State v. Mosley

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. While aggravated sexual assault can also consist of an act of violence, the charge against defendant contained no such allegation, but was characterized as a first degree offense because of the age of the victim. The plea agreement called for the trial judge to determine, at a hearing to be held at the time of sentencing, whether NERA applied. At that hearing, the court heard testimony from the victim supporting the State's claim that the crime did involve violence. It also heard contrary testimony from the defendant. The court then decided, based on a preponderance of the evidence, that violence had been employed and that NERA was applicable. It sentenced the defendant accordingly. The Court reversed, holding that, an absolute prerequisite to NERA sentencing is defendant's conviction, either by a jury or by a guilty plea, of a crime one of whose elements is a counterpart to or inclusive of a NERA predicate fact. That element cannot be initially supplied after conviction by proofs submitted to the judge for preponderance-of-the-evidence fact-finding in a post-conviction hearing. And if defendant pleads guilty, the plea must also be to such a crime. Id. at 159, 761 A.2d 130.