State of New Jersey v. Jamel Carlton

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NOT FOR PUBLICATION WITHOUT THE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

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 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

brief, defendant raises several other contentions, including allegations of

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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 groundbreaking decision, Apprendi v. New Jersey, 530 U.S. 466

(2000). It is undisputed, however, that Erlinger abrogates New Jersey

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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

that the essential nature of a harmless error analysis—which focuses on

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."

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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 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." 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.

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I.

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

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

2

We use initials to protect the identity of the sexual assault victim. R. 1:38-

3(c)(12).

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

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

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.

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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 confirmed that a male, later identified as defendant,

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"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

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sneakers" with "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

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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.

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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.

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

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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

LIMITING THE EVIDENCE REGARDING

PROSTITUTION.

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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.

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.

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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 a 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

EXISTANCE OF THE FACTS NECESSARY TO

ESTABLISH THE PREDICATE FOR AN

EXTENDED TERM UNDER N.J.S.A. 2C:44-3A.

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

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.

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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.

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

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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

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

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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).

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.

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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 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

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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.

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.

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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.

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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 opinion testimony can be admitted only 'if it falls within the narrow

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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 defendant. Id. at 19-20. The Court thus concluded that

the detective's "lay opinion as to the similarities between the sneakers from the

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24

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 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."

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25

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 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

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26

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 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

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.

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27

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

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).

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28

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 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,

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29

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 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

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30

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.

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

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31

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.

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

6

Miranda v. Arizona, 384 U.S. 436 (1966).

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32

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 search warrant: the victim told police that the person who

assaulted her was wearing a 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

different 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

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).

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33

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.

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

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34

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 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

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35

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 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.

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36

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).

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

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 establis h

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).

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37

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

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

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).

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38

discretionary 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, the Court in Almendarez-Torres reiterated and amplified

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39

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 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

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).]

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40

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

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:

12

Shepard v. United States, 544 U.S. 13 (2005).

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41

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

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.

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42

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.]

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

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43

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 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 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.

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.

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44

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, 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

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.

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45

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 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

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46

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:44-3(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 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

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.

16

Defendant in the last paragraph of his 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.

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47

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

'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

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.

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).

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48

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 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 a

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

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49

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.

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

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50

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

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

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."

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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.

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

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52

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 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

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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 "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

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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 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.

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55

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

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

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.

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56

[Id. at 842 (quoting Rose v. Clark, 478 U.S. 570,

578 (1986)).]

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

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57

by 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.

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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

presume that section would not have been included in the majority opinion if

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59

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 do not understand pipeline retroactivity to mean that the constitutional

rule when applied retrospectively is somehow softened or otherwise enforced

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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 pending direct appeal. We are not familiar with

any such permutation in New Jersey or federal retroactivity jurisprudence.

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).

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61

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

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

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.

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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 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. 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

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.

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63

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 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

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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 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

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65

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 the

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

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

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66

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 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.

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67

XI.

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 -

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

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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.

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

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