On certification to the Superior Court, Appellate Division, whose opinion is reported at 382 N.J. Super. 469 (2006).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
This appeal addresses whether carjacking can serve as the predicate offense to elevate a second-degree sexual assault to first-degree, aggravated sexual assault, and whether the sentence imposed for the kidnapping convictions was appropriate.
On September 16, 2000, four high-school students, aged sixteen and seventeen years old, were at the home of a friend in Bordentown. Shortly before midnight, they decided to go to Trenton to buy marijuana. Bob drove the others, all girls, in his father's car. When they arrived in Trenton, they drove along a street where they believed they would be able to make their purchase. They saw a man, later identified as Jeffrey Drury, sitting or lying down holding a brown paper bag. As the car drove by, they heard Drury say "weed, weed." When Bob stopped the car, Drury opened the back passenger door and got into the car without asking permission.
Drury had a large, partially consumed bottle of beer in the bag. He asked the teenagers how much marijuana they wanted, and they told him ten dollars worth. He offered to give them fifteen dollars worth if they would give him a ride to where he wanted to go. The teenagers agreed and he directed them to a house. Drury got out, went into the house, and then returned saying he could not make the purchase at that location and he needed to be taken elsewhere. When they arrived at the second location, Drury said he wanted one of the girls to go with him into the building. Jane, the front-seat passenger, agreed to go.
Jane testified that inside the house, Drury locked her in a bedroom and forcibly raped her. Jane tried to resist, but Drury threatened to "slit her throat with a knife" and choked her into submission. Upon returning to the car, Drury forced Bob, the driver, into the front passenger seat and, over Bob's objections, began driving the vehicle. Jane sat in the back with the other girls, and was crying, bruised and bleeding. One of the girls also noticed that Jane's pants were undone and her shoes untied. Jane informed the other girls in a whisper that Drury had raped her.
Drury drove the teenagers around Trenton for approximately forty-five minutes, making stops to purchase drugs for himself while remaining in the car. When some of the teenagers asked to get out of the car, Drury refused to let them. At one point, he apologized to Jane for "what happened back there," but also ordered Jane to "shut up" because she would not stop crying. Eventually, Drury returned to the first house where they had stopped and left the car, taking the keys with him. The teenagers got out of the car and ran for help.
Drury offered a different version of the night's events. He testified that Jane agreed to have sex with him for money, and that he drove the vehicle with Bob's permission because he knew where they had to go. He also said he took the keys with him because he was afraid the teenagers would leave him stranded.
In pre-trial proceedings, the trial judge expressed the view that carjacking can raise a sexual assault from a second-degree crime to a first-degree crime. He explained that robbery is enumerated as an offense that will suffice to elevate sexual offense to a first-degree crime and concluded that carjacking was "an upgraded form of robbery." When instructing the jury, the trial court stated that carjacking constituted an appropriate predicate offense for aggravated sexual assault.
The jury found Drury guilty of first-degree aggravated sexual assault, first-degree carjacking, and first-degree kidnapping, among other crimes. Drury was sentenced to a term of twenty years for the aggravated sexual assault subject to the 85 percent parole disqualifier of NERA. On the carjacking and kidnapping convictions, Drury was sentenced to twenty-five-year terms, ten years without parole, to be served concurrent with each other but consecutive to the twenty-year sentence on the aggravated sexual assault conviction. Drury's aggregate sentence for all convictions, therefore, was forty-five years, of which twenty-seven years were to be served before he would be eligible for parole.
On appeal, Drury challenged his conviction on the first-degree aggravated sexual assault count, arguing that carjacking is not an enumerated offense, or, in the alternative, that the sexual assault did not occur during the commission of a carjacking. In addition, he contended that his sentence was both excessive and unconstitutional. The Appellate Division rejected Drury's argument that carjacking could not be used to elevate sexual assault to a first-degree, aggravated assault. Nevertheless, the panel found merit in Drury's alternate argument, because the sexual assault was committed prior to, not during the carjacking. The Appellate Division rejected Drury's Natale challenge to his sentences for carjacking and kidnapping, because, in its view, neither crime was formerly governed by a presumptive term. The Supreme Court granted Drury's petition for certification limited to the two issues cited above.
HELD: Carjacking is not a predicate offense that serves to elevate a sexual assault to the first-degree offense of aggravated sexual assault; and Drury must be resentenced on the kidnapping convictions.
1. Sexual assault is a crime of the second-degree. It becomes first-degree aggravated sexual assault if it is committed during the commission or attempted commission of certain other enumerated crimes, including robbery and kidnapping. N.J.S.A. 2C:14-2a(3). Because the statute does not include carjacking as one of the listed predicate offenses, the plain language does not support the conclusion that commission of a sexual assault during a carjacking is a first-degree crime. The State argues that carjacking is merely a form of robbery, and therefore the aggravated sexual assault statute should be interpreted to include carjacking as if it were among the specifically enumerated offenses. An analysis of the robbery statute, N.J.S.A. 2C:15-1a, and the carjacking statute, N.J.S.A. 2c:15-2a, leads the Court to conclude that the similarities are insufficient to support the argument that carjacking is simply a form of robbery. (pp. 16-18)
2. Implicit in the Appellate Division's decision is the suggestion that the Legislature's failure to enumerate carjacking as a trigger is the product of mere legislative oversight. The statute creating the crime of carjacking was enacted some fourteen years after the aggravated sexual assault and robbery statutes were enacted. Based on this time gap alone, it could be argued that when the Legislature enacted the carjacking statute, it simply overlooked including it as a triggering offense for purposes of first-degree sexual assault. The Court's review of the legislative history suggests the contrary conclusion. The aggravated sexual assault statute has been amended three times since the carjacking statute was passed, and none of those amendments added carjacking as an enumerated offense. Moreover, since the time the carjacking statute was enacted, the legislature has amended several other previously-existing statutes to include references to carjacking. Finally, in several other statutes enacted after the creation of carjacking, the Legislature has specifically listed both robbery and carjacking as triggering offenses. (pp. 18-24)
3. The Court also notes that the Appellate Division has rejected the argument that carjacking is simply a form of robbery. In addressing the Graves Act, which permits an extended term for certain offenses committed with a firearm, and which specifically lists robbery but not carjacking, the Appellate Division held that carjacking is not the basis for an extended term under the Graves Act. The Appellate Division also determined, on two other occasions, that robbery should not be considered to be a lesser-included offense of carjacking. The Court therefore concurs in the ultimate conclusion of the Appellate Division that Drury must be resentenced on the sexual assault conviction to a term appropriate to a second-degree crime. (pp. 24-26)
4. When Drury was sentenced, the presumptive term for the crime of kidnapping was twenty-years. Because he was sentenced to twenty-five years on the kidnapping charges, this Court's Natale doctrine applies and Drury must be resentenced on those convictions. (p. 27-29)
The judgment of the Appellate Division is AFFIRMED IN PART, REVERSED IN PART, and the matter is REMANDED for resentencing.
CHIEF JUSTICE ZAZZALI and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE HOENS' opinion.
The opinion of the court was delivered by: Justice Hoens
Defendant Jeffrey Drury was convicted of multiple offenses, all arising out of an incident that began when a group of teenagers approached him, seeking to buy marijuana, and that ended after defendant sexually assaulted one teenager and carjacked them and their vehicle. Our grant of certification was limited to two discrete issues, one relating to defendant's aggravated sexual assault conviction and the other concerning defendant's kidnapping sentence.
More specifically, the first issue before us is whether carjacking can support an aggravated sexual assault conviction. Sexual assault, N.J.S.A. 2C:14-2c, a second-degree offense, is elevated to aggravated sexual assault, N.J.S.A. 2C:14-2a, a first-degree crime, when the assault "is committed during the commission, or attempted commission" of certain enumerated offenses, including "robbery," N.J.S.A. 2C:14-2a(3). In this matter, we consider whether the jury's verdict finding defendant guilty of carjacking, N.J.S.A. 2C:15-2, constituted commission of a robbery sufficient to elevate the sexual assault he committed from a second-degree to a first-degree offense. We conclude that the Legislature did not intend to include triggering offenses other than those specifically enumerated in the statute defining aggravated sexual assault and that, therefore, defendant could only have been guilty of second-degree sexual assault.
The second issue before us relates to the sentence imposed on defendant for the crime of kidnapping, N.J.S.A. 2C:13-1b, and the application, if any, of the principles established in State v. Natale, 184 N.J. 458 (2005), State v. Abdullah, 184 N.J. 497 (2005), and State v. Franklin, 184 N.J. 516 (2005), to this crime. We conclude that because kidnapping is an offense to which a twenty-year presumptive term, see N.J.S.A. 2C:44-1f(1)(a), previously applied, defendant is ...