In State v. Mosley, 335 N.J.Super. 130, 761 A.2d 122 (App.Div.2000), the defendant was charged with first degree aggravated sexual assault under N.J.S.A. 2C:14-2a(1), based on sexual penetration of a minor under thirteen years of age Mosley was decided shortly after the Supreme Court decided Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). That decision invalidated this State's so-called "hate crime law," N.J.S.A. 2C:44-3(e), because it permitted a judge (rather than a jury) to decide the existence of an element of the crime charged against the defendant, and also permitted that decision to be made by a preponderance of the evidence rather than by the required criminal standard of proof beyond a reasonable doubt. In Mosley, however, the court noted that Apprendi drew "a clear distinction, in constitutional terms, between a statute that permits a judge to find a fact not submitted to the jury for purposes of enhancing a sentence within the statutory maximum for the crime of which defendant has been convicted and such fact-finding for purposes of enhancing a sentence beyond the statutory maximum." Mosley, supra, 335 N.J.Super. 144 at 149, 761 A.2d 130. The court concluded, therefore, that "because a NERA sentence is within the statutory limits prescribed for the crime," the Apprendi holding "does not strictly apply here." Ibid. Nevertheless, the court concluded that the kind of hearing that had been held in Mosley was neither permitted by the NERA statute nor did it comply with constitutional guarantees: We are satisfied that the kind of hearing held here, which we believe to have been beyond the legislative contemplation--a hearing at which witnesses testified respecting elements of a crime and the judge's decision was based on a preponderance of the evidence--so clearly erodes the constitutional guarantees of trial by jury and due process of law as to be constitutionally untenable. Ibid.