SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

Argued September 9, 2003 -- Decided November 20, 2003

PER CURIAM

    This appeal presents the Court with two issues. First, whether the Appellate Division properly vacated defendant’s mandatory minimum sentence based on the trial court’s erroneous application of the No Early Release Act (NERA), N.J.S.A. 2C: 43-7.2. Second, whether the Appellate Division ordered the appropriate remedy.

On January 10, 1999, defendant engaged in a course of abuse on the victim, his live-in girlfriend, after the victim told him that she was going to leave him. The abuse, lasting several hours, included the use of defendant’s hands and, as testified to by the victim, defendant smashed her head into stereo speakers, opera glasses, a candleholder, a statute, and a door. The victim suffered bruising, lacerations and abrasions. There was evidence of hematoma under the victim’s scalp and fluid in the sinus cavities, but a CAT scan and X-rays were negative.

Defendant was convicted of second-degree aggravated assault under N.J.S.A. 2C: 12-1b(1) (purposefully, knowingly or recklessly causing serious bodily injury or attempting to do so) and third-degree aggravated assault under N.J.S.A. 2C: 12-1b(7) (purposefully, knowingly, or recklessly causing significant bodily injury or attempting to do so). In addition, defendant was convicted of fourth-degree unlawful possession of a weapon, N.J.S.A. 2C: 39-5d; third -degree possession of a weapon for unlawful purpose, N.J.S.A. 2C: 39-4d; third -degree terroristic threats, N.J.S.A. 2C: 12-3a, b; and third-degree criminal restraint, N.J.S.A. 2C: 13-2a,b. Defendant received an enhanced sentence under the NERA: Concurrent five-year terms on the terroristic threats and third-degree criminal restraint convictions, consecutive to a nine-year term with an eighty-five percent disqualifier on the second-degree aggravated assault. The third-degree assault and weapons convictions were merged into the second-degree aggravated assault conviction.

Defendant appealed on a number of grounds. The Superior Court, Appellate Division, Conley, J.A.D., determined that only the No Early Release Act (NERA) sentence enhancement issue merited the court’s review and opinion. The Appellate Division concluded that the trial court’s NERA sentence enhancement was “problematic” because “the jury verdict did not identify whether the second-degree assault was premised upon an actual infliction of serious bodily injury or only an attempt to so inflict,” and that the use or threatened use of a deadly weapon was not a predicate of that conviction, 348 N.J. Super 625 (2002). The Appellate Division observed that the NERA sentence enhancement was based on the third-degree aggravated assault conviction and not on an independent finding in respect of second-degree aggravated assault. The Appellate Division remanded the matter for a jury trial on the NERA predicate only and left the parameters of such a trial to the discretion of the trial judge, prosecutor and defense attorney.

HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Conley’s opinion. The Court added specific instructions for the trial court to follow if the State elects to seek the imposition of a NERA sentence.

1. If the State elects not to pursue a NERA sentence on remand, the trial court must resentence defendant without
application of NERA. Otherwise, the court must try the NERA issue to a jury and the jury must determine, beyond a reasonable doubt, whether defendant attempted to cause serious bodily injury or whether defendant caused serious bodily injury upon the victim during the commission of second-degree aggravated assault. If the State seeks to prove the NERA weapons predicate, the charge to the jury must be limited to whether a deadly weapon was used in the course of committing a second-degree aggravated assault. The Court also included in its opinion special instructions to be provided to the jury before opening statements.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in this opinion. JUSTICE VERNIERO did not participate.


SUPREME COURT OF NEW JERSEY
A- 133 September Term 2001
A- 60 September Term 2002


STATE OF NEW JERSEY,

    Plaintiff-Appellant
and Cross-Respondent,

        v.

MICHAEL J. NATALE,

    Defendant-Respondent
and Cross-Appellant.

Argued September 9, 2003 – Decided November 20, 2003

On certification to the Superior Court, Appellate Division, whose opinion is reported at 348 N.J. Super. 625 (2002).

Teresa M. Garvey, Assistant Prosecutor, argued the cause for appellant and cross-respondent (Vincent P. Sarubbi, Camden County Prosecutor, attorney).

Edward J. Crisonino argued the cause for respondent and cross-appellant.

Jeanne Screen, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Peter C. Harvey, Attorney General, attorney).

Steven G. Sanders argued the cause for amici curiae Association of Criminal Defense Lawyers of New Jersey and The American Civil Liberties Union of New Jersey (Arseneault & Fassett and Edward L. Barocas, Legal Director, The American Civil Liberties Union of New Jersey, attorneys; Mr. Sanders, Mr. Barocas and J.C. Salyer, of counsel and on the briefs).

PER CURIAM

    The judgment is affirmed, substantially for the reasons expressed in Judge Conley’s opinion in the Appellate Division, reported at 348 N.J. Super. 625 App. Div.(2002). We add only these brief comments.
On remand, the State may elect not to proceed to a trial on a NERA predicate in which case the trial court must resentence defendant without application of NERA. In the event that the State seeks to have the court impose a NERA sentence, the court shall try the NERA issue to a jury and the jury shall be asked to determine, applying the beyond-a-reasonable-doubt standard, whether defendant attempted to cause serious bodily injury or whether defendant caused serious bodily injury upon the victim during the commission of second-degree aggravated assault.     
If the State seeks to prove the NERA predicate of the use or the threat of the immediate use of a deadly weapon, the trial court must draft the jury charges to limit the jury’s determination to whether or not a deadly weapon was used in the course of committing a second-degree aggravated assault.
    The trial court should provide the jury with the following special instructions before opening statements.:
In most criminal trials, the same jury will address whether the State has proven each of the elements of the charges beyond a reasonable doubt, and, when certain elements are required to be found before a particular sentence may be imposed, the jury must decide whether those elements are proven. However, in some cases, such as this one, the jury need only consider whether certain elements are proven by the State beyond a reasonable doubt so that the appropriate sentence may be considered by the judge.

Here, a prior jury has determined defendant’s guilt of third-degree aggravated assault under N.J.S.A. 2C:12-1b(2) (causing or attempting to cause bodily injury with a deadly weapon), and second-degree aggravated assault under N.J.S.A. 2C:12-1b(1)(attempt to cause serious bodily injury or causes such injury). That prior jury was not asked to decide, with respect to the second-degree offense, whether defendant actually caused serious bodily injury or attempted to cause such injury and/or whether defendant used or threatened the immediate use of a deadly weapon in committing the second-degree aggravated assault offense. The purpose of this trial is for you to decide those questions. That is, you must consider all of the evidence presented in this trial, without regard to the prior verdict, and determine whether or notr there is proof beyond a reasonable doubt that defendant caused serious bodily injury in committing a second-degree aggravated assault, and/or whether defendant used or threatened the immediate use of a deadly weapon in the course of committing a second-degree aggravated assault.

The court will elaborate on these preliminary charges at the conclusion of the trial and will provide separate interrogatories for your use in deciding these questions.

    CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ZAZZALI, ALBIN, and WALLACE join in this opinion. JUSTICE VERNIERO did not participate.
    SUPREME COURT OF NEW JERSEY

NO.     A-133    SEPTEMBER TERM 2001
NO. A-60 SEPTEMBER TERM 2002
ON CERTIFICATION TO Appellate Division, Superior Court    

STATE OF NEW JERSEY,

    Plaintiff-Appelant
    and Cross-Respondent,

        v.

MICHAEL J. NATALE,

    Defendant-Respondent
    and Cross-Appellant.

DECIDED September 9, 2003
    Chief Justice Poritz    PRESIDING
OPINION BY     Per Curiam    
CONCURRING OPINION BY
DISSENTING OPINION BY    

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