731 A.2d 485 (N.J. 1999), State v. Apprendi

Citation:731 A.2d 485, 159 N.J. 7
Opinion Judge:[8] The opinion of the court was delivered by: O'hern, J.
Party Name:STATE of New Jersey, Plaintiff-Respondent, v. Charles APPRENDI, Jr., Defendant-Appellant.
Attorney:[7] Joseph D. O'Neill argued the cause for appellant (Mr. O'Neill, attorney; Mr. O'Neill and Charles I. Coant, on the brief). Jacqueline E. Turner, Assistant Deputy Public Defender, argued the cause for amicus curiae, Office of the Public Defender (Ivelisse Torres, Public Defender, attorney). Lis...
Case Date:June 24, 1999
Court:Supreme Court of New Jersey

Page 485

731 A.2d 485 (N.J. 1999)

159 N.J. 7

STATE of New Jersey, Plaintiff-Respondent,


Charles APPRENDI, Jr., Defendant-Appellant.

Supreme Court of New Jersey

June 24, 1999

Argued Oct. 13, 1998.

Page 486

[159 N.J. 8] Joseph D. O'Neill, for defendant-appellant (Mr. O'Neill, attorney; Mr. O'Neill and Charles I. Coant, on the brief).

[159 N.J. 9] Jacqueline E. Turner, Assistant Deputy Public Defender, for amicus curiae, Office of the Public Defender (Ivelisse Torres, Public Defender, attorney).

Lisa Sarnoff Gochman, Deputy Attorney General, for plaintiff-respondent (Peter Verniero, Attorney General of New Jersey, attorney).

The opinion of the Court was delivered by


An issue that is surfacing with increasing frequency in criminal cases is whether a given portion of a statute constitutes an element of an offense or, instead, is a sentencing provision. The answer determines whether the factual determinations for which the provision calls are to be made by the fact-finder or the sentencer, and whether the reasonable doubt standard of proof must be applied.

[67 U.S.L.W. 3289, Vol. 67, No. 16 (Nov. 3, 1998).]

This appeal presents such a question. The case concerns the constitutionality of one provision of New Jersey's hate crime laws. With certain exceptions, the provision allows enhanced sentencing in any case in which "[t]he defendant in committing the crime acted with a purpose to intimidate an individual or group of individuals because of race, color, gender, handicap, religion, sexual orientation or ethnicity." N.J.S.A. 2C:44-3(e). (For convenience we may sometimes refer to such a purpose as a "biased purpose.") The constitutional question is whether a jury must find that purpose to have existed beyond a reasonable doubt before a court may impose an extended sentence for a hate crime. We find that the provision has been narrowly tailored to meet First Amendment concerns, and represents a legislative attempt to comply with a constitutional mandate, not a legislative attempt to circumvent due process rights to trial by jury. We affirm the judgment of the Appellate Division upholding defendant's extended sentence for a bias crime.


Early on the morning of December 22, 1994, police arrested defendant at his home in Vineland for the shooting of a neighbors' [159 N.J. 10] home. The neighbors were a black family living in an all-white neighborhood. This was the fourth time that the neighbors' home had been fired upon. On September 24, 1994, a single bullet pierced their window, and twice in November 1994, bullets struck the exterior of the home. After the December 22 shooting, one of the neighbors recognized defendant's grey Chevrolet truck driving away. The police were called.

The police arrived approximately twenty minutes later and arrested defendant at his home. Acting on a later-acquired search warrant, police found various weapons at defendant's home, including a .22-caliber rifle, with laser sights and a silencer attached, and an anti-personnel bomb. During the police questioning, defendant admitted that he had fired four or five rifle shots into the home. Defendant gave a later statement in which he admitted that although "he does not know the ... victims or the family, but because they are black in color he does not want them in the neighborhood...." He said that he was "just giving them a message that they were in his neighborhood."

A Cumberland County grand jury returned a twenty-two-count indictment against defendant. It included charges of possession of a firearm for an unlawful

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purpose, possession of a prohibited weapon, attempted murder, attempted aggravated assault, harassment, and possession of a destructive device.

Defendant negotiated a plea agreement under which he pled guilty to three of the counts. Two counts included the second-degree crimes of possessing a firearm for an unlawful purpose on September 24 and December 22, 1994. The third involved unlawful possession of a prohibited weapon, an anti-personnel bomb. Under the terms of the plea, any sentence imposed on the prohibited weapon count was to be concurrent with the sentences to be imposed on the two unlawful purpose counts. The plea agreement left the determination of the sentence on these two counts to the discretion of the court. In addition, the State reserved the right to make an application under the hate crimes law for imposition of an extended sentence on one count of the [159 N.J. 11] indictment. Possession of a weapon for an unlawful purpose is a second-degree crime for which the ordinary term is between five and ten years. If approved, an extended term on one of those counts exposed Apprendi to a maximum penalty of twenty years' imprisonment with ten years of parole ineligibility. When the weapon possessed is a firearm, the Graves Act requires the imposition of a minimum term of imprisonment of at least one-third of the sentence imposed or three years, whichever is greater. N.J.S.A. 2C:43-6(c). As part of his plea agreement, Apprendi reserved the right to contest the constitutionality of N.J.S.A. 2C:44-3(e), the hate-crime sentence enhancer.

At a hearing prior to sentencing, defendant offered the testimony of a psychologist who had evaluated defendant's mental state in order to establish the motive underlying the crimes. The witness shed light on certain psychological abnormalities of defendant. His condition did not rise to a level sufficient to establish a diminished capacity or insanity defense under N.J.S.A. 2C:4-1. The psychologist diagnosed defendant as having an obsessive-compulsive disorder, a cyclothymic disorder (a type of temperament alternating moods of elation and depression), kleptomania (a tendency to steal), drug dependence, and alcohol abuse. Additionally, the psychologist concluded that although the defendant knew that he was discharging the weapon toward the house and that it was wrong to do so, "his judgment and impulse control were substantially impaired at the time of the accident." Following that hearing, the State moved on September 5, 1995 for an extended term of imprisonment pursuant to N.J.S.A. 2C:44-3(e). After consideration of the testimony taken at the hearing, the trial court rejected the psychological defense, and concluded that defendant's actions were the product of racial bias thereby satisfying the statute. The court sentenced Apprendi on one of the unlawful-purpose counts to an extended term of twelve years' imprisonment with four years of parole ineligibility. Because this was Apprendi's first offense, the court made the lesser sentences on the other counts concurrent with the extended term. Other fines and penalties were imposed.

[159 N.J. 12] On appeal, Apprendi charged that he had been sentenced under an unconstitutionally vague law in that it permitted a court to sentence defendant to an extended term of imprisonment on so vague a basis as that the crime had been committed "at least in part with ill will, hatred or bias toward the victim." He further argued that the statute unconstitutionally allows imposition of an extended term of imprisonment based on proof of the biased purpose by a preponderance of the evidence rather than proof found by a jury beyond a reasonable doubt. A majority of the Appellate Division dismissed the vagueness challenge because in 1995, before the date of Apprendi's sentence, the Legislature had already deleted the words, "at least in part with ill will, hatred or bias toward the victim." 304 N.J.Super. 147, 152, 698 A.2d 1265 (App.Div.1997). The 1995 amendment excising the words was in response

Page 488

to this Court's decision in State v. Mortimer, 135 N.J. 517, 641 A.2d 257, cert. denied, 513 U.S. 970, 115 S.Ct. 440, 130 L.Ed.2d 351 (1994), holding that the same language in N.J.S.A. 2C:33-4(d) (a provision of our hate-crime laws addressing harassment), was unconstitutionally vague. The Appellate Division majority found that the use of the preponderance of the evidence standard to mandate an extended term did not violate the constitutional requirement that the State must prove each element of a crime beyond a reasonable doubt. 304 N.J.Super. at 153, 698 A.2d 1265. The panel found that the Legislature had not made racial bias an element of the crime charged because the provision was included in a section of the Criminal Code entitled "authority of court in sentencing." Ibid. The majority reasoned that "[a]s to sentencing factors which are not elements of a crime, the State's burden of proof is not subject to the reasonable doubt standard." Ibid. It compared this sentencing provision to that of Graves Act sentencing under which the State need not prove beyond a reasonable doubt that the actor possessed a firearm during the commission of a crime as a predicate to the imposition of a Graves Act sentence of mandatory parole ineligibility. Id. at 155, 698 A.2d 1265. One judge dissented. She found that the federal and State [159 N.J. 13] constitutions require that a jury decide each element of a crime beyond a reasonable doubt and that the

"purpose to intimidate ... because of race, [or] color" is an element of the crime when that purpose raises the sentence for the crime.... The State's power to define away the elements of the crime cannot extend, as the majority holds, to defining away the actor's culpable purpose [when it served to enhance his sentencing.]

[ Id. at 162, 698 A.2d 1265.]

Defendant appealed as of right under Rule 2:2-1(a)(2) on the basis of the dissent below.



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