CSL Amendments and Indictments (Part 2)

by | Oct 1, 2021 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Appellate Division continued in relevant part: The principle reflects the general rule embodied in N.J.S.A. 1:1-15’s express language: “No offense committed . . . previous to the time of the repeal or alteration of any” statute “shall be discharged, released or affected by the repeal or alteration of the statute under which such offense . . . was incurred,” and all prosecutions shall be made “in all respects as if the act or part of an act had not been repealed or altered.”

Defendant’s argument ignores the distinction made in N.J.S.A. 1:1-15 between “offenses committed” and “liabilities, penalties or forfeitures incurred.” He argues N.J.S.A. 1:1-15 is inapplicable because his charged offenses were not “committed” prior to the 2014 amendments, but N.J.S.A. 1:1-15 also applies where the amendment of a statute discharges, releases or affects a liability, penalty or forfeiture incurred prior to the amendment. That is the case here.

The 2014 amendment to N.J.S.A. 2C:43-6.4(Dd) did not modify the elements of the offense of violating CSL. As the Court explained in Hester, for defendants who were sentenced to CSL prior to the 2014 amendments and violate conditions of CSL following the amendments, the enhanced punishment provided by the amendments “materially alters” the original sentences to CSL. The Court found “the 2014 amendments to N.J.S.A. 2C:43-6.4 ‘enhance the punitive consequences of the special sentence of CSL'” imposed for their predicate offenses.

Applying the Court’s reasoning and holding in Hester, the 2014 amendment to N.J.S.A. 2C:43-6.4(d) repealed and altered the penalty defendant incurred long prior to the amendment, when he was sentenced to CSL in 2002. Indeed, it was because the amendments to N.J.S.A. 2C:43-6.4 retroactively increased the defendants’ CSL sentences that the Court in Hester found the amendment to N.J.S.A. 2C:43-6.4(d) constituted an unconstitutional ex post facto law. Ibid.; see also Perez (explaining the mandatory conversion of CSL to PSL required under the 2014 amendments to N.J.S.A. 2C:43-6.4 for individuals convicted of violating CSL constituted a retroactive enhancement of an offender’s original sentence to CSL.

Because defendant “incurred” the penalty of his original CSL sentence prior to the 2014 amendments, the temporal requirement for application of N.J.S.A. 1:1-15 was satisfied. Under N.J.S.A. 1:1-15, that penalty, which included defendant’s exposure to prosecution for the fourth-degree offense of violating the conditions of CSL, was neither “repealed or altered” nor “discharged, released or affected” by the amendments, and, as to defendant, the penalty he incurred prior to the amendments “continued . . . in all respects as if” it “had not been repealed or altered” by the amendments.

The fourth-degree offense extant prior to the 2014 amendments that was in effect when defendant was sentenced to CSL, continued in all respects as to defendant’s post-amendment violations of CSL. The court therefore correctly determined defendant could be charged with a fourth-degree offense for violating the conditions of CSL and properly denied defendant’s motion to dismiss the indictment.

This is a common-sense decision denying the defendant’s attempt to extend the holding of Hester. While an amendment to a statue cannot increase the penalties that were negotiated at the time of a guilty plea, it should not provide for an outright windfall for defendants by making them immune from prosecution.