On certification to the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Coleman, J.
This appeal raises questions concerning the scope of the mandatory sentencing provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Specifically, we must decide whether NERA may be applied to a defendant who pled guilty to second- degree sexual assault, N.J.S.A. 2C:14-2b, for touching an eleven- year-old victim in her vaginal area. To answer that question, we must interpret the meaning of the term "physical force" as used in NERA. In a published opinion, the Appellate Division concluded that, based on its legislative history, NERA should not apply to defendant because "physical force" was not an element of the offense to which he pled guilty and he did not admit to committing an "independent act of force or threat of immediate force against the victim that is additional to the constituent elements of the crime." State v. Thomas, 322 N.J. Super. 512, 516 (App. Div. 1999). We granted certification, 162 N.J. 489 (1999), and now affirm. We hold that where none of the NERA factors is an element of the offense charged, there must be additional proof of a NERA factor before there can be sentence enhancement under the Act.
On September 2, 1997, defendant was baby-sitting for eleven- year-old K.G. Defendant was thirty-nine years old at the time and was K.G.'s grandmother's boyfriend. According to K.G., she was sitting on the couch with defendant when he put his pinky finger into her vaginal opening. K.G. did not tell her mother right away but later confided in her cousin about the incident. The cousin informed K.G.'s mother, who notified the police. When defendant was arrested, he denied that he had penetrated the child.
A Grand Jury indicted defendant for first-degree aggravated sexual assault of a female less than thirteen years of age, N.J.S.A. 2C:14-2a(1) (Count One); second-degree sexual assault on a child less than thirteen years of age, N.J.S.A. 2C:14-2b (Count Two); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Four).
Defendant negotiated a plea agreement with the State in which he pled guilty to second-degree sexual assault on a female under the age of thirteen, a violation of N.J.S.A. 2C:14-2b. In his factual statement supporting his guilty plea, defendant admitted touching the victim in her "vaginal area," but denied any penetration. For its part of the plea agreement, the State agreed to dismiss the remaining charges, to permit defendant to be sentenced as if his act were a third-degree offense, and to recommend a four-year term if defendant was sentenced to a term of imprisonment.
The issue whether NERA would apply to defendant's sentence was raised at the plea hearing. The State took the position that NERA applied to defendant. It was part of the plea agreement that if the trial court held that NERA did not apply, the State would be entitled to appeal that decision. It was also part of the agreement that defendant could withdraw his plea if the trial court determined that NERA applied to him. The trial court held that NERA did not apply to defendant because the Act requires the use of physical force beyond that inherent in an act of sexual contact. The trial court found that there was nothing in defendant's factual statement supporting his guilty plea that demonstrated an independent act of force or threat of force against the victim. Defendant was, accordingly, sentenced to a custodial term of four years without a term of parole ineligibility.
The State appealed and the Appellate Division affirmed. Thomas, supra, 322 N.J. Super. at 521. The Appellate Division rejected the State's argument that our definition of "physical force" in State in the Interest of M.T.S., 129 N.J. 422, 444 (1992), was the same "physical force" contemplated by the Legislature in the definition of a "violent crime" under NERA. Thomas, supra, 322 N.J. Super. at 519. The Appellate Division found M.T.S. "inapposite," stating that M.T.S. involved actual penetration, which was not present in this case. Id. at 515-16. The panel relied on legislative intent and principles of statutory construction in holding that "physical force" as defined under NERA "requires an independent act of force or threat of force against the victim that is additional to the constituent elements of the crime." Id. at 516.
The State argues that this Court's definition of "physical force" in M.T.S. should be the same definition that is used to determine whether a sexual assault is covered by NERA. The State maintains that because the Legislature failed to define physical force in the NERA statute, the Legislature thereby "expressed [its] satisfaction with this Court's definition" in M.T.S. To support that position the State quotes In re Estate of Posey, 89 N.J. Super. 293, 301 (Cty. Ct. 1965), aff'd, 92 N.J. Super. 259 (App. Div. 1966), for the assertion that "?[w]hen words used in a statute have previously received judicial construction, the Legislature will be deemed to be using them in the sense that has been ascribed to them.'"
In rejecting the appellate panel's holding, the State argues that by requiring victims to show an additional act of force beyond that required in M.T.S., "the Appellate Division has returned our law to the antiquated notions about a victim's obligation to ?prove' non-consent by ?putting up a fight.'" In the alternative, the State argues that if the Court declines to apply the M.T.S. definition of "physical force" to the NERA statute, then the Court should "decide that an adult who commits an unwanted touching against a child implicitly threatens the use of ?physical force.'"
Defendant contends that the Appellate Division "correctly interpreted the relevant legislative history in determining that mere sexual contact does not fall within NERA's definition of ?violent crime.'" He argues that applying the M.T.S. definition of "physical force" to NERA cases would render that phrase surplusage.
Defendant maintains that the legislative history of NERA fails to reveal any reference to the Court's decision in M.T.S. as influencing the definition of a violent sexual assault. He also argues that, because NERA was intended to apply only to the most violent crimes, "it is apparent that not all sexual assaults were intended to come within the Act." He asserts, that contrary to that legislative intent, the definition of "physical force" urged by the State would mandate application of NERA to all first-and second-degree sexual assaults.
The No Early Release Act, N.J.S.A. 2C:43-7.2, which took effect on June 9, 1997, mandates that those who commit first- or second-degree "violent crimes" serve at least 85% of any base term imposed upon conviction. Because the fundamental issue before us is one of legislative intent, "we must first look at the evident wording of the statute to ascertain its plain meaning and intent." Renz v. Penn Cent. Corp., 87 N.J. 437, 440 (1981). The Act reads, in pertinent part:
a. A court imposing a sentence of incarceration for a crime of the first or second degree shall fix a minimum term of 85% of the sentence during which the defendant shall not be eligible for parole if the crime is a violent crime as defined by subsection d. of this section.
d. For the purposes of this section, "violent crime" means any crime in which the actor causes death, causes serious bodily injury as defined in subsection b. of N.J.S. 2C:11-1, or uses or threatens the immediate use of a deadly weapon. "Violent crime" also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force. [N.J.S.A. 2C:43-7.2a, d (emphasis added).]
NERA applies only to first- and second-degree offenses. Aggravated sexual assault, N.J.S.A. 2C:14-2a, and sexual assault, N.J.S.A. 2C:14-2b and c, are first- and second-degree crimes respectively. Because NERA does not define "physical force," we must utilize principles of statutory construction to determine the meaning that should be accorded that phrase and then decide whether NERA applies to all first- and second-degree sexual assaults.
"As a general rule of statutory construction, we look first to the language of the statute. If the statute is clear and unambiguous on its face and admits of only one interpretation, we need delve no deeper than the act's literal terms to divine the Legislature's intent." State v. Butler, 89 N.J. 220, 226 (1982). However, if the statute is not clear and unambiguous on its face, "we consider sources other than the literal words of the statute to guide our interpretive task. . . . ?[T]he court considers extrinsic factors, such as the statute's purpose, legislative history, and statutory context to ascertain the legislature's intent.'" Aponte-Correa v. Allstate Ins. Co., 162 N.J. 318, 323 (2000) (quoting Township of Pennsaukin v. Schad, 160 N.J. 156, 170 (1999)); State v. McQuaid, 147 N.J. 464, 480-82 (1997). The policy behind the statute also should be considered. County of Monmouth v. Wissell, 68 N.J. 35, 43-44 (1975).
We find that the disputed language of NERA is not clear and unambiguous. Both the trial court and the Appellate Division concluded that the phrase "physical force" is ambiguous. Thomas, supra, 322 N.J. Super. at 516. That conclusion was consistent with our observation in M.T.S. that "the statutory words ?physical force' do not evoke a single meaning that is obvious and plain." M.T.S., supra, 129 N.J. at 430-31. Hence, we must look to extrinsic factors to divine legislative intent.
Under applicable canons of statutory construction, when the Legislature uses words in a statute that previously have been the subject of judicial construction, the Legislature will be deemed to have used those words in the sense that has been ascribed to them. State v. Wilhalme, 206 N.J. Super., 359, 362 (App. Div. 1985), certif. denied, 104 N.J. 398 (1986). Therefore, the State argues, the Legislature should be deemed to have been aware of our decision in M.T.S. and the definition accorded to "physical force" in that case when it enacted NERA. "However, it is possible to interpret an imprecise term differently in two separate sections of a statute which have different purposes." 2A Norman J. Singer, ...