The Appellate Division continued in relevant part: Defendant allegedly committed the sexual assault on May 26, 1990. As already noted, there was a five-year limitations period applicable to that crime. The limitations period expired on May 27, 1995. Consequently, the 2002 amendment to the criminal statute of limitations could not revive that expired prosecution. See State v. E.W. (App. Div. 2010) (explaining that a charge of sexual assault cannot be revived after it has expired by a subsequent amendment to the statute of limitations).
The State argues that the 2002 amendment is not reviving an expired limitations period. Instead, the State contends that the 2002 amendment “tolled” the running of the statute of limitations. The obvious problem with that contention is that one cannot toll something that has already expired. In that regard, the trial court reasoned: “One cannot revive what has not begun to live and, applying the DNA-tolling exception in N.J.S.A. 2C:1-6(c), the statute of limitations in this case did not begin to apply to the instant prosecution until May 26, 2021.” We disagree. We submit that the correct analysis is to hold that the 2002 DNA-tolling exception cannot be applied to a statutory-limitations period that has already expired. To do otherwise in this case would be to revive a prosecution that could not be brought after May 27, 1995.
A simple example illustrates this point. No one can dispute that if defendant had been charged in 1997 with the sexual assault, that charge would have been dismissed with prejudice as time-barred under the criminal statute of limitations then in effect. Therefore, a 2002 amendment to the same statute cannot constitutionally revive what has already expired.
In reaching its holding, the trial court relied on two New Jersey Supreme Court cases: Thompson and Twiggs. Neither of those cases are applicable to the question of whether the 2002 amendment revived the limitations period against defendant. In Twiggs, the Court considered the meaning of the phrase “identifies the actor” in the 2002 amendment to N.J.S.A. 2C:1-6(c). Looking at the plain language of the statute and the policy underlying the criminal statute of limitations, the Court concluded “that the DNA-tolling exception applies only when the State obtains DNA evidence that directly matches the defendant to physical evidence of a crime.”
The State’s argument on appeal is borderline frivolous. Frivolous arguments can be bases for attorney ethics violations.