                       RECORD IMPOUNDED

                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-1514-14T4

STATE OF NEW JERSEY,                   APPROVED FOR PUBLICATION

     Plaintiff-Respondent,                February 24, 2016

v.                                       APPELLATE DIVISION


KEITH DRAKE,

     Defendant-Appellant.
__________________________________

         Argued October 6, 2015 – Decided February 24, 2016

         Before Judges Hoffman, Leone and Whipple.

         On appeal from the Superior Court of New
         Jersey,   Law    Division, Essex  County,
         Indictment No. 05-09-2224.

         Stephen W. Kirsch, Assistant Deputy Public
         Defender, argued the cause for appellant
         (Joseph   E.   Krakora,   Public   Defender,
         attorney; Mr. Kirsch, of counsel and on the
         brief).

         Sara M. Quigley, Deputy Attorney General,
         argued the cause for respondent (John J.
         Hoffman, Acting Attorney General, attorney;
         Ms. Quigley, of counsel and on the briefs).

         Appellant filed a pro se supplemental brief.

     The opinion of the court was delivered by

LEONE, J.A.D.

     Defendant Keith Drake was sentenced for committing second-

degree sexual assault under N.J.S.A. 2C:14-2(c)(1).           The court
imposed a minimum term of 85% of the sentence, and a three-year

term of parole supervision, pursuant to the No Early Release Act

(NERA), N.J.S.A. 2C:43-7.2.           Defendant filed a motion to correct

an illegal sentence, asserting that NERA only applies to second-

degree    sexual       assault    under        N.J.S.A.     2C:14-2(c)(1)     if     a

defendant is simultaneously sentenced for second-degree sexual

assault       under    N.J.S.A.   2C:14-2(b).          We    reject   defendant's

reading of NERA, and affirm the denial of defendant's motion.

                                          I.

       Our prior opinion upholding defendant's conviction included

the following facts.         On March 30, 2005, J.H., an eighteen-year-

old high school student, went to visit defendant's mother at her

home.     When J.H. arrived, defendant's mother was not home, but

defendant was there.          Defendant, who was thirty-five years old

at the time, attempted to kiss J.H.                 Defendant blocked the door

when    she    tried    to   leave.       Despite    her    protests,   defendant

grabbed her, straddled her, pulled down her pants, and began

performing oral sex on her.               J.H. tried to push off the much

larger defendant, but he was able to hold her down.                     Defendant

then attempted to penetrate J.H.'s vagina with his penis, but

she testified that defendant "didn't go all the way in."                       After

ejaculating on her shirt, and confirming this was her first

sexual experience, he allowed her to leave.




                                          2                                 A-1514-14T4
    Defendant was charged with third-degree criminal restraint,

N.J.S.A. 2C:13-2 (count one), second-degree sexual assault by

vaginal penetration using physical force or coercion, N.J.S.A.

2C:14-2(c)(1) (count two), and second-degree sexual assault by

performing     cunnilingus      using       physical    force     or     coercion,

N.J.S.A.     2C:14-2(c)(1)     (count       three).     The     jury     acquitted

defendant on the first two counts, but convicted him on count

three.

    Defendant's        prior      record        included        five     juvenile

adjudications, twelve disorderly-persons convictions, and nine

indictable convictions in New Jersey.             He also had four Florida

convictions,    a   federal    conviction,      and    four    open    New    Jersey

indictments.     The trial court found defendant was a persistent

offender   under    N.J.S.A.    2C:44-3(a),      and    sentenced      him     to    an

extended term of seventeen years in prison.

    Defendant's      trial     counsel      acknowledged      that     defendant's

conviction carried with it "a No Early Release Act 85 percent

sentence."     The trial court agreed that N.J.S.A. 2C:14-2(c)(1)

"falls   directly    under     NERA,"    so    "the    crime    for     which       the

defendant was convicted automatically activates an 85 percent

period of parole ineligibility under the No Early Release Act,"

N.J.S.A. 2C:43-7.2(d)(8).         Thus, the court found that "the No

Early Release Act applies," and imposed an 85% minimum term




                                        3                                    A-1514-14T4
sentence and a three-year period of parole supervision under

NERA,   N.J.S.A.      2C:43-7.2(a),      (c).        The    court    also     imposed

community supervision for life and registration under Megan's

Law, N.J.S.A. 2C:7-1 to -23.

    On appeal, defendant did not challenge the applicability of

NERA.     We affirmed his conviction, but remanded to reconsider

other aspects of this sentence.              State v. Drake, No. A-6507-06

(App. Div. Oct. 27, 2008), certif. denied, 197 N.J. 477 (2009).

Ultimately,     on    February    17,    2011,      the    trial    court     reduced

defendant's sentence to sixteen years in prison, and imposed an

85% minimum term sentence and three years of parole supervision,

reiterating     that    NERA     "applies    pursuant       to     N.J.S.A.     2C:43-

7.2(d)(8)."

    Defendant        filed   a   petition     for    post-conviction          relief,

challenging his conviction, but not his sentence.                      We affirmed

the denial of his petition.          State v. Drake, No. A-1821-12 (App.

Div. Apr. 24, 2014), certif. denied, 220 N.J. 40 (2014).

    On February 28, 2014, defendant filed a pro se motion to

correct    an   illegal      sentence.       He     argued    he     could    not    be

sentenced under NERA unless he was convicted under both N.J.S.A.

2C:14-2(c)(1) and 2C:14-2(b).            Judge Verna G. Leath ultimately

denied the motion by order dated October 28, 2014.




                                         4                                    A-1514-14T4
    Defendant's appeal was originally heard before an Excessive

Sentencing Oral Argument panel pursuant to Rule 2:9-11.     It was

then transferred to the plenary calendar for briefing and oral

argument.    In his counseled brief, defendant raises one point:

            DEFENDANT'S MOTION TO CORRECT AN ILLEGAL
            SENTENCE SHOULD HAVE BEEN GRANTED. HIS NERA
            85% PAROLE BAR WAS ILLEGALLY IMPOSED BECAUSE
            THE GOVERNING STATUTE REQUIRES A DEFENDANT
            TO BE CONVICTED OF VIOLATIONS OF BOTH
            "SUBSECTION   B.   OF  N.J.S.   2C:14-2  AND
            PARAGRAPH (1) OF SUBSECTION C. OF N.J.S.
            2C:14-2" IN ORDER FOR NERA TO APPLY.

Defendant's pro se brief raises the same point in his own words:

            THE DEFENDANT'S MOTION TO CORRECT AN ILLEGAL
            SENTENCE SHOULD HAVE BEEN REVERSE DUE TO THE
            VIOLATION OF THE EIGHTH AND FOURTEENTH
            AMENDMENTS GUARANTEE OF DUE PROCESS.     THE
            DEFENDANT IS CONSEQUENTLY SERVING AN ILLEGAL
            SENTENCE CONTRARY TO N.J.S.A. 2C:43-7.2.
            MANDATORY SERVICES OF 85 PERCENT OF SENTENCE
            FOR CERTAIN OFFENSES STATUTE REQUIRES A
            DEFENDANT TO BE CONVICTED OF BOTH VIOLATION
            IN SUBSECTION d. (8) OF N.J.S.A. 2C:43-7.2.
            (SUBSECTION    B.   OF   N.J.S.2C:14-2   AND
            PARAGRAPH (1) OF SUBSECTION C. OF N.J.S.
            2C:14-2, SEXUAL ASSAULT) IN ORDER FOR NERA
            TO APPLY.   FOR THESE REASONS, THE DEFENDANT
            RESPECTFULLY REQUEST THAT HIS BRIEF TO
            CORRECT AN ILLEGAL SENTENCE BE GRANTED IN
            IT'S ENTIRETY.

                                II.

    We must consider whether defendant's sentence is illegal.

"[A] truly 'illegal' sentence can be corrected 'at any time.'"

State v. Acevedo, 205 N.J. 40, 47 n.4 (2011) (quoting R. 3:21-

10(b)(5)).     "[A]n illegal sentence is one that 'exceeds the



                                 5                         A-1514-14T4
maximum penalty provided in the Code for a particular offense'

or a sentence 'not imposed in accordance with law.'"                     Id. at 45

(quoting State v. Murray, 162 N.J. 240, 247 (2000)).                    A sentence

"not imposed in accordance with law" includes "a disposition

[not] authorized by the Code."            Murray, supra, 162 N.J. at 247.

       The question of what crimes are covered by NERA "is an

issue    of    statutory      construction;     our    review    is   therefore   de

novo."        State v. Olivero, 221 N.J. 632, 638 (2015).                   Whether

defendant's sentence is unconstitutional is also an issue of law

subject to de novo review.            State v. Pomianek, 221 N.J. 66, 80

(2015).       We must hew to that standard of review.

       Because "this is a case of statutory interpretation," our

task    "'is    to   discern    and   give    effect'    to     the   Legislature's

intent."       State v. Munafo, 222 N.J. 480, 488 (2015) (citation

omitted).        "To begin, we look at the plain language of the

statute."       Ibid.    "Statutory language is to be interpreted 'in a

common    sense      manner   to   accomplish    the    legislative     purpose.'"

Olivero, supra, 221 N.J. at 639 (citation omitted).                     "We do not

support       interpretations      that      render    statutory      language    as

surplusage[.]"          Burgos v. State, 222 N.J. 175, 203 (2015).                "In

addition, we will not interpret a statute in a way that 'leads

to an absurd result.'"             State v. Williams, 218 N.J. 576, 586

(2014) (citation omitted).            "If the language is unclear, courts




                                          6                                A-1514-14T4
can turn to extrinsic evidence for guidance, including a law's

legislative history."                 Munafo, supra, 222 N.J. at 488.                          "But a

court       may    not     rewrite      a        statute       or    add   language       that    the

Legislature omitted."                Ibid.

                                                   III.

       Under       the       plain     language           of    N.J.S.A.      2C:43-7.2,         NERA

applies to second-degree sexual assault under N.J.S.A. 2C:14-

2(c)(1).          Subsection a. of N.J.S.A. 2C:43-7.2 requires that "[a]

court imposing a sentence of incarceration for a crime of the

first    or       second      degree    enumerated             in     subsection     d.    of    this

section shall fix a minimum term of 85% of the sentence imposed,

during which the defendant shall not be eligible for parole."

Subsection         b.    similarly          requires           that      "[t]he    minimum       term

required by subsection a. of this section shall be fixed as a

part    of    every        sentence         of    incarceration            imposed   upon       every

conviction         of    a    crime     enumerated             in    subsection      d.    of    this

section[.]"          N.J.S.A. 2C:43-7.2(b) (emphasis added).                            Subsection

d. requires that "[t]he court shall impose sentence pursuant to

subsection a. of this section upon conviction of the following

crimes      or     an    attempt      or     conspiracy             to   commit   any     of    these

crimes[.]"          N.J.S.A. 2C:43-7.2(d) (emphasis added).                               Among the

"following crimes" "enumerated in subsection d." is "paragraph

(1)    of    subsection         c.     of    N.J.S.        2C:14-2,        sexual    assault[.]"




                                                    7                                      A-1514-14T4
N.J.S.A. 2C:43-7.2(d)(8).    Because N.J.S.A. 2C:14-2(c)(1) is "a

crime of the . . . second degree enumerated in subsection d.,"

NERA applies.   N.J.S.A. 2C:43-7.2(a), (b), (d).

    Defendant's contrary argument turns on his parsing of how

N.J.S.A.   2C:14-2(c)(1)    is     enumerated        in    N.J.S.A.    2C:43-

7.2(d)(8), particularly the use of "and."              To put the issue in

context, subsection d. of N.J.S.A. 2C:43-7.2 currently lists the

following crimes:

           (1) N.J.S. 2C:11-3, murder;

           (2) N.J.S. 2C:11-4, aggravated manslaughter
           or manslaughter;

           (3) N.J.S. 2C:11-5, vehicular homicide;

           (4)   subsection   b.        of    N.J.S.      2C:12-1,
           aggravated assault;

           (5) subsection b. of section 1 of P.L. 1996,
           c. 14 (C. 2C:12-11), disarming a law
           enforcement officer;

           (6) N.J.S. 2C:13-1, kidnapping;

           (7)   subsection   a.  of          N.J.S.      2C:14-2,
           aggravated sexual assault;

           (8) subsection b. of N.J.S. 2C:14-2 and
           paragraph (1) of subsection c. of N.J.S.
           2C:14-2, sexual assault;

           (9) N.J.S. 2C:15-1, robbery;

           (10) section 1 of P.L.            1993,   c.   221   (C.
           2C:15-2), carjacking;

           (11) paragraph (1) of subsection                a.   of
           N.J.S. 2C:17-1, aggravated arson;



                                    8                                 A-1514-14T4
           (12) N.J.S. 2C:18-2, burglary;

           (13)   subsection   a.       of     N.J.S.      2C:20-5,
           extortion;

           (14) subsection b. of section 1 of P.L.
           1997, c. 185 (C. 2C:35-4.1), booby traps in
           manufacturing or distribution facilities;

           (15) N.J.S. 2C:35-9,         strict    liability      for
           drug induced deaths;

           (16) section 2 of P.L.             2002,   c.    26   (C.
           2C:38-2), terrorism;

           (17) section 3 of P.L. 2002, c. 26 (C.
           2C:38-3), producing or possessing chemical
           weapons, biological agents or nuclear or
           radiological devices;

           (18) N.J.S. 2C:41-2, racketeering, when it
           is a crime of the first degree;

           (19)   subsection  i.   of          N.J.S.      2C:39-9,
           firearms trafficking; or

           (20) paragraph (3) of subsection b. of
           N.J.S. 2C:24-4, causing or permitting a
           child to engage in a prohibited sexual act,
           knowing that the act may be reproduced or
           reconstructed in any manner, or be part of
           an exhibition or performance.

    Defendant argues that by using "and" rather than "or" in

N.J.S.A.    2C:43-7.2(d)(8),   the           Legislature     intended      that

defendants convicted of sexual penetration using physical force

under N.J.S.A. 2C:14-2(c)(1) would be subject to NERA only if

they were simultaneously sentenced for "sexual contact with a




                                    9                                  A-1514-14T4
victim who is less than 13 years old and the actor is at least

four years older than the victim" under N.J.S.A. 2C:14-2(b).

       However,        defendant's          parsing       fails      to      interpret          the

statutory language "'in a common sense manner to accomplish the

legislative          purpose.'"           Olivero,       supra,       221       N.J.     at     639

(citation omitted).              The obvious legislative purpose of N.J.S.A.

2C:43-7.2(d) was to list the statutory citation in the Criminal

Code, and name of the crime, for every crime to which NERA

applies.       Where the Legislature intended every crime encompassed

in     a    Criminal       Code    section       to      be   covered        by    NERA,        the

Legislature      simply          listed    the     section     and     the      name     of    the

crime(s).        See       N.J.S.A.       2C:43-7.2(d)(1)-(3),            (6),     (9),       (12),

(15)-(17).       Where the Legislature intended NERA to apply only to

a    crime    under       one    subsection,        it    listed     only       the     specific

subsection and the name of the crime(s).                             See N.J.S.A. 2C:43-

7.2(d)(4)-(5), (7), (10)-(11), (13)-(14), (19)-(20).1

       N.J.S.A.       2C:43-7.2(d)(8)         was     the     only    instance          in    which

NERA       applied    to    more    than     one      subsection,         but     not    to     all

subsections,         of    the    same     crime,     namely      second-degree              sexual


1
   In N.J.S.A. 2C:43-7.2(d)(18), the Legislature listed the
particular degree of the racketeering crime rather than a
subsection because the Criminal Code distinguished violent
racketeering from racketeering by giving them different degrees,
without putting them in separate subsections.      See N.J.S.A.
2C:41-2, -3(a).



                                              10                                         A-1514-14T4
assault.          In that unique situation, the Legislature took the

common-sense approach of providing that NERA applied to both

"subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection

c.     of    N.J.S.       2C:14-2,       sexual        assault."           N.J.S.A.        2C:43-

7.2(d)(8).

       Despite         the   unique      situation       posed       by    N.J.S.A.        2C:43-

7.2(d)(8),        defendant         looks   to       other    situations          in    N.J.S.A.

2C:43-7.2(d)           where     the    Legislature          uses    "or."         From       those

different situations, he infers that the Legislature's use of

"and" in N.J.S.A. 2C:43-7.2(d)(8) shows an intent to require a

defendant be convicted of two crimes for NERA to be applicable.

Defendant's implausible inference ignores that the word choice

may     differ         merely     because        the     situations         differ.            The

Legislature           used   "or"      between    the     names      of     separate      crimes

covered by the same section or subsection of the Criminal Code,

such        as        "N.J.S.       2C:11-4,         aggravated           manslaughter           or

manslaughter."               N.J.S.A.     2C:43-7.2(d)(2);            see    also       N.J.S.A.

2C:43-7.2(d)(14),               (17),    (20)        (replicating          "or"        from    the

descriptions of the crimes in the cited Criminal Code section or

subsection).             The     Legislature         also     used    "or"        between       the

subparts         of    N.J.S.A.      2C:43-7.2(d)        to    make       clear     that       NERA

applies to all the crimes listed in N.J.S.A. 2C:43-7.2(d)(1)

through (19) "or" (20).




                                                11                                       A-1514-14T4
      In   any   event,     if    the    Legislature      had     stated   that   NERA

applied    to     "N.J.S.        2C:11-4,      aggravated         manslaughter      and

manslaughter," defendant could not plausibly suggest that NERA

would not apply unless a defendant committed both aggravated

manslaughter and manslaughter.                 Similarly, if the Legislature

had   stated     that   NERA     applied     to    all    the     crimes   listed    in

N.J.S.A.    2C:43-7.2(d)(1)         through       (19)    "and"    (20),   defendant

could not plausibly suggest that a defendant had to commit all

twenty crimes to be subject to NERA.

      That is because "'[t]he words "or" and "and" are ofttimes

used interchangeably, and the determination of whether the word

"and" as used in a statute should be read in the conjunctive or

disjunctive      depends    primarily       upon    the    legislative     intent.'"

Pine Belt Chevrolet v. Jersey Cent. Power & Light Co., 132 N.J.

564, 578 (1993) (quoting Howard v. Harwood's Rest. Co., 25 N.J.

72, 88 (1957)); accord State v. Carreon, 437 N.J. Super. 81, 87

(App. Div. 2014).          Thus, "it is a well recognized principle of

statutory construction" that "and" can be read as "or" "if to do

so is consistent with the legislative intent."                       N.J. State Bd.

of Optometrists v. Koenigsberg, 33 N.J. Super. 387, 394 (App.

Div. 1954) (citing Murphy v. Zink, 136 N.J.L. 235 (Sup. Ct.

1947), aff’d, 136 N.J.L. 635 (E. & A. 1948)).                       "The context of

the   language    and   the      words   surrounding       the    disputed   portion




                                          12                                 A-1514-14T4
[using 'and'] can be used to evidence an intention to create a

disjunctive      meaning."        Garden      State    Land       Co.     v.     City    of

Vineland, 368 N.J. Super. 369, 378 (App. Div. 2004) (citing Pine

Belt Chevrolet, supra, 132 N.J. at 578-79).                   Further, "'and' may

be   read   as    'or'   if    necessary      to   carry   out     the     legislative

intent."     Cruz v. Trotta, 363 N.J. Super. 353, 359 (App. Div.

2003) (citing Howard, supra, 25 N.J. at 88).

       For example, in State v. Regis, 208 N.J. 439 (2011), our

Supreme Court held that, despite the use of the word "and" in

N.J.S.A. 39:4-88(b), "the better construction of the statute is

that it consists of two separate, independent clauses, each of

which addresses a distinct offense."                  Id. at 447.              The Court

concluded that "[t]he Legislature's choice to combine these two

clauses in a single sentence, connected by the word 'and' rather

than    divided    into       separate   sentences,        does     not        alter    the

analysis."       Id. at 448 (citing Pine Belt Chevrolet, supra, 132

N.J. at 578).        Similarly, we held that in N.J.S.A. 2C:7-2(d),

"the word 'and' must be equated to the conjunction 'or' to give

the statute its proper meaning and effect."                   State v. Leahy, 381

N.J. Super. 106, 112 (App. Div. 2005) (citing Howard supra, 25

N.J. at 88), certif. denied, 186 N.J. 245 (2006).

       Here, both context and intent show the better reading of

N.J.S.A. 2C:43-7.2(d) is that NERA applies to each and every




                                         13                                      A-1514-14T4
crime listed, including N.J.S.A. 2C:14-2(b) and N.J.S.A. 2C:14-

2(c)(1).        Subsections a. and b. of NERA provide that an 85%

minimum-term sentence must be imposed if a defendant is being

sentenced for each ("a crime") and "every conviction of a crime

enumerated      under    subsection     d."      N.J.S.A.      2C:43-7.2(a),        (b).

Because N.J.S.A. 2C:14-2(c)(1) is one of the "crimes" enumerated

in   N.J.S.A.       2C:43-7.2(d),    the    Legislature       intended      that    NERA

apply.

       We should effectuate that intent even if the Legislature

should    not    have    used    both   "and"    and   "or"       in    compiling     its

lengthy list of crimes.            For example, in Koenigsberg, supra, we

found the Legislature's use of both "and" and "or" in its long

list     of   covered     acts    was   "subject       to    criticism       from     the

standpoint      of    construction,"       and   its    use    of       "and"   "le[ft]

something to be desired in the way of surface consistency with

the various 'or's.'"             33 N.J. Super. at 394.                Nonetheless, we

applied       the       "well     recognized       principle           of    statutory

construction" and read the "and" as an "or" because that was

"consistent with the legislative intent."                   Ibid.

       Moreover, defendant's contrary interpretation "'leads to an

absurd result.'"           Williams, supra, 218 N.J. at 586 (citation

omitted).        Defendant's       reading      creates     the     anomaly     that     a

defendant who commits a crime listed in N.J.S.A. 2C:43-7.2(d) is




                                           14                                   A-1514-14T4
not subject to NERA unless he simultaneously committed a second

crime.     The absurdity of that result becomes even more apparent

when   the    other       provisions      of     NERA    are    considered.             If   a

defendant were to violate both of those subsections of second-

degree   sexual     assault       listed    in    N.J.S.A.      2C:43-7.2(d)(8),             he

would have to "commit[] an act of sexual penetration" using

"physical    force     or    coercion,"        while     "commit[ting]        an    act      of

sexual contact with a victim who is less than 13 years old[.]"

N.J.S.A. 2C:14-2(b), (c)(1).               However, a defendant who "commits

an act of sexual penetration" where "[t]he victim is less than

13   years   old"     is    guilty   of     aggravated         sexual    assault        under

N.J.S.A.     2C:14-2(a)(1),        and     thus    is    already    subject        to    NERA

under N.J.S.A. 2C:43-7.2(d)(7).                  Thus, defendant's reading would

render   N.J.S.A.      2C:43-7.2(d)(8)           superfluous.           "We   decline        to

interpret [NERA] in a manner that would render 'words in [the]

statute surplusage.'"             See State v. Patterson, 435 N.J. Super.

498, 517 (App. Div. 2014) (quoting Shelton v. Restaurant.com,

Inc., 214 N.J. 419, 440 (2013)).

       To avoid such fatal superfluity, defendant posits unlikely

scenarios.     He argues that there might be cases where N.J.S.A.

2C:43-2(d)(7)       did     not   apply    to     such    a    defendant      if   a     jury

verdict or plea deal were somehow to result in second-degree

convictions for both N.J.S.A. 2C:14-2(b) and (c)(1), rather than




                                            15                                     A-1514-14T4
the    equivalent      first-degree        conviction      under    N.J.S.A.       2C:14-

2(a)(1).      Defendant also argues that his reading would cover the

situation      where      a   defendant    committed     sexual     contact       with     a

victim younger than thirteen years old, then committed forcible

penetration when the child was older, and then both crimes were

prosecuted together.             However, there is no indication that the

Legislature was trying to address inconsistent jury verdicts,

unusual plea deals, or delayed prosecutions when it "amended

NERA    to    specifically       enumerate       the   first-     and    second-degree

offenses to which NERA applies."                   State v. Parolin, 171 N.J.

223, 232 (2002) (citing L. 2001, c. 129 (eff. June 29, 2001)).

Defendant's strained arguments further illustrate the absurdity

of his reading.

       Even if defendant's parsing showed that the plain language

of N.J.S.A. 2C:43-7.2 "'is not clear or if it is susceptible to

more than one plausible meaning,' [we] may look to extrinsic

evidence such as legislative history to determine legislative

intent."       Olivero, supra, 221 N.J. at 639 (citation omitted).

"A    court   may   also      turn   to   extrinsic     evidence        'if   a   literal

reading       of    the       statute     would    yield     an     absurd        result,

particularly one at odds with the overall statutory scheme.'"

In re N.B., 222 N.J. 87, 98-99 (2015) (citation omitted).                            Thus,

we "may turn to such extrinsic guides as legislative history,




                                            16                                    A-1514-14T4
including sponsor statements and committee reports."                   Wilson ex

rel. Manzano v. City of Jersey City, 209 N.J. 558, 572 (2012).

Here,   that   legislative     history     shows   that   our   plain    reading

serves, and defendant's reading contravenes, the Legislature's

intent.

       "NERA   was   enacted    primarily      because     of    New    Jersey's

alarmingly high rate of parolee recidivism."               State v. Thomas,

166 N.J. 560, 569 (2001).        "To reduce recidivism, NERA increases

the real time period of incarceration of defendants who commit

[certain] first- and second-degree . . . crimes by requiring

that such defendants serve at least eighty-five percent of the

sentence imposed."      State v. Johnson, 182 N.J. 232, 238 (2005).

When    originally   enacted    in   1997,    subsection    a.    of    N.J.S.A.

2C:43-7.2 applied "if the crime is a violent crime as defined in

subsection d. of this section."          L. 1997, c. 117, § 2 (eff. June

9, 1997) (emphasis added).       Subsection d. originally provided:

            "violent crime" means any crime in which the
            actor causes death, causes serious bodily
            injury as defined in subsection b. of N.J.S.
            2C:11-1, or uses or threatens the immediate
            use of a deadly weapon.      "Violent crime"
            also includes any aggravated sexual assault
            or sexual assault in which the actor uses,
            or threatens the immediate use of, physical
            force.

            [Ibid. (emphasis added).]




                                      17                                A-1514-14T4
       Because second-degree sexual assault under N.J.S.A. 2C:14-

2(c)(1)      requires     that    the     actor    commit     an    act   of     sexual

penetration     using     "physical      force     or   coercion,"     most     or    all

violations of N.J.S.A. 2C:14-2(c)(1) were already covered by the

original version of NERA.             See Thomas, supra, 166 N.J. at 573-74

(holding     that   the    original      version    of     NERA    applied     if    "the

elements of the sexual offense charged against a defendant . . .

contain as an element proof of any one or more of the NERA

factors," or if there is "proof of an independent act of force

or violence or a separate threat of immediate physical force");

see also State v. Mosley, 335 N.J. Super. 144, 152 (App. Div.

2000), certif. denied, 167 N.J. 633 (2001) (noting the NERA's

requirement of "use or threat of immediate use of physical force

is an element . . . of sexual assault as defined by N.J.S.A.

2C:14-2c(1)").

       Thereafter, the State took the position that NERA applied

to second-degree sexual assault under N.J.S.A. 2C:14-2(b), which

provides that "[a]n actor is guilty of sexual assault if he

commits an act of sexual contact with a victim who is less than

13 years old and the actor is at least four years older than the

victim."       In   Thomas,      we     rejected    that    position      because      no

physical force was used, and we distinguished In Re M.T.S., 129

N.J.   422    (1992),     which    considered       what    constituted        physical




                                           18                                  A-1514-14T4
force under N.J.S.A. 2C:14-2(c)(1).                      See State v. Thomas, 322

N.J. Super. 512, 515-16, 519-20 (App. Div. 1999), aff’d, 166

N.J. 560, 574 (2001) (holding that "NERA would apply to the

M.T.S.-type      cases     under    today's       ruling").             In     Mosley,     we

similarly ruled that NERA did not apply in a case of aggravated

sexual assault by penetration of a minor less than thirteen

years old, N.J.S.A. 2C:14-1(a)(1), again contrasting that "use

or threat of immediate use of physical force is an element . . .

of sexual assault as defined by N.J.S.A. 2C:14-2c(1)."                               Mosley,

supra, 335 N.J. Super. at 152.

      Assembly Bill No. A3201 (Feb. 5, 2001) was introduced to

amend NERA, and to overturn Thomas and Mosley, as well as our

decision that NERA did not apply to murder in State v. Manzie,

335 N.J. Super. 267 (App. Div. 2000), aff'd by equally divided

court, 168 N.J. 113 (2001).            See Parolin, supra, 171 N.J. at 232

(NERA   "was     changed     in     response        to    the    Appellate         Division

decisions      in"   Manzie,       Mosley,       and     Thomas).            The    appended

sponsor's      statement    explained        that      "several       recent       Appellate

Division decisions have held that in its present form, NERA is

inapplicable to certain crimes."                  Sponsor's Statement Appended

to   Assemb.    B.   No.   A3201,     at     9    (Feb.    5,        2001)    [hereinafter

Appended    Sponsor's      Statement       to    Assemb.        B.    No.    A3201].        In

particular, the sponsor explained that in Mosley and Thomas,




                                           19                                       A-1514-14T4
             the Appellate Division held that NERA does
             not apply to cases where the defendant is
             guilty of sexual assault under N.J.S.A.
             2C:14-2 on grounds that the victim is under
             the age of 13, since the current language of
             NERA requires the element of some additional
             "physical force."

                  In order to overcome the issues raised
             by these cases and clarify the provisions of
             [NERA], this bill would amend NERA to
             specifically   list  the   crimes  that   are
             intended to be encompassed by the statute.

             [Ibid.]

       The bill specifically proposed to amend NERA to apply to

both   "subsection       b.    of   N.J.S.        2C:14-2    and    paragraph     (1)    of

subsection c. of N.J.S. 2C:14-2, sexual assault."                             Assemb. B.

No. A3201, at 3 (Feb. 5, 2001).                   The bill also listed nine other

crimes by their statutory sections or subsections.                            Ibid.2    The

Assembly's Law and Public Safety Committee and Appropriations

Committee        reported     the   bill       favorably,         proposing     the    same

statutory    language       about    sexual        assault    and    giving     the    same

explanation in their committee reports, but adding five more

crimes to be covered by NERA.                Assemb. B. No. A3201 (1st reprint

Mar.   1,   2001);      Assemb.     L.   &   Pub.     Safety      Comm.    Statement     to

Assemb.     B.    No.   A3201,      at   1-2      (Feb.     26,    2001)   [hereinafter


2
  A parallel bill proposing the same statutory language about
sexual assault, with an identical sponsor's statement, was later
introduced in the Senate.    S.B. No. S2233, at 3-4 (Mar. 26,
2001).



                                             20                                  A-1514-14T4
Assemb.      L.     &     Pub.      Safety       Comm.     Statement];          Assemb.

Appropriations Comm. Statement to Assemb. B. No. A3201, at 1-2

(June 4, 2001).3         Both houses then passed the Assembly Bill.                    L.

2001, c. 129, § 1 (eff. June 29, 2001) [hereinafter "the 2001

amendment"].4

      The   2001    amendment       replaced     the    requirement      in    N.J.S.A.

2C:43-7.2(a) that the crime be "a violent crime as defined in

subsection        d."    with     the    requirement       that    the        crime    be

"enumerated in subsection d."                 Ibid.    Subsection d. was amended

to replace its definition of "violent crime" with the list of

crimes    enumerated       in     N.J.S.A.     2C:43-7.2(d)(1)     through         (15).

Ibid.     As amended, subsections a., b., and d. all provided that

a   court   shall       impose     an   85%    minimum    term    for    the     crimes

enumerated in subsection d., including "subsection b. of N.J.S.

2C:14-2 and paragraph (1) of subsection c. of N.J.S. 2C:14-2,

sexual assault."         Ibid.5


3
  The Senate Judiciary Committee favorably reported a substitute
bill and statement identical to those reported by the Assembly
Committees. S.B. Nos. S2087 & S2233, at 2-3 (June 11, 2001); S.
Judiciary Comm. Statement to S.B. Nos. S2087 & S2233, at 1-2
(June 11, 2001) [hereinafter S. Judiciary Comm. Statement].
4
  The other amendment of NERA in 2001 simply reworded some of its
parole language. See L. 2001 c. 79, § 16 (eff. Sept. 1, 2001).
5
  Subsequent amendments altered the citation form in N.J.S.A.
2C:43-7.2(d)(5), added the crimes enumerated in N.J.S.A. 2C:43-
7.2(d)(16)-(20),  and   moved  the  "or",   originally   between
                                                     (continued)


                                          21                                    A-1514-14T4
      This legislative history supports our reading of the plain

meaning      of   N.J.S.A.   2C:43-7.2.     First,    second-degree     sexual

assault using physical force in violation of N.J.S.A. 2C:14-

2(c)(1) was already covered by NERA before the 2001 amendment,

coverage that the legislative history assumed would continue.

Second, one of the major goals of the 2001 amendment was to

extend the same coverage to second-degree sexual assault against

a   victim    under   thirteen   years    old   in   violation   of   N.J.S.A.

2C:14-2(b) by overturning our decision in Thomas.                 Third, the

legislative        history   indicated     an    intent    to    expand     the

application of NERA, not only to cover both N.J.S.A. 2C:14-2(b)

and (c)(1), but initially nine other crimes, then fourteen other

crimes, and now nineteen other crimes.

      This legislative history is wholly contrary to defendant's

reading of N.J.S.A. 2C:43-7.2.             Under his reading, the 2001

amendment would remove NERA's pre-existing coverage of N.J.S.A.

2C:14-2(c)(1) when there is no indication of any intent to do so

in the legislative history.         His reading would also defeat one

of the major goals of the 2001 amendment, to ensure that every


(continued)
subsections (d)(14) and (15), to between subsections (d)(19) and
(20) at the end of the expanded list. Those amendments did not
otherwise alter subsections a., b., or d. L. 2002, c. 26, § 19
(eff. June 18, 2002); L. 2007, c. 341, § 6 (eff. Jan. 13, 2008);
L. 2013, c. 111, § 3 (eff. Nov. 1, 2013); L. 2013, c. 136, § 4
(eff. Aug. 14, 2013).



                                     22                               A-1514-14T4
defendant convicted solely of N.J.S.A. 2C:14-2(b) would receive

a NERA sentence.         Moreover, his reading would find an intent to

restrict the crimes to which NERA is applicable, despite the

clear legislative intent to expand the number of such crimes.

As Judge Leath noted, "to accept the defendant's argument would

mean that the legislature only intended to make a small number

of second-degree sexual assaults subject to NERA."                       That is

contrary to the legislative history.

      In addition, the legislative history confirms that "[t]he

Legislature oftentimes use[d] 'or' and 'and' interchangeably" in

promulgating      the    2001    amendment.      Carreon,     supra,    437       N.J.

Super. at 87.           For example, when the legislative committees

added     the   language        in   N.J.S.A.    2C:43-7.2(d)(2)        on      which

defendant relies, making NERA applicable to "(2) N.J.S.A. 2C:11-

4,   aggravated    manslaughter         or   manslaughter,"    Assemb.       B.    No.

A3201, at 2 (Feb. 26, 2001); S.B. No. S2233, at 3 (Mar. 26,

2001), the committee reports described that subsection as "(2)

N.J.S.A.    2C:11-4     (aggravated      manslaughter   and    manslaughter)."

Assemb. L. & Pub. Safety Comm. Statement, supra, at 2 (emphasis

added);    S.   Judiciary       Comm.   Statement,   supra,    at   1   (emphasis

added).

      Similarly, just after the Assembly Bill was introduced, a

bill was introduced in the Senate which similarly sought to




                                         23                                  A-1514-14T4
"amend the provisions of [NERA] concerning sexual assaults in

light of recent cases holding the act inapplicable to defendants

who    commit   sexual    assaults     against    certain       young    victims,"

citing Mosley and Thomas.            Sponsor's Statement Appended to S.B.

No. S2087, at 3 (Feb. 8, 2001) [hereinafter Appended Sponsor's

Statement to S.B. No. S2087].                This bill proposed simply to

amend N.J.S.A. 2C:43-7.2 to "add specific statutory citations to

sexual assault crimes, providing that NERA would apply to 'any

aggravated      sexual    assault      or    sexual     assault    pursuant      to

paragraph (1) or paragraphs (3) through (7) of subsection a. of

N.J.S. 2C:14-2; subsection b. of N.J.S. 2C:14-2; or paragraph

(1) of subsection c. of N.J.S. 2C:14-2.'"                  Appended Sponsor's

Statement to S.B. No. S2087, supra, at 3-4 (emphasis added).6

When   the   Senate      Judiciary    Committee       adopted    the    Assembly's

language as a committee substitute, its report did not indicate

it was changing its intent and now providing that NERA would

only apply if a defendant was convicted of both subsection b. of

N.J.S. 2C:14-2 and paragraph (1) of subsection c. of N.J.S.

2C:14-2.     See S. Judiciary Comm. Statement, supra, at 1-2.


6
  Notably, the original Assembly Bill and sponsor statement
provided that NERA would apply to "paragraph (1) and paragraphs
(3) through (7) of subsection a. of N.J.S. 2C:14-2, aggravated
sexual assault."    Assemb. B. No. A3201, at 3 (Feb. 5, 2001)
(emphasis added); Appended Sponsor's Statement to Assemb. B. No.
A3201, supra, at 9.



                                        24                                A-1514-14T4
      Therefore,     we   find    the        Legislature    intended       that     a

defendant would be subject to NERA if he violated any one of

"subsection b. of N.J.S. 2C:14-2 and paragraph (1) of subsection

c.   of   N.J.S.     2C:14-2,    sexual       assault."         N.J.S.A.     2C:43-

7.2(d)(8).

      Defendant argues it would be absurd for the Legislature to

make NERA applicable to second-degree sexual assault where the

"victim is less than 13 years old," N.J.S.A. 2C:14-2(b), and

applicable where "[t]he actor uses physical force or coercion,"

N.J.S.A. 2C:14-2(c)(1), but not where a defendant violates the

other subsections of N.J.S.A. 2C:14-2(c).                 However, those other

subsections do not concern the two things the Legislature was

most concerned about — victims under thirteen years old, and the

use of physical force.7

      Thus, whether we look solely at the plain language of NERA,

or   examine   its   legislative    history,       or   apply    the   canons      of

statutory interpretation requiring us to avoid surplusage and

absurd results, it is clear that NERA applies to a defendant


7
   Instead, the other subsections concern the misuse of
relationships: a supervisory or disciplinary relationship over
detainees; such a relationship, or a familial or guardianship
relationship, with a victim over sixteen years old; and the
relationship of an adult to a victim between thirteen and
sixteen years old.   N.J.S.A. 2C:14-2(c)(2), (3), (4).   Those
subsections were not covered by NERA before or after the 2001
amendment. See Thomas, supra, 166 N.J. at 572.



                                        25                                 A-1514-14T4
convicted of second-degree sexual assault under N.J.S.A. 2C:14-

2(c)(1).

      Accordingly, we decline defendant's invitation to apply the

rule of lenity.        "That doctrine 'holds that when interpreting a

criminal statute, ambiguities that cannot be resolved by either

the statute's text or extrinsic aids must be resolved in favor

of the defendant.'"           State v. Rangel, 213 N.J. 500, 515 (2013)

(citation omitted).          "'It does not invariably follow, that every

time someone can create an argument about the meaning of a penal

sanction, the statute is impermissibly vague, or that the lowest

penalty arguably applicable must be imposed.'"                       Olivero, supra,

221 N.J. at 639-40 (citation omitted).                      "Instead, the rule of

lenity   is    applied      only    if   a    statute    is   ambiguous,    and     that

ambiguity     is    not     resolved     by    a   review     of   'all   sources      of

legislative     intent.'"          Ibid.      (citation     omitted).      Here,      the

statute's     text    and     all    extrinsic       aids     show     defendant      was

properly sentenced under NERA.

      We have also considered, and now reject, the arguments in

defendant's pro se brief.            Because defendant's NERA sentence was

not illegal, his counsel at his resentencing was not ineffective

for not raising defendant's current argument.                        Defendant makes

unsupported reference to the Eighth and Fourteenth Amendments of

the   United       States    Constitution,         but    "NERA      survives    Eighth




                                             26                                 A-1514-14T4
Amendment    scrutiny."     State    v.    Johnson,      166   N.J.   523,     548

(2001).      Defendant's   remaining      pro   se    arguments    are   without

sufficient    merit   to   warrant   further         discussion.      R.    2:11-

3(e)(2).

    Affirmed.




                                     27                                  A-1514-14T4
