                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-4417-14T1


STATE OF NEW JERSEY,                     APPROVED FOR PUBLICATION

      Plaintiff-Appellant,                      March 22, 2016

v.                                         APPELLATE DIVISION


GARY TWIGGS,

     Defendant-Respondent.
________________________________

           Submitted February 9, 2016 – Decided March 22, 2016

           Before Judges Reisner, Leone and Whipple.

           On appeal from Superior Court of New Jersey,
           Law Division, Cape May County, Indictment
           No. 14-12-01014.

           John J. Hoffman, Acting Attorney General,
           attorney for appellant (Joseph A. Glyn,
           Deputy Attorney General, of counsel and on
           the brief).

           Cooper   Levenson,     P.A.,  attorneys          for
           respondent (Steven     E. Rosenfeld, on          the
           brief).

      The opinion of the court was delivered by

WHIPPLE, J.A.D.

      The State appeals from an April 27, 2015 order dismissing

an   indictment   charging   defendant   with    conspiracy       to   commit

robbery.   The trial court dismissed the indictment because the
State initiated its prosecution beyond the time permitted by the

criminal statute of limitations, N.J.S.A. 2C:1-6.                            Contrary to

the   State's       argument,       we   hold      that    the     statutory      tolling

provision     in    N.J.S.A.       2C:1-6,       for    situations      in    which    "the

actor" is identified by means of DNA evidence, refers to the

individual whose DNA is analyzed.                  It does not apply to a third

party identified by that individual.                    Consequently, we affirm.

                                           I.

      We discern the following facts from the record.                            On June

16, 2009, defendant met S.T.1 in a Wildwood Crest parking lot to

purchase 150 tablets of prescription painkillers.                            As defendant

and   S.T.    talked    in    the    parking       lot,    a     man   wearing    a    mask

approached, pointed a handgun at S.T. and defendant, and ordered

them into defendant's vehicle.               After defendant and S.T. entered

the vehicle, the masked man demanded their money, cell phones,

and the drugs that S.T. was about to sell to defendant.                               After

the   man    left    with    the    money,       cell    phones,       and   drugs,    S.T.

attempted to chase him on foot but was unable to apprehend the

masked gunman.

      S.T. reported the robbery of his money and cell phone to

the   Wildwood      Crest    Police      Department       (the    Department),        which


1
  In the context of this case, S.T. was a crime victim, and his
identity is irrelevant to our decision.



                                             2                                   A-4417-14T1
initiated an investigation.            Several officers went to the scene

of the crime and found a mask and gloves, which S.T. identified

as belonging to the gunman.             The officers submitted the gloves

and mask to the New Jersey State Police DNA Laboratory (the DNA

Lab), which extracted and analyzed DNA samples from hair found

on    the    articles    found   at    the    scene.      No   DNA   matches     were

available in the DNA Lab's database at that time, however.                         The

DNA    Lab    entered     the    DNA    profile      into      the   Combined      DNA

Information System (CODIS).

       Meanwhile,       S.T.    and    defendant     submitted       to   multiple

interviews at the Department.                 During these interviews, S.T.

admitted to police that he and defendant had met for the purpose

of conducting a drug sale.             Defendant denied S.T.'s account of

the incident, leading police to suspect that he was involved in

the robbery.      S.T. also told police that he personally believed

defendant was involved in planning the robbery.                      After sending

the mask and gloves to the DNA lab for inspection in July 2010,

the Department did not receive any further evidence until 2014.

       On July 2, 2014, the Department received information from

the DNA Lab that it had matched DNA from the crime-scene with

DNA   taken    from     Dillon   Tracy       after   he     was   arrested     for    a

different offense in 2014.               Tracy's DNA profile matched the

profile of the hair on the mask found in 2009, which the DNA Lab




                                         3                                   A-4417-14T1
had entered into CODIS.          Upon receiving this information, the

Department obtained a warrant to take a DNA sample from Tracy.

Defendant's DNA was not found or matched with a CODIS sample at

any point during this investigation.

    When officers met with Tracy on July 19, 2014, he initially

refused to discuss the 2009 robbery.               However, on September 16,

2014, Tracy told police that he was the masked gunman who robbed

defendant    and   S.T.      Tracy   also       told   police    that   defendant

arranged the robbery so they could both share in the drugs that

Tracy planned to steal.        Tracy told police he stole defendant's

money and cell phone to make defendant appear to be a victim,

and that he threw his gun away after the robbery was completed.

Defendant was arrested on September 17, 2014 and charged with

conspiracy.

    On December 2, 2014, the grand jury indicted defendant and

Tracy.      The indictment charged both defendant and Tracy with

second-degree conspiracy under N.J.S.A. 2C:5-2a to commit first-

degree   robbery      in   violation       of    N.J.S.A.       2C:15-1a.         The

indictment     also    charged    Tracy         with   first-degree      robbery,

N.J.S.A. 2C:15-1a; unlawful possession of a handgun, N.J.S.A.

2C:39-5b; and possession of a firearm for an unlawful purpose,

N.J.S.A. 2C:39-4a.         Tracy subsequently pled guilty to each of

these charges.     On January 22, 2015, defendant filed a motion to




                                       4                                    A-4417-14T1
dismiss the indictment on the basis that the State's claim was

barred by the general criminal statute of limitations.                           The

trial court heard argument on the motion on April 14, 2015 and

granted     defendant's     motion    to     dismiss    because      the      State

initiated its prosecution outside of the time permitted by the

statute    of   limitations.         The    trial    judge   found    that       the

prosecution was initiated more than five years after the June

16, 2009 incident because the grand jury proceeding did not

start until December 2, 2014.         The State appealed.

    The State raises a single issue on appeal:

            THE TRIAL COURT'S RULING THAT THE STATUTE OF
            LIMITATIONS WAS NOT TOLLED WAS INCORRECT AND
            THIS COURT SHOULD REINSTATE DEFENDANT'S
            INDICTMENT.

                                      II.

    We review the trial court's dismissal of the indictment de

novo.     A trial court's "interpretation of the law and the legal

consequences that flow from established facts are not entitled

to any special deference."           State v. Pomianek, 221 N.J. 66, 80

(2015) (quoting Manalapan Realty v. Manalapan Twp. Comm., 140

N.J. 366, 378 (1995)).

    The      sole   issue      on     appeal    is     the    trial        court's

interpretation of N.J.S.A. 2C:1-6(c), the criminal statute of

limitations.     When interpreting statutes, our "overriding goal

is to give effect to the Legislature's intent."               State v. D.A.,



                                       5                                   A-4417-14T1
191 N.J. 158, 164 (2007) (citing DiProspero v. Penn, 183 N.J.

477, 492 (2005)).           The best indicator of that intent is "the

plain [statutory] language chosen by the Legislature."                      State v.

Perry, 439 N.J. Super. 514, 523 (App. Div.), certif. denied, 222

N.J.    306    (2015)   (citing   State       v.   Gandhi,   201    N.J.    161,   176

(2010)).       We thus read the text of a statute in accordance with

its ordinary meaning unless otherwise specified.                         Ibid.; see

also    N.J.S.A.    1:1-1    (explaining       that    "words     and   phrases    [in

statutes] shall be read and construed with their context, and

shall,    unless    inconsistent    with        the    manifest    intent    of    the

legislature or unless another or different meaning is expressly

indicated, be given their generally accepted meaning, according

to the approved usage of the language.").

       In cases where a plain reading of the statute "leads to a

clear    and    unambiguous    result,        then    the   interpretive     process

should end, without resort to extrinsic sources."                       D.A., supra,

191 N.J. at 164 (citation omitted).                    If, however, the plain

language of the statute is ambiguous, we may turn to extrinsic

evidence to determine the Legislature's intent in enacting the

statute.       Ibid.     Turning to such extrinsic evidence is also

necessary if a plain reading of a statute renders an absurd

result at odds with the Legislature's intent.                      Ibid.     (citing

DiProspero, supra, 183 N.J. at 492); State v. Williams, 218 N.J.




                                          6                                  A-4417-14T1
576, 586 (2014) (citation omitted).                 Such extrinsic evidence

includes     "legislative       history,       committee           reports,       and

contemporaneous construction."             DiProspero, supra, 183 N.J. at

492-93 (quoting Cherry Hill Manor Assocs. v. Faugno, 182 N.J.

64,   75   (2004)).    Such    evidence      aids    us    in    elucidating      the

Legislature's intent.         We may not "rewrite a statute or add

language that the Legislature omitted."                   State v. Munafo, 222

N.J. 480, 488 (2015) (citations omitted).

      Finally, in criminal cases where the statutory language is

ambiguous and extrinsic evidence is unhelpful in determining the

Legislature's intent in enacting the statute, we apply the rule

of lenity.     We note that all penal statutes are to be strictly

construed.     D.A.,   supra,    191   N.J.     at    164       (citing   State    v.

Valentin, 105 N.J. 14, 17 (1987)).            In so doing, where ambiguity

in statutory language persists after reference to the statute's

language and extrinsic evidence, we resolve the ambiguity "in

favor of anyone subjected to [that] criminal statute."                        Ibid.

(citations omitted).

                                   III.

      N.J.S.A. 2C:1-6 provides the time limitations within which

a prosecution for a crime must be commenced.                The crime at issue

here is conspiracy to commit robbery.                Because the statute of

limitations does not provide a separate limitations period for




                                       7                                   A-4417-14T1
conspiracy crimes, the general limitations period applies.                    The

State    must   thus    commence   a    prosecution      against   a    criminal

defendant within five years of the date that each element of the

crime has been completed.          N.J.S.A. 2C:1-6(b)(1),(c).           N.J.S.A.

2C:1-6(c), however, provides an exception to the categorical bar

against prosecution of such crimes after the passage of five

years.    Specifically, the statute provides that

            [t]ime starts to run on the day after the
            offense is committed, except that when the
            prosecution   is   supported   by   physical
            evidence that identifies the actor by means
            of DNA testing or fingerprint analysis, time
            does not start to run until the State is in
            possession of both the physical evidence and
            the DNA or fingerprint evidence necessary to
            establish the identification of the actor by
            means   of   comparison   to  the   physical
            evidence.

    The State asserts that this exception applies here, because

defendant's     prosecution      was    the     result    of   obtaining      DNA

evidence.       The    State   argues   that     the   exception   tolled     the

commencement of the statute of limitations period.                     The State

argues that the exception overrides the five-year limitations

period.    We disagree.

                                        A.

    We first read the plain language of N.J.S.A. 2C:1-6(c) to

derive the Legislature's intent in enacting the statute.                  Perry,

supra, 439 N.J. Super. at 523.               The language of N.J.S.A. 2C:1-




                                        8                               A-4417-14T1
6(c) supports defendant's reading of the statutory exception:

that it only applies to persons whose DNA directly identifies

them as criminal actors, and does not apply to those who are

later named by those same criminal actors.                              First, the statutory

language at issue specifically refers to the identification of

"the actor."       The term "actor" in this case refers only to an

individual      who     committed          a     criminal             offense,     and    who    is

"identifie[d]      .   .    .   by    means          of    DNA    testing     or    fingerprint

analysis."      N.J.S.A. 2C:1-6(c).                   The natural and plain reading

of this language is that the exception only applies to those

criminal offenders who are directly identified by such evidence.

See State v. Gelman, 195 N.J. 475, 482 (2008) (explaining that

we    give   statutes       "their     ordinary            and        commonsense       meaning.")

(citing DiProspero, supra, 183 N.J. at 492).

       This reading is supported by other language in the statute.

N.J.S.A. 2C:1-6(c) provides that the statute's time limitations

do not begin to run "until the State is in possession of both

the    physical    evidence          and       the    DNA        or    fingerprint       evidence

necessary to establish the identification of the actor by means

of    comparison       to    the     physical             evidence."             This    language

demonstrates that the Legislature intended for the exception to

apply    when   DNA     evidence       could          be    compared       against       physical

evidence to establish the identity of a criminal offender.                                       In




                                                 9                                        A-4417-14T1
this case, there is no such physical evidence or DNA evidence

establishing defendant's identity as a criminal offender; the

only evidence that the State derived from the DNA evidence was

Tracy's identity, and, subsequently, his confession that he and

defendant conspired to commit robbery.           There is no physical

evidence    implicating   defendant    against   which    to   compare   DNA

evidence, and accordingly, the statute forecloses tolling the

statute of limitations for a prosecution against defendant.

    We note here that, had there been no DNA evidence in this

case, no exception to the statutory limitations period would

apply.     We cannot discern any legislative intent to relax the

limitations period merely because a person identified by DNA

evidence implicates a third party in a confession, when that

third party's involvement is not itself supported by direct DNA

evidence.     To hold otherwise would be to override the entire

limitations period for any party accused of a crime when any

single defendant names another party in a confession.              We thus

reject the State's argument.

                                  B.

    Although     the   plain   language    of    the     statute   supports

defendant's interpretation of the statute, we also examine the

extrinsic evidence in light of the State's argument that the

plain language of the statute is ambiguous.                When examining




                                  10                               A-4417-14T1
extrinsic evidence, we may look to several sources to clarify

the   Legislature's   intent   in   enacting    a   statute,   "including

legislative   history,    committee      reports,   and   contemporaneous

construction."   DiProspero, supra, 183 N.J. at 492-93 (quoting

Faugno, supra, 182 N.J. at 75).

      N.J.S.A. 2C:1-6 was first enacted in 1978.           The exception

to the statute of limitations pertinent to this appeal was first

introduced in 2000; the exception was enacted by the Assembly

and Senate in 2002.      A. 2658, 209th Leg. (N.J. 2002); S. 1516,

209th Leg. 2d Sess. (N.J. 2002).           Both versions contained the

same language now reflected in N.J.S.A. 2C:1-6(c), which amended

the statute to read as follows:

          [E]xcept   that  when   the  prosecution   is
          supported    by   physical   evidence    that
          identifies the actor by means of DNA testing
          or fingerprint analysis, time does not start
          to run until the State is in possession of
          both the physical evidence and the DNA or
          fingerprint evidence necessary to establish
          the identification of the actor by means of
          comparison to the physical evidence.

          [Ibid.]

      This language, ultimately included in the statute, replaced

other language introduced earlier in the amendment's life cycle.

The earlier proposed language read as follows:

          Notwithstanding the provisions of N.J.S.
          2C:1-6 or any other law to the contrary, if
          the identity of the person who commits a
          crime is unknown when the crime is committed



                                    11                           A-4417-14T1
            and physical evidence is collected which can
            be tested for its DNA characteristics and
            used to identify the person who committed
            the crime, a prosecution for the crime may
            be commenced at any time.

            [S. 1516, 209th Leg., 1st Sess. (2000).]

The most specific indication of the Legislature's intent in this

case   is   the     statement       accompanying          the    amendment       that     the

Legislature       passed.      The    statement           accompanying      the    earlier

language     provided        that     "[t]his           bill     would     remove        time

limitations on the prosecution of crimes when the person who

committed the crime is unknown at the time, but DNA evidence

collected at the crime scene can be used to identify the person

at a later date."           Sponsors' Statement to S. 1516 (Sept. 14,

2000).      The     substitute      version        of    the    amendment,       which    was

ultimately adopted, was accompanied by a new sponsors' statement

which provided that the substituted amendment would "toll the

applicable statute of limitations for the commission of a crime

in certain cases until the State is in possession of DNA or

fingerprint       evidence      taken       from        the    suspect."         Sponsors'

Statement to S. 1516 (Jan. 3, 2002).                      No other amendment to the

DNA evidence exception to the statute of limitations has since

been proposed or enacted.

       In   using     extrinsic         evidence          to    interpret        statutory

language,     our     Supreme       Court     has        cautioned       that,    although




                                            12                                     A-4417-14T1
helpful, such evidence has limitations.                        DiProspero, supra, 183

N.J. at 499 (citing Deaney v. Linen Thread Co., 19 N.J. 578,

584-85 (1955)).        Such evidence represents the will of only a few

lawmakers,       and    may     also    be    "contradictory,            ambiguous,      or

otherwise    without        substantial      probative         value    in   determining

legislative meaning."           Ibid.    (quoting Deaney, supra, 19 N.J. at

584-85).     Accordingly,         the   court          must     exercise     "considered

judgment" when considering such evidence.                      Ibid.

       In this case, we conclude that the legislative history of

N.J.S.A. 2C:1-6(c) supports the defendant's interpretation of

the    statute.        Although    there      are      competing       versions   of    the

legislative history, we focus on the 2001 sponsors' substituted

statement, which accompanied the amendment adopted by both of

our    State's    legislative      bodies.             The    legislative     intent     in

passing the bill, according to the substituted statement, was to

"toll the applicable statute of limitations for the commission

of a crime in certain cases until the State is in possession of

DNA or fingerprint evidence taken from the suspect."                           Sponsors'

Statement to S. 1516 (Jan. 3, 2002) (emphasis added).                                  This

language clearly demonstrates that the Legislature intended for

the exception to apply when DNA evidence directly identifies a

suspect, and not when DNA implicates another suspect, who in

turn    implicates      a     defendant.          In    this    case,    there    was    no




                                             13                                   A-4417-14T1
evidence "taken" from defendant; the DNA evidence and physical

evidence in this case only identified Tracy as a criminal actor.

The    legislative     intent     in    this      case     mirrors    the   meaning      we

gleaned from the plain text: the DNA evidence exception only

applies when the DNA evidence can be compared against physical

evidence     that    directly     identifies         a    defendant    as   a   criminal

actor.

       Although the language of the original sponsor's statement

and    the   substituted       statement          changed     before    the     ultimate

enactment of the DNA exception, the substituted language does

not defeat this reading.               The original sponsors' statement was

more     specifically       focused     on     the       criminal    defendant     in     a

particular criminal case than the current language, noting that

"[t]his bill would remove time limitations on the prosecution of

crimes when the person who committed the crime is unknown at the

time, but DNA evidence collected at the crime scene can be used

to identify the person at a later date."                     Sponsors' Statement to

S. 1516 (Sept. 14, 2000) (emphasis added).                        The language in the

current statement, however, does not shift the focus of the

statute away from the suspect; rather, the substituted language

specifically        notes   the   time       at   which     the     exception    to     the

statute of limitations is triggered.                     See Sponsors' Statement to

S. 1516 (Jan. 3, 2002) (noting that the exception only triggers




                                             14                                 A-4417-14T1
when the State is "in possession of DNA or fingerprint evidence

taken from the suspect.").            We accordingly conclude that the

legislative      history   supports    the    trial    judge's     reading   of

N.J.S.A. 2C:1-6(c).2

       The State relies on State v. Rumblin, 166 N.J. 550 (2001),

arguing   that    Rumblin's   construction     of     the   term   "actor"   in

another section of the Criminal Code would provide a broad scope

under which the DNA exception to the statute of limitations

would operate.

       We reject the State's argument.           In Rumblin, our Supreme

Court explained how provisions of N.J.S.A. 2C:43-7.2 (the No

Early Release Act (NERA)) interacted with accomplice liability

provisions in our criminal code.             Rumblin, supra, 166 N.J. at

551.    The Court explained that the term "actor" was synonymous

with the term "defendant" for purposes of NERA, which includes

those who did not directly perpetrate criminal activity.                Id. at


2
  We note an additional practical consideration which supports
the logic of this statutory construction.     The reliability of
DNA evidence justifies tolling the statute of limitations for an
actor whose DNA is later implicated as evidence of a crime. See
State v. Harvey, 151 N.J. 117, 158-59 (1997) (explaining that
DNA is generally reliable evidence that remains durable over an
extended period of time).     This rationale, however, does not
apply with respect to a third party whom that criminal actor
implicates   by   confession;   a  co-defendant's   incriminating
statements about a third party are not rendered significantly
more reliable by DNA evidence of the co-defendant's guilt.




                                      15                              A-4417-14T1
556.      The State's reliance on Rumblin, however, is misplaced

because of the different contexts of the word "actor" in each

statute.3     In NERA, the word "actor" is placed next to words in

which accomplices could easily be understood to be actors; for

example, NERA would apply to actors who "cause" death, or an

actor who engages in criminal enterprise with others.                N.J.S.A.

2C:43-7.2.     As the Court noted in Rumblin, such a definition is

plausible when "viewing the term in its proper syntax[.]"                    166

N.J. at 556.

       The syntactical usage of the term "actor" is not the same

in the contexts of NERA and N.J.S.A. 2C:1-6(c).               NERA subjected

convicted criminal defendants to an eighty-five percent parole

disqualifier if a criminal "actor" caused death, serious bodily

injury,     used   or   threatened   the   use   of   a   deadly   weapon,    or

committed aggravated sexual assault.             Rumblin, supra, 166 N.J.

at 553.     The Rumblin Court's focus on the word "actor" led it to

conclude that the terms "actor" and "defendant" were synonymous

for NERA purposes only.          Id. at 555-56.           The focus of the

3
  NERA has been amended since our Supreme Court announced its
decision in State v. Rumblin, and the text no longer contains
the term "actor."     In amending the statute, the Legislature
noted in its Statement that the purpose of the amendment was to
"specifically enumerate those violent first and second degree
crimes" to which NERA must be applied. Assembly Law and Public
Safety   Committee's   Statement  to   A.B.  No.   3201   (2001).
Accordingly, we refer to the 2000 version of NERA when
considering the context of the word "actor" for NERA purposes.



                                      16                              A-4417-14T1
Court's inquiry was whether an "actor" could only be a principal

in a crime, or if an accomplice to a crime could also be an

"actor" for NERA purposes.                 Ibid.     Such construction is sound

given the syntactical use of the word "actor" in NERA; the term

"actor"     generally      refers     to    all    those    involved    in     criminal

activity in the NERA context.

       N.J.S.A. 2C:1-6(c) uses the term "actor" in a different

context, both syntactically and lexicologically.                      In the context

of the statute of limitations, the term "actor" is used directly

in    conjunction       with   phrases     discussing       the   identification       of

that actor "by means of DNA testing or fingerprint analysis," or

"by means of comparison to the physical evidence."                           The use of

the phrase "actor" in this instance is more specific than the

use    of   the   term    in   NERA    and       Rumblin,    supra.     Rather      than

referring generally to those who perpetrate violent crime, an

"actor" in this instance is a person who is directly identified

by DNA evidence and physical evidence.                  Despite the construction

in    Rumblin,    the    two   uses   of     the    term    "actor"    are    different

enough to merit two different analyses because of the separate

contexts in which the statutes operate.                     Accordingly, we reject

the State's argument in this regard.




                                            17                                  A-4417-14T1
                                            C.

      Finally, although we need not reach the issue of the rule

of lenity, we comment briefly on its application.                           The Supreme

Court has provided that all penal statutes are to be strictly

construed.      D.A.,       supra,    191    N.J.     at    164   (citing     Valentin,

supra, 105 N.J. at 17).              We apply standard canons of statutory

interpretation when construing such statutes, and we resolve any

ambiguity in a criminal statute "in favor of anyone subjected to

[that] criminal statute."            Ibid.       (citations omitted).          The rule

of   lenity    only    applies       when    the    statutory        text    itself    is

ambiguous,     and    the    use     of   extrinsic        aids   has   not    provided

guidance.     Ibid.    Accordingly, it only applies when other canons

of statutory interpretation fail to yield a clear result.

      The rule of lenity would foreclose us from adopting the

State's reading of N.J.S.A. 2C:1-6(c) if any ambiguity remained

after analyzing the plain statutory text and available extrinsic

evidence.     The    trial    court's       reading       of   the   statute    is    the

narrowest reading available because it strictly limits the use

of   DNA   evidence     to    persons       who     the    DNA    evidence     directly

identifies; such a reading does not permit the State to initiate

prosecutions against those who are not directly implicated in

criminal activity by DNA evidence.

      Affirmed.




                                            18                                 A-4417-14T1
LEONE, J.A.D., dissenting.

    This   case    involves    the   interpretation    of   N.J.S.A.    2C:1-

6(c), in particular its use of the term "the actor."              I dissent

because I cannot square the majority opinion's reasoning with

the Supreme Court's interpretation of the term "the actor" in

State v. Rumblin, 166 N.J. 550 (2001).

    The Court in Rumblin had before it the original No Early

Release   Act.     N.J.S.A.    2C:43-7.2   (1997)     (hereinafter     NERA).

NERA required courts to impose a minimum parole ineligibility

term of 85% of the sentence "if the crime is a violent crime as

defined in subsection d. of this section."                  N.J.S.A.   2C:43-

7.2(a) (1997).     NERA defined a "violent crime" as "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."              N.J.S.A. 2C:43-7.2(d)

(1997) (emphasis added).

    Like defendant here, the defendant in Rumblin helped to

plan an armed robbery that was carried out by somebody else.

Rumblin, supra, 166 N.J. at 552-53.         The co-defendants carried,

threatened the use of, and used guns to pistol-whip and injure

the victim.      Id. at 553.    The defendant argued that "NERA does

not apply to unarmed accomplices because NERA limits its scope
to the 'actor' who causes death or serious bodily injury or uses

or threatens the use of a deadly weapon."                   Id. at 553 (quoting

N.J.S.A. 2C:43-7.2(d) (1997)).

    Our Supreme Court in Rumblin "h[e]ld that NERA applies to

unarmed   accomplices."         Id.    at    557.     The    Court       "reject[ed]

defendant's contention that because NERA uses the word 'actor,'

NERA does not apply to accomplices" under N.J.S.A. 2C:2-6(b).

Id. at 555.     The Court pointed out that "[t]he New Jersey Code

of Criminal Justice, N.J.S.A. 2C:1-1 to 104-9, uses the word

'actor' in at least eighty-seven subsections and in at least

seventy additional subparts."               Id. at 555 & n.1.             The Court

explained that "[i]n examining the statutory definition of the

word 'actor,' as well as viewing the term in its proper syntax,

it becomes clear that 'actor' is intended as a synonym for a

defendant regardless of whether he or she acts as a principal or

an accomplice."       Id. at 555-56 (emphasis added) (citing N.J.S.A.

2C:1-14(e), (g), and (j), and N.J.S.A. 2C:14-1(a)).                       The Court

concluded     "that    the    word    'actor'       refers    to    a     defendant-

perpetrator    of     an   offense    and   includes    both       principals     and

accomplices."       Id. at 556 (emphasis added).

    Thus, our Supreme Court in Rumblin held that "the actor"

was synonymous with "a defendant."             Id. at 555-56.           Applying the




                                        2                                   A-4417-14T1
Court's definition of "the actor" to N.J.S.A. 2C:1-6(c), that

section would read:

            when   the   prosecution   is  supported  by
            physical   evidence    that   identifies  [a
            defendant] by means of DNA testing or
            fingerprint analysis, time does not start to
            run until the State is in possession of both
            the physical evidence and the DNA or
            fingerprint evidence necessary to establish
            the identification of [a defendant] by means
            of comparison to the physical evidence.

    Under    that   reading,    N.J.S.A.    2C:1-6(c)    would    permit     the

prosecution here.     The December 2, 2014 indictment charged both

defendant and Tracy with second-degree conspiracy under N.J.S.A.

2C:5-2(a)    to   commit     first-degree    robbery     in   violation       of

N.J.S.A. 2C:15-1(a).         Because the prosecution of defendant is

supported   by    physical    evidence   (the   mask    bearing   DNA)     that

identifies a defendant (Tracy) by means of DNA testing, the time

for prosecution would not start to run until the State was in

possession of both the physical evidence and the DNA evidence

necessary to establish the identification of a defendant (Tracy)

by comparison to the physical evidence.

    Using the Supreme Court's definition of "the actor" here is

also supported by the other statutory sources cited by the Court

to justify its holding.         Rumblin, supra, 166 N.J. at 555-56.

First,   N.J.S.A.   2C:2-6    provides   that   "[a]    person    is   legally

accountable for the conduct of another person" whether "[h]e is




                                     3                                 A-4417-14T1
an accomplice of such other person" or "[h]e is engaged in a

conspiracy with such other person."                      N.J.S.A. 2C:2-6(b)(3), (4).

As    "the    word    'actor'     .    .    .       includes    both     principals        and

accomplices," Rumblin, supra, 166 N.J. at 556, then it also

includes conspirators.             See, e.g., State v. Harris, 141 N.J.

525, 548 (1995) (discussing whether "the actor's role was that

of    principal,      accomplice,          or    co-conspirator").            Like        NERA,

N.J.S.A.      2C:1-6(c)       "does         not       differentiate"          based       upon

classifications          between        "principal             and      accomplice"         or

conspirator.         See Rumblin, supra, 166 N.J. at 556.

       Second, the statutory definitions of the word "actor" are

not   limited    to     the    person       who      acts.       N.J.S.A.      2C:1-14(e)

("'Actor'      includes,      where        relevant,       a    person    guilty      of    an

omission[.]");         N.J.S.A.       2C:1-14(g)         ("'actor'       include[s]        any

natural person").          N.J.S.A. 2C:14-1(a) defines "the actor" in

sex offenses as "a person accused of an offense proscribed under

this act."       Substituting that definition for "the actor" in

N.J.S.A. 2C:1-6(c) would similarly permit the prosecution here.

       Using the Supreme Court's definition of "the actor" here is

further supported because the Court reached that definition by

citing and examining all of the provisions using and defining

"actor" in the "New Jersey Code of Criminal Justice, N.J.S.A.

2C:1-1   to    104-9."        Rumblin,          supra,    166    N.J.    at   555     &   n.1.




                                                4                                   A-4417-14T1
Moreover, the Legislature amended N.J.S.A. 2C:1-6(c) to use the

term "the actor" little more than one year after the Supreme

Court defined that term.   The Legislature "is presumed to have

been 'thoroughly conversant with its own [prior] legislation and

the judicial construction of its statutes.'"     J.S., supra, 223

N.J. at 75 (citation omitted); see also State v. Frye, 217 N.J.

566, 580 (2014).

     As the majority opinion notes, the Supreme Court in Rumblin

also "view[ed] the term in its proper syntax."    Rumblin, supra,

166 N.J. at 556.   However, the syntax of N.J.S.A. 2C:1-6(c) is

at least as favorable as the syntax of NERA to applying the

Court's definition of "the actor."     N.J.S.A. 2C:1-6(c) simply

requires that "the prosecution is supported by physical evidence

that identifies the actor by means of DNA testing."   This syntax

does not require the prosecution to be of "the actor."1   Nor does


1
   By contrast, five States have written their statutes of
limitations' DNA exceptions to restrict the prosecution to the
person whose DNA is matched. Ark. Code Ann. § 5-1-109(i) (2015)
("an indictment or information [may be] filed against the
unknown person [if] the indictment contains the genetic
information of the unknown person"); Iowa Code § 802.2(1) (2016)
(tolling "if the person against whom the information or
indictment is sought is identified through the use of a DNA
profile"); Mich. Comp. Laws Serv. § 767.24(3)(b) (LexisNexis
2016) (if "evidence contains DNA that is determined to be from
an   unidentified  individual,   an   indictment  against   that
individual for the offense may be found"); Ohio Rev. Code Ann.
2901.13(D) (LexisNexis 2016) (if there is a DNA match "of an
identifiable person . . . , prosecution of that person" is
                                                     (continued)


                                5                         A-4417-14T1
it require the prosecution to be based solely or even primarily

on the DNA match, but only "supported" by such evidence.             Ibid.

       The Supreme Court in Rumblin could easily have read the

syntax    of   N.J.S.A.    2C:43-7.2(c)    (1997)    to    impose    NERA's

mandatory minimum sentence only on "the actor" who personally

used or threatened the use of the deadly weapon, or personally

caused death or serious bodily injury.            The Court could have

viewed the Legislature's syntax as conveying an intent that the

actor who personally engages in that harmful conduct is more

culpable than an accomplice, who "may be found guilty of a lower

degree of a violent offense than a principal if the two did not

share the same mental culpability."        Rumblin, supra, 166 N.J. at

556.

       Instead, the Supreme Court held that NERA applied to an

accomplice who was not one of the "principals [who] purposely

attempted to inflict serious bodily harm, or were armed with, or

used, or threatened to use a deadly weapon."             Id. at 555.      The

Court    applied   NERA   to   the   accomplice   even    though    he   only

"intended that the principals engage in the armed robbery and



(continued)
tolled); Wis. Stat. § 939.74(2d)(c) (2016) (tolling when "the
state may commence prosecution of the person who is the source
of the biological material").    Our Legislature did not do so,
though it knew how.    See N.J.S.A. 2C:1-6(e) (referring to "a
prosecution against the accused").



                                      6                             A-4417-14T1
. . . acted purposely in planning, promoting, or facilitating

that robbery."        Ibid.2

     The Supreme Court "reasoned that 'the Legislature would not

have intended that the mastermind of an armed robbery could

avoid   the    consequences             of    [NERA]     sentencing         by   having     a

confederate carry out the crime.'"                     Id. at 556 (quoting State v.

Rumblin, 326 N.J. Super. 296, 302 (App. Div. 1999), aff’d, 166

N.J. 550 (2001)).            The same reasoning could be employed here:

that the Legislature would not have intended that the mastermind

of an armed robbery could avoid prosecution under N.J.S.A. 2C:1-

6(c) by having a confederate carry out the crime.3

     The   Supreme         Court    based        its    reasoning      on    the    general

purpose of the Act.            "NERA intends to impose greater punishment

upon violent criminals."                  Id. at 556.          The Court found "no

evidence      in     any     of    [the]         legislative        history      that     the

Legislature        intended       the     word     'actor'     to    apply       solely    to

principals."         Ibid.        The Court applied to NERA its reasoning

construing     the    Graves       Act:      "Surely,    the   Legislature         intended

2
  The Court did not base its decision on the idea that the
accomplice "causes" the serious bodily injury by planning an
armed robbery, as suggested in the majority opinion.
3
  According to Tracy, it was defendant's idea to get drugs by
setting up S.T. to rob him of his drugs.         Defendant also
contacted S.T., picked a spot where they could meet for the fake
drug transaction, and then drove Tracy to a nearby location so
Tracy could commit the armed robbery.



                                               7                                   A-4417-14T1
that    .   .    .    the      Graves    Act    would      apply     in    sentencing      the

accomplice.          If the Legislature had a contrary intent, it could

have said so. . . .               The Legislature created no exception from

the Graves Act."               Id. at 557 (quoting State v. White, 98 N.J.

122, 130 (1984)).

       Here, the general purpose of the Legislature was to toll

the    statute        of    limitation        and    allow      prosecution        "when   the

prosecution is supported by" DNA testing.                           N.J.S.A. 2C:1-6(c).

There is no evidence here that the Legislature intended the word

"actor" to apply solely to principals.                          The Legislature created

no exception for conspirators or accomplices; if it had had such

an intent, it could have said so.

       Indeed, the Legislature rejected language in the earlier

version     of       the   proposed      legislation           tolling     the   statute    of

limitations only "if the identity of the person who commits a

crime   is      unknown        when     the   crime       is    committed    and    physical

evidence        is    collected         which       can    be     tested     for    its    DNA

characteristics and used to identify the person who committed

the crime."           Assemb. B. No. A2658, at 2 (June 29, 2000); S.B.

No.    S1516,        at    2   (Sept.     14,   2000)          (emphasis    added).        The

Legislature replaced that language with the final language using

the    less      specific       word     "actor."          S.B.     No.    S1516,     at   2-3




                                                8                                    A-4417-14T1
(substituted bill Mar. 26, 2001); Assemb. B. No. A2658, at 3

(1st reprint Dec. 6, 2001).4

      The Legislature's rejection of "the person who committed

the crime" language, which arguably described a principal, in

favor of the less specific word "actor," which can describe

accomplices     and    conspirators,         suggests    an        intent    to      apply

tolling    to   all    actors       involved    in    the     crime,        not     merely

principals.      "When a legislature includes limiting language in

an   earlier    version   of    a    bill    but     omits    it    from     the     final

version,   we    may    presume,      absent       contrary    indicia,           that    no

limitation      was    intended."        In    re     Grant        of   Charter          Sch.

Application of Englewood on Palisades Charter Sch., 320 N.J.


4
  By contrast, the statutes of limitations' DNA exceptions in
some other States provide that a prosecution for an offense may
be brought after DNA matching determines the identity of "the
defendant," Or. Rev. Stat. § 131.125(10) (2016); "the accused,"
Fla. Stat. § 775.15(15), (16) (2016), Ga. Code Ann. § 17-3-1(d)
(2015); "the offender," Haw. Rev. Stat. Ann. § 701-108(3)(c)
(LexisNexis   2015),  720   Ill.   Comp.  Stat.   Ann.  5/3-5(a)
(LexisNexis 2016), Ind. Code Ann. § 35-41-4-2 (LexisNexis 2016),
Okla. Stat. tit. 22, § 152(C) (2015); "the perpetrator," 42 Pa.
Cons. Stat. § 5552(c.1) (2015), Utah Code Ann. § 76-1-302(3)
(LexisNexis 2015); "the suspect," Cal. Pen. Code § 803(g)(1)
(Deering 2016), Kan. Stat. Ann. § 21-5107(c)(1) (2015), La.
Stat. Ann. § 572(B) (2016), Mont. Code Ann. 45-1-205(9) (2015),
Wash. Rev. Code Ann. § 9A.04.080(3) (LexisNexis 2015); "a
suspect," N.M. Stat. Ann. § 30-1-9.2(A) (LexisNexis 2015); "the
person who committed the crime," Utah Code Ann. § 76-1-302(2)(a)
(LexisNexis 2015); and "the person who allegedly committed the
offense," Conn. Gen. Stat. § 54-193b (2015).     Our Legislature
did not use any of these terms in N.J.S.A. 2C:1-6(c), instead
choosing the broader term "the actor."



                                         9                                        A-4417-14T1
Super. 174, 197 (App. Div. 1999), aff’d o.b. as modified, 164

N.J. 314, 316 (2000); see, e.g., Stancil v. Ace USA, 211 N.J.

276, 278 (2012); State v. Gandhi, 201 N.J. 161, 182-83 (2010).

      The accompanying legislative statements explained that the

final language "would toll the applicable statute of limitations

for the commission of a crime in certain cases until the State

is in possession of DNA or fingerprint evidence taken from the

suspect."        Statement       Accompanying         S.B.     No.     S1516,      at     3

(substituted bill Mar. 26, 2001); Assemb. Jud. Comm. Statements

to S.B. S1516 & Assemb. B. No. A2658, at 1 (Dec. 6, 2001)

[hereinafter      collectively           "Final    Statements"].             The   Final

Statements' "the suspect" is a broader term than "the person who

committed   the      crime,"     and     could     encompass      an   accomplice       or

conspirator     as    well     as    a     principal.        In    any    event,        the

Legislature chose to use an even broader term, "the actor," in

the statute.      N.J.S.A. 2C:1-6(c).

      The   motion       judge      mistakenly       relied       on   the     original

sponsors'      statements      using       the     later-rejected        "person        who

committed the crime" language.                   Statement Accompanying Assemb.

B. No. A2658, at 2 (June 29, 2000); Statement Accompanying S.B.

No.   S1516,    at   2   (Sept.      14,    2000)    [hereinafter        collectively




                                            10                                  A-4417-14T1
"Original Statements"].5    As the majority opinion recognizes,

little if any reliance can be placed on the Original Statements,

as the Legislature rejected it in favor of different language in

both the statute's text and the Final Statements.

    The majority opinion does not directly cite, but echoes as

a practical consideration, the Original Statements' rationale:

         Statutes of limitation establish a time
         period following the commission of a crime
         after   which   a   prosecution   cannot   be
         commenced.    The traditional rationale for
         these statutes is to protect defendants from
         the use of "stale" evidence against them.
         But this rationale has been weakened by
         advances in DNA technology.     DNA evidence
         that has been properly collected, handled
         and stored can reliably identify defendants
         many years after a crime has been committed.

         [Original Statements, supra.]

Notably, this rationale was not repeated in the final statement

accompanying the bill ultimately adopted.      We should not adopt

that rationale when the Legislature did not.

    Even if the Legislature had adopted that rationale, DNA

evidence that links a defendant to the scene of a crime is

usually not the sole or even the principal evidence of guilt of

a defendant.     Rather, it must be combined with other evidence


5
   Because    the motion judge "resolved an issue of law in
construing    a statute, [his] determinations are reviewed de
novo."   In    re Expungement Petition of J.S., 223 N.J. 54, 72
(2015). We    must hew to that standard of review.



                                11                         A-4417-14T1
and testimony showing guilt.                See State v. Jones, 219 N.J. 298,

302, 314, 316 (2014) (repeatedly emphasizing that even in a

sexual assault, where DNA analysis showed the defendant's semen

was   in    the   condom,    "the     DNA    evidence         was    not    dispositive,"

because     "[t]his    matter     came      down   to     a    question       of    whom   to

believe — defendant or his accuser").

      For     example,      the     DNA      evidence          here        supported       the

prosecution       of   defendant      and     Tracy,      but       would    not     be    the

principal evidence against either.                   The principal evidence in

the robbery and conspiracy prosecution of Tracy or defendant

would be the testimony of S.T. that there was an armed robbery,

and the admission by Tracy that he and defendant conspired to

commit it.        The DNA evidence merely would have corroborated

Tracy's     admission,      whether    Tracy       went   to        trial   or     testified

against defendant.          Thus, the reliability of DNA evidence does

not dictate that the DNA tolling provision should be applied to

Tracy but not to defendant.6

      In any event, the Supreme Court in Rumblin did not view

"the actor" as an ambiguous term, so its broad scope cannot be

constrained       by   legislative        history.            "It     is    only    when     a

6
  Moreover, the wealth of evidence showing defendant's undisputed
presence at the scene of the robbery – including S.T.'s
testimony, the police investigation, and defendant's own
statements to the police — is no less reliable than the DNA
evidence showing Tracy's presence at the scene.



                                            12                                      A-4417-14T1
statute's language is ambiguous that the Court should resort to

extrinsic aids, such as 'legislative history, committee reports,

and contemporaneous construction.'"                State v. Regis, 208 N.J.

439, 447 (2011) (quoting DiProspero v. Penn, 183 N.J. 477, 492-

93 (2005)).        Nor can the rule of lenity be applied if "the

actor" as defined by the Supreme Court is not ambiguous.                       State

v. Munafo, 222 N.J. 480, 493 n.2 (2015).

    The motion judge emphasized that N.J.S.A. 2C:1-6(c) refers

to "the actor" in the singular.               The majority opinion notes that

the sponsors' statements for the amended bills referred to "the

suspect."        Final     Statements,        supra.       However,     the    Final

Statements,     like     the    statutory      language,    does     not   restrict

prosecution     to   the   actor    or   the     suspect,      but   "toll[s]     the

applicable      statute    of    limitations      for    the   commission      of    a

crime."   Ibid.7

    In    any    event,    the    Legislature      has     instructed      that   the

singular should be read as including the plural.                     "Whenever, in

describing or referring to any person [or] party, . . . any word

importing the singular number . . . is used, the same shall be

understood to include and to apply to several persons or parties


7
  Similarly, the Original Statements, supra, stated that the
bills "remove[d] time limitations on the prosecution of crimes"
and provided that "authorities would not be barred from
prosecuting such crimes." Ibid.



                                         13                                 A-4417-14T1
as well as to 1 person or party[.]"         N.J.S.A. 1:1-2.         To assume

there can only be one "actor" in a crime "runs counter to the

general rule of construction in . . . statutory interpretation

that singular terms in a statute include the plural form of the

term," Wiese v. Dedhia, 354 N.J. Super. 256, 261 (App. Div.

2002),   certif.   denied,    175   N.J.    546    (2003),    and    "is   not

persuasive," State v. Toth, 354 N.J. Super. 13, 20 (App. Div.

2002).

    Such an assumption also runs contrary to common sense and

common experience.    Crimes are frequently committed by more than

one actor.    Indeed, the crime of conspiracy requires that the

actor conspire and agree with "another person."              N.J.S.A. 2C:5-

2(a); see also State v. Del Fino, 100 N.J. 154, 160 (1985).

Moreover,    in    crimes    committed     by     multiple    perpetrators,

interpreting the tolling provision to apply only to the actor

whose DNA is matched to physical evidence at the scene would

allow the other criminal participants to escape prosecution when

the DNA match solves a cold case.          Such an interpretation would

enable the leaders of conspiracies to evade prosecution under

N.J.S.A. 2C:1-6(c) by having the crime committed by minions, who

alone could be prosecuted when the minion's DNA is matched.

    Such an outcome would be avoided by applying the Supreme

Court's reasoning that the Legislature would not have intended




                                    14                               A-4417-14T1
that the mastermind could avoid the consequences of the DNA

tolling provision by having a confederate carry out the crime.

See Rumblin, supra, 166 N.J. at 555.                    Indeed, the Supreme Court

found the Legislature meant to include all accomplices in the

"actor,"      holding      that    "for         NERA    purposes       principals     and

accomplices are treated the same."                   Id. at 556.

      By not applying here the Supreme Court's definition and

analysis      in    Rumblin,       the     majority        opinion      prevents      the

prosecution        of    all    other     accomplices,          co-conspirators,      and

masterminds when DNA analysis cracks "dormant or 'cold' cases."

See   State    v.       L.H.,    206     N.J.    528,     532    (2011)      (Long,   J.,

concurring) (quoting id. at 550 (Rivera-Soto, J., concurring)).8

This ruling will significantly limit the ability to use N.J.S.A.

2C:1-6(c) to prosecute cold cases.                     See State v. Michaels, 219

N.J. 1, 48 (considering the "real likelihood that . . . dilemmas

may   arise    in       cold    cases"    as     a     reason    not    to    apply   the

Confrontation Clause rigidly), cert. denied, __ U.S. __, 135 S.

Ct. 761, 190 L. Ed. 2d 635 (2014).




8
  In L.H., all six Justices agreed to vacate the award to a
defendant, identified by DNA match ten years after the crime, of
gap-time   credits,  id.   at  528,   which  the   State  argued
"neutralize[d] sentences on cold cases," id. at 542-43 (Rivera-
Soto, J., concurring).




                                            15                                  A-4417-14T1
       "[T]he Legislature [has] declared that 'DNA databanks are

an    important    tool    in   criminal      investigations.'"         State       v.

O'Hagen, 189 N.J. 140, 148 (2007) (quoting N.J.S.A. 53:1-20.18).

The    Supreme     Court    has   made        clear   that    "[t]here        is    no

constitutional bar to using [DNA test results] in helping to

solve a crime, regardless of when the crime was committed."

A.A. ex rel. B.A. v. Attorney Gen. of N.J., 189 N.J. 128, 140

(2007).9     The Legislature, which permits the prosecution of cold

cases such as homicide and aggravated sexual assault "at any

time," amended N.J.S.A. 2C:1-6 to toll the five-year statute of

limitations to permit prosecution of cold cases in all other

crimes     "when   the    prosecution    is    supported     by"   a   DNA    match.

N.J.S.A. 2C:1-6(a), (c).          Today's ruling significantly reduces

the ability to use that important tool in cold cases.




9
  Indeed, some States have written their statutes of limitations'
DNA exceptions to authorize prosecutions without any limitation
on who is prosecuted. Del. Code Ann. tit. 11, § 205(i) (2016)
("a prosecution for any offense in this title may be commenced
within 10 years after it is committed if based upon forensic DNA
testing"); Minn. Stat. § 628.26(f) (2016) (exempting indictments
or complaints "if physical evidence is collected and preserved
that is capable of being tested for its DNA characteristics");
Tex. Code Crim. Proc. Ann. art. 12.01(1)(C)(i) (West 2016) (no
time limit if "during the investigation of the offense
biological matter is collected and subjected to forensic DNA
testing and the testing results show that the matter does not
match the victim or any other person whose identity is readily
ascertained").



                                        16                                   A-4417-14T1
       The case before us provides an example of the unfortunate

consequences of failing to apply the Supreme Court's definition

of    "the   actor."          Even      more      compelling         examples    are    easily

imagined.          For    example,          several         masked    robbers     shoot       and

severely injure many jewelry store employees and customers.                                   DNA

or fingerprint evidence from the steering wheel of the getaway

car is later matched to the getaway driver, which enables the

police to identify the shooters, who are found to have the guns

and jewels evidencing their guilt.                          Under the majority opinion,

however, only the getaway driver can be prosecuted.                               Similarly,

the    kidnapping        of    a      toddler          is   solved     when     the    DNA        or

fingerprint on the released child's clothing is later matched to

the spouse of the kidnapper, who was an accessory after the fact

but regretted her role and released the child.                            Even though the

ransom   note      is    saved     on       the    kidnapper's        computer,       only    the

accessory after the fact can be prosecuted under the majority

opinion.

       The majority opinion stresses that in this case, the DNA

evidence     led    simply       to     a    confession        which    named     defendant.

However, the testimony of an accomplice or co-conspirator is a

widely-used basis to prove criminal cases; it must "be given

careful scrutiny," but if believed it "alone" can be sufficient

to    convict.       Model     Jury         Charge      (Criminal),      "Testimony          of    a




                                                  17                                   A-4417-14T1
Cooperating Co-Defendant or Witness" at 2 (2006).                              Moreover, as

in    the    examples     above,      an    actor's         DNA   evidence     can   lead   to

indisputably reliable evidence against the mastermind or other

perpetrators, whose prosecution is foreclosed by the majority

opinion.           Most   importantly,           we    must       consider     whether      the

Legislature         intended    that       all    other      masterminds,       principals,

accomplices and co-conspirators in all future cases be exempt

from prosecution whenever a DNA match of an actor cracks a cold

case.

       Those       unfortunate       consequences           would   be   avoided     if     the

Supreme Court's definition in Rumblin of "actor" was applied to

N.J.S.A. 2C:1-6(c).              There are strong reasons to apply that

definition here.          First, the Supreme Court looked beyond NERA to

how "actor" was used and defined throughout the New Jersey Code

of Criminal Justice.                 Second, the Legislature is presumed to

have known the Supreme Court's recent definition of "the actor"

when    it    used    that     term    in    N.J.S.A.         2C:1-6(c).        Third,      the

Legislature rejected more restrictive language when it adopted

the term.          Finally, using the Supreme Court's definition serves

the    Legislature's         goal     of    using     DNA     evidence    to    solve     cold

cases,       and    avoids     the    serious         and    unfortunate       consequences

produced by the majority opinion's reading.                          For these reasons,




                                                 18                                  A-4417-14T1
I   cannot   join   the   majority   opinion's   view   that   the   Supreme

Court's definition of "the actor" should not be applied here.

      I respectfully dissent.




                                     19                              A-4417-14T1
