substantial disadvantages to a prisoner sentenced under
the Sex Offender Act).
E. Effect Of Statute of Limitations
A law is not ex post facto if it extends the statute of
limitations before the original statutory period has
expired. State v. Nagle, 226 N.J. Super. 513 (App. Div.
1988); United States v. Richardson, 512 F.2d 105, 106
(3d Cir. 1975); United States v. Kurzenknabe, 136
F.Supp. 17, 23 (D.N.J. 1955). However, a statute which
purports to authorize the prosecution of a crime
previously banned by the statute of limitations is illegal.
United States v. Richardson, 512 F.2d at 106; Falter v.
United States, 23 F.2d 420, 425-426 (2d Cir. 1928),
citing Moore v. State, 43 N.J.L. 203 (E. & A. 1881).
F. Effect of Judicial Construction
The first application of a criminal statute which has
to be judicially construed in order to be applied is not an
ex post facto violation. State v. Western Union Telegraph
Co., 13 N.J. Super. 172, 220 (Cty. Ct. 1951); 3
Southerland Statutory Construction (3rd ed.), § 2301, et
seq.
G. Effect of Superceding Statutes
A defendant convicted for a continuing offense which
began prior to a statutory supersession and continuing to
a point in time after such supersession was not convicted
in violation of the ex post facto prohibition. State v.
Bobbins, 21 N.J. 338 (1956), app. dis., 352 U.S. 920
(1956).
VI. MISCELLANEOUS APPLICATIONS
A. Conspiracy
It is not a violation of the ex post facto prohibition to
apply a new conspiracy statute where the new statute
came into effect while a conspiracy was ongoing. United
States v. Goldberger, 197 F.2d 330 (3d Cir. 1952), cert.
denied, 344 U.S. 833 (1952).
A statute increasing a penalty with respect to a
criminal conspiracy which commenced prior to but was
continued beyond the effective date of such statute is not
ex post facto as to that crime. In applying the ex post facto
prohibition, those continuing criminal conspiracies
which must be evidenced by overt acts, such as may be
charged under a general conspiracy statute, are regarded
as having been committed on the date of the last overt act
alleged in the indictment. Conspiracies which do not
require proof of an overt act are considered concluded as
alleged in the indictment. Leyras v. United States, 371
F.2d 714, 717 (9th Cir. 1967); see also United States v.
Borelli, 336 F.2d 376 (2d Cir. 1964).B. SentencingIn re Caruso, 10 N.J. 184 (1952). There is no ex post
facto violation occurring in sentencing a defendant under
a statute which imposes more punishment for a
subsequent offense, since the defendant is being
punished for the present offense rather that the prior
offense. The prior offense serves only as background in
determining the present sentence.State v. Oliver, 162 N.J. 580, 587 (2000).
Petitioner, who qualified for and received a life sentence
under the three-strikes law, claimed that the law violates
the ex-post facto clause because it “changes the legal
consequences of his prior bad acts.” See N.J.S.A. 2C:43-
7.1a. Held: This is a recidivist statute, and recidivist
statutes do not violate the ex post facto clause if they were
on the books at the time the triggering offense was
committed. See also Gryger v. Burke, 334 U.S. 728, 732
(1948) (holding that sentence as a habitual criminal is
not viewed as a new jeopardy or additional penalty for
earlier crimes; rather, it is a stiffened penalty for the latest
crime, which is considered to be an aggravated offense
because it is a repetitive one).State v. Dela Rosa, 327 N.J. Super. 295 (App. Div.
1999), certif. denied, 164 N.J. 191 (2000). Petitioner
was convicted prior to an increase in the penalty in favor
of the Victims of Crime Compensation Board. Held: The
retroactive application of this increased penalty violates
the Ex Post Facto clause.State v. Williams, 309 N.J. Super. 117 (App. Div.
1998). The use of convictions that predate the adoption
of the Code of Criminal Justice to impose an extended
term does not violate the ex post facto clause.State v. Bowen, 224 N.J. Super. 263 (App. Div.),
certif. denied, 113 N.J. 323 (1988). Petitioner was
convicted under the Sex Offender Act and was therefore
sentenced to consecutive indeterminate terms, subject to
the aggregate maximum of six years. A resentencing panel
resentenced defendant after he was determined not to be
amenable to treatment as a sex offender. The
resentencing was not an ex post facto violation, even
though it increased the terms for the offenses, because it
did not increase the aggregate period of incarceration.