State v. Stanton

JERSEY, PLAINTIFF-APPELLANT, OF STATE NEW TRACI PFAFF, STANTON, E. TRACI FRY AND TRACI A/K/A . DEFENDANT-RESPONDENT Argued January Reargued November 2002 — April 2002 Decided 2003. Cronin, General, Attorney Deputy argued

Mark Paul the cause (Peter appellant Harvey, Acting Attorney C. General of New Jakubovic, Jersey, attorney; Deputy Attorney Jordana General Henderson, General, Attorney and Carol M. Assistant of counsel briefs). and on the Defender, Mehling, Deputy argued

Linda Assistant Public (Yvonne Defender, respondent Segars, cause for Smith Public attorney). opinion was delivered

COLEMAN, J. appeal second-degree This involves a conviction for vehicular homicide, 2C:ll-5b, opera- N.J.S.A. based on defendant’s reckless tion of her motor vehicle. The State relied on intoxication and speed recklessly other evidence such as to establish that defendant operated her motor vehicle. The was asked to state the finding sentencing provision basis for its of recklessness. The for imprisonment vehicular homicide mandates a minimum term of defendants who were intoxicated at the time of the offense and at, between, such “minimum term shall be fixed one-third and years, imposed of the sentence the court or three one-half greater, during ineligi- which the shall whichever is defendant be 2C:ll-5b(l). parole.” ble for The trial court found that third-degree, if defendant should be sentenced as the offense were intoxicated, found that defendant was and sentenced defendant to subject imprisonment years parole ineligibility for three years. three The issue before us is whether the should have required been to determine the sentence enhancement factor —the required intoxication. We hold that the was not to make that determination.

I. February boy- In her defendant Traci Stanton invited friend, brother, sister-in-law, Smith, Nancy her and her to her drinking play house to cards and drink beer. Defendant admitted beer, although approximately one and one-half her bottles drinking brother recalled defendant between three and five beers. approximately p.m., At 11:30 defendant drove her Porsche to purchase passenger more while rode in the front seat. beer Smith beer, purchasing dropped After defendant and Smith off the proceeded pick beer defendant’s house and to Smith’s home home, up dog. way her On their to Smith’s defendant was unable to steer her car around a turn with the result that her vehicle left right the road and struck a tree near the shoulder of the road. police shortly The arrived on the scene before 1:00 a.m. and found “completely treating the vehicle on its roof.” While defendant and vehicle, removing emergency before her from the an medical (EMT) “[wjithin four inches” of technician discovered beer bottle defendant’s head. was found underneath the trunk of the Smith passenger car on the side of the vehicle. died as a result of She injuries during the extensive suffered the accident. morning following

The the accident defendant was interviewed had been Officer Priole. At that time she stated she driving sixty sixty-five per hour and that between miles wearing posted neither she nor Smith had been a seatbelt. hour, speed fifty per speed limit was miles but the recommended only thirty-five per at the site of the accident was miles hour. drinking Defendant admitted that she and Smith had been beer in the car. grand jury second-degree

A indicted defendant for vehicular homicide, addition, police N.J.S.A. 2C:ll-5. In issued defen- offenses, dant including summonses for several motor vehicle (DWI), driving 39:4-50; while intoxicated violation N.J.S.A. 39:4-96; driving, in consumption reckless violation of N.J.S.A. driving, 39:4-51a; alcohol while in violation of N.J.S.A. and failure seatbelt, to wear a in violation of N.J.S.A. 39:3-76.2f. The vehicu- lar homicide was tried to a while the non-indictable offenses simultaneously judge. were tried before the At the close of all the evidence, court trial instructed the that the State must prove beyond a reasonable doubt the elements of the vehicular guilty homicide offense. The found defendant of second- homicide, degree contrary vehicular to N.J.S.A 2C:ll-5b. judge, sitting The trial jury, alleged without the addressed the motor guilty vehicle violations. She found defendant of all of the except offenses the DWI on which she reserved decision until sentencing on the vehicular sentencing, homicide conviction. At judge charge driving first addressed the while intoxicated determined “the defendant must have consumed substan- tially everyone more than two or three beers as remember[ed]” and that “[t]he manner in which the accident occurred ... corrob- driving orate[d] the fact that she was under the influence.” Based presented during trial, on the evidence the vehicular homicide judge found proofs that the convinced her a reasonable doubt guilty driving defendant was while intoxicated.

Following the trial court’s denial of defendant’s motion for a trial, new defendant was sentenced on the vehicular homicide charge. evaluating factors, After aggravating mitigating judge second-degree sentenced defendant as if the offense third-degree imposed three-year were a parole crime and 2C:ll-5b(l). ineligibility term mandated The manda- tory parole ineligibility applied term was because the found intoxicated at the time she defendant was committed the vehicular homicide. conviction, appealed claiming her

Defendant vehicular homicide alleged her conviction should be reversed based on trial error. 2C:ll-5b(l) She also contended that N.J.S.A. was unconstitutional permits judge because it a to find an element of vehicular homi intoxication—by evidence, preponderance a rather cide— by jury beyond Appellate than a a reasonable doubt. The Division Stanton, part part. affirmed in reversed N.J.Super. 770 A.2d 1198 applied

The court doctrine held constitutional doubt three-year mandatory minimum sentence was unconstitu tionally imposed because the issue of defendant’s intoxication had by jury. panel not been decided Id. at 770 A.2d 1198. The Johnson, interpreted holding in this Court’s (2001), to mean that ineligibility if a on mandated term is based imposition statutorily parole a fact than a conviction, then, existence of other record of a as a matter of the prior of the Fifth and that fact must a Amendments, Sixth be found imperatives if that fact not a Thus, reasonable doubt. discrete element beyond offense which the must find in order to then it must be submitted to convict, jury for its determination. [Stanton, 1198.] 770 A.2d supra, N.J.Super, Appellate recognized Division that “there is a textual mandatory difference between vehicular homicide’s minimum [the 2C:ll-5b(2)[,] ineligibility,] parole corresponding N.J.S.A. and the provision [requiring eighty-five per- NERA a defendant to serve crime,] committing cent of a sentence violent N.J.S.A. 2C:43- Stanton, Specifi- supra, N.J.Super. 7.2.” 770 A.2d 1198. cally, any proof “NERA omits reference to the standard of fact, necessary parole-ineligibility to establish the and it does not say jury.” whether the fact-finder is the Ibid. On the 2C:ll-5b(2) hand, finding “specifies other that the must only pro- preponderance meet the of the evidence standard and finding presumably vides that the must be made the ‘court’ — difference, judge.” Despite Appellate Ibid. Division was that if constitutional the NERA to be read convinced principles require provision mandating jury finding as of the NERA fact a reasonable doubt predicate challenge,

in order for that statute to survive constitutional the same then, by 2C:ll-5b(2) challenge if N.J.S.A can survive constitutional read token, only it.is the same way. Ubm words, it, holding, In other Johnson as we understand “[t]he applies every imposing mandatory parole ineligibility statute capacity term because of the of that term to increase real time.” 2C:ll-5b(2) unconstitutional, Ibid. Rather than declare N.J.S.A. “judicial Appellate engage surgery” Division elected to assumption Legislature sustain the statute on “an that the intend- manner, [stating:] only ed to act in a ... constitutional That can by excising preponderance be done ... the references to the findings construing standard and the court’s and then the excised 7-8, statute as Johnson construed NERA.” Id. at 770 A.2d 1198. According DeLuca, procedure to the in articulated 1355, denied, DeLuca, Jersey 527 A.2d cert. New N.J. v. 944, 331, (1987), judge 484 U.S. 108 S.Ct. 98 L.Ed.2d 358 the trial required was to decide the DWI offense after the returned Although verdict on vehicular homicide. Ibid. the DWI offense jury, offense, including was not tried to a each element of that intoxication, beyond still had to be found a reasonable doubt. Appellate although Ibid. The Division found that both N.J.S.A identically, 2C:ll-5b and N.J.S.A. 39:4-50 define intoxication principles required jury finding set forth Johnson still Stanton, beyond supra, intoxication a reasonable doubt. N.J.Super. panel 770 A.2d 1198. The reasoned that even though “the found intoxication a reasonable doubt did[,] have[,] [that] does not mean that the either or would it speeding [because] was free to attribute the fatal accident to alone and there was evidence on which it could have found that remedy, defendant Appel was not intoxicated.” Ibid. As a three-year late parole disqualifier Division vacated the but af conviction, stating firmed defendant’s it that was “satisfied that guilt attending error verdict of there was no reversible 9, vehicular homicide.” Id. panel remand- 770 A.2d 1198. The judgment trial court with the direction that ed to the by vacating parole ineligibility conviction should be modified Ibid. term. for certification was denied. State Stan- petition

Defendant’s ton, (2001). 609, 169 cross-petition The State’s challenging Appellate for certification Division’s vacation Ibid. While three-year parole disqualifier granted. was Supreme granted appeal pending, was the United States 10, certiorari in Harris v. United States on December 2001. 534 (2001). 1064, 663, U.S. S.Ct. 151 L.Ed.2d 578 We heard oral 2002, 2, arguments January disposition on decided to withhold 24, until Harris was decided. Harris was decided on 2002. June States, Harris v. United 536 U.S. S.Ct. 153 L.Ed.2d Court, supplemental After briefs were filed with this reargued 2002. the case was before us on November II. argues Appellate interpret erred in

The State Division Johnson jury, judge, ing require that the rather than the had decide whether defendant was intoxicated before sentence brief, applied. supplemental enhancement could be In its statute “[t]he the State maintains that decision of the United States [, supra, 122 S.Ct. Court Harris U.S. Supreme 524,] Appellate 153 L.Ed.2d mandates a reversal of the Division mandatory parole term this case.” The contends “that the 2C:11-5b(l) under required a vehicular homicide is when of by committed an individual who is under the influence alcohol fully complies principles.” all and constitutional with federal state

A. begin analysis presented must Our of the issues sentencing provisions. The vehicular homicide statute and its current vehicular homicide statute that has in been effect since provides: driving a. Criminal homicide constitutes it vehicular homicide when is caused a by or vehicle vessel recklessly. 2C:ll-5b(3) [N.J.S.A. b. as vehicular is a of ], homicide crime Except provided second-degree. (1) operating If the defendant was the auto or vessel while under the influence of intoxicating hallucinogenic habit-producing drug, narcotic, or or with a any liquor, alcohol blood concentration or above the level as prohibited prescribed operating or if R.S.39:4-50, the defendant was the auto or vessel while his driver’s privilege or license was or revoked violation of reciprocity suspended any (C.39:4-50.4a), R.S.39:4-50, section c. 512 P.L.1981, Director by (C.39:5-30a seq.), Division of Motor Vehicles to c. 85 or P.L.1982, et pursuant by the court for a violation of R.S.39:4-96, the defendant shall be sentenced to term the court. The term of imprisonment by shall include the imprisonment of a minimum term. The minimum term shall at, be fixed or imposition between, one-third and one-half of the sentence the court or imposed by three years, greater, during ineligible whichever is which the defendant shall be for parole. (2) (1) paragraph The court shall not sentence impose mandatory pursuant grounds hearing. of this subsection unless the therefor have been established at a hearing, sentencing, At the which occur at the time of may shall prosecutor operating establish of the evidence that the by preponderance defendant was intoxicating auto or vessel while under the influence of narcotic, any liquor, hallucinogenic habit-producing drug, or or with a alcohol blood concentration at or operating above the level in R.S.39:4-50 or that the defendant was prescribed privilege auto or vessel his while driver’s license or was or reciprocity suspended (C.39:4-50.4a), revoked for violation of R.S.39:4-50, section of c. any P.L.1981, 512 the Director of the Division of Motor Vehicles c. 85 pursuant P.L.1982, (C.39:5-30a seq.), making et or the court for a violation of R.S.39:4-96. In its

findings, judicial court shall take notice or informa- any evidence, testimony hearing, proceedings tion adduced or court trial, other and shall also plea consider the presentence other relevant information. report any -5b(1) (2).] [NJ.S.A 2C:11-5a, Subsection describes what constitutes the offense of vehicular “[prescribed homicide. The culpability requirement applies all material elements” of the offense. N.J.S.A. 2C:2- 2c(l). Intoxication combination standing with other evidence or may satisfy Jamerson, alone the recklessness element. State v. 318, 335, (1998); LaBrutto, 708 A.2d 1183 187, 204, (1989); Casele, 553 A.2d 335 N.J.Super. (App.Div.1985). words, In other a defen sobriety insobriety dant’s only one of several circumstances a deciding whether the element permitted to consider when 2C:2-2b(3), recklessness, in estab has as defined N.J.S.A. been LaBrutto, supra, 114 at N.J. lished a reasonable doubt. 335; 458 Dively, v. 583 n. 553 A.2d see State (1983). circumstances, other than 502 Some of other A.2d intoxication, regard are considered relation recklessness operator intoxicated are excessive not the was less whether or conditions, and speed, lighting known substantial weather DeLuca, See, e.g., safety defects in the motor vehicle or vessel. 109, A .2d supra, 108 1355. N.J. sentencing provisions on the

Subsection b of statute focuses That man- second-degree vehicular subsection for a homicide. period of for a defendant convicted dates a minimum incarceration by judge, if found after of vehicular that defendant is homicide 2C:ll-5b(2), have conducting hearing prescribed by In the time of offense. order to better been intoxicated at raised, respect issue with to the sentence understand the critical enhancement, procedural framework give to the we must context presented. in which issue is

B. charged typical is a case which a defendant This likely charged with and other also is to be DWI vehicular homicide “multiple jeopardy on To avoid double based Title offenses. DeLuca, offense,” supra, 108 N.J. punishments the same for (internal omitted), vehicular citations 527 A.2d 1355 must be consolidated and the Title offenses homicide well as disposition. juryA hears indictable-vehicular homicide of disorderly petty disorderly persons as lesser-included Muniz, 319, 327-32, fenses. State driving are Although such as DWI and careless Title 39 offenses of of the indictable-vehicular homicide lesser-included offenses Clause, Jeopardy they are purposes fense for the Double jury trial must “base judge presiding over the who heard proofs the course of or her on the adduced his decision DeLuca, charge.” supra, homicide] [vehicular N.J. at 1355; Muniz, 1, supra, at A.2d 118 N.J. 331 n. 571 948. A.2d instructed, Nonetheless, to a defendant is entitled have the as case, occurred that there are lesser-ineluded motor vehicle judge guilt offenses for which the must decide defendant’s Muniz, 332, 948; supra, at innocence. 118 N.J. 571 A.2d State v. Brown, 211, 224, N.J.Super. (App.Div.1988), 228 549 A.2d 462 (1990). 595, grounds, rev’d on other 118 573 N.J. A.2d 886 Consis 3:15-3, foregoing long-established policy tent with' the and Rule jury in charge the this case decided the vehicular homicide the and offenses, judge including decided the Title 39 the DWI. Needless say, judge applied the required the a reasonable doubt 348, 353, v. 27 Emery, standard. See State N.J. 142 874 A.2d (1958). infrequently, rely alone,

Not the State will on intoxication inor evidence, with combination other circumstantial the establish recklessness of element vehicular homicide. When intoxication is operation the sole basis to establish reckless a motor vehicle or jury, before vessel and if the convicts defendant of homicide, judge finding vehicular the role of the for intoxication 2C:11-5b(2) sentence enhancement simple. under N.J.S.A. is No hearing required, is for accepts jury’s finding unless the intoxication, verdict cannot stand and there can no be DeLuca, 111, supra, DWI conviction. 108 N.J. at 527 A.2d 1355. But when a defendant is on trial for both vehicular homicide and DWI the State relies on intoxication and other circumstantial recklessness, evidence to special interrogatory establish unless a jury, way knowing submitted there is no the basis jury’s finding law, existing of recklessness. purpose Under no by special interrogatories. would be served The recklessness require juror unanimity element does not when mixed evidence See, presented. e.g., 583, Frisby, recklessness is State v. 596-600, (2002); Camacho, 54, 811 A .2d414 State v. 153 69- N.J. 72, (1998), denied, 864, A 153, 707 .2d 455 cert. 525 119 U.S. S.Ct. special 142 L.Ed.2d 125 Nor interrogatory helpful is a in a

87 First, required merger is merger for two reasons. context as of recklessness such excessive is mixed evidence when there 109, DeLuca, supra, N.J. at 527 A.2d 108 speed intoxication. Baumann, 556-57, 1355; N.J.Super. A.2d 3 775 State v. 340 Mara, 204, 213-14, 601 N.J.Super. v. 253 (App.Div.2001); State Devlin, N.J.Super. 553- (App.Div.1992); v. 234 A.2d 718 State denied, A.2d 117 569 (App.Div.), N.J. 561 A.2d 280 certif. 144, 151, Travers, (1989); A.2d N.J.Super. 550 Second, merges when DWI (App.Div.1988). even homicide, impose sentencing court nonetheless must vehicular Wade, penalties. the DWI 556-57, (2001); Baumann, N.J.Super. 775 A.2d supra, 340 Travers, A.2d 1281. N.J.Super. supra, recklessness,

Here, prove evidence to relied on mixed the State by jury on DWI and other right is no to trial and because there 538, 489 U.S. 543- charges, Vegas, North Las Title 39 Blanton v. (1989); 1289, 1293, 550, v. 44, L.Ed.2d 556 State 109 103 S.Ct. denied, (1990), Hamm, 109, 112-30, A.2d cert. 577 1259 121 N.J. (1991); 947, 1413, v. 113 466 111 S.Ct. L.Ed.2d 499 U.S. (1990), 131, 135, judge the A.2d trial Graff, 577 1270 121 N.J. offenses, DWI, immediately except after 39 the decided the Title judge jury of vehicular homicide. The defendant convicted hearing enhancement simulta sentence thereafter conducted finding charge. neously deciding After defendant the DWI DWI, finding of intoxication guilty of used vehicular homicide mandatory three-year term on the impose the conviction.

III. Jersey Next, the federal or New we consider whether judge, to make the requires jury, rather than the constitution was intoxicated sentence whether defendant determination of the Four purposes. The Due Process Clause enhancement except against conviction “protects the teenth accused Amendment necessary every fact doubt upon proof beyond a reasonable 88 charged.” Winship,

constitute crime with which he is In re 358, (1970). 364, 1068, 1073, 368, 397 U.S. 90 L.Ed.2d S.Ct. 25 375 Although Jersey I Article New does Constitution “ specifically right process, protects enumerate the to due it ‘val ” encompassed by ues those principiéis] process.’ like of due Poritz, (1995) (internal Doe N.J. 662A.2d 367 citations omitted). (indict right to trial of all serious crimes Jersey) guaranteed by able offenses in New is the United States Constitution, 2, Ill, Amendment, § art. cl. 3 and the Sixth which applicable through has been made to the states the Fourteenth Louisiana, 145, 1444, Amendment. Duncan v. 391 U.S. 88 S.Ct. (1968). 20 L.Ed.2d 491 right by jury guaranteed

A similar to trial is under the ¶ Jersey Const, I, “Hence, New art. Constitution. N.J. 9. an constitutionally accused is entitled to have find each ... charged] beyond [of element offense a reasonable doubt before Anderson, 200, he or she convicted.” State v. right A.2d 928 But no there is to trial of DWI or they other Title 39 offenses because are not deemed to serious be Blanton, enough. supra, 489 U.S. at at S.Ct. Hamm, 556-57; supra, L.Ed.2d 577 A.2d Graff, supra, 121 N.J. at A.2d 1270. In view of principles, those constitutional issue case is whether truly intoxication is a sentence enhancer under 2C:11- N.J.S.A 5b(2) or an element of vehicular homicide.

A. There is no for determining litmus test what anis element of a Hence, begin analysis crime. we Jersey our with the New Code of Justice, (Code). Criminal N.J.S.A 2C:1-1 to 104-9 N.J.S.A. 2C:1- 14h defines an an element of offense as follows: (1) (2) “Element of an offense” means such conduct or such attendant circum- (3) such

stances or a result of conduct as (a) Is included in of conduct in forbidden the definition description offense;

(b) kind required culpability; Establishes (c) justification Negatives for conduct; an or such excuse (d) Negatives or limitations; under the statute of a defense (e) jurisdiction or venue. Establishes [Ibid.] homicide will be respecting the vehicular appeal in this The focus (b). (3)(a) 2C:l-14h(l), (2), Because the issue and on N.J.S.A. by the should be decided enhancement factor a sentence whether a factor is an element with whether such jury is intertwined review of recent United jury, an initial tried before offense informative. in this area will be Supreme decisions States B. concluding “that Zazzali’s dissent disagree with Justice

We imposition a minimum any triggers finding of fact when the fact jury must find that imprisonment a period of Under that 820 A.2d 655. doubt.” Post reasonable mandatory parole ineligibility many holding, would invalidate he 2C:11-5b(l) Homicide, and statutes, N.J.S.A. including Vehicular 2C:14-6; Act, the Three b(2); N.J.S.A Repeat Offender Sex Act, 7.2; Law, the Graves and N.J.S.A. 2C:43-7.1a Strikes sentences, 2C:43-6c; for extended term and the criteria ignores our State Constitution His reliance on N.J.S.A. 2C:44-3. determining when to seven-part “for standard prongs of six pro independent source as an our State Constitution invoke Hunt, rights.” tecting State individual (1982) only (Handler, J., refers concurring). The dissent A.2d 952 legislative analyze the does not language and to the textual addressing enhancement sentence history, preexisting state law terms, be differences parole ineligibility structural and factors Constitutions, whether sentence our the federal and tween Jersey peculiar to New ineligibility are parole enhancement history Jersey’s policy, New require a uniform national and do not right by jury such a does providing trial where tradition of attitudes, statute, public or distinctive exist at common law components. Id. at than the other six important less which are Here, 450 A.2d 952. the dissenters’ use of our State require Constitution to trial on the issue of intoxication as a predicate parole ineligibility “spring[s] pure to from intuition ... process rather from a that is and [than] reasonable reasoned.” Id. 367, 450 A.2d 952. disagree We also with dissenters’ reliance on this Court’s 523, Johnson, supra, decision in 166 N.J. 766 A.2d support required their that a conclusion trial is on all factual predicates ineligibility parole terms. The reference John “ parole ineligibility son to the fact a term of that is the ‘real ” merely time’ was strengthen intended holding by demonstrating constitutional doubt the difference be eighty-five tween percent parole an NERA term other disqua generally capped fifty lifiers that percent are of the base term. (quoting Mosley, Id. at N.J.Super. A.2d denied, (App.Div.2000), 761 A.2d 130 certif. (2001)). 772 A .2d 934 To the extent that can Johnson be read in any way suggest required trials are on sentence doubt, enhancement factors when there is no constitutional we suggestion. disavow that apparent dissent is based on the belief the sentence years However,

three parole eligibility without harsh. is too Legislature graded has the crime defendant committed second degree, represents legislative recognition and that “a of how society perceives Thomas, harmful this crime to be.” State v. In order to reach the 2C:ll-5b(l) b(2) unwarranted conclusion are unconstitutional, intoxication, mistakenly the dissent treats which factor, ais sentence enhancement as if it were an element of second-degree vehicular homicide.

Similarly, disagree we Long’s Justice dissent in which she concludes second-degree that intoxication is an element of vehicu- lar homicide. That conclusion is based on a self-created chart which present she offense describes the involved in the case as an second-degree “enhanced vehicular homicide” that involves intoxi- designated in the as element. Such an offense is not cation an permitted to create Judges and are not criminal Code. Justices same as that ex- The essence her dissent is the offenses. every pressed by Zazzali: that sentence enhancement Justice the offense that must be decided factor becomes an element of jury. supported federal or state law. a conclusion is not Such Supreme The Court has addressed the issue United States enhancement factor or an whether certain conduct is a sentence 79, v. 477 Pennsylvania, element offense. McMillan U.S. (1986), 2411, 67, 91, 2419, 106 91 L.Ed.2d 79 involved S.Ct. designated possession of a firearm” as a statute that “visible required That sentencing enhancement factor. statute years impose minimum five if the enhancer was to term of 81,106 2413, 91 at 73. present. at at L.Ed.2d The Court Id. S.Ct. require Pennsylvania not to treat held that the Constitution did 91,106 Id. enhancer as an element the offense. at sentence 2419, at at 79. The reasoned that S.Ct. 91 L.Ed.2d Court “link[ing] ‘severity presence punishment’ ‘the absence ” automatically make that an an fact’ did not fact identified 2415, at 91. at 75 “element.” Id. at 106 S.Ct. L.Ed.2d York, 214, 2319, 197, 97 (quoting v. 432 U.S. S.Ct. Patterson New (1977)). 281, 2329, Significantly, 53 the Court ob L.Ed.2d 294 legislature’s the elements of the served that “the state definition of 85, McMillan, usually dispositive[.]” supra, 477 U.S. at offense is 2415, 91 at 75. 106 S.Ct. at L.Ed.2d States, 224, 523 The v. United U.S. Court Almendarez-Torres (1998), 1219, recognized Congress 118 S.Ct. 140 L.Ed.2d350 sentencing determine which are factors equipped best factors 228, 118 at offense. Id. at S.Ct. and which are elements of the clearly 1223, at The Almendarez-Torres Court 140 L.Ed.2d 358. statutory rejected any significant in a the “rule that increase the] constitutional ‘elements’ [invoke maximum sentence would” 1232, 247, at 140 at 370. requirement. Id. at 118 S.Ct. L.Ed.2d States, 227, 119 year later v. United 526 U.S. A Jones (1999), 1215, Supreme began to L.Ed.2d Court S.Ct. 143 311 mandatory-minimum-sentencing examine statutes under the con- 229, 1217, at at stitutional doubt doctrine. Id. 119 S.Ct. L.Ed.2d at 317. The constitutional doubt states doctrine possible, interpreted it when statute will be so that does not 1222, conflict with Constitution. Id. S.Ct. 323; Attorney L.Ed.2d at United ex rel. States General Dela- Co., ware & Hudson U.S. S.Ct. 53 L.Ed. 836, 849 Jones concluded that when a can statute be ways, ques- in two construed one of which creates constitutional not, duty other of tions and the which does a court is under a adopt interpretation does violate the constitution. Jones, supra, 526 U.S. at 119 S.Ct. at 143 L.Ed.2d at 323. provisions carjacking Jones held that of a statute higher penalties imposed

that established to be when the offense bodily injury merely resulted in serious death or were not sentenc ing considerations but were additional elements of offense. 233, 119 1219, 143 Id. at S.Ct. at L.Ed.2d at 319. The Court stated respect when a statute is unclear with whether not the penalty aggravator, factor is an element of the offense or a guidance. Court should look to other federal and state statutes 234-38, 1220-21, Id. at 119 at S.Ct. 143 L.Ed.2d at 320-23. The that, Court in Jones -determined in other federal and state stat utes, bodily injury serious was considered an rather element than 239, sentencing 1222, factor. Id. at 119 S.Ct. 143 L.Ed.2d at Therefore, injury 323. bodily Court held serious was an element a must find a reasonable doubt. Id. at 251- 52,119 1228,143 S.Ct. at L.Ed.2d at 330-32. Court, Supreme

Before next case reached we decided rev’d, 7, (1999), Apprendi, A.2d 530 U.S. 466, 2348, (2000). There, 147 L. S.Ct. Ed.2d we had enhancer, determine whether our hate-crime sentence 2C:44-3e, pled guilty violated Due Process Clause. Defendant second-degree possession weapon to two offenses of of a for an 10, purpose. Apprendi, unlawful supra, 159 N.J. at 731 A.2d 485. between five ordinary range for those offenses was The sentence 2C:43-6a(2). permitted The statute an years. N.J.S.A. and ten in any in which defendant “[t]he sentence in case enhanced an committing purpose acted to intimidate the crime race, color, gender, group individuals because of individual or ethnicity.” religion, orientation or N.J.S.A handicap, sexual exposed defendant to a That sentence enhancer 2C:44-3e.1 ordinary for those of that could double the sentence sentence resembles that because the hate-crime statute fenses. We held McMillan, transgress the limits set plainly “statute does not our process of law---- There is [regarding] in due out Patterson criminal simply legislature that the restructured its no indication attempt ‘evade’ the sentencing structures in an code and at 23- Winship, swpra.” Apprendi, supra, 159 N.J. commands of purpose to finding “A of biased motive or 731 A .2d 485. sentencing Id. at very ... traditional factor.” intimidate is a Court, however, dissenting A member of the 731 A.2d 485. on the enhancer focused concluded that because the sentence was so the time of the offense and defendant’s mental state at it, thereof.” characterized as an element “integral” to “it must be (Stein, J., dissenting]. Id. at 731A.2d 485 granted Apprendi New Supreme certiorari The Court 466, 120 530 U.S. S.Ct. Jersey and decided the case 2000. that our hate-crime statute 147 L.Ed.2d 435. The Court held enhancing the required for because the motive unconstitutional essentially Apprendi, supra, 530 U.S. penalty was an element. 147 L.Ed.2d at 456-57. 120 S.Ct. at maximum by increasing the defendant’s Apprendi concluded that prepon judge’s finding under a sentencing exposure on a based standard, hate-crime statute violated derance of the evidence held that process. Ibid. The Court also the defendant’s due conviction, any that increases prior fact than the fact of a “[o]ther statutory beyond prescribed maximum penalty a crime for P.L.2001, by 443. amendment c. of the statute was deleted This section jury, must be proved beyond submitted to a a reasonable 490, 120 2362-63,147 doubt.” Id. at S.Ct. L.Ed.2d at 455. The expressly Court overruling stated that it was not McMillan but “limiting] holding its imposition cases that do not involve the of a sentence more statutory severe than the maximum for the by offense jury’s established verdict —a limitation in identified opinion the McMillan Apprendi, supra, itself.” 530 U.S. at 487 n. 13,120 13, 147 S.Ct. at 2361 n. L.Ed.2d at 453 n. 13. Supreme Apprendi Court’s decision in quagmire created a questions respect unanswered judges of whether trial are

permitted Indeed, to determine sentence enhancement factors. Johnson, supra, this Court in 166 N.J. at 766 A.2d found Apprendi had created constitutional regarding doubt Act, Early our No (NERA), Release N.J.S.A. 2C:43-7.2 “provides mandatory minimum sentences for convictions con stituting Johnson, ‘violent by crimes’ as defined that statute.” supra, 166 N.J. at 766A.2d although 1126. We observed that question Johnson, no direct presented constitutional was as the parties suggested, question had statutory interpretation was presented, (e) “depending on how interpret we subsection NERA, could raise constitutional concerns” under the decisions of Supreme the United States Court. Id. at 766 A.2d 1126. “If (e) interpret we require subsection to make the ‘violent finding beyond doubt, crime’ a reasonable allayed any we will have concern that NERA Winship violates the doctrine.” Ibid. Con sequently, we held that [b]eeause of respecting uncertainty expressed U.S. Court Supreme continuing of McMillan, and the broad understanding vitality of ‘punishment’ recognized (e) we will Court, construe subsection NERA require the ‘violent crime’ condition must be submitted to a and found subject

reasonable doubt. To do otherwise would be to NERA to constitutional challenge. (footnote omitted).]

[Id. at 543-44, 766 A.2d 1126 apparent In an attempt to stem the occurring confusion across . country Apprendi the aftermath of respect to whether overturned, McMillan had been Supreme granted Harris, certiorari in supra, and decided the case on June 2002. 545, 122 524. The defendant in 536 U.S. S.Ct. L.Ed.2d drug trafficking Harris was convicted for under 18 U.S.C.A. 924(c)(1)(A), § provided person which that a who uses or carries crime, “shall, trafficking in to during drug firearm addition the (i) imprisonment punishment ... be sentenced to a term of of not (ii) brandished, years; than if the firearm is be sentenced less five (iii) discharged, years; ... and if the firearm is to not less than Harris, years.” supra, ... to be sentenced to not less than 10 2410-11, at S.Ct. at 153 L.Ed.2d 533. U.S. 924(c)(1)(A) single Supreme held that subsection defines a Court “discharging” “brandishing” a firearm were offense thus by jury, sentencing require finding that did not but factors Harris, by judge. supra, 536 could be determined the U.S. reaffirmed 122 S.Ct. at 153 L.Ed.2d at 537. The Court following language: McMillan clear because there is a fundamental distinction McMillan and are consistent Apprendi findings two said between the factual that were at issue those cases. Apprendi extending the maximum authorized fact the defendant’s sentence beyond any aggravated jury’s of an verdict would have been considered an element by Rights. who framed the Bill of crime —and thus the domain those by— (but increasing of a fact minimum The same cannot be said mandatory maximum), jury’s extending has for the verdict the sentence statutory finding. judge minimum with or without As authorized the to impose finding recognized, of factual for the McMillan a statute reserve may type violating without the Constitution.

[Ibid] position seemingly it The Harris thus retreated from the away appeared Apprendi had taken wherein the Court move sentencing jurisprudence long from a tradition of that restricted determining the offense the role of the the elements of judicial legislature charged leaving it to the to structure sentencing. respect, In that the Court stated: does not itself sentence, so,

That a fact affects the defendant’s even dramatically make it an element. setting together, outer McMillan and mean that those facts Read AppreTidi judicial are the it, limits of a and of the elements sentence, impose power range Within the authorized crime for the of the constitutional analysis. purposes judicial jury’s channel discre- verdict, however, the political system may judicial requiring tion —and defendants to minimum rely serve upon expertise by— judges findings. terms-after make certain factual It is critical not to abandon that understanding Legislatures at this late date. their constituents have relied sentencing through McMillan exercise control over dozens of upon statutes like ease____We the one the Court in that see no reason to overturn approved these statutes or cast the sentences under them. uncertainty upon imposed [Id. at at 567-68,122 2419-20,153 544-45.] S.Ct. L.Ed.2d at Now that constitutional doubt has been removed from the analysis, part claim, which was of defendant’s Due Process Clause we must now decide whether intoxication was an element of vehicular homicide.

IV. any Given the absence of determining litmus test for offense, particular the elements again of a turn we to the Code. N.J.S.A. 2C:l-14h instructs that we first examine the statute that makes certain conduct an A offense. vehicular homicide is defined person as the death of another that “is driving caused a [motor] recklessly.” vehicle such, or-vessel N.J.S.A. 2C:ll-5a. As 1) second-degree offense has three elements: that the defendant 2) operated vessel, a motor vehicle or opera that the defendant’s tion of that motor vehicle or vessel caused the death of another 3) person, that the death of the victim was caused operation See, defendant’s reckless of the motor vehicle or vessel. Casele, e.g., supra, N.J.Super. at 487 A.2d 765. “[P]roof (or concentration) of defendant’s intoxication blood alcohol [is] required homicide], fact not proof for the [vehicular DeLuca, supra, 2C:ll-5.” 108 N.J. at 527 A.2d 1355. Rath being offense, er than an element of the intoxication in was used this case as “a mere circumstance to be determining considered in State, whether” defendant recklessly. had acted Wilson v. (E. 1897). N.J.L. A. only & A. Not was homicide, intoxication not an element of vehicular unlike some offenses, it could not have “[negate] been used this case to an element of the 2C:2-8a; [vehicular homicide] offense.” N.J.S.A. Cameron, As the Harris, Supreme Court observed in the fact that intoxication sentence, so, dramatically “affects the defendant’s even does not Harris, 566, 122 supra, 536 U.S. by itself make it an element.” 2419, 153 Moreover, S.Ct. L.Ed.2d at 544. intoxication does not penalty statutory increase the for vehicular homicide maximum prescribed for that offense.

V. Justice Part I mistakenly Albin of his dissent has concluded is a that DWI lesser-included offense of vehicular justify homicide order to his conclusion defendant driving. on entitled to a trial DWI and That reckless dissent recognize between, our fails to law draws distinction on the hand, consolidating one DWI and other Title 39 offenses with indictable offenses the Code to bar of under avoid the the Double and, Jeopardy hand, classifying Clause on the other DWI and other Title 39 as of offenses lesser-included offenses indicted Code N.J.S.A. right offenses under 2C:l-8 so a trigger by as to to trial jury. blurring by The contrary of distinction the dissent is express Legislature the three-quarters will of the for more than century jurisprudence and the of this constitutional State. only request charge jury Not no was there the that it had to offenses, judge decide the Title the the instructed without objection that the would decide Consistent with them. what law, always has been our the court instructed “that there charges are motor pending against vehicle now the defendant. I requires The law alone charges decide those motor vehicle you your and I will Obviously do so after have returned verdict. your depend I you verdict should not on how think would decide charges.” the motor vehicle trial issue was not raised in raised, Appellate time, Division. That issue was for the first then, during post-Harris argument, oral even it was assumption restricted to an is an intoxication element of dissent, however, I vehicular homicide. Point of Justice Albin’s depend finding does not is an on a that intoxication element of by jury. vehicular homicide and therefore must be decided His Title 39 offenses should and other sponte conclusion that DWI sua try the vehicular homicide by jury impaneled be decided ... to some sort of last resort us from the Court “converts Blackwood, 500, 501, v. 101 N.J. super rescue-mission.” Whitfield (1986) (Clifford, J., concurring). A.2d 1132 Jersey in New Historically, of an indictable offense one accused jury, by grand N.J. right to an indictment a constitutional has Const, ¶ indicted, petit I, 8, impartial an if to a trial art. Const, ¶ Maier, I, 9; v. 13 N.J. jury. art. State (1953). fall within vehicle offenses such as DWIs A.2d 21 Motor fit within the generic category petty offenses that do not criminal offense. See definition of a lesser-included Code’s Buehrer, 501, 517-19, 2C:1-14k; 236 A.2d In re 50 N.J. (1967). criminal of law for lesser-included The rationale at common on the notion that being covered an indictment based fenses ingredient an grand jury the lesser offense as considered Johnson, 185, 186 greater criminal 30 N.J.L. offense. criminal offense must be of (Sup.Ct.1862). The lesser-included charged” in general character as that the indictment. “the same words, must be In other the lesser-included criminal offense Ibid. necessarily included in the lower-degree offense that “is Staw, indictment,” charged in v. 97 N.J.L. higher one State (E. A.1922) (citation omitted), 349, 350, or a “neces 116 A. 425 & offense, Talley, sary ingredient” of the indicted Hence, by 1942 was a “well- there any may crime of rule that the accused be convicted of established ingredient an grade degree, provided it is a lesser therefore includ greater alleged indictment] and is [in offense Newman, 82, 84, 24 A.2d 206 therein.” State v. 128 N.J.L. ed omitted). (citation foregoing The common law ratio (Sup.Ct.1942) Saulnier, adopted pre-Code of State v. nale was in the case (1973), may holding “a A.2d 67 defendant ... included guilty [criminal] found of a lesser offense be ” greater charged in the indictment.... offense statutory respect The Code embodies the and with common law hand, to criminal offenses. Title on other of which DWI is part, Regulation.” a is referred as “Motor Vehicles and Traffic proscribed N.J.S.A. 39:1-1 to:13-8. DWI N.J.S.A. 39:4-50 part and it of “Operation is a Article 9 that relates to of or Acts Affecting contrast, Operation of Vehicles and Street Cars.” In exclusively. end, Code to criminal relates conduct Toward prosecuting multiple Code establishes framework for crimi provides nal It offenses. the same conduct “[w]hen [criminal] may of a defendant establish the commission than of more one offense, ... may [criminal] the defendant ... not be convicted of other, more than one offense if ... offense [o]ne is included 2C:1-8a(l). as defined in subsection d. of this section.” N.J.S.A. may Subsection states: “A [a d defendant be criminal] convicted of charged offense an included offense whether or not included offense is an indictable [criminal] offense.” 2C:1-8d. N.J.S.A. “charge Subsection e instructs the trial court respect to an included unless offense there is a rational basis for a convicting verdict defendant the included of [criminal] Clearly, fense.” applies N.J.S.A. 2C:l-8e. all of N.J.S.A. 2C:1-8 traffic-regulatory criminal offenses and not offenses. 1) types Code classifies three of criminal offenses: crimes 2) first, second, degree, disorderly persons third and fourth 3) offenses, petty disorderly persons offenses. N.J.S.A. 2C:1- crimes, 4a disorderly persons petty and b. Some of the disorderly persons defined in offenses are statutes of this State outside the When such declare a Code. statutes outside the Code “provides criminal to be a offense misdemeanor and maximum less, penalty imprisonment provision months’ six ... such disorderly shall persons constitute offense.” 2C:l-4e. N.J.S.A. Generally, other when non-Code criminal offenses are described as specifying imprison- misdemeanors without a maximum term ment, purpose those offenses “constitute for of sentence crime of 2C:43-lb; degree.” the fourth Non- N.J.S.A 2C:l-5b. “designated high Code criminal offenses as a shall misdemeanor 100 purpose a crime of the third for the sentence

constitute degree.” N.J.S.A. 2C:43-lb. enacted, 1909,

Although first L. was a misdemeanor when DWI 127, years disorderly persons four c. it was reduced to a offense Hamm, 119, 67; 1913, supra, 121 later. L. c. State v. N.J. at downgraded Finally, Legislature 1259. in 1921 “the DWI A.2d offense, expanding reaffirming penalties a motor-vehicle and 208, Hamm, 14(3), § p. supra, 121 the 1913law. L. c. 665.” Consequently, since DWI and N.J. at 577 A.2d 1259. “petty of Title have been characterized as other 39 offenses Senno, (1979); 79 N.J. fenses.” State v. A.2d 873 (1970). Macuk, 1, 9, example, v. For State 57 N.J. century ago driving reddess violated a Court stated half contemplation regulatory and was not an within the code offense provision. Jersey jeopardy New constitutional double State Thus, Shoopman, 11 A.2d 493 “[t]he v. history legislative judicial Jersey in New ... and of DWI shows Hamm, its consistent treatment as a non-criminal offense.” su 129, A pra, 121 N.J. at 577 .2d1259. provisions “[t]he not provides

The Code the Code prior inconsistent with those of laws shall be construed as a continuation of laws.” 2C:l-le. Guided such construction, plain rule of we reaffirm our view that under the Code, language of DWI and Title 39 are not other offenses legislative policy “included criminal offenses.” In view of the respect joinder and in Title reflected the Code 39 “with offenses, permit, do not lesser-included Code standards policies require, do not the ... to and common-law submission disposition conjunction of motor violations in vehicles with its determination of under the Code” when Title 39 offenses are trial. offenses consolidated an indictable offense for Muniz, 331-32, supra, A.2d 948. trial with

DWI other Title offenses are consolidated for offenses, they indicted because criminal are lesser-included indictment, charged our offenses the crimes in an but because 3(a)(1) jurisprudence and Rule require consolidation of even 3:15— Title 39 offenses to avoid jeopardy problems. double DeLuca, supra, 1355; 108 N.J. at 527 A.2d 578, Dively, supra, 92 N.J. at 458 A.2d 502. When consolidation required of criminal offenses is to jeopardy problems, avoid double jury must decide lesser-included disorderly crimes as well as petty disorderly and persons they offenses because are criminal presumed offenses it grand and jury that would have intended to include them within the four corners of the indictment. context, in Viewed provides the indictment sufficient notice to finder, trial, defendant. jury jury The same fact must all decide of the criminal offenses —the indicted and the lesser- included required by criminal offenses —as the Code. N.J.S.A e; 3:15-3(a)(2). 2C:l-8d and R.

Requiring consolidation of all offenses for trial that are “based on arising the same conduct episode,” from the same R. 3:15- 3(a), jeopardy problems, to avoid double dispositive is not jury whether hearing presiding the indicted offense or the judge should decide the Although lesser offense. Dively, supra, 586, 92 N.J. at 458 A.2d held that motor vehicular violations subject Clause, are Jeopardy to the Double that case did not indicate who should decide the Title 39 offenses after consolidation with the indicted offense. acknowledged The Court in DeLuca procedures suggested various handling had been for “the death-by-auto charge, may which be tried before a and the charge, DWI right as to which by jury.” there is no to trial DeLuca, supra, 108 N.J. at 527 A.2d 1355. Based on the right absence of a by jury constitutional to trial on the DWI offense, protected right the constitutional to trial death-by-auto on the required presiding judge just decide the Title municipal 39 offense as a court would. principle Ibid. That years was reaffirmed two and a half later Muniz, supra, 118 N.J. 571 A.2d 948. That was a reasonable and efficient implements accommodation that a defen right dant’s by jury. constitutional to trial previously, As noted because Title 39 jeopardy protection, offenses are afforded double

102 offenses, they they must with indicted but are be consolidated lesser-included offenses under N.J.S.A. 2C:l-8. compet

Recognizing separation the need to retain between two Johnson, 192, 205, strains, see State v. N.J. ing 171 constitutional Welsh, (2002); 84 N.J. A .2d 419 A.2d (1980), DeLuca and Muniz enforced the Double the Court requirement right Jeopardy imposing Clause without a new by jury right trial Title 39 when no such has existed offenses downgraded at least when DWI from a misdemean- since 1913 was dissent, disorderly persons or to a we believe offense. Unlike “ ‘[l]aws, houses, one another.’” like lean on (2002) (Coleman, J., Papasavvas, A.2d 798 Burke, Relating Popery Tracts dissenting) (quoting Edmund Writings (1765), reprinted Speeches Laws The in IX (Paul eds.1991)). Edmund Burke Langford et al. that there dissent’s conclusion should be trial on the Title Constitution, jurispru 39 offenses has no foundation in our Court, 3:15-3, Rule legislative dence of or enactments. Hence, the represents dissent’s conclusion a drastic and an unwar departure existing Any change ranted from law. in the law to require by jury trial on DWI Title and other 39 offenses “should judicial, properly by legislative, judgment.” be rather than Hamm, supra, 121 N.J. A.2d 1259.

VI. conclude, therefore, right there is no to trial We because jury on a or on DWI offense the issue intoxication for sentence purposes, enhancement because there is substantial credible evi- support judge’s dence record to determination of intoxication, following there and because is no constitutional doubt Harris, vacating Appellate three-year Division erred parole ineligibility. term of judgment Appellate

The is Division reversed and the judgment Division is of the Law reinstated.

LONG, J., dissenting. may encompassed else be within the notion of “ele- Whatever offense,” must, logic ment of an it as a matter of and common of the forbidden conduct. incorporate description sense entirely separate 2C:ll-5 sets forth three vehicular homicide offenses, describing Legislature each different conduct that the sought to The interdict. constituent elements each those offenses are as follows:

Offense Elements First-degree Causing 1. vehicular homicide death (10-20 term) year Driving recklessly 2. a vehicle 3. While intoxicated while license revoked property 4. or a On school crossing school second-degree Causing Enhanced vehicular 1. Death (5-10 year Driving recklessly Homicide term with a 2. a vehicle mandatory three-year parole 3. While intoxicated or while disqualifier) license revoked Second-degree Causing 1. vehicular homicide Death (5-10 term) year Driving recklessly 2. a vehicle diagram,

As is evident from that the statute describes three escalating on discrete offenses an scale of seriousness. level directly accelerating egregiousness of seriousness is related to the conduct, turn, expressed by of the defendant’s conduct. That ordinary the number of elements in each offense. The second- degree causing driving offense has two death and elements — recklessly; second-degree mandatory the enhanced offense with intoxication; parole ineligibility first-degree adds a and the third — premises. offense adds a fourth —school The substance clearer, yet Legislature scheme could not be the Court allows the second-degree in of- to wink and call intoxication the enhanced factor, sentencing removing jury’s ambit. fense a thus it from the least, statutory very ordinary At the a matter of inter- as statute, in it pretation, when a term is used more than once places. Because meaning and status in both the same should have first-degree an element of the that intoxication is it is conceded offense, second- an element of the enhanced can it not be how charged with first- is that a defendant degree offense? The result homicide, on determination is entitled to degree vehicular enhanced second- charged with whereas a defendant intoxication justification logical not. There is no homicide is degree vehicular such a scheme. note, impermissi- I majority’s suggestion that have final One my dissection bly criminal offense structural “created” a statutory Every mark. act of wide of the N.J.S.A. 2C:ll-5 is eschewing formalism favor point of which is interpretation, substance, what we are exactly a “creation.” That is is such statutory away lay bare the scheme strip artifice and here for—to for what it is. dissent, joining I expressed, I have therefore the reasons

For my colleagues Zazzali and Albin. join in ALBIN this dissent. ZAZZALI and

Justices J., ZAZZALI, dissenting. subject punishment criminal may a citizen to

The State guilt proved by jury in which it that citizen a trial unless affords majority I that the doubt. Because believe a reasonable appeal, respectfully I dissent. right in this has denied year Appellate Division vacated defen- Today, one after the prison parole disqualifier, the orders her back dant’s Court repre- That term twenty-six month term of incarceration. serve a mandatory three-year sentence the balance of the sents minimum trial determination that defen- imposed as a result of the court’s committed vehicular homicide. was intoxicated when she dant finding beyond a reasonable make that Because a did not doubt, imminent re-incarceration vio- I that defendant’s believe protections trial of our State Constitution. lates expressed with the sentiments Consistent Johnson, (2001), A.2d 1126 as well as

105 traditionally afforded defendants have we protections broader Jersey New Constitu- 1, 10 of the paragraphs 9 and article under triggers any fact finding of tion, when the hold that I would jury must find imprisonment period of a minimum imposition of Accordingly, I would hold doubt. beyond a reasonable fact 2C:ll-5b(2), statutory its face N.J.S.A. on unconstitutional three-year procedures which forth the provision that sets imposed. at issue is mandatory minimum term I rights in most cherished by jury “one of the right trial is v. jurisprudence.” State Anglo-American history our long (1981). encompasses 204, 210, It A. 912 432 2d Ingenito, 87 N.J. process that circum due fairness and principles of fundamental Winship, In re criminal conduct. power punish a state’s scribe (1970) 368, 1068, 1073, L.Ed.2d 375 358, 364, 25 90 S.Ct. 397 U.S. Amendment of Fourteenth Due Process Clause (holding that beyond except upon proof against conviction “protects the accused the crime necessary to constitute every fact reasonable doubt 200, Anderson, 127 N.J. charged”); v. State for which he right is intertwined jury trial (1992)(noting that at 216 n. law); Ingenito, supra, process of right due have ex “many concerns we (stating A. 2d 912 432 con process due jury implicate broader context pressed criminally accused the cerns”). grants it specifically, More proved prosecution has whether have a determine right to which criminal the facts to all of doubt a reasonable 200-01, A. 2d Anderson, 603 N.J. at supra, 127 liability attaches. Because the A.2d 912. 928; supra, 87 N.J. at Ingenito, government’s on the paramount restraint right is the trial severity long held that the punish, have power to we broad test” for “only reliable law is punishment authorized Owens, N.J. v. right State attaches.2 determining when that trial entitled to the accused is Constitution the New Under Jersey term of exceeds a six-month legislatively punishment whenever the prescribed denied, (1969), 254 A.2d Jersey, cert. Owens v. New Anderson, 396 U.S. 90 S.Ct. 24 L.Ed.2d 514 See 928; Hamm, supra, 127 N.J. at 603 A.2d 109,112, (1990), denied, 577 A.2d 1259 cert. Jersey, Hamm v. New 947, 1413, (1991); 499 111 U.S. S.Ct. 113 Ingenito, L.Ed.2d 466 204, 213-14, supra, (1981); Buehrer, 87 N.J. 432 A.2d 912 In re 50 501, 517-18, (1967). N.J. 236 A.2d 592 recently emphasized significance We pun constitutional case, ishment in suggested Johnson. In that proper we that the ascertaining benchmark for a jury right whether defendant’s trial term, length prison time,” attaches is the of the or “real imposed pursuant mandatory Johnson, to a minimum supra, sentence. 166 541-42, N.J. at By adopting 766 A .2d 1126. reasoning States, 545, 2406, Harris v. United 536 U.S. 122 S.Ct. 153 L.Ed.2d (2002),however, majority 524 has abandoned this Court’s focus on a defendant’s “real time.” majority bases its jury right part denial of the trial on its

classification of sentencing intoxication as a factor rather than as an 97-98, element of an offense. Ante at 820 A.2d at 650. Similarly, majority endorses plurality’s the Harris distinction between findings factual increase a defendant’s maximum possible punishment, in Apprendi 466, as Jersey, New 530 U.S. 2348, (2000), 120 S.Ct. 147 L.Ed.2d 435 from trigger those that a n mandatory imprisonment, minimum term of inas McMillan v. 79, Pennsylvania, 2411, (1986). 477 U.S. 106 S.Ct. 91 L.Ed.2d 67 95-97, Ante at 820 severity A.2d at 649-650. Because the of the punishment imposed proper is the measure of whether the (1990), incarceration. Hamm, 109, State v. 121 112, 577 A.2d 1259 cert. denied, Hamm v. New 947, 499 U.S. 111 S.Ct. Jersey, L.Ed.2d 466 (1991); (1969), Owens, denied, cert. Owens v. New 396 U.S. Jersey, S.Ct. 24 L.Ed.2d Thus, a minimum term of six months or mandatory prison less would not a implicate right jury. defendant's to trial by attaches, right principled I basis for such distinctions. trial find no Johnson, A.2d 1126. supra, 166 N.J. at See Harris, Supreme majority consisting of In a of the rejected Breyer dissenting expressly four Justice Justices mandatory any triggers minimum term constitu view that a less respect scrutiny an maximum term in tional than enhanced Although Breyer concurred in the right to a trial. Justice mandatory a judgment triggers a fact that Harris Court’s jury beyond proved does to be to a generally minimum not need doubt, his concurrence was with his dissent reasonable consistent dissent, argued jury trial ing opinion Apprendi. In that he necessarily proof of facts that protections should attach to range. permissible sentencing Apprendi, See extend defendant’s supra, S.Ct. at 147 L.Ed.2d at 498 530 U.S. J., Thus, (Breyer, dissenting). Breyer would Justice withhold mandatory protection irrespective of whether trial Harris, implicated. term minimum or an extended maximum (“I 567-68, 122 at 153 L.Ed.2dat 544 supra, at S.Ct. 536 U.S. opinion it a agree plurality’s insofar as finds such cannot J., ].”)(Breyer, Apprendi and concur distinction Harris [between part judgment); Apprendi in in see also ring concurring and (“I 563-64, 120 2401, 147 at at 500 supra, at S.Ct. L.Ed.2d 530 U.S. why, legislature judge to a authorizes a do understand when born; but impose higher penalty ... a new crime is where a impose higher penalty than he legislature requires a to a (within range) statutory based on preexisting otherwise would J., criteria, not.”)(Breyer, dissenting). Thom- it is Justice similar Stevens, Souter, as, joined in in dissent Harris Justices rejected those plurality’s between Ginsburg, also distinction predicates that the outer limit of sentence factual extend Harris, mandatory prison trigger a minimum term. those that 549. at 153 L.Ed.2d at supra, S.Ct. U.S. (“[Sjuch regard vital constitutional liber- fine distinctions with J., scrutiny.”)(Thomas, dissenting). ties cannot withstand close Thus, majority majority appeal, to the this contrast right jury to a trial on would decline to condition the Harris Court provides mandatory whether a criminal statute for a minimum or an extended .maximum term.

II occasion, On more than one this Court has demonstrated its willingness right to extend the trial to resolve uncertainties mitigate and to Supreme juris limitations created Court’s Gilmore, prudence. In example, we held that the right impartial jury prohibited defendant’s to a fair and prosecutor using peremptory from challenges racially his in a discriminatory 508, 528-29, manner. 103 N.J.

(1986). We looked to Supreme our State Constitution because the expressly declined to practice consider whether such a right violated the defendant’s federal to a trial. Id. doing, 511 A.2d 1150. In so we noted that recourse the State provisions justified Constitution’s trial part was because scope protections of federal Equal constitutional under the Protection Clause of the Fourteenth Amendment was uncertain. Anderson, Ibid. In supra, we perjury overturned a criminal conviction as a violation of the defendant’s state constitutional right by jury. to trial In A.2d 928. the face of suggested result, well-settled federal contrary law that we held practice court, allowing jury, the trial rather than the materiality perjured determine the testimony violated our State Constitution. Id. at In reaching 603 A.2d 928. majority conclusion we noted that a of federal courts had not set adequate forth contrary rationales holdings. for their Ibid. When, appeal, inas applicable basis for the federal law is both unpersuasive uncertain and we should not hesitate to reach independent an conclusion under our State Constitution. As stated, Justice Pashman simplest perhaps “[t]he but compel- most ling extending reason for rights beyond state constitutional their counterparts federal strengthens that it the constitutional safe- guards Hunt, of fundamental liberties.” v. State 91 N.J. (1982) (Pashman, J., 952 concurring). In the absence of A.2d. permit Legislature justification, I not to principled a would scrutiny finding exempt from when the of those facts select significant imprisonment. Accordingly, I facts in a term of results single that a fact Legislature once the determines would hold that fact be triggers specific punishment amount of that must a proved charged doubt. to a reasonable

Ill argues propose I read to the rule could be entitle length trial on all factors that affect defendants to note, however, term, mandatory minimum I that a such sentence. 5b(1)—(2), pursuant to N.J.S.A. 2C: differs imposed as 11— adjusted pursuant example, to significantly, for from a sentence guidelines forth set in our Criminal Code. Under N.J.S.A. 2C:44-1, aggravating mitigating court considers a trial sentencing numerous circumstances at examines and balances in a that results sentence factors make a cumulative assessment to Roth, statutory range. v. prescribed within See State 95 N.J. (1984). 334, 359-60, single process, A.2d In that no factor unconditionally range punishment which the defen alters the to leading imposi Similarly, finding a factual exposed. dant is minimum from mandatory significantly differs a trial tion of a impose a rather than court’s whether consecutive decision Pursuant to that N.J.S.A. 2C:44-5a. concurrent sentence under statute, on the and circumstances the trial court must focus nature guidelines by this multiple on the established convictions based (1985), A.2d 1239 Yarbough, Court in State denied, Yarbough Jersey, 106 S.Ct. cert. v. New 475 U.S. Yarbough, the Under trial court 89 L.Ed.2d relationship the various grounds in the between its determination offenses, any species implicated particular conduct. rather than 642-45, 498 See id. at A.2d 1239. Legisla- my proposed holding preclude would

Finally, mandatory penalties. It creating minimum ture future from juries, judges, simply require rather than make would no

requisite findings trigger imposition mandatory factual that of hamper Such a would Legislature’s mínimums. rule neither the prerogative capacity punish- to define crimes nor impose its to ment.

IV conclusion, In because federal law in this area is uncertain and 2C:ll-5b(2) unpersuasive, I would hold violates our jury I right require Constitution. would extend the trial any imposition in mandatory fact that results minimum imprisonment proved term of must be ato a reason- right- by depend able The trial doubt. should not on Legislature whether the finding particular has declared that a of a sentence, fact will result an enhanced maximum rather than in a mandatory minimum. equally arbitrary Nor should it turn on an sentencing distinction between factors and elements. As matter law, analysis of state our begin constitutional must and end with degree punishment Legislature that the conditions on a specific factual I Ap- determination. therefore would affirm the pellate on grounds Division state constitutional in accordance with expressed the sentiments this Court in Johnson. dissent, expressed,

For the reasons I joining have I therefore my colleagues Long and Albin. join opinion.

Justices LONG and ALBIN ALBIN, J., dissenting. right by jury to trial is an right ancient right, and revered in our

embodied State Constitution before there was a Federal Constitution, right Magna right as as the old Carta.3 That -has been through ages devised us and finds its home our Const, (stating See right N.J. 1176 art. XXII “that the inestimable of trial by jury shall remain confirmed as a of the law this part without Colony, repeal, forever”) (reproduced http:llwww.nj.gov/njfactsl njdoclOa.htm); J. Kendall Few, 1 In Trial by Jury Defense of

Ill Constitution, Jersey guarantees “right which current New Const, ¶I, art. inviolate.” 9. of trial shall remain by diminishing majority opinion right blow to that The strikes a in importance jury system of criminal the role and of the our jury justice by ceding judge from to the the relevant fact- the and length a finding power the real-time of defen that determines By altering radically balance between the dant’s sentence. the opinion jury judge, majority departs and the function of the the responsibility previously belief that “[t]he from Court’s held jury findings” “preeminent,” and the in the domain of factual innocence, determining guilt jury in “serves the or the as the community the and the embodiment of common conscience of a whole.” society feelings sense and reflective as (citations (1981) 204, 211-12, Ingenito, 87 A.2d omitted). I, therefore, join thoughtful dissents with the Jus of. my signal Long Zazzali and add these words to concern tices and path about on which the now embarks. the Court evening, Traci lost control of the Porsche she was One Stanton killing and her driving, striking a tree off the side of the road sister-in-law, Smith, passenger Nancy was front seat. who the vehicle, recklessly operated the The State claimed Stanton causing charged vehicular homi- death. Stanton was with Smith’s cide, 2C:ll-5, crime, N.J.S.A second-degree and several motor offenses, 39:4-96, and including driving, vehicle reckless (DWI), N.J.S.A. 39:4-50. driving The vehicular intoxicated while charges charge and the motor vehicle homicide was tried to to Rule proceeding pursuant judge in one Superior Court 3:15-3. respect presented

The the same evidence to the including charges, and vehicle evidence to the indictable motor time accident. After the was intoxicated at the Stanton charge, guilty verdict of on the vehicular homicide rendered a Superior judge judgment the motor sat on vehicle and, testimony, charges taking any without additional evidence driving The guilty judge’s DWI. found Stanton of reckless finding guilt grave implications charge on DWI had penalty range for that motor vehicle offense. The three-year prison sentenced Stanton to a state term based on jury’s finding of judge’s vehicular homicide. The verdict on however, charge, required imposition mandatory DWI three-year prison minimum state term on the vehicular homicide 2C:ll-5b(l). charge pursuant to N.J.S.A. But for the DWI find- ing, eligible Stanton parole would have been in nine months. 30:4-123.51g. judge’s finding See N.J.S.A. exposed factual greater Stanton to a four real-time sentence times than exposure resulting jury’s finding. from the factual

I. The New Jersey empowers promul Constitution this Court to gate governing “practice procedure” rules Superior Const, VI, 3;¶2,§ Court. N.J. art. Winberry Salisbury, v. N.J. 5 255, 240, 74 (establishing A.2d 406 that rule-making power, Court’s practice procedure, subject in matters of and overriding is not to denied, 877, legislation), 123, cert. 340 71 U.S. S.Ct. 95 L.Ed. 638 (1950). In authority, accordance this the Court enacted Rule 3:15-3, provides disorderly persons, petty which disorderly, that complaints joined motor and vehicle must be for trial awith criminal arising offense “based on the same conduct or the from 3:15-3(a)(l). episode.” disorderly persons same R. Unlike petty disorderly offenses, persons which jury are submitted to the they offenses, 3:15-3(a)(2) if are lesser-included Rule requires lesser-included motor vehicle offenses of a complaint criminal to Superior proofs be decided Court “on adduced course of trial.” Rule is 3:15-3 the codification of several of mistakenly decisions that I believe have taken from jury rightful authority its to decide lesser-included motor arising vehicle offenses from the same conduct of a criminal Muniz, 319, v. (1990); offense. See State 118 N.J. DeLuca, denied, v. A.2d 527 cert. 484 U.S. (1987). 108 S.Ct. 98 directly L.Ed.2d 358 This rule is

113 judge’s it was and not the implicated in this case because three-year complaint mandated a jury’s verdict on the DWI period parole ineligibility. of This Court has constitutional procedural logical rules and power, responsibility, make its to consistent, provides opportunity ease do so with and this Clark, 201, 205-07, v. N.J. 744 respect to Rule 3:15-3. State (2000) authority engage (stating “the A.2d 109 Court’s modify power to establish or making rule includes exclusive decisions”); judicial George Siegler v. through Co. Court Rules (1952) Norton, 374, 381-83, (holding 86 A .2d statute N.J. addressing aspects contributory negligence operated procedural of rule-making power and was within field of Court’s exclusive effective). and, therefore, longer superseded by no Court’s rules why a in a There is no sound vehicular homicide reason of case not decide the lesser-included offenses DWI should rendering driving. capable A reckless is no less a decision charges charges. driving and on criminal on reckless DWI than jurisprudence recognizes both DWI and reck Our constitutional A homicide. driving less as lesser-included offenses of vehicular finding subsequent prosecution guilt of DWI will bar grounds jeopardy if the evidence vehicular homicide on double sole supporting of recklessness intoxication related the element DeLuca, charge. supra, 108 527 A.2d 1355. the DWI N.J. Likewise, municipal driving, court conviction reckless 39:4-96, recklessly causing will a later criminal trial for death bar arising Dively, from the same evidence. State A.2d charged be to a requires Our law lesser-included offenses charges. supports if a rational basis the evidence lesser 299, Choice, 833 v. 98 N.J. 486 A.2d State charging jury a lesser-included offenses serves principle of with prosecution against an important purposes. protects It two outright greater charge of is not acquittal when an element protects from conviction of the more proven, and it a defendant jury given all-or-nothing choice. charge an serious when 114 Neal, 28, 33, N.J.Super. (App.Div.1988).

State v. 229 550 A.2d 998 doctrine, no acquitted Under this defendant should be or convicted particular merely precluded jury of a crime because the was from considering charge rationally another on that is based the record. person guilty merely of a No should be found more serious offense opportunity finding guilt because was denied the of a short, In lesser offense. should be free to all consider reasonably lesser-included offenses that are related to the evi n (e). 2C:l-8(d), charged. the crime dence and N.J.S.A. In this driving charges case the motor vehicle DWI and reckless charges Yet, vehicular homicide from arose the same evidence. precludes the current state of our law the lesser-included offenses driving being jury. and reckless DWI from submitted to the Muniz, supra, 118 N.J. 571A.2d 948.

Disorderly persons, petty disorderly persons, and serious motor quasi-criminal person charged vehicle offenses are A offenses. quasi-criminal pro offense is entitled to fundamental due protections, including innocence, presumption cess which requires proving guilt the State to bear the burden of Garthe, 1, 8, reasonable doubt. State v. See 678 A.2d 153 (1996); Dively, 502; supra, 92 N.J. at A.2d 458 Finamore, 130, 138-39, N.J.Super. 338 (App.Div. 768 A.2d 248 2001); Young, 467, 473, N.J.Super. State v. 242 A.2d (App.Div.1990).

Disorderly persons, petty disorderly persons, and motor vehicle subject jurisdiction are all municipal offenses to the of the court. Disorderly persons petty disorderly persons offenses, howev er, may be submitted to the criminal trials as lesser- offenses, despite jurisdiction general municipal included 2C:l-8(e); court in such matters. See R. 3:15-3. See also, DeLuca, supra, e.g., (stating “Superior may jurisdiction assert over non-indietable they offenses when are lesser included offenses of the indictables” purpose submitting disorderly persons charges jury); Braxton, N.J.Super. A.2d

115 acquit was (affirming where defendant conviction (App.Div.2000) aggravated and convicted of lesser-included charged of assault ted Green, assault); 318 disorderly persons simple of offense 361, 375, (holding that N.J.Super. (App.Div.1999) charge simple as lesser- give of assault failure to lesser-included was aggravated police assault on officer revers offense of included (2000); v. error), 747 A .2d 1234 State aff'd, 163 N.J. ible (find 30, 36, (App.Div.1978) A.2d N.J.Super. 1273 Lopez, 160 given to disorderly have been ing persons theft offense should charges). criminal jury as offense of lesser-included submitting disorderly support persons principles The same apply as offenses well to the as lesser-included offenses driving. charges, such as DWI and reckless motor vehicle serious DWI, a penalties for conviction of even for first-time The disorderly persons offender, petty for a are more severe than 39:4-50(a)(l) (providing person Compare N.J.S.A offense. subject to operates shall be motor vehicle while intoxicated who fines, more than six months nor suspension license for less by the prescribed ... as year, period “a of detainment than one Driver Resource Centers program requirements of the Intoxicated court, and, imprisonment a term of ... in the discretion (stating that days”), 2C:43-8 than 30 with N.J.S.A. not more disorderly petty persons a ... has convicted of “person who been imprisonment for a definite term may be offense sentenced days”). for a third ... 30 Penalties ... shall not exceed which severe, include a minimum 180- are more and offense even DWI 39:4-50(a)(3). previ In its day imprisonment. N.J.S.A. term of as century, has classified DWI been incarnations over last ous Hamm, disorderly persons offense and misdemeanor. denied, (1990), A.2d cert. U.S. nature of the offense 111 S.Ct. 113 L.Ed.2d offense, greater not a classification relationship its label, Notions the issue. govern whether the decides should respect for fairness, fact-finding process, and consistency in the submitting body truth-seeking favor DWI as driving charges jury along reckless to the vehicular charge. homicide majority position presents takes the that where the support

evidence to different theories in a recklessness vehicu case, ie., lar speeding, unanimity homicide any intoxication on theory necessary, long one jurors agree is not as all so twelve 86, the defendant was reckless. Ante 820 A.2d at 644. Because verdict, jury general the theory renders upon the which the Therefore, verdict is based is not known. it is in conceivable that a vehicular presented homicide case which various theories are recklessness, prove jurors may reject all twelve intoxication as finding the basis for judge recklessness while the will be allowed finding to make a of intoxication to "render DWI verdict. It is potential the for this kind of inconsistent result that undermines integrity the dual fact-findings. precedents compelled

This Court’s have fact-findings bifurcated between jury the and the in vehicular homicide cases. Muniz, 331-32, supra, 948; DeLuca, 118 N.J. at supra, A.2d 111, 108 N.J. at 527 A.2d Dively, supra, recognized 1355. In we driving that a charge prosecuted reckless DWI in municipal court prosecution could bar the later of a vehicular homicide charge jeopardy grounds. unjust on double result, To avoid this the municipal Court issued directive to the courts to withhold action on charges motor vehicle related to a vehicular homicide until county the prosecutor. authorized 92 N.J. at DeLuca, A 458 .2d502. In supra, we if concluded that evidence of prosecution recklessness in a vehicular homicide solely were based intoxication, on jeopardy subsequent double would bar a DWI prosecution on the same evidence. 108 N.J. at 527 A.2d 1355. future, To jeopardy resolve double concerns in the the DeLuca Court, Superior Court pursuant directed to its constitutional powers, jurisdiction to assume municipal related court matters vehicular In homicide cases. such Superior cases the judge presiding Court over-the trial of the vehicular homicide case would as the sit trier of on fact motor related vehicle See also violation, 108 N.J. at 527 A.2d 1355. such as DWI. R. 3:15-3. Division, Muniz, Appellate supra, this Court reversed

In that, law, lesser-included under the common which had concluded to the in a vehicular charges must be submitted vehicle motor although lesser-includ determined that homicide case. The Court joined prosecution should ed vehicle offenses be motor cases, judge, not the they should decided death-by-auto be 331-32, 335, reasoned jury. 571 A.2d 948. The Court Title policies the Code of Criminal Justice that the behind violations, require did not sub governs motor vehicle which jury. Id. at of those lesser-included offenses mission all-or-nothing might mitigate the effect 571 A.2d 948. To case, the jury deciding a vehicular homicide have on aware the trial courts make instructed related Superior on the motor Court would render a decision charges. 571A.2d 948. vehicle Id. Court, Muniz, satisfactory provided in rationale to no

This in charge a vehicular justify denying jury consideration of a DWI proof of part of the State’s case where intoxication is homicide continued salutary purpose in the is no recklessness. There by jury by the other a fact-findings, a and practice of two one trial. at the same view the same evidence judge, in which both case, charges the in this the submitted to all the been Had Court, issue, probably would now which divides constitutional been avoided. have alone, complaint that stands suggest here that DWI

I do not offense, tried to a joined should be not with a criminal one that is however, of the matter, presents a different case. One jury. This was based on homicide ease theories in this vehicular State’s charged it Superior Court intoxication. person the law “that defendant “violated” to decide whether had of intoxicat- the influence may operate a motor vehicle under laws, “deciding other vehicle ing liquor,” as well as motor essence, In was recklessly.” or not she drove whether matter, give decide told to the DWI but not to voice to its judgment complaint, on the DWI which was left to the court’s This, me, process any determination. is a devoid of sense. Ultimately, any ruling of this Court must withstand the test of experience. practice and Adherence reason to a that does not any objective legitimate advance discarded in should be favor charges one that does. Relevant motor vehicle that are lesser- charge included offenses of a vehicular homicide should be submit- jury. ted to a

n. fully I concur opinions Long with the well-reasoned of Justices However, importance right by jury and Zazzali. to trial compels thoughts. interpreting me to add In these our State Constitution, particularly “right by jury of trial shall remain provision, textually is inviolate” which different from its federal counterpart, Supreme decision of United States persuasive authority reason, if only persuade it can force of logic, interpretation. precedent and historical If federal is an aid interpreting right, infusing right state constitutional purpose meaning light values, and of our traditions and then we Alternatively, should make use of it. are not we bound to take advice, bad when our state’s are not interests advanced go precedent, way. federal we must our own Our state constitu provisions tional homogenized need not be to fit within the inter pretation Constitution, counterpart provisions Federal particularly in Supreme area where United States Court’s interpretation by jury” provision of its “trial has been muddled inconsistent, barely support majori and has obtained the of a ty Hunt, of Court. See State v.

(1982) (Pashman, J., concurring) (questioning presumption that uniformity analysis unqualified advantage). constitutional is “adopt

Our Court should not federal interpreta- constitutional Jersey merely tions for the New Constitution for of the sake consistency.” (Pashman, J., Id. 450 concurring). A.2d 952

119 provisions and trial language of the federal state The textual our different; history application of those clauses to and are different;4 the of the structure federal and state laws have been Sentencing Jersey and the Federal of Criminal Justice New Code Guidelines, legisla- juries play in these distinct the roles that and Sentencing schemes, vastly The Federal Guide- are different. tive judge that would be many leave factual determinations to a lines system.5 wholly unacceptable in our state decision, make gives judges free rein to majority’s The which maximum, statutory theoretical- within the factual determinations restructuring Jersey of complete of the New Code ly permits the Justice, traditionally reposed in transferring powers Criminal Currently, point. a juries example will make the judges. to One $200, $7500, greater or than jury determines whether a theft determining $75,000 and purpose grading for of offense 2C:20-2b(4). logic range of sentence. N.J.S.A. limiting a a the enactment of statute would allow Court’s decision with a maximum rendering general verdict of theft to construct, judge of, twenty say, years. Under this sentence to the amount of then the factual determination as would make specific sentence within purpose imposing for of theft law, contrary entirely current range. be to our This would from the Court’s decision. potential scenario follows yet (1992) Anderson, (declining A.2d 928 See State Constitution, and, declaring relying unconstitutional on State federal law follow question perjury statutory provision making materiality law and element of crime, that, materiality holding must be determined element of as by jury). doubt reasonable States, 5Compare U.S. S.Ct. v. United Edwards (1998) "Sentencing (stating that Federal Guidelines 140 L.Ed.2d kind 'controlled the amount and the ... to determine both instruct be then should held accountable —and for which defendant substances' kind"), upon impose depending with NJ.S.A. varies amount a sentence that manufacture, distribution, degree (stating where of offense 2C:35-5c dangerous sub- controlled possession or distribute with intent manufacture substance, quantity depends quantity be determined trier shall on stance fact). separate Our state independent is a laboratory, political experiment, larger in a system federal of states with varied customs, cultures, Hunt, supra, values. See 91 N.J. at 356- (Pashman, J., concurring). Through the New Jersey Constitution, this permitted reject Court is a federal approach “one-size-fits-all” interpretation to the of state constitu rights. tional floor, Our federal rights constitutional are a denominator, lowest common apply intended to to a people diverse spread over a geographical fifty domain of states. We can and interpret rights our expansively more when keeping it is in should special with our state interests. greater

We have no state interest sustaining than right by jury, ensuring trial heritage places great trust in the common everyday wisdom of men and women judgments to make on the most concerning vital issues their fellow citizens. Traci Stanton was entitled to have a decide the factual issue that requires now her to three-year serve a mandatory jail minimum By allowing term. to make that finding critical of fact in case, the Court has diminished one of important our most rights.

Justices join LONG and ZAZZALI opinion. in this For reversal and reinstatement —Chief Justice PORITZ and COLEMAN, Justices VERNIERO and LaVECCHIA —4. Dissenting LONG, ZAZZALI and ALBIN —3. —Justices

Case Details

Case Name: State v. Stanton

Court Name: Supreme Court of New Jersey

Date Published: Apr 17, 2003

Citation: 820 A.2d 637

Court Abbreviation: N.J.