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State v. Thomas2/28/2001
S.A. 2C:14-2c(1). The Court concluded that " he definition of ?physical force' is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration." M.T.S., supra, 129 N.J. at 444.
That broad definition was adopted to implement the legislative intent to preclude ambiguous conduct by a victim from being interpreted as consent to sexual penetration within the meaning of N.J.S.A. 2C:14-2c(1). Although M.T.S. was decided by this Court about five years before NERA became effective, NERA's legislative history does not mention it. Because M.T.S. focused on defining an element of the offense charged, and NERA was enacted to enhance the severity of punishment for certain offenses, we believe the Legislature intended to ascribe a different meaning to "physical force" under NERA than provided in M.T.S. when defining an element of N.J.S.A. 2C:14-2c(1). We, therefore, turn to NERA's legislative history to discern that difference. State v. Galloway, 133 N.J. 631, 658 (1993); State v. Sutton, 132 N.J. 471, 479 (1993).
C.
An examination of the legislative history of the Act informs us that NERA was enacted primarily because of New Jersey's alarmingly high rate of parolee recidivism. Stacey L. Pilato, Note, New Jersey's No Early Release Act: A Band-Aid Approach to Victims' Pain and Recidivism?, 22 Seton Hall Legis. J. 357, 364 (1997). Although the legislative history is scant, that the purpose of the Act was to "increase prison time for offenders committing the most serious crimes in society" is clear. The Senate Law and Public Safety Committee, Statement to Senate Bill No. 855 (Apr. 24, 1996).
Early versions of the bill made the Act applicable to all first- and second-degree crimes involving violence for which a sentence in excess of five years had been imposed. Pilato, supra, 22 Seton Hall Legis. J. at 362 n.19. Those versions did not contain what became subsection d. However, the New Jersey State Bar Association opposed that initial bill "because of its potentially catastrophic impact on the prison system." Id. at 368 n.42. The bill was then amended to focus on violent offenders. While an early version of the Act was pending, the Governor's Study Commission on Parole reviewed the bill. Among other things, the Commission "recommended that the Legislature narrowly define violent crime because of its potential impact on prison populations." Id. at 377 (emphasis added). The Commission recommended a definition similar to the one found in the New Jersey Code of Criminal Justice, N.J.S.A. 2C:44-3, that establishes the criteria for imposing extended terms of imprisonment for sexual assaults or criminal sexual contacts involving violence or the threat of violence as defined in N.J.S.A. 2C:44-3g. " crime involves violence or the threat of violence if the victim sustains serious bodily injury[,] . . . or the actor is armed with and uses a deadly weapon or threatens by word or gesture to use a deadly weapon[,] . . . or threatens to inflict serious bodily injury."). Pilato, supra, 22 Seton Hall Legis. J. at 377 & n.84. The Legislature adopted several of the Commission's recommendations. Id. at 379-81.
After the bill was approved by the Assembly Law and Public Safety Committee, the Assembly Appropriations Committee made a few significant amendments. Id. at 382-83. First, apparently following the Commission's recommendation, it narrowed the original definition of violent crime that included all first- and second-degree offenses for which the defendant was serving over five years, to "one in which the offende
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