DIRECTED THAT THE JURORS COMMENCE THEIR DELIBERATIONS FROM THE BEGINNING, HE PREVENTED THE POSSIBILITY THAT THE NEWLY RECONSTITUTED JURY COULD COMMENCE ITS DELIBERATIONS ANEW BY THEN PROCEEDING TO PLAYBACK TESTIMONY THAT HAD BEEN REQUESTED BY THE PRIOR JURY. (Not Raised Below).

POINT II – CANADAS WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY TOLD THE JURORS IN SUMMATION THAT THE

4 A-4486-15T2 STATE'S BURDEN TO PROVE GUILT BEYOND A REASONABLE DOUBT AMOUNTS TO A 75% OR GREATER PROBABILITY OF GUILT. THE COURT DEPRIVED CANADAS OF DUE PROCESS AND A FAIR JURY TRIAL WHEN IT FAILED TO CORRECT THE ERROR, THEREBY LOWERING THE STATE'S BURDEN OF PROOF. (Not Raised Below).

POINT III – THE EXTENDED-TERM SENTENCE IMPOSED FOR POSSESSION OF A HANDGUN BY SOMEONE WHO HAS PREVIOUSLY BEEN CONVICTED OF A NO-EARLY- RELEASE-ACT OFFENSE, N.J.S.A. 2C:39-5j, IS ILLEGAL BECAUSE THE OFFENSE DOES NOT COME WITHIN THE GRAVES ACT.

II.

Defendant first challenges the trial court's playback of

testimony even though an alternate was substituted between the

granting of the jury's request for the playback and the playback

itself. In the trial on Indictment No. 15-02-0231, after the

alternates were sequestered, the jury began its deliberations

after lunch. Shortly before 3:40 p.m., after deliberating for

what Muniz's counsel later estimated was about three hours, the

jury asked three questions. The second question asked: "We, the

jury, have a question regarding testimony by several law

enforcement officers who heard Alex Canadas's claim that the gun

was his and NOT HIS 'BROTHER'S.' May we have this testimony

provided to us and/or read back to us?"

The trial court and counsel discussed the questions. It was

agreed the court should play back for the jury the testimony by

5 A-4486-15T2 the three officers about defendant's statements. However, because

it would take time to isolate that testimony, it was agreed to

send the jury home and resume the next day. In the presence of

the jurors and alternates, the court discussed the jury's questions

and its answers, and said of the requested testimony: "come back

tomorrow, and then we will have that information. We will play

it back for you."

The next morning, the trial court and counsel reviewed the

recordings and isolated the requested testimony. The court

informed counsel that juror #11 was now in the hospital. The

court proposed to replace juror #11 with one of the alternates,

to read the Model Jury Charge (Criminal), "Judge’s Instructions

When Alternate Juror Empaneled After Deliberations Have Begun"

(Jan. 14, 2013), and to "play back for the jurors the testimony."

Both defense counsel said they had no objection to seating an

alternate or giving the instruction. Both defendant's counsel and

Muniz's counsel requested that the court pause the playback to

give a curative instruction about the word "brother."

The trial court informed the jury that Juror #11 had been

excused, that the alternate had been seated, and that the court

would give the jury the requested playback. The court then gave

the reconstituted jury the model instruction, including:

6 A-4486-15T2 [A]s of this moment, you are a new jury, and you must start your deliberations all over again. The parties have the right to a verdict reached by 12 jurors who have had the full opportunity to deliberate from start to finish. The alternate juror . . . has had no knowledge of your earlier deliberations. Consequently, the new deliberating jury must start over at the very beginning of deliberations. Each member of the original deliberating jury must set aside and disregard whatever may have occurred and anything which may have been said in the jury room following my instructions to you. You must give no weight to any opinion expressed by Juror Number 11 during deliberations before that juror was excused. Together as a new jury you must consider all evidence presented at trial as part of your full and complete deliberations until you reach a verdict.

Then the audio recording of the requested testimony was played

once in open court. When the playback referenced the term

"brother," the court stopped the tape and instructed the jury that

there had been no evidence of a familial relationship and that

they should disregard the term. When the playback was over, the

court again instructed the jurors that the alternate was "not a

part of your discussions yesterday, and that is why you are

directed now to start deliberating anew."

The reconstituted jury deliberated for about fifty minutes,

got lunch, resumed deliberations, and reached a verdict. Although

the time was not recorded, the trial prosecutor estimated the jury

returned its verdicts at 3:00 p.m.

7 A-4486-15T2 On appeal, defendant claims that by allowing the playback

requested by the original jury, the trial court deprived defendant

of his right to have the seated alternate fully engage in

collective and mutual deliberations with the other jurors.

However, at trial, defendant did not object to the playback to the

reconstituted jury, instead agreeing the playback should be

interrupted to address the defense objection to the word "brother."

Defendant must overcome the invited error doctrine. "Under

that settled principle of law, trial errors that 'were induced,

encouraged or acquiesced in or consented to by defense counsel

ordinarily are not a basis for reversal on appeal.'" State v.

A.R., 213 N.J. 542, 561 (2013) (citation omitted). Defendant's

counsel consented to or acquiesced in the playback to the

reconstituted jury, asking the playback be interrupted to address

the objection to the word "brother." See id. at 563 (finding

defense counsel encouraged or '[a]t the very least, consented or

acquiesced to" allowing the jury erroneously to playback video-

recorded statements in the jury room by saying "[t]hey might be

able to look at that"). "Under those circumstances, defendant

invited the very error he now considers so egregious to warrant a

new trial." Ibid. Moreover, the playback arguably served

defendant's strategy in summation of highlighting that the

officers could not remember or agree on "exactly what was said,"

8 A-4486-15T2 and suggesting that the jurors "can ask to have Officer Colon's

testimony played back for you." See id. at 562 (rejecting

defendant's challenge to a playback in part because defense counsel

said the jury "'probably should review the tape again'" of the

defendant's confession because it would show he was tired).

Accordingly, defendant "is barred from raising an objection for

the first time on appeal" about the playback under the invited

error doctrine. Id. at 561 (citation omitted). Defendant does

not fall within the exception to the doctrine because replaying

testimony that was already heard by the jurors, including the

alternate, did not "cut mortally" into defendant's rights and did

"not constitute a 'fundamental miscarriage of justice.'" Id. at

562 (citation omitted).

Even if the invited error doctrine does not bar defendant's

claim, he did not object and thus must show "plain error." R.

2:10-2; see State v. Fortin, 178 N.J. 540, 625 (2004). Under the

plain error standard, "defendant has the burden to show that there

is an error, that the error is 'clear' or 'obvious,' and that the

error has affected 'substantial rights.'" State v. Chew, 150 N.J.

30, 82 (1997) (quoting, and ruling "our law is the same" as, United

States v. Olano, 507 U.S. 725, 734 (1993)); see State v. Morton,

155 N.J. 383, 421 (1998). An error is not clear or obvious "unless

the error is clear under current law" at the time of appellate

9 A-4486-15T2 consideration. Olano, 507 U.S. at 734; see Henderson v. United

States, 568 U.S. 266, 279 (2013); Johnson v. United States, 520

U.S. 461, 468 (1997). To show an effect on substantial rights,

defendant has the burden of proving the error was "clearly capable

of producing an unjust result[.]" R. 2:10-2; see State v. Weston,

222 N.J. 277, 294-95 (2015).

Defendant has not shown any of the requirements for plain

error. First, he has not shown the trial court erred in granting

the jury's request for a playback. "Juries routinely ask to review

trial testimony when they deliberate. Absent 'some unusual

circumstance,' those requests should be granted." State v. Miller,

205 N.J. 109, 119-20, 122 (2011) (citation omitted). "Courts

should honor a jury's specific request to hear only limited parts

of a witness' testimony — provided . . . that playback includes

relevant direct and cross examination." Id. at 123. Trial

"[c]ourts have broad discretion as to whether and how to conduct

read-backs and playbacks." Id. at 122. The court's decision is

reviewed for "an abuse of discretion." State v. W.B., 205 N.J.

588, 623 (2011).

The trial court did not abuse its broad discretion by granting

the original jury's request for a playback. Such "requests are a

clear sign that the evidence sought is important to the

deliberative process. They also reflect the reality that jurors

10 A-4486-15T2 cannot be expected to have perfect recall of every bit of evidence

introduced during a trial." Miller, 205 N.J. at 120.

Nor was it an abuse of discretion, once the trial court had

granted the original jury's request for a playback, to do the

promised playback after the alternate had been substituted. An

alternate is required to receive the same information as the

sitting jury to ensure the alternate will have the same

informational foundation if the alternate is later substituted.

State v. Miller, 76 N.J. 392, 407 (1978) (ruling "alternate jurors

should have been brought into the courtroom to hear [any

supplemental] charge"); 32 N.J. Practice, Criminal Practice and

Procedure § 20:38, at 561-62 (Leonard N. Arnold) (2018) ("If the

deliberating jury has a question, then at the time the question

is answered . . . the alternate jurors must be present").

Readbacks and playbacks are part of that informational foundation,

and thus should occur in the presence of the alternates even before

they are seated as jurors. Thus, there was no reason not to do

the playback once the alternate was seated. The court was not

required to do the playback only for the original jurors and create

an unequal foundation, or to refuse the promised playback and deny

the jurors important information.

Defendant argues the request for a readback showed the

original jury was well-entrenched in the deliberations. However,

11 A-4486-15T2 our Supreme Court has upheld the substitution of an alternate

immediately after a readback, finding "[t]he jury's request for a

readback regarding the identification of defendants suggests that

the jury had not resolved that critical issue." State v. Williams,

171 N.J. 151, 168-69 (2002) (finding "the precise number of hours

and minutes of the prior deliberations are less important because"

of the readback, which showed "[t]he jury could not have reached

a determination of guilt or innocence"). Applying Williams, the

Court has upheld the substitution of an alternate for an ill juror

on the fifth day of deliberations after readbacks. State v. Ross,

218 N.J. 130, 138, 152-53 (2014). Here, the jury had deliberated

only three hours before the readback request and alternate's

substitution, and then deliberated for about the same period before

reaching a verdict. See Williams, 171 N.J. at 169 (finding no

plain error where "the jury deliberated for a length of time

equivalent to that spent in deliberations before the readback").

The facts here bear no resemblance to the cases defendant

cites, which held an alternate could not be substituted because

the deliberations had gone too far for the alternate to have "a

realistic opportunity to share in the deliberative process."

Williams, 171 N.J. at 170. Cf. State v. Jenkins, 182 N.J. 112,

132-33 (2004) (citation omitted) (reversing because the colloquy

with the discharged juror "strongly suggests that eleven jurors

12 A-4486-15T2 already had made up their minds to convict defendant"); State v.

Corsaro, 107 N.J. 339, 351, 354 (1987) (reversing because the jury

had already returned a partial verdict); State v. Williams, 377

N.J. Super. 130, 150 (App. Div. 2005) (reversing because "the jury

had been deliberating for approximately twelve hours," had been

given the instruction for deadlocked juries, and convicted one

hour after the alternate was added).1

When an alternate is substituted, the trial court should

create "an environment so that the mutual or collective nature of

the jury's deliberations is preserved and remains intact until a

final determination is reached." Corsaro, 107 N.J. at 349. The

court did so by giving the strong model instruction explaining to

the reconstituted jury how "you are a new jury, and you must start

your deliberations all over again," and by reiterating after the

playback that "you are directed now to start deliberating anew."

See Ross, 218 N.J. at 140, 147, 151; cf. State v. Trent, 79 N.J.

251, 254-55, 257 (1979) (reversing because the court did not

instruct the jury to begin anew and instead instructed the

alternate to "'continue with deliberations with the jury'").

1 Moreover, after our decision in Williams, our Supreme Court overruled an Appellate Division decision "to the extent that it generally barred trial courts from substituting a juror and directing new deliberations, by virtue of the fact that the original jury had reached an initial impasse and was charged" with the deadlocked jury instruction. Ross, 218 N.J. at 153-55.

13 A-4486-15T2 Defendant argues Juror #11 may have expressed an opinion in

then original jury on whether to have a playback. However, an

original jury's opinion that a playback was needed does not deprive

a seated alternate or a reconstituted jury of the ability to

deliberate. See Ross, 218 N.J. at 151; Williams, 171 N.J. at 169-

70. In any event, the trial court instructed the original jurors

to "disregard whatever may have occurred and anything which may

have been said in the jury room," and to "give no weight to any

opinion expressed by Juror Number 11." Thus, there was no error.

Second, defendant has not shown that any error is "clear

under current law" at the time of appellate consideration. Olano,

507 U.S. at 734. He cannot cite, and we cannot find, any New

Jersey case barring courts from performing a previously-granted

readback or playback merely because an alternate has been seated.

Third, defendant has not shown any error was "clearly capable

of producing an unjust result." R. 2:10-2. He cannot show he was

prejudiced by the single playback in open court of an audio

recording of testimony the jury and the alternate had already

heard. See Weston, 222 N.J. at 293-94, 300 (finding no plain

error where the judge erroneously had the jury replay videos of

two accusers' statements even though the jury did not request a

replay, and the court erroneously allowed the jury to play the

DVDs in the jury room); W.B., 205 N.J. at 623 (finding "no basis

14 A-4486-15T2 to reverse defendant's convictions, even if the videotape [of the

defendant's confession] was not admitted into evidence, merely

because the jury saw the playback of a videotaped statement that

already had been played to it as part of the State's case").

Moreover, we must "assess '"the overall strength of the State's

case."'" Weston, 222 N.J. at 295 (citations omitted). The State's

evidence was strong: defendant was seen sitting in the driver's

seat apparently putting the handgun under his seat, three officers

saw the handgun under his seat, and he admitted the gun was his.

Accordingly, he has not met the requirements for plain error.

III.

Next, defendant claims his trial counsel was ineffective.

"Generally, ineffective assistance of counsel claims are not

entertained on direct appeal 'because such claims involve

allegations and evidence that lie outside the trial record.'"

State v. Allah, 170 N.J. 269, 285 (2002) (citation omitted).

"However, when the trial itself provides an adequately developed

record upon which to evaluate defendant's claims, appellate courts

may consider the issue on direct appeal." State v. Castagna, 187

N.J. 293, 313 (2006).

To show ineffective assistance of counsel, defendant must

satisfy the two-prong test set forth in Strickland v. Washington,

466 U.S. 668 (1984), and State v. Fritz, 105 N.J. 42 (1987). "The

15 A-4486-15T2 defendant must demonstrate first that counsel's performance was

deficient, i.e., that 'counsel made errors so serious that counsel

was not functioning as the "counsel" guaranteed the defendant by

the Sixth Amendment.'" State v. Parker, 212 N.J. 269, 279 (2009)

(quoting Strickland, 466 U.S. at 687). Second, "a defendant must

also establish that the ineffectiveness of his attorney prejudiced

his defense. 'The defendant must show that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different.'" Id. at 279-

80 (quoting Strickland, 466 U.S. at 694). This "is an exacting

standard: '[t]he error committed must be so serious as to undermine

the court's confidence in the jury's verdict or the result

reached.'" State v. Allegro, 193 N.J. 352, 367 (2008) (quoting

Castagna, 187 N.J. at 315).

"[C]ourts are permitted leeway to choose to examine first

whether a defendant has been prejudiced, and if not, to dismiss

the claim without determining whether counsel's performance was

constitutionally deficient." State v. Gaitan, 209 N.J. 339, 350

(2012) (citing Strickland, 466 U.S. at 697). We do so here.

During his summation in the trial of Indictment 15-02-0231,

defendant's trial counsel told the jury: "the Judge will instruct

you about that, about beyond a reasonable doubt. But I like to

16 A-4486-15T2 . . . think of it as on a scale of one to 100, beyond a reasonable

doubt is, like, 75 or above. So that's a high standard[.]"

We do not approve of such an attempt to reduce reasonable

doubt to percentages. We cannot say what if any reason counsel

had for his argument. However, even if counsel's description of

reasonable doubt was deficient, defendant cannot show prejudice

because the trial court properly defined reasonable doubt for the

jury.

Just before opening statements, the court gave all jurors the

full, model instruction on reasonable doubt. Model Jury Charge

(Criminal), "Preliminary Instructions To The Jury" (rev. May 12,

2014). In particular, the court defined that "[a] reasonable

doubt is an honest and reasonable uncertainty in your minds about

the guilt of the defendants[.]" The court explained that "proof

beyond a reasonable doubt . . . leaves you firmly convinced of the

defendant's guilt." The court made clear:

If, based on your consideration of the evidence you are firmly convinced that a defendant is guilty of the crime charged, then you must find him guilty. If, on the other hand, you are not firmly convinced of the defendant's guilt, you must give the defendant the benefit of the doubt and find him not guilty.

[(emphasis added).]

17 A-4486-15T2 During closing arguments, defendant's counsel told the jury

"[t]he Judge is going to instruct you about what reasonable doubt

is." Muniz's counsel told the jury to "follow the law that the

Judge gives you."

After the closing arguments, the trial court gave the jury

the model instructions.2 The court told the jurors it was

instructing them on "the principles of law applicable in this

case," and that:

You must accept and apply this law for this case as I give it to you in this charge. Any ideas that you may have of what the law is or what the law should be or any statements by the attorneys as to what the law may be must be disregarded by you if they are in conflict with my charge.

The court then reiterated the same definition and explanations of

reasonable doubt, mirroring the model charge.

The trial court also instructed the jury that "[a]rguments,

statements, remarks, openings and summations of counsel" were not

evidence, and that: "Whether or not the defendant has been proven

guilty beyond a reasonable doubt is for you to determine based on

2 Model Jury Charge (Criminal), "Criminal Final Charge Parts 1 & 2 (General Information to Credibility of Witnesses)" (rev. May 12, 2014); Model Jury Charge (Criminal), "Criminal Final Charge Part 3 (Criminal Offenses to Where More than One Defendant)" (rev. Jan. 14, 2013); Model Jury Charge (Criminal), "Criminal Final Charge Part 4 (Deliberations to Jury Questions)" (rev. Jan. 14, 2013).

18 A-4486-15T2 all the evidence presented during the trial. Any comments by

counsel are not controlling." The judge repeatedly instructed the

jurors that "You must accept the law as given to you by me"; that

they must rule "based on the law as I will give it to you"; and

that in deliberating "[y]ou are to apply the law as I have

instructed you." The court also gave the jury written copies of

these instructions.

The trial court's preliminary instructions and final charge

both accurately defined reasonable doubt. State v. Wakefield, 190

N.J. 397, 469-70 (2007). Moreover, the court repeatedly told the

jury to disregard "any statements by the attorneys as to what the

law may be must be . . . if they are in conflict with [the]

charge." See State v. Lester, 271 N.J. Super. 289, 292 (App. Div.

1994). Therefore, we must "presume the jury followed the court's

instructions." State v. Smith, 212 N.J. 365, 409 (2012) (presuming

the jury followed the trial court's instruction "that the remarks

made by the attorneys in their summations were not evidence").

Applying that presumption, we have rejected a similar claim

in State v. Powell, 294 N.J. Super. 557 (App. Div. 1996). There,

in both opening statements and in summation, co-defendant's

attorney told the jury the standard of proof beyond a reasonable

doubt was "not one hundred percent . . . but it's somewhere between

seventy and one hundred percent, somewhere." Id. at 566. We

19 A-4486-15T2 rejected the defendant's claim, even though the attorney during

opening statement and in summation "clearly misstated the concept

of reasonable doubt, [because] the judge told the jury in no

uncertain terms that it should follow his instructions, not those

given by the attorneys. The judge's definition of reasonable

doubt was accurate. We presume that the jury followed the judge's

instructions." Ibid.

Defendant claims the prosecutor told the jury defendant's

trial counsel properly defined reasonable doubt. However, the

prosecutor commented only that trial counsel in closing "said

maybe beyond a reasonable doubt is about 75 percent, ladies and

gentlemen. Now think about that number, 75 percent. The State

in this case proved these elements beyond a reasonable doubt,

almost to a near certainty . . . . certainly more than [trial

counsel] is advocating for you to find." The prosecutor's

comments, while regrettable, ultimately asserted the State's proof

met the proper standard, approaching "yet not necessarily to an

absolute certainty." Model Jury Charge (Criminal), "Reasonable

Doubt" (rev. Feb. 24, 1997). In any event, the trial court told

the jury to follow its correct instructions despite any comments

by the attorneys, which included the prosecutor.

As the jury was properly instructed on reasonable doubt,

defendant's claim of structural error is inapposite. Structural

20 A-4486-15T2 error exists "only in a very limited class of cases." State v.

Camacho, 218 N.J. 533, 549 (2014) (quoting Johnson, 520 U.S. at

468). Such extreme cases can include "defective" reasonable-doubt

instructions, but do not include improper arguments by counsel,

which are not reversible error if not prejudicial. Id. at 547-

50. Because defendant has not shown prejudice, his ineffectiveness

claim fails.

IV.

Defendant's sentencing claims raise issues of statutory

interpretation involving a recently-enacted offense, N.J.S.A.

2C:39-5(j). "'[B]ecause statutory interpretation involves the

examination of legal issues,'" we apply "'a de novo standard of

review.'" State v. Nance, 228 N.J. 378, 393 (2017) (citation

omitted). We must hew to that standard of review.

A court's responsibility "is to give effect to the intent of the Legislature." To do so, we start with the plain language of the statute. If it clearly reveals the Legislature's intent, the inquiry is over. If a law is ambiguous, we may consider extrinsic sources including legislative history. We also look to extrinsic aids if a literal reading of the law would lead to absurd results.

[State v. Harper, 229 N.J. 228, 237 (2017) (citations omitted).]

21 A-4486-15T2 A.

Defendant's pro se brief argues that he could not be sentenced

as a first-degree offender under N.J.S.A. 2C:39-5(j). However,

defendant was convicted of the second-degree offense of knowingly

possessing a handgun without first having obtained a permit, in

violation of subsection (b) of N.J.S.A. 2C:39-5. He was also

convicted under N.J.S.A. 2C:39-5(j), which provides: "A violation

of subsection a., b., c. or f. of this section by a person who has

a prior conviction of any of the crimes enumerated in [NERA] is a

first degree crime." Ibid. Defendant had at least two 1998

convictions for NERA crimes: aggravated assault with a firearm,

N.J.S.A. 2C:12-1(b)(4); and aggravated assault with serious bodily

injury, N.J.S.A. 2C:12-1(b)(1). See N.J.S.A. 2C:43-7.2(d)(4).

Therefore, under the plain statutory language, he could be

sentenced under N.J.S.A. 2C:39-5(j) as a first-degree offender.

Defendant contends neither of his 1998 offenses should count

because N.J.S.A. 2C:39-5(j) like other statutes should preclude

use of prior convictions more than ten years old. He cites the

"Three Strikes" section, N.J.S.A. 2C:43-7.1, which provides:

The provisions of this section shall not apply . . . unless the crime for which the defendant is being sentenced was committed either within 10 years of the date of the defendant’s last release from confinement for commission of any crime or within 10 years of the date of the commission of the most recent of the crimes

22 A-4486-15T2 for which the defendant has a prior conviction.

[N.J.S.A. 2C:43-7.1(c).]

He also cites the "persistent offender" subsection, N.J.S.A.

2C:44-3(a), which allows an extended term if the defendant was

"convicted on at least two separate occasions of two crimes . . .

if the latest in time of these crimes or the date of the defendant’s

last release from confinement, whichever is later, is within 10

years of the date of the crime for which the defendant is being

sentenced." Ibid.

However, N.J.S.A. 2C:39-5(j) contains no such language

imposing a ten-year limitation. "[A] court may not rewrite a

statute or add language that the Legislature omitted." State v.

Munafo, 222 N.J. 480, 488 (2015). N.J.S.A. 2C:39-5(j) is not

ambiguous, so the rule of lenity is inapplicable. Nor is it absurd

to have a recidivist statute without such a ten-year limitation.

Defendant argues N.J.S.A. 2C:39-5(j) and the statutes he

cites are "in pari materia" and thus "'construed together as a

"unitary and harmonious whole."'" Marino v. Marino, 200 N.J. 315,

330 (2009) (citation omitted). "Resort to this maxim . . . is

helpful when the Legislature's intent is unclear," but N.J.S.A.

2C:39-5(j) is clear. See ibid. Moreover, the three-strikes and

persistent-offender provisions defendant cites are not in pari

23 A-4486-15T2 materia with N.J.S.A. 2C:39-5(j)'s firearm upgrade; they were

enacted many years before and do not "'relate to the same person

or thing, to the same class of persons or things, or have the same

purpose or object.'" See ibid. (citation omitted). "[T]he

language used in each of the sections, the selection of different

words, and the Legislature's expression of a different preference

in one section than in the other[s] makes plain that they are not

designed to serve a common purpose." See id. at 331. We may not

"apply[] this maxim of statutory construction . . . [to]

inappropriately import concepts from one statutory provision into

a separate provision with a different objective or intent." Ibid.

B.

Defendant's counseled brief argues the trial court erred in

imposing an extended-term thirty-year prison sentence for

defendant's conviction under N.J.S.A. 2C:39-5(j). The court based

the extended term on N.J.S.A. 2C:43-6(c) and N.J.S.A. 2C:44-3 as

amended in the Graves Act, L. 1981, c. 31, and thereafter.

N.J.S.A. 2C:43-6(c) provides for imprisonment and a mandatory

minimum term for defendants who commit enumerated firearm crimes:

[a] person who has been convicted under subsection b. or d. of N.J.S.2C:39-3, subsection a. of N.J.S.2C:39-4, subsection a. of section 1 of P.L.1998, c.26 (C.2C:39-4.1), subsection a., b., c., or f. of N.J.S.2C:39- 5, subsection a. or paragraph (2) or (3) of subsection b. of section 6 of P.L.1979, c.179

24 A-4486-15T2 (C.2C:39-7), or subsection a., b., e. or g. of N.J.S.2C:39-9, or of a crime under any of the following sections: 2C:11-3, 2C:11-4, 2C:12-1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5[.]

[N.J.S.A. 2C:43-6(c) (emphasis added).]

N.J.S.A. 2C:43-6(c) requires an extended-term sentence for

an enumerated firearm crime if the defendant was previously

convicted of an offense involving use or possession of a firearm:

A person who has been convicted of an offense enumerated by this subsection and who used or possessed a firearm during its commission, attempted commission or flight therefrom and who has been previously convicted of an offense involving the use or possession of a firearm as defined in 2C:44-3d., shall be sentenced by the court to an extended term as authorized by 2C:43-7c., notwithstanding that extended terms are ordinarily discretionary with the court.

N.J.S.A. 2C:44-3(d) defines such a "[s]econd offender with a

firearm":

[t]he defendant is at least 18 years of age and has been previously convicted of any of the following crimes: 2C:11-3, 2C:11-4, 2C:12- 1b., 2C:13-1, 2C:14-2a., 2C:14-3a., 2C:15-1, 2C:18-2, 2C:29-5, 2C:39-4a., or has been previously convicted of an offense under Title 2A of the New Jersey Statutes or under any statute of the United States or any other state which is substantially equivalent to the offenses enumerated in this subsection and he used or possessed a firearm, as defined in 2C:39-1f., in the course of committing or

25 A-4486-15T2 attempting to commit any of these crimes, including the immediate flight therefrom.

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

N.J.S.A. 2C:44-3 mandates a defendant covered by N.J.S.A.

2C:44-3(d) must receive a mandatory extended term if he or she is

being sentenced for an offense enumerated in N.J.S.A. 2C:43-6(c):

If the grounds specified in subsection d. are found, and the person is being sentenced for commission of any of the offenses enumerated in N.J.S.2C:43-6c. or N.J.S.2C:43-6g., the court shall sentence the defendant to an extended term as required by N.J.S.2C:43-6c. or N.J.S.2C:43-6g., and application by the prosecutor shall not be required.

[N.J.S.A. 2C:44-3 (emphasis added).]

Defendant was over eighteen years old and had previously been

convicted of aggravated assault with a firearm, N.J.S.A. 2C:12-

1(b)(4), a qualifying prior offense under N.J.S.A. 2C:44-3(d).

Thus, the trial court properly imposed a mandatory extended-term

sentence for his conviction under Indictment No. 15-02-0231 for

second-degree unlawful possession of a handgun, N.J.S.A. 2C:39-

5(b), a firearm crime enumerated in N.J.S.A. 2C:43-6(c).

The trial court also imposed a mandatory extended-term

sentence on his conviction under Indictment No. 16-01-0056 for

N.J.S.A. 2C:39-5(j). However, N.J.S.A. 2C:43-6(c) includes

26 A-4486-15T2 "subsection a., b., c., or f. of N.J.S. 2C:39-5," but not

subsection (j), among the enumerated firearm crimes.3

The trial court erred in imposing a mandatory extended-term

sentence on a firearm crime not enumerated in N.J.S.A. 2C:43-6(c).

That section clearly and unambiguously lists only "subsection a.,

b., c., or f. of N.J.S. 2C:39-5" among the enumerated firearm

crimes eligible for such terms. Ibid. "'[I]f the meaning of the

text is clear and unambiguous on its face, [we must] enforce that

meaning.'" State v. Grate, 220 N.J. 317, 330 (2015) (citation

omitted). "Because the Graves Act extended term sentencing

provisions enumerate the crimes that trigger such sentences, and

because [N.J.S.A. 2C:39-5(j)] is not so enumerated," defendant's

sentence for that crime "should have been imposed without a Graves

Act extended term." See State v. Livingston, 340 N.J. Super. 133,

140 (App. Div. 2001), aff'd, 172 N.J. 209, 215-16 (2002).

We similarly reversed a mandatory extended-term sentence

imposed where "th[e] list of offenses eligible for a mandatory

extended term [in N.J.S.A. 2C:43-6(f)] does not list the public

3 N.J.S.A. 2C:39-5(j) also is not enumerated in N.J.S.A. 2C:43- 6(g), which provides for imprisonment and a minimum term for "[a]ny person who has been convicted under subsection a. of N.J.S.2C:39- 4 or of a crime under any of the following sections: N.J.S.2C:11- 3, N.J.S.2C:11-4, N.J.S.2C:12-1b., N.J.S.2C:13-1, N.J.S.2C:14- 2a., N.J.S.2C:14-3a., N.J.S.2C:15-1, N.J.S.2C:18-2, N.J.S.2C:29- 5, N.J.S.2C:35-5[.]"

27 A-4486-15T2 facility offense, N.J.S.A. 2C:35-7.1." State v. Patterson, 435

N.J. Super. 498, 516 (App. Div. 2014). Courts "cannot rewrite a

criminal statute to increase sentencing penalties that do not

appear clearly on the face of that statute." Ibid. (quoting State

v. Gelman, 195 N.J. 475, 487 (2008)).

The trial court offered several reasons why the first-degree

offense should be eligible for an extended term. First, the court

stated: "even though the legislature doesn't include Section (j)

in the mandatory extended term provisions of N.J.S.A. 2C:44-3,

. . . it doesn't make sense that the mandatory extended term

provisions should not apply." However, it was not absurd for the

Legislature to impose different penalties on firearms offenders,

repeat firearms offenders, and firearm offenders with serious

prior crimes. The Legislature penalized the possession of certain

firearms as second- or third-degree offenses in N.J.S.A. 2C:39-

5(a), (b), (c), and (f). By including those offenses in N.J.S.A.

2C:43-6(c)'s list, the Legislature required an extended-term

sentence if the defendant had previously committed certain

offenses while using or possessing a firearm. The Legislature

enacted N.J.S.A. 2C:39-5(j) to increase those offenses to a first-

degree offense if the defendant previously committed one of the

serious crimes subject to NERA even if a firearm was not involved.

28 A-4486-15T2 The Legislature could rationally believe that creating a first-

degree offense provided sufficient punishment.

Patterson faced a similar situation where the Legislature

created an increased-grade offense and did not include it in the

list of offenses eligible for a mandatory extended term which

included its predicate offense. The Legislature penalized drug

distribution in N.J.S.A. 2C:35-5. The Legislature included

N.J.S.A. 2C:35-5 in N.J.S.A. 2C:43-6(f)'s list of offenses

requiring an extended-term sentence if the defendant previously

committed certain drug offenses. The Legislature later created a

higher-grade offense in N.J.S.A. 2C:35-7.1 for a violation of

N.J.S.A. 2C:35-5 if the defendant committed it within 500 feet of

a public facility. We held the increased-grade crime "cannot be

subject to a mandatory extended term under [N.J.S.A. 2C:43-6(f)]

as currently written." Patterson, 435 N.J. Super. at 516.

Second, the trial court saw no reason for N.J.S.A. 2C:43-6(c)

to differentiate N.J.S.A. 2C:39-5(j) from "subsection a., b., c.,

or f. of" N.J.S.A. 2C:39-5, because those subsections "merely

identify the particular type of weapon that is involved," namely

machine guns, handguns, shotguns, rifles and shotguns, and assault

firearms, respectively. However, that is a valid reason to

differentiate N.J.S.A. 2C:39-5(j), because it does not penalize

the possession of a particular type of firearm, but merely creates

29 A-4486-15T2 a higher-graded offense penalizing such possession if the

defendant committed certain prior offenses.

Third, the trial court could not "fathom a scenario where the

legislat[ors] intended to omit a firearms offense from the Graves

Act, especially after they enhanced the penalty and applied it to

more crimes." However, N.J.S.A. 2C:43-6(c) does not include all

firearm offenses, as it also omits N.J.S.A. 2C:39-5(e). Moreover,

examination of the act and its legislative history shows that the

Legislature created N.J.S.A. 2C:39-5(j), and simultaneously

revised N.J.S.A. 2C:43-6(c)'s list of crimes subject to extended

terms, but did not add N.J.S.A. 2C:39-5(j) to that list.

N.J.S.A. 2C:39-5(j) was enacted on August 8, 2013, by L.

2013, c. 113, § 1. That 2013 act also amended the enumerated

crimes in N.J.S.A. 2C:43-6(c): "A person who has been convicted

under subsection b. or d. of N.J.S.2C:39-3, subsection a. of

N.J.S.2C:39-4, subsection a. of section 1 of P.L.1998, c.26

(C.2C:39-4.1), subsection a., b., [or] c., or f. of N.J.S.2C:39-

5[.]" L. 2013, c. 113, § 2 (advance law indicating additions and

[deletions]). The act thus added N.J.S.A. 2C:39-5(f), an assault

firearm offense, to the list of enumerated crimes, but did not add

the newly-enacted N.J.S.A. 2C:39-5(j) to that list. We read the

Legislature's choice to add only N.J.S.A. 2C:39-5(f) to N.J.S.A.

2C:43-6(c) "as proof that the Legislature intended to specify

30 A-4486-15T2 offenses subject to the mandatory extended term, rather than

leaving to the courts to draw such inferences." See Patterson,

435 N.J. Super. at 517.

The legislative history discussed the enactment of N.J.S.A.

2C:39-5(j) and the addition of N.J.S.A. 2C:39-5(f) to N.J.S.A.

2C:43-6(c), with no suggestion N.J.S.A. 2C:39-5(j) was also added.

The statements appended to the bill throughout its consideration

stated that the bill "upgrades the crime of unlawful possession

of a firearm to a first degree crime in certain circumstances and

amends various penalty provisions under the Graves Act." Sponsors'

Statement Appended to S. 2804 8 (May 13, 2013); S. L. & Pub. Safety

Comm. Statement to S. 2804 1 (May 21, 2013); Assemb. L. & Pub.

Safety Comm. Statement to S. 2804 1 (June 6, 2013). The statements

first explained the enactment of N.J.S.A. 2C:39-5(j):

The provisions of the bill make it a crime of the first degree for a person to unlawfully possess a machine gun, handgun, rifle or shotgun, or an assault firearm following a conviction for a crime enumerated in subsection d. of section 2 of P.L.1997, c. 117 (C.2C:43-7.1) (the No Early Release Act.) Under current law, violations of these provisions are either a second degree offense, in the case of machine guns, handguns and assault firearms, or a third degree offense, in the case of rifles and shotguns.

[Ibid.]

31 A-4486-15T2 The statements also stated "the bill adds the unlawful possession

of an assault firearm to the list of crimes for which Graves Act

sentencing applies." Ibid.4 The legislative history makes no

mention of including N.J.S.A. 2C:39-5(j) as an enumerated offense

under N.J.S.A. 2C:43-6(c).

Fourth, the trial court assumed the Legislature required an

extended term for N.J.S.A. 2C:39-5(j) "in response to the scourge

of . . . violence which plagues our country." However, the

legislative history made no mention of that scourge. In any event,

the Legislature's addition of N.J.S.A. 2C:39-5(j) was a

substantial step to combatting gun possession by defendants who

have committed serious crimes by making it a first-degree offense,

and thus increasing the range of imprisonment to ten-to-twenty

years from the third-degree offenses' three-to-five years and the

second-degree offenses' five-to-ten years. Compare N.J.S.A.

2C:39-5(j) with N.J.S.A. 2C:39-5(a), (b), (c) and (f); see N.J.S.A.

2C:43-6(a).

The trial court's reading authorizing an extended term for

an offense under N.J.S.A. 2C:39-5(j) would increase the range of

imprisonment to twenty-years-to-life. See N.J.S.A. 2C:43-7(a)(3),

4 Identical language appeared in the statements accompanying the identical Assembly bill. Sponsors' Statement Appended to A. 4152 8 (June 6, 2013); Assemb. L. & Pub. Safety Comm. Statement to A. 4152 1 (June 6, 2013).

32 A-4486-15T2 (c). Nothing in the act or its legislative history even hints the

Legislature intended such a dramatic increase.

Even "if there were ambiguity in the statutory provisions

that we have analyzed, we would be guided by the doctrine of lenity

because we are construing a criminal statute." State v. Rangel,

213 N.J. 500, 515 (2013). "[T]he rule of lenity derives from the

principle that '[n]o one shall be punished for a crime unless both

that crime and its punishment are [not] clearly set forth in

positive law.'" State v. Regis, 208 N.J. 439, 451-52 (2011)

(citation omitted). "That doctrine 'holds that when interpreting

a criminal statute, ambiguities that cannot be resolved by either

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

the defendant.'" Rangel, 213 N.J. at 515 (citation omitted).

"Thus, even if [N.J.S.A. 2C:43-6(c)'s] text was ambiguous, the

rule of lenity would require us to interpret [it] as inapplicable

to [N.J.S.A. 2C:39-5(j)], given the absence of any contrary

legislative history." See Patterson, 435 N.J. Super. at 518.

Thus, we reject the trial court's reasons.

The State contends the trial court's interpretation

effectuates the goal of the Graves Act, because "the Graves Act

approach is deterrence through the promise of imprisonment." State

v. Des Marets, 92 N.J. 62, 71 (1983). However, when the Graves

Act was passed, N.J.S.A. 2C:43-6(c) enumerated only one firearm

33 A-4486-15T2 offense, N.J.S.A. 2C:39-4(a). L. 1981, c. 31, § 1. The

Legislature subsequently amended N.J.S.A. 2C:43-6(c) to add

particular firearm offenses as enumerated offenses. L. 2007, c.

341 § 5; L. 2013, c. 113, § 2. Moreover, the issue before us is

not the intent of the 1981 Graves Act, but of the 2013 act. That

act increased deterrence and imprisonment by creating N.J.S.A.

2C:39-5(j)'s first-degree offense, but pointedly did not add it

to N.J.S.A. 2C:43-6(c)'s list.

The State says it strains credulity that the Legislature

attached different punishments for unlawful possession of a

firearm by a recidivist depending on whether the prior conviction

was for unlawful possession of a firearm or a NERA crime. However,

the issue here is not the Legislature's rationales for (1)

requiring an extended term under N.J.S.A. 2C:43-6(c) where the

prior conviction involved a firearm, and (2) creating a first-

degree offense in N.J.S.A. 2C:39-5(j) where the prior conviction

was a NERA crime. Rather, the issue is whether the Legislature

intended to both create a new first-degree offense and require an

extended term for that offense.

The State also cites Judge Learned Hand's comment that

"[t]here is no surer way to misread any document than to read it

literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944)

(Hand, J., concurring), aff'd on other grounds sub nom., Gemsco,

34 A-4486-15T2 Inc. v. Walling, 324 U.S. 244 (1945). However, Judge Hand's

witticism must be viewed in context, lest it be misused to

disregard the Legislature's language and intent. Judge Hand made

clear that the legislators' "words are by far the most decisive

evidence of what they would have done," and that he "should have

had the utmost compunction in disregarding the explicit language

[of the statute], were it not for its legislative history."

Guiseppi, 144 F.2d at 623-24. Here, there is no legislative

history justifying the reading of the trial court and the State,

which contradicts the plain language of the act.

Finally, the State complains that applying N.J.S.A. 2C:43-

6(c) as written unduly constrains the court's sentencing range.

However, the ten-to-twenty-year sentencing range provided by

N.J.S.A. 2C:39-5(j) for a recidivist's possession of a firearm is

exceeded by only a few, very serious offenses. In any event, such

a complaint should be addressed to the Legislature.

Accordingly, we remand to the trial court with instructions

to vacate defendant's sentences under both indictments and

resentence without imposing an extended term on his conviction

under N.J.S.A. 2C:39-5(j).5

5 "A defendant may be sentenced to multiple mandatory extended terms in the same proceeding," but "N.J.S.A. 2C:44-5(a)(2) bars the imposition of a discretionary extended term when . . . the

35 A-4486-15T2 V.

The judgments of conviction give defendant 109 days of jail

credit for August 16 to October 14, 2014, and February 12 to March

31, 2016. However, the trial court at sentencing awarded an

additional forty-two days of jail credit from March 31 to the May

13, 2016 sentencing. Moreover, defendant asked for additional

jail credit for his custody on other charges from January 3 to

June 19, 2015. The State now agrees defendant should receive

credit for those 168 days. The court shall ensure those additional

amounts of jail credit are reflected on the new judgments.

The parties' remaining arguments lack sufficient merit to

warrant discussion. R. 2-11(e)(2).

Defendant's convictions are affirmed, and the case is

remanded to vacate his sentences and resentence him. We do not

retain jurisdiction.

trial court is obliged to impose a mandatory extended term on another offense in the same proceeding." State v. Robinson, 217 N.J. 594, 597-98 (2014).

36 A-4486-15T2