STATUTES AND ORDINANCESSTATUTES AND ORDINANCESSTATUTES AND ORDINANCESSTATUTES AND ORDINANCESSTATUTES AND ORDINANCES
I. GENERAL RULES OF STATUTORY CON-
STRUCTION
A. Legislative Intent
In Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct.
2348 (2000), the United States Supreme Court declared
the New Jersey hate crime sentence enhancers, N.J.S.A.
2C:43-6a(1), N.J.S.A. 2C:43-7a(3) and N.J.S.A. 2C:44-
3e, unconstitutional because they authorized the trial
court to impose an extended sentence without requiring
the jury to find an essential element of the offense -- that
defendant acted with a biased purpose -- beyond a
reasonable doubt. The Court noted that the Legislature’s
merely placing the hate crime enhancers in the
sentencing provisions of the penal code did not change
the fact that the finding of biased purpose which was
needed to enhance a sentence was an element of the
offense which had to be decided by a jury beyond a
reasonable doubt.
In Rodriguez v. United States, 480 U.S. 522, 107 S.Ct.
1391, 94 L.Ed.2d 533 (1987), the United States
Supreme Court concluded that a provision of the
Comprehensive Crime Control Act of 1984, which
required the imposition of a two year sentence upon
anyone committing a felony while on release pending
judicial proceedings, did not supersede the authority of
federal judges to suspend execution of certain sentences
and impose probation. The totality of the legislative
history demonstrated that there was no intent to repeal
the earlier provision which granted the authority to
suspend certain sentences. There is no need for a court
to examine policy considerations when construing a
statute where the language of the provision is clear and
not at odds with the legislative history.
State v. Farrad, 164 N.J. 274 (2000) held that
attempted robbery is a crime under the penal code. The
drafters of the penal code, upon which robbery statute is
modeled, contemplated an attempted robbery charge
where the facts support it.
In State v. Wallace, 158 N.J. 552 (1999), relying
upon statutory construction, the Court ruled that the
term “injury” must be defined for the jury in a case of
second-degree eluding a police officer, N.J.S.A. 2C:29-
2b. Noting that there was no definition of injury, the
Court relied upon the legislative history of the eluding
statute to determine that the Legislature intended both
second-degree eluding and second-degree aggravated
assault caused while eluding a law enforcement officer
under N.J.S.A. 2C:12-2b(6) to require “‘bodily injury’”
or “‘risk of bodily injury’” as defined in N.J.S.A. 2C:11-
1a.State v. Zeidell, 154 N.J. 417 (1998), relied upon the
language and structure of the New Jersey Code of
Criminal Justice to differentiate second degree tender-
years sexual assault, defined in N.J.S.A. 2C:14-2b as “an
act of sexual contact with a victim who is less than 13 years
old and the other is at least four years older than the
victim,” from fourth degree lewdness, which “consists of
an actor intentionally ‘exposing’ or displaying himself or
herself for sexual arousal or gratification under
circumstances in which the actor ‘knows or reasonably
expects’ that he or she is likely to be observed by a child
less than thirteen years old,” and is “limited to exposing
or displaying an actor’s intimate parts rather than
touching them.”State v. Eisenman, 153 N.J. 462 (1998). The
Legislature intended to impose harsh penalties for car
theft and particularly on career car thieves. As such, the
Court construed N.J.S.A. 2C:20-2.1 to authorize the
sentencing court to impose consecutive license
suspensions for each incident of auto theft.State v. Chew I, 150 N.J. 30 (1997). The aggravating
factor of pecuniary gain, N.J.S.A. 2C:11-3c(4)(d), which
was based on statutes from other states, was intended to
apply to all situations where the murder was for
pecuniary gain and not just to contract killings.State v. Mortimer, 135 N.J. 517 (1994), upheld the
New Jersey harassment statute, N.J.S.A. 2C:33-4,
against a claim that it violated a defendant’s right to
freedom of speech. Relying upon R.A.V. v. City of St.
Paul, 505 U.S. 377, 112 S.Ct. 2538 (1992), the Court
noted that the New Jersey statute is a victim-selection or
penalty-enhancement provision. The Mortimer Court
rejected defendant’s argument that subsection N.J.S.A.
2C:33-4a which prohibited making communications
under certain circumstances, violated the New Jersey
Constitution, since “activity first must be expressive
before the provisions... of that constitution can prohibit
it. Finally, the Court conducted “judicial surgery” to
uphold N.J.S.A. 2C:33-4d, which stated that it was a
fourth degree offense if, in committing an offense under
this statute, a defendant acted “at least in part” with ill
will, hatred, or bias. The Court eliminated the “at least
in part” provision.