STATE OF NEW JERSEY VS. LEON MACKÂ (16-02-0234, HUDSON COUNTY AND STATEWIDE), A-3423-16T1

Background

On Sept. 8, 2015, Leon Mack attempted to enter the Essex County Hall of Records with a bag containing a .25 caliber semi-automatic pistol; he fled and was apprehended.
A record check showed a 1991 second-degree aggravated assault conviction. The recovered handgun was allegedly defaced.
A grand jury returned two indictments: one charging first-degree unlawful possession under N.J.S.A. 2C:39-5(j) (enhanced to first degree based on a prior NERA-enumerated conviction), the other charging second-degree possession, possession of a defaced weapon, and resisting arrest.
The trial court dismissed the 2C:39-5(j) indictment sua sponte, holding subsection (j) was a sentencing enhancement (not a substantive offense) and thus implicating Apprendi/Almendarez-Torres principles.
The State appealed; both parties agreed (contrary to the trial court) that subsection (j) should be treated as a substantive crime, but Mack argued he cannot be charged under (j) because his predicate conviction predated NERA and NERA did not enumerate crimes until 2001.
The Appellate Division reversed the dismissal and remanded for the trial court to decide Mack’s remaining factual and statutory challenges to the indictment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether N.J.S.A. 2C:39-5(j) is a substantive crime or a sentencing enhancement	(State) Subsection (j) creates a separate first-degree offense and is subject to indictment and jury trial	(Mack) Trial court said (j) is a sentencing provision; Mack also argued prior-conviction timing bars application	(App. Div.) (j) is a substantive statute creating a distinct first-degree crime; dismissal reversed
Whether prior conviction can be an element of the offense without violating Apprendi	(State) Legislative text and history show (j) makes prior conviction an element of a new offense	(Mack) Relied on trial court’s Apprendi-based reasoning that only prior convictions can be used at sentencing	Court held Apprendi/Almendarez-Torres do not control where statute’s plain language and legislative history create a substantive offense with prior-conviction element
Whether analogy to "certain persons" statute (N.J.S.A. 2C:39-7) supports treating (j) as substantive	(State) Analogous statutes treat prior convictions as elements to be proved beyond a reasonable doubt	(Mack) No contrary statutory analog offered	Court: Analogy to certain-persons offense supports treating (j) as substantive and requiring proof beyond a reasonable doubt
Whether the appellate court should decide substantive timeliness/predicate-conviction arguments	(State) Invite the court to resolve merits on appeal	(Mack) Asked court to affirm dismissal on predicate-timing grounds	Court: Declined to resolve those arguments; remanded for trial court to rule on them

Key Cases Cited

Apprendi v. New Jersey, 530 U.S. 466 (holding facts that increase penalty beyond statutory maximum must be submitted to a jury)
Almendarez-Torres v. United States, 523 U.S. 224 (prior convictions may be treated as sentencing facts)
State v. Ragland, 105 N.J. 189 (prior conviction is element for certain-persons weapons offense)
State v. Grate, 220 N.J. 317 (invalidated N.J.S.A. 2C:39-5(i) to the extent it required judge-found facts to trigger parole ineligibility)
State v. Maurer, 438 N.J. Super. 402 (standard of de novo review for legal questions)
State v. Malik, 365 N.J. Super. 267 (start with plain statutory language in interpretation)