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State v. Thomas2/28/2001
Argued October 11, 2000
This appeal raises questions concerning the scope of the mandatory sentencing provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Specifically, we must decide whether NERA may be applied to a defendant who pled guilty to second- degree sexual assault, N.J.S.A. 2C:14-2b, for touching an eleven- year-old victim in her vaginal area. To answer that question, we must interpret the meaning of the term "physical force" as used in NERA. In a published opinion, the Appellate Division concluded that, based on its legislative history, NERA should not apply to defendant because "physical force" was not an element of the offense to which he pled guilty and he did not admit to committing an "independent act of force or threat of immediate force against the victim that is additional to the constituent elements of the crime." State v. Thomas, 322 N.J. Super. 512, 516 (App. Div. 1999). We granted certification, 162 N.J. 489 (1999), and now affirm. We hold that where none of the NERA factors is an element of the offense charged, there must be additional proof of a NERA factor before there can be sentence enhancement under the Act.
I.
On September 2, 1997, defendant was baby-sitting for eleven- year-old K.G. Defendant was thirty-nine years old at the time and was K.G.'s grandmother's boyfriend. According to K.G., she was sitting on the couch with defendant when he put his pinky finger into her vaginal opening. K.G. did not tell her mother right away but later confided in her cousin about the incident. The cousin informed K.G.'s mother, who notified the police. When defendant was arrested, he denied that he had penetrated the child.
A Grand Jury indicted defendant for first-degree aggravated sexual assault of a female less than thirteen years of age, N.J.S.A. 2C:14-2a(1) (Count One); second-degree sexual assault on a child less than thirteen years of age, N.J.S.A. 2C:14-2b (Count Two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Four).
Defendant negotiated a plea agreement with the State in which he pled guilty to second-degree sexual assault on a female under the age of thirteen, a violation of N.J.S.A. 2C:14-2b. In his factual statement supporting his guilty plea, defendant admitted touching the victim in her "vaginal area," but denied any penetration. For its part of the plea agreement, the State agreed to dismiss the remaining charges, to permit defendant to be sentenced as if his act were a third-degree offense, and to recommend a four-year term if defendant was sentenced to a term of imprisonment.
The issue whether NERA would apply to defendant's sentence was raised at the plea hearing. The State took the position that NERA applied to defendant. It was part of the plea agreement that if the trial court held that NERA did not apply, the State would be entitled to appeal that decision. It was also part of the agreement that defendant could withdraw his plea if the trial court determined that NERA applied to him. The trial court held that NERA did not apply to defendant because the Act requires the use of physical force beyond that inherent in an act of sexual contact. The trial court found that there was nothing in defendant's factual statement supporting his guilty plea that demonstrated an independent act of force or threat of force against the victim. Defendant was, accordingly, sentenced to a custodial term of four years without a term of parole ineligibility.
The State appealed and the Appellate Division affirmed. Thomas, supra, 322 N.J. Super. at 521. The Appellate Division reject
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