State v. James Grate State v. Fuquan Cromwell (072750), 106 A.3d 466

Background

In Dec. 2008 Cromwell and Grate were stopped on Drew University property during an attempted robbery; police found a loaded 9mm handgun in the victim's car within reach of the defendants. Both were tried jointly.
Indictment included second-degree unlawful possession of a weapon (general possession) and third-degree unlawful possession of a weapon at an educational institution (N.J.S.A. 2C:39-5(e)(1)); Cromwell also faced a separate certain-persons prohibition conviction.
Trial court instructed jury using statutory language but did not direct the jury to find the defendants knew they were on campus; jury convicted both of the two weapon-possession counts and acquitted on other charges.
At sentencing the judge found aggravating factors including (a)(5) substantial likelihood of organized criminal activity based on gang membership testimony, and imposed statutory mandatory five-year parole disqualifiers under N.J.S.A. 2C:39-5(i).
Appellate Division affirmed; New Jersey Supreme Court granted limited certification to decide (1) scope of the “knowingly” mens rea in 2C:39-5(e)(1), (2) constitutionality of mandatory minimum under 2C:39-5(i) post-Alleyne, and (3) propriety of Grate’s sentence.

Issues

Issue	State's Argument	Defendants' Argument	Held
Does the statutory adverb “knowingly” in N.J.S.A. 2C:39-5(e)(1) apply to both possession and the defendant’s presence at an educational institution?	"Knowingly" modifies possession only; locational clause is mere circumstance (no mens rea required).	The Code’s rule N.J.S.A. 2C:2-2(c)(1) requires the stated culpability to apply to all material elements, so State must prove the defendant knowingly was on school property.	The Court held the State must prove both knowing possession and that the defendant knowingly was on the educational institution’s property; convictions on that charge were vacated and retrial ordered.
Is the mandatory minimum parole disqualifier in N.J.S.A. 2C:39-5(i) constitutional after Alleyne?	State conceded Alleyne applies but urged judicially to require jury findings rather than invalidate the provision.	Mandatory minimum based on judge’s factual finding violates Alleyne (jury must find any fact that increases mandatory minimum).	Alleyne controls; the statute’s mandatory minimum based on judicial factfinding is unconstitutional as written. Court vacated sentences and remanded for resentencing without applying 2C:39-5(i).
May the Court "fix" 2C:39-5(i) by requiring a jury finding (judicial surgery)?	The Court can narrowly construe/modify statutes to avoid constitutional defects.	Defendants argued statute is clear and judge-only; modification would rewrite Legislature’s choice.	Court declined to rewrite statute; judicial surgery not appropriate because the statute unambiguously requires judge-made findings. Legislative action required.
Was Grate’s sentence excessive given the aggravating/mitigating findings?	(Respondent) Sentence within range and supported by record.	Grate argued insufficient evidence for aggravating factors (recidivism risk, organized criminal activity, deterrence).	Appellate review deferential; the Court found competent credible evidence supported factors three, five, and nine and affirmed the sentence except for the vacated mandatory minimum disqualifier.

Key Cases Cited

Alleyne v. United States, 133 S. Ct. 2151 (Supreme Court of the United States) (any fact that increases a mandatory minimum is an element for the jury)
Blakely v. Washington, 542 U.S. 296 (Supreme Court of the United States) (limitations on judge-found facts increasing sentences)
State v. Smith, 197 N.J. 325 (N.J. 2009) (interpretation of "knowingly" and subordinate clauses in a weapons statute)
State v. Harmon, 104 N.J. 189 (N.J. 1986) (chapter 39 offenses characterized as regulatory; materiality of circumstances of possession)
State v. Natale, 184 N.J. 458 (N.J. 2005) (limits on using judge-found aggravating factors to create mandatory increases; preserving judicial balancing within statutory range)
State v. Wessells, 209 N.J. 395 (N.J. 2012) (retroactivity of new rules to cases pending on direct review)