State v. Fortin2/3/2004
ng to determine whether probable cause supports the charges. Id. § 1.3(n). The filing of a Notice of Aggravating Factors may be consonant with the procedures in those States that commence prosecution by information. However, the drafters of our 1947 Constitution kept their faith in the institution of the grand jury. In New Jersey, the grand jury remains a constitutional bulwark against hasty and ill-founded prosecutions and continues to lend legitimacy to our system of justice by infusing it with a democratic ethos. Article 1, Paragraph 8 embodies a fundamental right that has continuing vitality today.
Martini I, supra, suggested that "factors that affect only the severity of a sentence" and "merely enlarge the available sentencing options for certain defendants" are not elements of an offense and, therefore, do not implicate the grand jury protections of Article I, Paragraph 8. 131 N.J. at 223-24.
However, those statements may be read too broadly given that many of the crimes defined in the New Jersey Code of Criminal Justice grade the severity of the crime, and accordingly the severity of the sentence, based on the finding of an element of a greater crime. Those elements have very much the look of aggravating factors. For example, robbery is a second-degree crime, but the use of a weapon in the course of the robbery elevates the robbery to a first-degree crime. N.J.S.A. 2C:15- 1b. A defendant commits a third-degree aggravated assault when he purposely or knowingly causes significant bodily injury and a second-degree aggravated assault when he causes serious bodily injury. N.J.S.A. 2C:12-1b(1), (7). In both of the above examples, an aggravating factor that the Legislature has designated as an element of the offense affects the "severity of a sentence" or "enlarge the sentencing options."
We note that the line demarcating elements and aggravating factors has proven elusive. Apprendi, supra, 530 U.S. at 494, 120 S.Ct. at 2365, 147 L.Ed. 2d at 457. As a matter of constitutional law, aggravating factors, other than a prior criminal conviction, that raise a sentence beyond the statutory maximum are deemed elements that must be tried to a jury and proven beyond a reasonable doubt. Id. at 490, 120 S.Ct. at 2362-63, 147 L.Ed. 2d at 455; State v. Stanton, 176 N.J. 75, 95 (2003) (quoting Harris v. United States, 536 U.S. 545, 556, 122 S.Ct. 2406, 2414, 153 L.Ed. 2d 524, 537 (2002)). We, therefore, turn to the recent line of United States Supreme Court cases that provide a constitutional framework for defining elements of a criminal offense.
In Apprendi, supra, the Supreme Court invalidated a statutory scheme that allowed a sentencing judge to make a factual finding by a preponderance of the evidence that raised the defendant's sentence from a second-degree crime, punishable by a term of between five to ten years in prison, to a first degree crime, punishable by a term of between ten and twenty years. 530 U.S. at 474; 120 S.Ct. at 2354, 147 L.Ed. 2d at 445. The Court declared unconstitutional New Jersey's hate crime law because that statute required a jury to decide by proof beyond a reasonable doubt whether the defendant was guilty of the second-degree offense of possession of a weapon for an unlawful purpose, but left to a judge to decide by the preponderance of evidence standard whether the defendant possessed the weapon for the purpose of intimidating the victim because of his or her "race, color, gender, handicap, religion, sexual orientation or ethnicity." Id. at 468-69, 491-92, 120 S.Ct. at 2351, 2363, 147 L.Ed. 2d at 442, 455. The judge's finding exposed the defendant to an "extended term" of double the sentence permitted by the jury's finding. Id. at 469, 120 S.Ct. at 235
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