SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized).
State of New Jersey v. James Grate; State of New Jersey v. Fuquan Cromwell (A-47/48-13) (072750) Argued October 21, 2014 — Decided January 15, 2015 SOLOMON, J., writing for a unanimous Court.
In this appeal, the Court considers (1) whether the “knowingly” mens rea requirement of N.J.S.A. 2C:39-5(e)(1) applies to both the possession of the firearm and the defendant’s presence at an educational institution; (2)
the constitutionality of N.J.S.A. 2C:39-5(i)’s mandatory minimum sentence in light of in Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151 (2013); and (3) the propriety of a defendant’s sentence.
Defendants Fuquan Cromwell and James Grate were stopped by police officers on the campus of Drew University during the attempted robbery of an acquaintance. Defendants were charged with various offenses, including second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree unlawful possession of a weapon at an educational institution, N.J.S.A. 2C:39-5(e)(1). With regard to the latter, the trial judge instructed the jury that the State must prove “the defendant possessed the firearm in or upon the buildings or grounds of any school, college, university, or other educational institution.” The judge did not ask the jury to decide whether defendants were aware that they were on the property of an educational institution. The jury found defendants guilty of second-degree unlawful possession of a weapon and third-degree unlawful possession of a weapon at an educational institution, and acquitted them of the remaining charges.
At the sentencing hearing, Corporal Edwin Santana testified that defendants admitted they were members of a local chapter of the Crips street gang and that both defendants had tattoos denoting their membership. The judge found that aggravating factors five, a substantial likelihood that defendants were involved in organized criminal activity, N.J.S.A. 2C:44-1(a)(5), three, the risk defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), applied to both defendants; that aggravating factor six, the extent of the defendant’s prior criminal record, N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell; and that no mitigating factors applied. After merging the possession convictions, the court sentenced Grate and Cromwell to eight and nine years in prison, respectively. The court also ordered mandatory five-year parole disqualifiers under N.J.S.A. 2C:39-5(i), finding it substantially likely that defendants were involved in organized criminal activity.
On appeal, defendants contended, among other things, that the jury charge for unlawful possession of a weapon at an educational institution improperly failed to instruct the jury that the “knowingly” mens rea requirement applied to the locational element of the crime. The Appellate Division rejected defendants’ arguments and affirmed their convictions and sentences. The Court entered limited grants of certification. State v. Cromwell, 216 N.J. 361 (2013); State v. Grate, 216 N.J. 362 (2013).
HELD: (1) In order to prove a violation of N.J.S.A. 2C:39-5(e)(1), the State must prove beyond a reasonable doubt both that a defendant knowingly possessed a firearm and that he or she did so while knowingly on the property of an educational institution; (2) because the mandatory minimum sentence under N.J.S.A. 2C:39-5(i) is based on a judicial finding of fact, rather than a finding by the jury, it is unconstitutional under Alleyne; and (3) Grate’s sentence was not excessive because the trial court’s analysis of the aggravating and mitigating factors was supported by the record.
- 1. N.J.S.A. 2C:39-5(e)(1) states, in relevant part, that “[a]ny person who knowingly has in his possession any firearm in or upon any part of the buildings or grounds of any school, college, university or other educational institution without the written authorization of the governing officer of the institution, is guilty of a crime of the third degree.” Whether the culpability requirement of “knowingly” applies to the locational element of N.J.S.A. 2C:39-5(e)(1) is a question of statutory interpretation. As such, the Court attempts to discern and implement the Legislature’s intent by first looking at the statute’s plain language and, if that language if ambiguous, by looking to 2 extrinsic sources. The Code prescribes rules for the “[c]onstruction of statutes with respect to culpability requirements.” N.J.S.A. 2C:2-2(c). N.J.S.A. 2C:2-2(c)(1) applies to statutes that provide a culpability requirement as to one but not all elements of the offense. N.J.S.A. 2C:2-2(c)(1) requires that such statutes be interpreted to apply the stated culpability requirement to every material element of the offense if the offense does not distinguish among them, and “unless a contrary purpose plainly appears.” Because N.J.S.A. 2C:39-5(e)(1) criminalizes even otherwise lawful possession of a weapon if a defendant possesses the weapon at an educational institution, the locational element is “material.” In addition, the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication that the “possession” element has been distinguished from the “location” element. Both elements are contained within the same clause, preceded by the adverb “knowingly.” Finally, no contrary purpose to applying the knowing requirement to both material elements is plainly indicated. As a result, N.J.S.A. 2C:39-5(e)(1)’s knowing requirement applies to both possession of a firearm and being at an educational institution. (pp. 13-16)
- 2. The Court rejects that the Legislature intended a defendant to be strictly liable for the locational element based on the “essentially regulatory nature” of our gun control laws. Although the Court has described Chapter 39 sections 39-3 and 39-5 as containing “essentially regulatory offenses,” in doing so it explained that “they prohibit possession of firearms and other weapons without regard to the individual’s intent or purpose in possessing them.” State v. Harmon, 104 N.J. 189, 197 (1986). Because N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A. 2C:2-2(c)(1), requires only that the State prove defendants knowingly possessed the weapon while knowingly at an educational institution, defendants’ intent or purpose in possessing the gun is not at issue here. The regulatory nature of the offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of construction, nor does it alleviate the State of its burden to prove defendants acted with the requisite culpability as to each element of the offense. In addition, State v. Smith, 197 N.J. 325 (2009), does not affect the Court’s interpretation of N.J.S.A. 2C:39-5(e)(1). In Smith, the Court interpreted a different criminal statute and, based on statutory phrasing materially different than that found in N.J.S.A. 2C:39-5(e)(1), held that the State did not have to prove that the defendant knew that the firearm he possessed had been defaced. Id. at 326-27, 331-32. Because the State was required to prove that defendants were knowingly at an educational facility in order to obtain a conviction under N.J.S.A. 2C:39-5(e)(1), the jury instructions with respect to defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) warrant reversal, and the Court vacates those convictions and remands for resentencing on the unlawful possession charges. (pp. 16-19)
- 3. N.J.S.A. 2C:39-5(i) requires the sentencing court to impose a period of parole ineligibility “if the court finds” a substantial likelihood that the defendant is involved in organized criminal activity. Alleyne held that “any fact that increases the mandatory minimum sentence is an ‘element’ that must be submitted to the jury” to be found beyond a reasonable doubt. 133 S. Ct. at 2156. Alleyne therefore renders the imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-5(i) unconstitutional. The Court acknowledges 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.” State v. Fortin, 198 N.J. 619, 630 (2009) (quoting N.J. State Chamber of Commerce v. N.J. Election Law Enforcement Comm’n, 82 N.J. 57, 75 (1980)) (internal quotation marks omitted). However, this procedure applies only “if we fairly can do so.” Id. at 631. Here, N.J.S.A. 2C:39-5(i) unambiguously requires the imposition of a
mandatory minimum sentence based on a judicial finding of fact. Requiring a jury rather than a judge to make such a finding would not merely be severing a constitutionally infirm portion of the sentencing statute, it would be rewriting its essential requirements. That determination is for the Legislature. The Court vacates defendants’ sentences and remands for resentencing for the unlawful possession convictions, without consideration of the mandatory minimum sentence under N.J.S.A. 2C:39-5(i) and without the empaneling of a sentencing jury. (pp. 19-23) - 4. Grate claims that his sentence was excessive. An appellate court reviews the trial court’s sentencing determination under a deferential standard of review and is bound to affirm the sentence as long as the trial court properly identifies and balances aggravating and mitigating factors that are supported by competent credible evidence in the record. The trial court’s findings that aggravating factors three, five, and nine applied, and no migrating factors applied, were amply supported by the record. Although a judicial finding of aggravating factor five cannot be the basis of a mandatory minimum sentence, the sentencing court may nevertheless consider that factor when deciding what sentence to impose within the statutory range. With the exception of the mandatory minimum sentence imposed pursuant to N.J.S.A. 2C:39-5(i), the Court affirms Grate’s sentence. (pp. 23-26)
The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the matter is REMANDED for a new trial on the charge of unlawful possession of a weapon at an educational facility and for resentencing consistent with the Court’s opinion.3
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZVINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.