1

SYLLABUS

(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 

interest of brevity, portions of any opinion may not have been summarized).

State of New Jersey v. James Grate; State of New Jersey v. Fuquan Cromwell (A-47/48-13) (072750)

Argued October 21, 2014 -- Decided January 15, 2015

SOLOMON, J., writing for a unanimous Court.

In this appeal, the Court considers (1) whether the “knowingly” mens rea requirement of N.J.S.A. 2C:39-

5(e)(1) applies to both the possession of the firearm and the defendant’s presence at an educational institution; (2) 

the constitutionality of N.J.S.A. 2C:39-5(i)’s mandatory minimum sentence in light of in Alleyne v. United States, 

___ U.S. ___, 133 S. Ct. 2151 (2013); and (3) the propriety of a defendant’s sentence.

Defendants Fuquan Cromwell and James Grate were stopped by police officers on the campus of Drew 

University during the attempted robbery of an acquaintance. Defendants were charged with various offenses,

including second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-5(b), and third-degree unlawful 

possession of a weapon at an educational institution, N.J.S.A. 2C:39-5(e)(1). With regard to the latter, the trial 

judge instructed the jury that the State must prove “the defendant possessed the firearm in or upon the buildings or 

grounds of any school, college, university, or other educational institution.” The judge did not ask the jury to decide 

whether defendants were aware that they were on the property of an educational institution. The jury found 

defendants guilty of second-degree unlawful possession of a weapon and third-degree unlawful possession of a 

weapon at an educational institution, and acquitted them of the remaining charges. 

At the sentencing hearing, Corporal Edwin Santana testified that defendants admitted they were members 

of a local chapter of the Crips street gang and that both defendants had tattoos denoting their membership. The 

judge found that aggravating factors five, a substantial likelihood that defendants were involved in organized 

criminal activity, N.J.S.A. 2C:44-1(a)(5), three, the risk defendant will commit another offense, N.J.S.A. 2C:44-

1(a)(3), and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), applied to both defendants; that aggravating factor 

six, the extent of the defendant’s prior criminal record, N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell; and that 

no mitigating factors applied. After merging the possession convictions, the court sentenced Grate and Cromwell to

eight and nine years in prison, respectively. The court also ordered mandatory five-year parole disqualifiers under 

N.J.S.A. 2C:39-5(i), finding it substantially likely that defendants were involved in organized criminal activity. 

On appeal, defendants contended, among other things, that the jury charge for unlawful possession of a 

weapon at an educational institution improperly failed to instruct the jury that the “knowingly” mens rea 

requirement applied to the locational element of the crime. The Appellate Division rejected defendants’ arguments 

and affirmed their convictions and sentences. The Court entered limited grants of certification. State v. Cromwell, 

216 N.J. 361 (2013); State v. Grate, 216 N.J. 362 (2013).

HELD: (1) In order to prove a violation of N.J.S.A. 2C:39-5(e)(1), the State must prove beyond a reasonable doubt 

both that a defendant knowingly possessed a firearm and that he or she did so while knowingly on the property of an 

educational institution; (2) because the mandatory minimum sentence under N.J.S.A. 2C:39-5(i) is based on a 

judicial finding of fact, rather than a finding by the jury, it is unconstitutional under Alleyne; and (3) Grate’s 

sentence was not excessive because the trial court’s analysis of the aggravating and mitigating factors was supported 

by the record.

1. N.J.S.A. 2C:39-5(e)(1) states, in relevant part, that “[a]ny person who knowingly has in his possession any 

firearm in or upon any part of the buildings or grounds of any school, college, university or other educational 

institution without the written authorization of the governing officer of the institution, is guilty of a crime of the 

third degree.” Whether the culpability requirement of “knowingly” applies to the locational element of N.J.S.A.

2C:39-5(e)(1) is a question of statutory interpretation. As such, the Court attempts to discern and implement the 

Legislature’s intent by first looking at the statute’s plain language and, if that language if ambiguous, by looking to 
2

extrinsic sources. The Code prescribes rules for the “[c]onstruction of statutes with respect to culpability 

requirements.” N.J.S.A. 2C:2-2(c). N.J.S.A. 2C:2-2(c)(1) applies to statutes that provide a culpability requirement 

as to one but not all elements of the offense. N.J.S.A. 2C:2-2(c)(1) requires that such statutes be interpreted to apply 

the stated culpability requirement to every material element of the offense if the offense does not distinguish among 

them, and “unless a contrary purpose plainly appears.” Because N.J.S.A. 2C:39-5(e)(1) criminalizes even otherwise 

lawful possession of a weapon if a defendant possesses the weapon at an educational institution, the locational 

element is “material.” In addition, the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication that the 

“possession” element has been distinguished from the “location” element. Both elements are contained within the 

same clause, preceded by the adverb “knowingly.” Finally, no contrary purpose to applying the knowing 

requirement to both material elements is plainly indicated. As a result, N.J.S.A. 2C:39-5(e)(1)’s knowing 

requirement applies to both possession of a firearm and being at an educational institution. (pp. 13-16)

2. The Court rejects that the Legislature intended a defendant to be strictly liable for the locational element based on 

the “essentially regulatory nature” of our gun control laws. Although the Court has described Chapter 39 sections 

39-3 and 39-5 as containing “essentially regulatory offenses,” in doing so it explained that “they prohibit possession 

of firearms and other weapons without regard to the individual's intent or purpose in possessing them.” State v. 

Harmon, 104 N.J. 189, 197 (1986). Because N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A. 2C:2-2(c)(1), 

requires only that the State prove defendants knowingly possessed the weapon while knowingly at an educational 

institution, defendants’ intent or purpose in possessing the gun is not at issue here. The regulatory nature of the 

offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of construction, nor does it alleviate the State of its burden to 

prove defendants acted with the requisite culpability as to each element of the offense. In addition, State v. Smith, 

197 N.J. 325 (2009), does not affect the Court’s interpretation of N.J.S.A. 2C:39-5(e)(1). In Smith, the Court 

interpreted a different criminal statute and, based on statutory phrasing materially different than that found in 

N.J.S.A. 2C:39-5(e)(1), held that the State did not have to prove that the defendant knew that the firearm he 

possessed had been defaced. Id. at 326-27, 331-32. Because the State was required to prove that defendants were 

knowingly at an educational facility in order to obtain a conviction under N.J.S.A. 2C:39-5(e)(1), the jury 

instructions with respect to defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) warrant reversal, and the Court 

vacates those convictions and remands for resentencing on the unlawful possession charges. (pp. 16-19)

3. N.J.S.A. 2C:39-5(i) requires the sentencing court to impose a period of parole ineligibility “if the court finds” a 

substantial likelihood that the defendant is involved in organized criminal activity. Alleyne held that “any fact that 

increases the mandatory minimum sentence is an ‘element’ that must be submitted to the jury” to be found beyond a 

reasonable doubt. 133 S. Ct. at 2156. Alleyne therefore renders the imposition of a mandatory minimum sentence 

under N.J.S.A. 2C:39-5(i) unconstitutional. The Court acknowledges that, “[i]n appropriate cases, a court has the 

power to engage in judicial surgery or the narrow construction of a statute to free it from constitutional doubt or 

defect.” State v. Fortin, 198 N.J. 619, 630 (2009) (quoting N.J. State Chamber of Commerce v. N.J. Election Law 

Enforcement Comm’n, 82 N.J. 57, 75 (1980)) (internal quotation marks omitted). However, this procedure applies 

only “if we fairly can do so.” Id. at 631. Here, N.J.S.A. 2C:39-5(i) unambiguously requires the imposition of a 

mandatory minimum sentence based on a judicial finding of fact. Requiring a jury rather than a judge to make such a 

finding would not merely be severing a constitutionally infirm portion of the sentencing statute, it would be rewriting 

its essential requirements. That determination is for the Legislature. The Court vacates defendants’ sentences and 

remands for resentencing for the unlawful possession convictions, without consideration of the mandatory minimum 

sentence under N.J.S.A. 2C:39-5(i) and without the empaneling of a sentencing jury. (pp. 19-23)

4. Grate claims that his sentence was excessive. An appellate court reviews the trial court’s sentencing 

determination under a deferential standard of review and is bound to affirm the sentence as long as the trial court 

properly identifies and balances aggravating and mitigating factors that are supported by competent credible 

evidence in the record. The trial court’s findings that aggravating factors three, five, and nine applied, and no 

migrating factors applied, were amply supported by the record. Although a judicial finding of aggravating factor 

five cannot be the basis of a mandatory minimum sentence, the sentencing court may nevertheless consider that

factor when deciding what sentence to impose within the statutory range. With the exception of the mandatory 

minimum sentence imposed pursuant to N.J.S.A. 2C:39-5(i), the Court affirms Grate’s sentence. (pp. 23-26)

The judgment of the Appellate Division is AFFIRMED IN PART and REVERSED IN PART, and the 

matter is REMANDED for a new trial on the charge of unlawful possession of a weapon at an educational facility 

and for resentencing consistent with the Court’s opinion.
3

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, and FERNANDEZVINA; and JUDGE CUFF (temporarily assigned) join in JUSTICE SOLOMON’s opinion.
1

SUPREME COURT OF NEW JERSEY

A-47/48 September Term 2013

072750

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES GRATE,

Defendant-Appellant.

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN CROMWELL, (a/k/a 

FUGUAN CROMWELL, FUQUAN A. 

CROMWELL, SAMAAD CROMWELL, 

SAMAD CROMWELL, SAMAAD 

LATHER, SAMADD N. J.L., 

SAMAAD N. LATHER),

Defendant-Appellant.

Argued October 21, 2014 – Decided January 15, 2015

On certification to the Superior Court, 

Appellate Division.

Joshua D. Sanders, Assistant Deputy Public

Defender, argued the cause for appellant 

Fuquan Cromwell (Joseph E. Krakora, Public 

Defender, attorney).

Al Glimis, Assistant Deputy Public Defender, 

argued the cause for appellant James Grate 

(Joseph E. Krakora, Public Defender, 

attorney; Mr. Glimis and Kevin G. Byrnes, 

Designated Counsel, on the briefs).
2

John K. McNamara, Jr., Assistant 

Prosecutor/Special Deputy Attorney General,

argued the cause for respondent (Fredric M. 

Knapp, Morris County Prosecutor, attorney; 

Mr. McNamara and Erin Smith Wisloff, 

Assistant Prosecutor/Special Deputy Attorney 

General, on the brief).

Jeffrey S. Mandel argued the cause for 

amicus curiae Association of Criminal 

Defense Lawyers of New Jersey (Cutolo

Mandel, attorneys; Mr. Mandel and Andrew 

Stein, on the brief).

Alexander R. Shalom argued the cause for 

amicus curiae American Civil Liberties Union 

of New Jersey (Edward L. Barocas, Legal 

Director, attorney).

Jennifer E. Kmieciak, Deputy Attorney 

General, argued the cause for amicus curiae

Attorney General of New Jersey (John J. 

Hoffman, Acting Attorney General, attorney).

JUSTICE SOLOMON delivered the opinion of the Court.

Following an attempted robbery of an acquaintance, 

defendants Fuquan Cromwell and James Grate were stopped by 

police officers on the campus of Drew University. The officers 

discovered a gun under the driver’s seat of the acquaintance’s 

car within reach of defendants. Defendants were arrested and 

charged in a twelve-count indictment with various offenses, 

including second-degree unlawful possession of a weapon and 

third-degree unlawful possession of a weapon at an educational 

institution. 
3

Defendants were tried jointly. The trial court in its 

charge to the jury did not state that to find defendants guilty 

of unlawful possession of a weapon at an educational facility, 

N.J.S.A. 2C:39-5(e)(1), it must find defendants knew they were

at an educational facility. The jury convicted defendants of 

second-degree unlawful possession of a weapon, N.J.S.A. 2C:39-

5(b), and third-degree unlawful possession of a weapon at an 

educational institution, N.J.S.A. 2C:39-5(e)(1). Cromwell, who 

had a prior felony conviction, was also convicted under N.J.S.A.

2C:39-7(b)(1), which bars persons convicted of any of the 

offenses enumerated in the statute from possessing a weapon. 

At the sentencing hearing, a witness testified that 

defendants were members of a local chapter of the Crips street 

gang. The trial court concluded that defendants were involved 

in organized criminal activity, a finding requiring the 

imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-

5(i). Their convictions and sentences were affirmed on appeal, 

and we granted certification to resolve three issues. 

The first issue requires us to construe the culpability 

requirement under N.J.S.A. 2C:39-5(e)(1), which criminalizes the 

knowing possession of a weapon at an educational institution. 

We hold that in order to prove a violation of N.J.S.A. 2C:39-

5(e)(1), the State must prove beyond a reasonable doubt both 

that a defendant knowingly possessed a weapon and that he or she 
4

did so while knowingly on the property of an educational 

institution. The jury instructions here, which did not specify 

that the jury was required to find defendants were knowingly at 

an educational institution, were therefore flawed, and 

defendants’ convictions under N.J.S.A. 2C:39-5(e)(1) must be 

vacated. 

Second, we consider the constitutional validity of N.J.S.A.

2C:39-5(i) in light of the recent Supreme Court decision in 

Alleyne v. United States, ___ U.S. ___, 133 S. Ct. 2151, 186 L. 

Ed. 2d 314 (2013). The Alleyne Court held that the imposition 

of a mandatory minimum sentence based upon a fact that was not 

submitted to the jury for determination beyond a reasonable 

doubt violates the Sixth Amendment right to a jury trial. Id.

at __, 133 S. Ct. at 2155, 186 L. Ed. 2d at 321. The mandatory 

minimum sentence under N.J.S.A. 2C:39-5(i) is based on a 

judicial finding of fact and cannot survive constitutional 

scrutiny. We therefore vacate defendants’ sentences and remand 

for resentencing on the unlawful possession of a weapon 

convictions. 

The third issue is the propriety of Grate’s sentence.

Because we find the court’s findings were supported adequately 

by evidence of record, we reject Grate’s argument that his 

sentence was excessive and affirm as to the trial court’s 

weighing and analysis of factors applicable to Grate’s sentence. 
5

I.

A.

The following facts are derived from the testimony given at 

trial. In December 2008, Cromwell, Grate, and Cromwell’s 

younger brother, J.L., approached C.A. while he was refueling 

his car at a gas station. Cromwell asked C.A. to give them a 

ride, and because C.A. knew Cromwell, he agreed. Soon after 

driving away, Cromwell asked C.A. to give them money. C.A., 

believing Cromwell was joking, ignored the requests. Cromwell 

then pulled out a gun, pointed it at C.A.’s head, and told him 

to “[g]et the money up.” Because C.A. had no money with him and 

feared for his life, he offered to drive to Drew University to 

retrieve a credit card from his girlfriend, who lived on campus. 

C.A. drove to the university, passed through a security

checkpoint, and parked outside of his girlfriend’s residence

hall. Although C.A.’s girlfriend was not home at the time, her 

roommate allowed C.A. and Cromwell into the room. While 

searching for his girlfriend’s credit card, C.A. surreptitiously 

phoned William Humphries, a New Jersey State Police Detective 

with whom C.A. was familiar from a prior arrest. Detective 

Humphries did not answer, but called C.A. back soon thereafter. 

C.A., claiming he was speaking to his uncle, was able to tell 

Detective Humphries that he was being threatened by people who 
6

were demanding money from him. Eventually, C.A.’s girlfriend 

arrived and gave C.A. her credit card.

C.A. and Cromwell returned to C.A.’s car, but before they 

could depart, Sergeant Joseph Cirella of the Madison Police 

Department arrived and ordered everyone out of the car. Before 

complying, defendants and J.L. told C.A. that, “if anything 

[goes] down, this is your gun. It’s our word against yours.” 

They got out of the car, and Sergeant Cirella had them lie face 

down on the ground. After backup officers arrived and placed 

C.A. in the backseat of the police cruiser, he reported that 

there was a gun inside his car.

During a brief search of C.A.’s car, the officers found a 

loaded nine-millimeter handgun under the driver’s seat. All 

four men were handcuffed and taken to the police station, and 

C.A.’s car was impounded. Shortly thereafter, Detective 

Humphries arrived and drove C.A. home.

Defendants were each indicted on charges of first-degree 

kidnapping, N.J.S.A. 2C:13-1(b)(2), (11); first-degree 

carjacking, N.J.S.A. 2C:15-2(a)(1), (2), (4); first-degree 

robbery, N.J.S.A. 2C:15-1(a)(2); third-degree terroristic 

threats, N.J.S.A. 2C:12-3(a); fourth-degree aggravated assault, 

N.J.S.A. 2C:12-1(b)(4); second-degree unlawful possession of a 

weapon, N.J.S.A. 2C:39-5(b); and third-degree unlawful 

possession of a weapon at an educational institution, N.J.S.A.
7

2C:39-5(e)(1). Cromwell was charged separately with seconddegree certain persons not to possess weapons, N.J.S.A. 2C:39-

7(b). 

At trial, it was revealed that no latent fingerprints were 

found on the gun because the textured surface of the handle made 

fingerprints difficult to detect. Sergeant Cirella confirmed 

that the gun was found under the driver’s seat and was 

accessible to anyone riding in the backseat, but was difficult 

to reach from the driver’s seat. 

Testifying in his own defense, Grate denied that anyone had 

pulled a gun on C.A. or demanded money from him. He claimed 

that Cromwell had asked C.A. to give J.L. a ride home, and that 

C.A. agreed to do so after he visited his cousin at college. 

Grate stated that he believed C.A. was traveling to his cousin’s 

home, and that he did not realize C.A. was traveling to a 

college campus. He denied ever seeing the gun before appearing 

in court for trial.

At the charge conference, the trial judge, noting that 

there is no model jury charge for unlawful possession of a 

weapon at an educational institution, settled on an instruction 

that “has been drafted right out of the statute.” Without 

objection, the judge instructed the jury that the State must 

prove “the defendant possessed the firearm in or upon the 

buildings or grounds of any school, college, university, or 
8

other educational institution. In this case, the grounds of 

Drew University.” The judge did not ask the jury to decide 

whether defendants were aware that they were on the property of 

an educational institution.

The jury found defendants guilty of second-degree unlawful 

possession of a weapon and third-degree unlawful possession of a 

weapon at an educational institution, but acquitted them of the 

remaining charges. Cromwell later pled guilty to the separate 

second-degree certain persons charge.

B.

At the sentencing hearing, the trial judge heard testimony 

by Corporal Edwin Santana that defendants admitted they were 

members of a local chapter of the Crips street gang known as “5 

Deuce Hoova Crip” and that both defendants had a large “C” 

tattooed on their chests, which denotes membership in that gang. 

Corporal Santana then opined that, based upon his experience, 

the Crips street gang is involved in organized criminal 

activity. Relying on Corporal Santana’s testimony, the judge 

found aggravating factor five, a substantial likelihood that 

defendants were involved in organized criminal activity, 

N.J.S.A. 2C:44-1(a)(5), applied to both defendants. 

The court also found aggravating factors three, the risk 

defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3), 

and nine, the need for deterrence, N.J.S.A. 2C:44-1(a)(9), 
9

applied to both defendants. Next, the court found aggravating 

factor six, the extent of the defendant’s prior criminal record, 

N.J.S.A. 2C:44-1(a)(6), applied solely to Cromwell based upon 

his three prior indictable convictions. The court found no 

mitigating factors applied to either defendant.

After merging their convictions for possession while at an 

educational institution with their convictions for unlawful 

possession of a weapon, the court sentenced Grate and Cromwell 

to eight and nine years in prison, respectively. Having found 

that it was substantially likely defendants were involved in 

organized criminal activity, the court made both sentences 

subject to the mandatory five-year parole disqualifier under 

N.J.S.A. 2C:39-5(i). In accordance with his plea agreement, the 

court also sentenced Cromwell to a consecutive eighteen-month 

prison sentence with no parole eligibility on the certainpersons conviction.

C.

On appeal, defendants contended, among other things, that 

the jury charge with respect to the unlawful possession of a 

weapon at an educational institution was erroneous because it 

failed to instruct the jury that in order to convict defendants 

of that offense the State was required to prove that defendants 

knew they were at an educational institution. After 

consolidating their appeals, the Appellate Division rejected 
10

defendants’ arguments and affirmed their convictions and 

sentences in an unpublished opinion. 

Cromwell filed a petition for certification with this 

Court, raising the mens rea argument. In response to the United 

States Supreme Court decision in Alleyne, which was released 

five days after he filed his initial petition, Cromwell filed a 

supplemental petition arguing that the mandatory minimum 

sentence imposed under N.J.S.A. 2C:39-5(i) was unconstitutional. 

We granted Cromwell’s petition, limited to the issues of whether 

“the ‘knowingly’ mens rea requirement of N.J.S.A. 2C:39-5(e)(1), 

third-degree unlawful possession of a weapon at an education 

institution, appl[ies] to both the possession of the firearm and 

the [defendant’s] presence at an educational institution”; 

whether the sentencing court erred “in finding and applying the 

aggravating factor of N.J.S.A. 2C:44-1(a)(5) (substantial 

likelihood that defendant is involved in organized criminal 

activity)”; and whether “the decision in Alleyne[, supra,] 

render[s] the imposition of a mandatory minimum sentence invalid 

under the Sixth Amendment of the United States Constitution.” 

State v. Cromwell, 216 N.J. 361 (2013) (third alteration in 

original). 

Separately, Grate filed a petition for certification 

asserting that his sentence was excessive, and joined in 

Cromwell’s Alleyne argument. Initially, we granted 
11

certification “limited to the issue of whether [Grate’s] 

sentence was excessive.” State v. Grate, 216 N.J. 362 (2013). 

Grate subsequently filed a motion to expand our grant of 

certification to include the mens rea argument. By order dated 

April 11, 2014, we expanded our limited grant of Grate’s 

petition to include the mens rea argument raised by Cromwell. 

We also granted motions by the Association of Criminal 

Defense Lawyers (ACDL), the American Civil Liberties Union 

(ACLU), and the Attorney General to appear as amici curiae.

II.

A.

With respect to the mens rea requirement of N.J.S.A. 2C:39-

5(e)(1), both defendants and the ACDL contend the trial court 

improperly interpreted the statute to require the State to prove 

only that they knowingly possessed a weapon and not that they 

possessed the weapon while knowingly at an educational facility. 

Defendants rely on N.J.S.A. 2C:2-2(c)(1), which provides that 

“[w]hen the law defining an offense prescribes the kind of 

culpability that is sufficient for the commission of an offense, 

without distinguishing among the material elements thereof, such 

provision shall apply to all the material elements of the 

offense, unless a contrary purpose plainly appears.” Arguing 

that the locational element of this offense is material and that 

the statute fails to distinguish between its material elements, 
12

defendants maintain the State was required to prove that 

defendants knowingly possessed a weapon and that they did so

while knowingly at an educational institution. 

Defendants also rely on N.J.S.A. 2C:2-2(c)(3), which 

imposes a “knowing” culpability requirement where a statute 

fails to specify a culpability requirement. Defendants 

therefore contend that the State had to prove beyond a 

reasonable doubt that they were knowingly present at an 

educational facility, and that the trial court’s failure to 

instruct the jury regarding that burden constitutes plain error.

The State counters that the plain language of N.J.S.A.

2C:39-5(e)(1) unambiguously provides a mens rea requirement to 

the element of possession only, and that the locational element 

merely describes the circumstances of the possession. The State 

analogizes this statute to N.J.S.A. 2C:39-3(d), which states 

that “[a]ny person who knowingly has in his possession any 

firearm which has been defaced . . . is guilty of a crime of the 

fourth degree.” The State relies upon State v. Smith, 197 N.J.

325, 332 (2009), a case in which we interpreted N.J.S.A. 2C:39-

3(d) to require proof only that a defendant knowingly possessed 

a firearm, and not that the defendant knew the firearm was 

defaced. The State argues that N.J.S.A. 2C:39-5(e)(1), like 

N.J.S.A. 2C:39-3(d), contains an independent clause that 

includes a mens rea requirement, followed by a subordinate 
13

clause containing no mens rea requirement. The State adds that 

the regulatory nature of this State’s gun control laws is 

largely unconcerned with the intent of the individual carrying a 

firearm.

B.

Whether the culpability requirement of “knowingly” applies 

to the locational element of N.J.S.A. 2C:39-5(e)(1) is a 

question of statutory interpretation. As such, we review the 

dispute de novo, unconstrained by deference to the decisions of 

the trial court or the appellate panel. State v. Drury, 190 

N.J. 197, 209 (2007). In doing so,

we attempt to discern and implement the 

Legislature’s intent. Basic techniques of 

statutory interpretation first require us to 

look at a statute’s plain meaning, and, “[i]f 

the meaning of the text is clear and 

unambiguous on its face, [we] enforce that 

meaning.” If the language is ambiguous or 

“admits to more than one reasonable 

interpretation, we may look to sources outside 

the language to ascertain the Legislature’s 

intent.” Such extrinsic sources, in general, 

may include the statute’s purpose, to the 

extent that it is known, and the relevant 

legislative history. 

[Ibid. (internal citations omitted).]

Furthermore, “[w]hen interpreting a penal statute, such as the 

one we consider here, if plain meaning and extrinsic sources are 

inadequate, we then ‘employ the canon of statutory construction 

that counsels courts to construe ambiguities in penal statutes 
14

in favor of defendant.’” Id. at 209-10 (quoting State v. 

Reiner, 180 N.J. 307, 311 (2004) (footnote omitted)).

With those principles in mind, we turn to the statutory 

language at issue here. N.J.S.A. 2C:39-5(e)(1) states, in 

relevant part, that “[a]ny person who knowingly has in his 

possession any firearm in or upon any part of the buildings or 

grounds of any school, college, university or other educational 

institution without the written authorization of the governing 

officer of the institution, is guilty of a crime of the third 

degree.” 

The Code prescribes rules for the “[c]onstruction of

statutes with respect to culpability requirements.” N.J.S.A.

2C:2-2(c). N.J.S.A. 2C:2-2(c)(3) addresses “statutes not 

stating [a] culpability requirement.” Because N.J.S.A. 2C:39-

5(e)(1) plainly sets forth a mens rea requirement for the first 

element of this offense, the Appellate Division correctly 

determined that N.J.S.A. 2C:2-2(c)(3) is inapplicable.

As set forth above, N.J.S.A. 2C:2-2(c)(1) applies to

statutes that provide a culpability requirement as to one but 

not all elements of the offense. Specifically, N.J.S.A. 2C:2-

2(c)(1) requires the statute to be interpreted to apply the 

stated culpability requirement as to every material element of 

the offense if the offense does not distinguish among them, and 

“unless a contrary purpose plainly appears.”
15

The State does not dispute that the N.J.S.A. 2C:39-5(e)(1) 

locational element is “material.” The Code defines “[m]aterial

element” as “an element that does not relate exclusively to the 

statute of limitations, jurisdiction, venue or to any other 

matter similarly unconnected with (1) the harm or evil[] . . . 

sought to be prevented, or (2) the existence of a justification 

or excuse.” N.J.S.A. 2C:1-14(i). Because N.J.S.A. 2C:39-

5(e)(1) criminalizes even otherwise lawful possession of a 

weapon if a defendant possesses the weapon at or on the grounds 

of an educational institution, we agree that the circumstances 

of the possession are material to the offense. See State v. 

Harmon, 104 N.J. 189, 202-03 (1986) (finding a defendant’s 

intent to use a weapon for an unlawful purpose “clearly a 

material element” of the offense of possession of a weapon for 

an unlawful purpose). 

The Appellate Division found N.J.S.A. 2C:2-2(c)(1) “does 

not apply because N.J.S.A. 2C:39-5(e)(1) distinguishes ‘among 

the material elements’ of the offense.” However, careful review 

of the language of N.J.S.A. 2C:39-5(e)(1) reveals no indication 

that the “possession” element is clearly distinguishable from 

the “location” element. Both elements are contained within the 

same clause, preceded by the adverb “knowingly.” We therefore 

reject the Appellate Division’s conclusion that N.J.S.A. 2C:2-

2(c)(1) does not apply, and find N.J.S.A. 2C:39-5(e)(1) does not 
16

distinguish between its material elements. As a result, to 

obtain a conviction under N.J.S.A. 2C:39-5(e)(1) the State was 

required to prove defendants knowingly possessed a firearm while 

knowingly at an educational institution unless the statute 

plainly evidences a contrary purpose, N.J.S.A. 2C:2-2(c)(1).

We find no such contrary purpose is plainly indicated. The 

State, emphasizing the “essentially regulatory nature” of our 

gun control laws, urges us to consider N.J.S.A. 2C:39-5(e)(1) in 

conjunction with other sections of Chapter 39 to find the 

Legislature intended a defendant to be strictly liable for the 

locational element of N.J.S.A. 2C:39-5(e)(1). Although we have 

described sections 39-3 and 39-5 as containing “essentially 

regulatory offenses,” in doing so we explained that “they 

prohibit possession of firearms and other weapons without regard 

to the individual's intent or purpose in possessing them.” 

Harmon, supra, 104 N.J. at 197; accord State v. Brims, 168 N.J.

297, 313 (2001). 

The State correctly notes that the offense at issue here is 

distinguishable from the offense of possession of a weapon for 

an unlawful purpose, N.J.S.A. 2C:39-5(d), in that the State need 

not prove defendants’ intent or purpose in possessing the gun. 

However, N.J.S.A. 2C:39-5(e)(1), in conjunction with N.J.S.A.

2C:2-2(c)(1), requires only that the State prove defendants 

knowingly possessed the weapon while knowingly at an educational 
17

institution. A person acts “knowingly with respect to the 

nature of his conduct or the attendant circumstances if he is 

aware that his conduct is of that nature, or that such 

circumstances exist, or he is aware of a high probability of 

their existence.” N.J.S.A. 2C:2-2(b)(2). Accordingly, 

defendants’ intent or purpose in possessing the gun is not at 

issue here -- only that defendants were aware of what they were 

doing and where they were doing it. The regulatory nature of 

the offense does not nullify N.J.S.A. 2C:2-2(c)(1)’s rule of 

construction, nor does it alleviate the State of its burden to 

prove defendants acted with the requisite culpability as to each 

element of the offense. 

The State also argues that our decision in Smith, supra,

requires a finding that the Legislature did not intend the 

knowing culpability requirement to apply to the locational 

element of N.J.S.A. 2C:39-5(e)(1). In Smith, we considered and 

rejected a defendant’s claim that N.J.S.A. 2C:39-2(d), which 

prohibits any person from “knowingly ha[ving] in his possession 

any firearm which has been defaced,” required the State to prove 

he knew the firearm had been defaced. Smith, supra, 197 N.J. at 

326-27. 

In Smith, we began our analysis by first determining what 

the term “knowingly” modified. Id. at 331. We noted “the 

Legislature placed the term ‘knowingly’ immediately before the 
18

phrase, ‘has in his possession a firearm,’” followed by the 

“subordinate phrase, ‘which has been defaced,’ that describes 

further the nature of the proscribed item.” Id. at 332.

The State argues that here, as in Smith, the statute at 

issue places the term “knowingly” immediately before the phrase 

“has in his possession any firearm,” followed by the subordinate 

clause “in or upon any part of the buildings or grounds of any 

school, college, university or other educational institution.” 

However, the locational element of N.J.S.A. 2C:39-5(e)(1) is not 

contained in a subordinate clause. Rather, as set forth above, 

“in or upon any part” of an educational facility expresses a 

separate material element of the offense. Indeed, it is the 

locational element of N.J.S.A. 2C:39-5(e)(1) that distinguishes 

ordinary possession, which need not be unlawful itself, from the 

wrongdoing sought to be addressed under the statute, namely the 

harm possession of a firearm presents at a setting like an 

educational facility. Thus, unlike the statute at issue in 

Smith, N.J.S.A. 2C:39-5(e)(1) does not criminalize the 

possession of a certain type of weapon, but rather the 

possession of a weapon at a particular place. 

In any event, as discussed above, the Legislature clearly 

expressed an intent to apply the culpability requirement stated 

as to one element to each other material element. N.J.S.A.

2C:2-2(c)(1). “[O]ur goal is to discern and implement the 
19

intent of the Legislature.” Smith, supra, 197 N.J. at 332. The 

State was therefore required to prove defendants were knowingly 

at an educational facility in order to obtain a conviction under 

N.J.S.A. 2C:39-5(e)(1). Accordingly, we find the jury 

instructions with respect to defendants’ convictions under 

N.J.S.A. 2C:39-5(e)(1) warrant reversal, and we are constrained 

to vacate those convictions and remand for resentencing on the 

unlawful possession charges. 

Having determined that remand for resentencing is 

necessary, we next address defendants’ sentencing arguments.

III.

A.

Defendants, joined by the ACLU, contest the imposition of 

their mandatory minimum terms of imprisonment under N.J.S.A.

2C:39-5(i). That statute requires the sentencing court to 

impose a period of parole ineligibility “if the court finds” a 

substantial likelihood that the defendant is involved in 

organized criminal activity.

Defendants and amici rely principally on Alleyne, supra, 

which provides that “any fact that increases the mandatory 

minimum sentence is an ‘element’ that must be submitted to the 

jury” to be found beyond a reasonable doubt. ___ U.S. at ___, 

133 S. Ct. at 2156, 186 L. Ed. 2d at 321 (overruling Harris v. 

United States, 536 U.S. 545, 122 S. Ct. 2406, 153 L. Ed. 2d 524 
20

(2002)). Applying Alleyne’s holding to N.J.S.A. 2C:39-5(i), 

defendants contend that the imposition of mandatory minimum 

sentences based upon a judicial finding that they were involved 

in organized crime violated their Sixth Amendment rights.1

The State, joined by the Attorney General, concedes that 

Alleyne renders N.J.S.A. 2C:39-5(i) unconstitutional as written. 

Nevertheless, the State asks this Court to graft onto N.J.S.A.

2C:39-5(i) a requirement that a jury find that a defendant was 

involved in organized criminal activity before requiring the 

imposition of a mandatory minimum prison term.

B.

We agree with defendants that Alleyne renders the 

imposition of a mandatory minimum sentence under N.J.S.A. 2C:39-

5(i) unconstitutional. Further, there is no dispute that 

Alleyne, which was decided during the pendency of defendants’

appeal, applies to defendants’ convictions. See State v. 

Wessells, 209 N.J. 395, 412 (2012) (“[I]t is now wellestablished that ‘a new rule for the conduct of criminal 

prosecutions is to be applied retroactively to all cases, state 

 

1 To the extent that Cromwell also challenges application of 

aggravating factor five, N.J.S.A. 2C:44-1(a)(5) (substantial 

likelihood that defendant is involved in organized criminal 

activity), we note that a sentencing court may consider this 

factor when deciding what sentence to impose within the 

statutory range. Post at ___ (slip op. at 24) (citing State v. 

Natale, 184 N.J. 458, 472, 481-82 (2005)).
21

or federal, pending on direct review or not yet final, with no 

exception for cases in which the new rule constitutes a “clear 

break” with the past.’” (quoting Griffith v. Kentucky, 479 U.S.

314, 328, 107 S. Ct. 708, 716, 93 L. Ed. 2d 649, 661 (1987))). 

The question thus becomes whether it is within this Court’s 

purview to amend the statute as the State requests.2

Given the clear statement of legislative intent in N.J.S.A.

2C:39-5(i), we decline the State’s invitation to perform 

“judicial surgery.” We acknowledge that, “[i]n appropriate 

cases, a court has the power to engage in judicial surgery or

the narrow construction of a statute to free it from 

constitutional doubt or defect.” State v. Fortin, 198 N.J. 619, 

630 (2009) (quoting N.J. State Chamber of Commerce v. N.J. 

Election Law Enforcement Comm’n, 82 N.J. 57, 75 (1980)) 

(internal quotation marks omitted). However, this procedure 

applies only “if we fairly can do so.” Id. at 631.

In State v. Natale, 184 N.J. 458 (2005), we considered the 

constitutional validity of our sentencing statutes providing for 

the imposition of a sentence beyond the presumptive statutory 

 

2 Additionally, the State and amici raise numerous preemptory 

arguments with respect to the constitutional validity of the 

discretionary parole disqualifier under N.J.S.A. 2C:43-6(b) and 

certain applications of the Graves Act not applicable to this 

case. Because defendants were not sentenced under either of 

those provisions, we decline to address those arguments here. 

See State v. Nero, 195 N.J. 397, 412 n.5 (2008).
22

term based on a judicial finding of one or more aggravating 

factors. We held that our sentencing provisions allowing for 

the imposition of a sentence beyond that which is allowed by the 

jury verdict violated the Sixth Amendment, as expressed in 

Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed.

2d 403 (2004). Natale, supra, 184 N.J. at 481-82. In striking

the pertinent sentencing provisions, we preserved the judge’s 

discretion to balance the aggravating and mitigating factors in 

considering the appropriate sentence within the applicable 

statutory range. Id. at 488.

Here, N.J.S.A. 2C:39-5(i) unambiguously requires the 

imposition of a mandatory minimum sentence based on a judicial 

finding of fact. Requiring a jury rather than a judge to make 

such a finding would not merely be severing a constitutionally 

infirm portion of the sentencing statute, it would be rewriting 

its essential requirements. There is no ambiguity in the 

statute from which we can “assum[e] that the Legislature 

intended to act in a constitutional manner.” Right to Choose v. 

Byrne, 91 N.J. 287, 311 (1982). It is unclear “‘whether the 

Legislature would want the statute to survive with appropriate 

modifications rather than succumb to constitutional 

infirmities.’” State v. Emmons, 397 N.J. Super. 112, 122 (App. 

Div. 2007) (quoting Byrne, supra, 91 N.J. at 311), certif. 
23

denied, 195 N.J. 421 (2008). Thus, that determination is for 

the Legislature. 

Because judicial rehabilitation is not an option, we are 

compelled to vacate defendants’ sentences and remand for 

resentencing for the unlawful possession convictions, without 

consideration of the mandatory minimum sentence under N.J.S.A.

2C:39-5(i) and without the empaneling of a sentencing jury, as 

the State requests. 

IV.

In addition to the Alleyne issue discussed above, Grate 

disputes the trial court’s assessment of the aggravating and 

mitigating factors in his conviction for unlawful possession of 

a handgun. Specifically, Grate contends there was insufficient 

evidence to support the court’s finding of aggravating factors 

three, the risk that he will reoffend, N.J.S.A. 2C:44-1(a)(3); 

five, the substantial likelihood that he is involved in 

organized criminal activity, N.J.S.A. 2C:44-1(a)(5); and nine, 

the need for deterrence, N.J.S.A. 2C:44-1(a)(9).

It is well-established that appellate courts review the

trial court’s “sentencing determination under a deferential 

standard of review.” State v. Lawless, 214 N.J. 594, 606 (2013)

(citing State v. Cassady, 198 N.J. 165, 180 (2009); State v. 

O’Donnell, 117 N.J. 210, 215 (1989)). We are “bound to affirm a 

sentence, even if [we] would have arrived at a different result, 
24

as long as the trial court properly identifies and balances 

aggravating and mitigating factors that are supported by 

competent credible evidence in the record.” Ibid. (internal 

quotation marks and citations omitted).

Here, there was ample evidence supporting the trial court’s 

findings. Grate’s presentence report shows that he had been 

charged with numerous indictable offenses on eight prior 

occasions. Those charges resulted in two downgraded 

convictions, the first for violent behavior and the second for 

simple assault. In connection with the current offense, the 

court’s finding that defendant was at a high risk to recidivate 

was sound. Further, as the court noted, “handguns on a college 

campus . . . is a dangerous situation, and absolutely cannot be 

tolerated.” Accordingly, we find no basis to overturn the 

court’s findings with respect to aggravating factors three and 

nine.

We reiterate that a judicial finding of aggravating factor 

five cannot be the basis of a mandatory minimum sentence. The 

sentencing court may nevertheless consider this factor when 

deciding what sentence to impose within the statutory range. 

See Natale, supra, 184 N.J. at 472, 481-82 (“A judge is 

authorized to impose a sentence within the range allowed by the 

jury verdict[.]”). There was more than enough evidence 

supporting the judge’s finding with respect to aggravating 
25

factor five. Corporal Santana testified that Grate admitted to 

being a member of the “5 Deuce Hoova Crip” street gang, and that 

he had “body brandings” and a tattoo that identified him as a 

member of that street gang. Based on this testimony, it was not 

an abuse of discretion to find defendant was substantially 

likely to have been involved in organized crime. 

Grate also argues the sentencing court abused its 

discretion in failing to consider evidence in support of 

mitigating factors one, that he did not cause or threaten 

serious harm, N.J.S.A. 2C:44-1(b)(1), and two, that he did not 

contemplate that his conduct would cause or threaten serious 

harm, N.J.S.A. 2C:44-1(b)(2). The sentencing court is required 

to consider evidence of a mitigating factor and must apply 

mitigating factors that “are amply based in the record.” State 

v. Dalziel, 182 N.J. 494, 504-05 (2005); see also State v. Hess, 

207 N.J. 123, 155 n.8 (2011) (noting same). Grate, however, 

presents no evidence in support of his claim. In light of the 

nature of the offense, we see no abuse of discretion in failing 

to consider these mitigating factors.

Accordingly, with the exception of the mandatory minimum 

sentence imposed pursuant to N.J.S.A. 2C:39-5(i), we affirm 

Grate’s sentence. 

V.
26

For the foregoing reasons, the judgment of the Appellate 

Division affirming defendants’ convictions for unlawful 

possession of a weapon at an educational facility is reversed. 

We remand for a new trial on the charge of unlawful possession 

of a weapon at an educational facility, and for resentencing 

consistent with this opinion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, PATTERSON, 

and FERNANDEZ-VINA; and JUDGE CUFF (temporarily assigned) join 

in JUSTICE SOLOMON’s opinion.
SUPREME COURT OF NEW JERSEY

NO. A-47/48 SEPTEMBER TERM 2013

ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JAMES GRATE,

Defendant-Appellant.

_______________________________

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FUQUAN CROMWELL, (a/k/a

FUGUAN CROMWELL, FUQUAN A.

CROMWELL, SAMAAD CROMWELL,

SAMAD CROMWELL, SAMAAD

LATHER, SAMADD N. J.L.,

SAMAAD N. LATHER),

Defendant-Appellant.

DECIDED January 15, 2015

Chief Justice Rabner PRESIDING

OPINION BY Justice Solomon

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY 

CHECKLIST

AFFIRM IN PART/

REVERSE IN PART/

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA X

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 7