                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-0068-16T1
                                                A-0069-16T1
                                                A-0070-16T1
                                                A-0071-16T1

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.                                      APPROVED FOR PUBLICATION

                                             March 23, 2017
MELVIN HESTER,
                                           APPELLATE DIVISION
     Defendant-Respondent.
_____________________________

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

MARK WARNER,

     Defendant-Respondent.
______________________________

STATE OF NEW JERSEY,

     Plaintiff-Appellant,

v.

ANTHONY MCKINNEY,

     Defendant-Respondent.
_______________________________

STATE OF NEW JERSEY,

     Plaintiff-Appellant,
v.

LINWOOD ROUNDTREE,

     Defendant-Respondent.
_______________________________

          Argued March 7, 2017 – Decided March 23, 2017

          Before Judges Yannotti, Fasciale and Gilson.

          On appeal from Superior Court of New Jersey,
          Law Division, Essex County, Indictment Nos.
          16-04-1150, 15-12-2878, 15-10-2330, and 16-
          02-0481.

          Frank J. Ducoat, Special Deputy Attorney
          General/Acting Assistant Prosecutor, argued
          the cause for appellant (Carolyn A. Murray,
          Acting Essex County Prosecutor, attorney;
          Mr. Ducoat, of counsel and on the briefs).

          Molly   O'Donnell  Meng,   Assistant   Deputy
          Public   Defender,  argued   the  cause   for
          respondents Melvin Hester, Mark Warner, and
          Anthony McKinney (Joseph E. Krakora, Public
          Defender, attorney; Ms. Meng, of counsel and
          on the briefs).

          James K. Smith, Jr., Assistant Deputy Public
          Defender, argued the cause for respondent
          Linwood Roundtree (Joseph E. Krakora, Public
          Defender, attorney; Mr. Smith, of counsel
          and on the brief).

     The opinion of the court was delivered by

FASCIALE, J.A.D.

     These four cases, which we have consolidated in rendering

this opinion, involve application of the Ex Post Facto Clauses

of the United States and New Jersey Constitutions.        The State




                                  2                        A-0068-16T1
appeals from orders dismissing indictments against Melvin Hester

(Hester), Mark Warner (Warner), Anthony McKinney (McKinney), and

Linwood Roundtree (Roundtree) (collectively defendants) charging

them with third-degree violations of their special sentences of

community    supervision      for   life    (CSL),    N.J.S.A.       2C:43-6.4(d).

The State maintains that the trial judges who entered the orders

erred by relying on the Ex Post Facto Clauses.

    Defendants committed their original or predicate crimes,

which led to the imposition of special CSL sentences, prior to

2014.        Before       defendants    allegedly         violated     their    CSL

conditions,        the    Legislature       amended       N.J.S.A.      2C:43-6.4,

effective July 2014 (the 2014 amended law or 2014 amendment).

The 2014 amended law, as applied to defendants, increased the

punishment for defendants' predicate crimes if they subsequently

violated the conditions of their CSL sentence.

    In determining whether the 2014 amended law "make[s] more

burdensome the punishment for a crime, after its commission,"

the narrow legal issue is whether the "crime" refers to the

commission    of    the    predicate    offense      or   the   violation      of   a

condition of CSL.          State v. Muhammad, 145 N.J. 23, 56 (1996)

(citing Beazell v. Ohio, 269 U.S. 167, 169-70, 46 S. Ct. 68, 68-

69, 70 L. Ed. 216, 217 (1925)).             We hold that the commission of

the predicate crime, for which defendants received the special




                                        3                                 A-0068-16T1
sentence       of    CSL,      is      the   operative        "crime"      for   determining

whether the 2014 amended law violates the Ex Post Facto Clauses.

Because the 2014 amended law retroactively increased defendants'

punishment for committing their predicate crimes by raising the

degree of the CSL violations from a fourth degree to a third

degree, mandating the imposition of Parole Supervision for Life

(PSL), and subjecting them to extended prison terms, the trial

courts    in    these       cases      properly       relied    on   the    Ex    Post   Facto

Clauses and dismissed the indictments.                          Accordingly, we affirm

the orders under review.

                                              I.

    We begin by generally addressing the penal post-sentence

supervisory schemes of CSL and PSL, setting forth the legal

principles governing the Ex Post Facto Clauses, and summarizing

the facts leading to these appeals.

                                              (a)

    The Legislature has described CSL, which is punitive in

nature, as a "special sentence."                           N.J.S.A. 2C:43-6.4(a).            The

purpose    of       CSL   is     to    protect       the    public   from    recidivism      by

sexual offenders.              CSL is a component of the Violent Predator

Incapacitation            Act,        N.J.S.A.       2C:43-6.4,      which       is   also     a




                                                 4                                    A-0068-16T1
component of a series of laws commonly known as "Megan's Law."1

State v. Perez, 220 N.J. 423, 436-37 (2015).                      Megan's Law was in

effect at the time defendants committed their predicate sexual

offenses     for     which   the     court    imposed   CSL       as    part     of   their

special sentence.            An offender subject to CSL is required to

abide by twenty-three enumerated "general conditions."                           N.J.A.C.

10A:71-6.11(b).         Pursuant to N.J.A.C. 10A:71-6.11, the Parole

Board is obligated to supervise defendants who are subject to

CSL.   Perez, supra, 220 N.J. at 437.

       In    2003,    the     Legislature         amended    the       law     (the     2003

amendment)     and    replaced       all   references       to    CSL    with     PSL   for

individuals        convicted    of    certain      sexual        offenses      enumerated

within N.J.S.A. 2C:43-6.4(a).                    Ibid.; see also J.B. v. N.J.

State Parole Bd., 433 N.J. Super. 327, 336 (App. Div. 2013),

certif. denied, 217 N.J. 296 (2014).                 Like CSL, PSL protects the

public from recidivism by sexual offenders.                       The 2003 amendment

provided that "the custodial term imposed upon the defendant

related to the special sentence of [PSL] shall be deemed to be a

term    of   life     imprisonment."             N.J.S.A.    2C:43-6.4(b).               PSL

therefore      enhanced      the     penal       exposure    of        certain    persons

previously sentenced to CSL.                 It did so by allowing the Parole


1
    Megan's Law includes registration and community notification
for certain sex offenders. See N.J.S.A. 2C:7-1 to -23.



                                             5                                    A-0068-16T1
Board to return offenders to prison for violating their parole,

rather than exposing them to committing a separate fourth-degree

crime, and by exposing such individuals to mandatory extended

prison terms if they committed certain predicate offenses.

     The 2014 amended law further increased the penal exposure

of   those    individuals,     like    defendants,   who    had   previously

committed a predicate crime and had received a special sentence

for CSL.     The 2014 amended law provided in part that

             a. [A] judge imposing sentence on a person
             who   has   been    convicted   of   [certain
             enumerated   crimes]    shall   include,   in
             addition to any sentence authorized by this
             Code, a special sentence of [PSL].

                 . . . .

             d. A person who violates a condition of a
             special sentence of [CSL] or [PSL] imposed
             pursuant to this section . . . is guilty of
             a crime of the third degree . . . .      [A]
             person sentenced pursuant to this subsection
             shall   be   sentenced    to   a   term   of
             imprisonment, unless the court is clearly
             convinced that the interests of justice so
             far outweigh the need to deter this conduct
             and the interest in public safety that a
             sentence to imprisonment would be a manifest
             injustice.

             [N.J.S.A. 2C:43-6.4 (emphasis added).]

     Thus,     the   2014    amended   law   made    more   burdensome    the

punishment for the commission of the predicate crimes defendants

committed before 2014.         Defendants, who had been sentenced to

CSL before the effective date of the 2014 amended law, were now



                                       6                            A-0068-16T1
subject to a prison term of three to five years, instead of

eighteen months.         They also faced the mandatory imposition of

extended    prison   terms       and    PSL      which,      unlike    the   remedial

registration and notification requirements of Megan's Law, is

considered to be a penal post-sentence supervisory scheme.                         See

Perez, supra, 220 N.J. at 441.

                                        (b)

     The United States Constitution provides that "[n]o State

shall . . . pass any . . . ex post facto Law . . . ."                            U.S.

Const.   art.   I,   §    10,   cl.    1.        The   New    Jersey    Constitution

similarly provides that "[t]he Legislature shall not pass any

. . . ex post facto law . . . ."                N.J. Const. art. IV, § 7, ¶ 3.

"The purpose of the Ex Post Facto Clauses is to guarantee that

criminal statutes 'give fair warning of their effect and permit

individuals to rely on their meaning until explicitly changed.'"

Muhammad,   supra,       145   N.J.    at   56   (emphasis      omitted)     (quoting

Weaver v. Graham, 450 U.S. 24, 28-29, 101 S. Ct. 960, 964, 67 L.

Ed. 2d 17, 23 (1981)).           "Critical to relief under the Ex Post

Facto Clause is not an individual's right to less punishment,

but the lack of fair notice and governmental restraint when the

legislature increases punishment beyond what was prescribed when

the crime was consummated."            Weaver, supra, 450 U.S. at 30, 101

S. Ct. at 965, 67 L. Ed. 2d at 24 (emphasis omitted).




                                            7                                A-0068-16T1
       "The    Ex    Post    Facto      Clause        is     'aimed    at   laws     that

retroactively alter the definition of crimes or increase the

punishment for criminal acts.'"                   Perez, supra, 220 N.J. at 438

(quoting Cal. Dep't of Corr. v. Morales, 514 U.S. 499, 504, 115

S. Ct. 1597, 1601, 131 L. Ed. 2d 588, 594 (1995)).

              [T]o violate the Ex Post Facto Clauses, the
              statute in question must either (1) punish
              as a crime an act previously committed,
              which was innocent when done; (2) make more
              burdensome the punishment for a crime, after
              its commission; or (3) deprive a defendant
              of any defense available according to the
              law   at   the time   when  the   crime  was
              committed.

              [Muhammad, supra, 145 N.J. at 56 (emphasis
              omitted) (citing Beazell, supra, 269 U.S. at
              169-70, 46 S. Ct. at 68-69, 70 L. Ed.     at
              217).]

       Applicable to these appeals is whether the 2014 amended law

violates the Ex Post Facto Clauses by making "more burdensome

the    punishment     for   a     crime,     after     its     commission."         Ibid.

Significantly,       "two   critical       elements        must   be   present     for    a

criminal      or    penal   law    to   be       ex   post    facto:   [I]t   must       be

retrospective, that is, it must apply to events occurring before

its enactment, and it must disadvantage the offender affected by

it."    Weaver, supra, 450 U.S. at 29, 101 S. Ct. at 964, 67 L.

Ed. 2d at 23 (emphasis and footnotes omitted).

       Under the first element, a "law is retrospective if it

'appl[ies] to events occurring before its enactment' or [like



                                             8                                   A-0068-16T1
here] 'if it changes the legal consequences of acts completed

before its effective date.'"            Riley v. N.J. State Parole Bd.,

219 N.J. 270, 285 (2014) (first alteration in original) (quoting

Miller v. Florida, 482 U.S. 423, 430, 107 S. Ct. 2446, 2451, 96

L. Ed. 2d 351, 360 (1987)).           In Riley, the Court held that the

Ex Post Facto Clauses precluded retroactive application of the

New Jersey Sex Offender Monitoring Act (SOMA), N.J.S.A. 30:4-

123.89   to   -123.99,   to    the    defendant,    who   had   completed      his

sentence and was under no form of parole supervision before

passage of SOMA.     Id. at 298.

    Under the second element, and unlike here, "[t]here is no

ex post facto violation . . . if the change in the law is merely

procedural and does not increase the punishment, nor change the

ingredients of the offen[s]e or the ultimate facts necessary to

establish guilt."        Perez, supra, 220 N.J. at 438-39 (emphasis

omitted) (quoting State v. Natale, 184 N.J. 458, 491 (2005));

see Doe v. Poritz, 142 N.J. 1, 73 (1995) (holding that the

imposition     of    post-release       registration      and        notification

requirements    of   Megan's    Law    did   not    violate     ex    post   facto

prohibitions because it did not constitute punishment).

                                      (c)

    In May 2005, a jury found Hester guilty of second-degree

sexual   assault,    N.J.S.A.    2C:14-2(c);       third-degree       endangering




                                        9                                A-0068-16T1
the welfare of a child, N.J.S.A. 2C:24-4(a); and fourth-degree

sexual contact, N.J.S.A. 2C:14-3(b).                    These convictions were for

crimes committed in 2003.               In August 2005, the court sentenced

him to CSL, Megan's Law, and seven years in prison.                              At that

time, a violation of CSL constituted a fourth-degree offense.

After the effective date of the 2014 amendment, Hester allegedly

violated    conditions         of    his     CSL   by    failing      to    reside   at   a

residence approved by a parole officer, N.J.A.C. 10A:71-6.11(7);

obtain     permission      to       change    his       address,     N.J.A.C.     10A:71-

6.11(8); and comply with curfew requirements, N.J.A.C. 10A:71-

6.11(19).        In April 2016, a grand jury indicted and charged

Hester    with     three   counts       of    third-degree          violations    of    the

conditions of his CSL, N.J.S.A. 2C:43-6.4(d).

    In      June       1997,        Warner     pled      guilty       to     third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4(a).                                  In

September 1997, the court sentenced him to CSL, Megan's Law, and

three    years    in    prison.        At     that      time,   a    violation    of    CSL

constituted a fourth-degree offense.                      After the effective date

of the 2014 amendment, Warner allegedly violated conditions of

his CSL by failing to reside at a residence approved by a parole

officer,     N.J.A.C.      10A:71-6.11(7);            and   obtain         permission     to

change his address, N.J.A.C. 10A:71-6.11(8).                         In December 2015,

a grand jury indicted and charged Warner with two counts of




                                             10                                  A-0068-16T1
third-degree violations of the conditions of his CSL, N.J.S.A.

2C:43-6.4(d).

    In     1997,    McKinney       pled    guilty      to   third-degree      criminal

restraint,       N.J.S.A.       2C:13-2;     three     counts    of    second-degree

sexual      assault,        N.J.S.A.       2C:14-2(c);          and     third-degree

endangering the welfare of a child, N.J.S.A. 2C:24-4.                         In 1998,

the court sentenced McKinney to CSL, Megan's Law, and imposed a

ten-year        prison     term     with     five-year        period     of     parole

ineligibility.          At that time, a violation of CSL constituted a

fourth-degree offense.             After the effective date of the 2014

amendment, McKinney allegedly violated a condition of his CSL by

absconding from parole supervision, N.J.A.C. 10A:71-6.11(2).                          In

2015, a grand jury indicted and charged McKinney with a third-

degree violation of a condition of his CSL, N.J.S.A.                            2C:43-

6.4(d).

    In     March        1998,    Roundtree      pled    guilty    to   first-degree

aggravated sexual assault of a minor, N.J.S.A. 2C:14-2(a); and

second-degree impairing the morals of a minor, N.J.S.A. 2C:24-

4(a).      In    July    1998,    the   court    sentenced      Roundtree     to   CSL,

Megan's Law, and fifteen years in prison.                     After the effective

date of the 2014 amendment, Roundtree allegedly violated his CSL

by failing to report for parole, N.J.A.C. 10A:71-6.11(2); reside

at an approved residence, N.J.A.C. 10A:71-6.11(7); and obtain




                                           11                                 A-0068-16T1
approval to change his residence, N.J.A.C. 10A:71-6.11(8).                                In

February 2016, a grand jury indicted and charged Roundtree with

three counts of third-degree violations of the conditions of his

CSL, N.J.S.A. 2C:43-6.4(d).

       Defendants         filed     motions        to     dismiss      the     indictments

charging     them       with    these     third-degree         CSL   violations.       They

asserted     that       the     2014    amended         law    increased     their    penal

exposure for violating their pre-2014 CSL sentences.                            Defendants

argued that before the effective date of the 2014 amended law,

violations        of    CSL    constituted        fourth-degree        offenses.         They

contended that the 2014 amended law raised the penalty for CSL

violations to a third-degree crime and added the imposition of

PSL.    As a result, defendants urged the trial judges who heard

the motions to dismiss the indictments as violating the Ex Post

Facto Clauses of the United States and New Jersey Constitutions.

The judges agreed, granted the motions to dismiss, and entered

the orders under review.

                                            II.

       On   appeal,       the     State    argues        that    the   court     erred    by

dismissing the indictments because the 2014 amended law does not

violate     the    Ex    Post     Facto    Clauses       of    the   Federal    and   State

Constitutions.           The State treats defendants' alleged post-2014

violations        of    CSL,    rather     than    the        predicate    offenses    that




                                             12                                    A-0068-16T1
originally led to the imposition of CSL, as the "crimes" for

purposes of conducting its ex post facto analysis.   As a result,

the State contends that application of the 2014 amended law does

not make more burdensome the punishment for the commission of a

"crime."

    The State concedes, however, that defendants received their

CSL special sentences for committing predicate crimes before the

effective date of the 2014 amended law, and that defendants had

faced only a fourth-degree offense for any pre-2014 violation of

their CSL.   For ex post facto purposes, it logically follows

therefore that if the commission of the predicate offense is the

"crime," instead of the CSL violations as the State maintains,

then the 2014 amended law increased the defendants' punishment.

The punishment for committing a predicate crime, as a result of

a pre-2014 CSL violation, was limited to fourth-degree exposure;

but as applied, the 2014 amended law increased the punishment

for committing the predicate offense, as a result of a post-2014

CSL violation, to third-degree exposure, PSL, and imposition of

a mandatory extended prison term for the commission of certain

predicate offenses.

    Although we generally review for an abuse of discretion a

court's decision on whether to dismiss an indictment, see, e.g.,

State v. Triestman, 416 N.J. Super. 195, 202 (App. Div. 2010),




                               13                        A-0068-16T1
the issue of whether a prosecution is prohibited by the Ex Post

Facto Clauses of the Federal and State Constitutions is an issue

of law.        Consequently, we exercise plenary review of the issue

presented here.      See State v. Mann, 203 N.J. 328, 337 (2010).

    It     is     well-settled        that        "[a]    presumption           of   validity

attaches to every statute."             State v. Lenihan, 219 N.J. 251, 266

(2014).    We may invalidate a statute as unconstitutional on its

face or as applied.              Id. at 267.              "Facial invalidation is,

manifestly, strong medicine that has been employed by the Court

sparingly and only as a last resort."                           J.B., supra, 433 N.J.

Super. at 344 (quoting           Binkowski v. State, 322 N.J. Super. 359,

375-76    (App.    Div.    1999)).         "[A]     statute       .    .    .   is   facially

unconstitutional          only   if     the        constitution            is    necessarily

violated every time the law is enforced."                        Ran-Dav's Cty. Kosher

v. State, 129 N.J. 141, 174-75 (1992) (Stein, J. dissenting),

cert. denied sub nom., Nat'l Jewish Comm'n on Law & Pub. Affairs

v. Ran-Dav's Cty. Kosher, Inc., 507 U.S. 952, 113 S. Ct. 1366,

122 L. Ed. 2d 744 (1993).              "[A] statute . . . may be valid on

its face but invalid in a particular application."                              Id. at 174.

Here,    the    parties    acknowledge        that        the   2014       amended    law    is

facially    constitutional.           It     may     be    applied         to   persons     who

commit predicate offenses and are sentenced to PSL after the

effective date of the 2014 amendment.                       We focus on whether it




                                             14                                      A-0068-16T1
violates     the   Ex    Post       Facto    Clauses    as     applied    to     these

defendants.

                                        III.

    We conclude that the 2014 amendment "makes more burdensome

the punishment of a crime after its commission."                    Perez, supra,

220 N.J. at 440.          Defendants now face third-degree offenses,

rather     than    fourth-degree        exposure.            Certainly,    "[b]eing

prosecuted for a third-degree crime rather than a fourth-degree

crime clearly [makes a] defendant 'worse off.'"                    State v. F.W.,

443 N.J. Super. 476, 489 (App. Div.) (quoting Johnson v. United

States, 529 U.S. 694, 701, 120 S. Ct. 1795, 1801, 146 L. Ed. 2d

727, 736 (2000)), certif. denied, 227 N.J. 150 (2016).                         And the

imposition    of   PSL   as     a    consequence       of   violating     their    CSL

permits the Parole Board to return defendants to prison for

violating parole, and subjects defendants to mandatory extended

prison terms under N.J.S.A. 2C:43-6.4(e)(1).                     See also Perez,

supra, 220 N.J. at 441-42.

    Of course, that begs the question of what "crime after its

commission" means.         We reached our conclusion by determining

that the "crime," for purposes of applying the Ex Post Facto

Clauses, is not the violation of CSL, but rather, the commission

of the predicate offense for which the court originally imposed

the special sentence of CSL.            In other words, the "crime" is the




                                            15                              A-0068-16T1
predicate sexual offense, which defendants committed before the

effective date of the 2014 amendment, rather than the post-2014

CSL alleged violations.       The legal reasoning in Perez and F.W.

help inform our analysis.

    In Perez, the defendant received CSL as part of his special

sentence for committing a predicate offense in 1998.              Perez,

supra, 220 N.J. at 427, 436.       In 2010, after the 2003 amendment

in which Legislature replaced all references to CSL with PSL,

the defendant violated the terms of his CSL.          Id. at 428.      On

the violation of his CSL, the court applied the 2003 amendment

and sentenced the defendant to the increased penalty of PSL.

Id. at 429.

    The Court held that "[a]s applied to defendant, the 2003

amendment     to   N.J.S.A.   2C:43-6.4(e)   enhance[d]   the   punitive

consequences of the special sentence of CSL to his detriment and

violate[d] the federal and state prohibition of ex post facto

legislation."      Id. at 442.    Importantly, the Court stated that

the 2003 amendment enhanced "the penal exposure of a person

previously sentenced to CSL for certain offenses committed while

sentenced to that status."        Id. at 443.     In other words, the

defendant's post-2003 CSL violation increased the punishment for

committing the predicate crime.      That is so because prior to the

effective date of the 2003 amendment, the defendant was not




                                    16                          A-0068-16T1
subject      to   PSL     as     part     of    his       special   CSL   sentence       for

committing the predicate offense.

       In F.W., the defendant received CSL as part of his special

sentence for committing a predicate offense in 1999.                            Supra, 443

N.J.   Super.      at     480.       In   approximately           2008,   the    defendant

violated the terms of his CSL.                  Id. at 481.         On that violation,

the court, in accord with N.J.S.A. 2C:43-6.4(d), enrolled him in

GPS monitoring pursuant to SOMA, which the Legislature enacted

in   2007.        Ibid.        The   defendant        violated      his   CSL    again    by

removing the GPS tracker.                 Ibid.       Before the effective date of

the 2014 amended law, the State charged the defendant with a

fourth-degree           CSL      violation          and     two     third-degree      SOMA

violations.       Id. at 478.           A judge found the defendant guilty of

those charges.          Ibid.        We reversed the SOMA convictions on ex

post facto grounds, stating:

             The SOMA offenses did not exist when
             defendant committed his predicate offenses
             in 1997, and at that time, violating CSL was
             a fourth-degree crime.     It may be argued
             that   prosecution   under   SOMA  was   not
             retrospective for ex post facto purposes,
             because SOMA was enacted before defendant
             committed his December 2007 violation of
             CSL. However, GPS monitoring under SOMA was
             imposed on [the defendant] because he "ha[d]
             been sentenced to a term of community or
             [PSL] pursuant to [N.J.S.A. 2C:43-6.4]."
             . . . It was thus imposed as a further
             element of [the] defendant's post-release
             supervision during his CSL sentence for his
             predicate offenses . . . . [Like here,] the



                                               17                                 A-0068-16T1
            Legislature could not retroactively increase
            the   punishment    for   a   violation   of
            defendant's post-release supervision.

            [Id. at 488-89 (first and third alteration
            in   original)  (emphasis   added) (quoting
            N.J.S.A. 30:4-123.91(a)(2)(b)).]

We stated further that "[f]or purposes of [our] ex post facto

analysis of penalties for violating the terms of post-release

supervision, 'postrevocation sanctions' are treated 'as part of

the penalty for the initial offense.'"                 Id. at 489 (quoting

Johnson, supra, 529 U.S. at 700, 120 S. Ct. at 1800, 146 L. Ed.

2d at 736).

       In   deciding    whether     sanctions    violated      ex    post    facto

principles,     we     attributed    "postrevocation     penalties      to     the

original conviction."          Ibid. (quoting Johnson, supra, 529 U.S.

at 701, 120 S. Ct. at 1801, 146 L. Ed. 2d at 736).                    We stated

that   "[p]enalties      for   violation    of   the   terms    of    supervised

release, including the penalty of additional supervised release,

are attributed to the original conviction rather than to the

violation."            Ibid.    (alteration      in    original)        (quoting

Commonwealth v. Cory, 911 N.E. 2d 187, 192 (Mass. 2009)).                       We

concluded that

            the Ex Post Facto Clause barred [the]
            defendant's prosecution for a third-degree
            crime   [(the   SOMA   offense)].     Being
            prosecuted for a third-degree crime rather
            than a fourth-degree crime clearly made
            defendant "worse off." Whether the increase



                                       18                               A-0068-16T1
            in the degree and sentencing range of the
            penalties    for      violating     post-release
            supervision for his predicate offenses was
            effected by amending the penalty provision
            of the CSL statute, or by enacting a new
            statute like SOMA, the increased penalties
            for violating CSL, like those for violating
            any other form of supervised release, are
            "attribute[d]    .   .   .   to   the   original
            conviction."      The Legislature could not
            increase    the     penalty     for    violating
            defendant's supervised release and apply it
            retroactively to him. Consequently, even if
            GPS monitoring was imposed as a sanction for
            violating   CSL,    defendant    could  not   be
            prosecuted or sentenced under the third-
            degree crime provisions of SOMA.

            [Id.   at   489-90   (third  alteration   in
            original) (emphasis added) (quoting Johnson,
            supra, 529 U.S. at 701, 120 S. Ct. at 1801,
            146 L. Ed. 2d at 736).]

    Here, for purposes of conducting our ex post facto analysis

of the enhanced post-2014 penalties for violating the pre-2014

special     sentence    of   CSL,   the     commission   of    the    pre-2014

predicate    sexual    offenses,    not    the   post-2014   CSL   violations,

constitute the "crime."        See also Loftwich v. Fauver, 284 N.J.

Super. 530, 535 (App. Div. 1995) (indicating that the Ex Post

Facto Clause is violated when a parole violator is punished in a

way that adversely affects his release date under a statute

adopted after the violator committed the underlying offense but

before he violated the terms of his parole (citing United States

v. Paskow, 11 F.3d 873, 878 (9th Cir. 1993)).




                                      19                              A-0068-16T1
      Finally, the State's reliance on the constitutionality of

certain      recidivist        statutes      is     unpersuasive.              "Recidivist

statutes stiffen penalties for the latest crime; they do not

increase the penalty for a prior offense."                        State v. Zeikel, 423

N.J. Super. 34, 42 (App. Div. 2011).                            See United States v.

Rodriquez, 553 U.S. 377, 386, 128 S. Ct. 1783, 1789, 170 L. Ed.

2d 719, 728 (2008) (enhanced sentence is a stiffened penalty for

the   latest     crime,    which      is    considered          to   be   an    aggravated

offense because it is a repetitive crime).

      "The Supreme Court has held that recidivist statutes do not

violate the Ex Post Facto Clause if they were on the books at

the   time     the    triggering      offense       was    committed."           State   v.

Oliver,   162    N.J.     580,    587      (2000)    (emphasis        omitted)     (citing

Gryger v. Burke, 334 U.S. 728, 732, 68 S. Ct. 1256, 1258, 92 L.

Ed. 1683, 1687 (1948)); see also Nichols v. United States, 511

U.S. 738, 747, 114 S. Ct. 1921, 1927, 128 L. Ed. 2d 745, 754

(1994) (indicating that recidivist statutes do not violate ex

post facto prohibitions because they "do not change the penalty

imposed for the earlier conviction"); United States v. Arzate-

Nunez,    18   F.3d     730,    734     (9th     Cir.     1994)      (finding    that,   in

analyzing      repeat     offender       statutes         and     statutes      increasing

penalties for future crimes based on past crimes, the relevant

offense is the current crime, not the predicate crime).                              Here,




                                            20                                    A-0068-16T1
the triggering offense is the commission of the predicate crime

for which defendants received CSL.

      For example, in Oliver, supra, 162 N.J. at 587, the Court

rejected the defendant's ex post facto challenge to the "Three-

Strikes Law," N.J.S.A. 2C:43-7.1.             In that case, the Legislature

enacted the law in June 1995, and the defendant had committed

the offense constituting his third strike in December of that

year. Ibid.       Citing to Gryger, supra, 334 U.S. at 732, 68 S. Ct.

at 1258, 92 L. Ed. at 1687, the Court held that the "Three-

Strikes Law" did not violate the Ex Post Facto Clause because it

had   been      enacted   "at   the   time    the     triggering    offense   was

committed."       Oliver, supra, 162 N.J. at 587.

      Likewise, in State v. Carrigan, 428 N.J. Super. 609, 612-13

(App.    Div.    2012),   certif.     denied,   213    N.J.   539   (2013),   the

defendant was charged on September 27, 2011, with a violation of

N.J.S.A. 2C:40-26(b) (effective August 1, 2011), which makes it

a fourth-degree crime for a motorist to operate a vehicle at a

time when his driver's license has been suspended or revoked for

a second or subsequent conviction for driving while intoxicated

(DWI).    The defendant had been convicted for DWI and refusal at

least thirteen times between 1983 and 2010, and his license was

accordingly suspended.          Id. at 615.     We stated that

             a   violation  of  N.J.S.A.  2C:40-26(b)
             comprises a new offense based upon new



                                        21                              A-0068-16T1
         conduct, and that the statute does not
         impose retrospective punishment for a prior
         offense.       Hence,   the   law    may   be
         constitutionally applied to drivers with
         suspended licenses, such as defendant, who
         are caught driving after August 1, 2011,
         regardless   of   whether   their   DWI-based
         suspensions were imposed before that date.

         [Id. at 613.]

We explained:

         Defendant likens his circumstances to an
         instance where a new law unconstitutionally
         attempts to make the terms of a criminal
         sentence, such as the terms of parole or
         probation, more stringent after the fact.
         Cf. Johnson, supra, 529 U.S. 694, 120 S. Ct.
         1795, 146 L. Ed. 2d 727 (involving a statute
         that retroactively increased penalties for
         violating the terms of parole).    We reject
         this conception of what N.J.S.A. 2C:40-26(b)
         accomplishes.

              N.J.S.A. 2C:40-26(b) does not change
         the duration of the license suspensions that
         were previously imposed upon him before the
         new   law   took  effect.      His   ten-year
         suspensions, duly imposed under N.J.S.A.
         39:4-50(a)(3), have not been lengthened.
         Nor is he prohibited during his periods of
         suspension from doing anything that he could
         not have lawfully done before.      The only
         thing that is different is that if defendant
         commits a new offense by getting behind the
         wheel after August 1, 2011[,] while still
         under suspension, he now faces a criminal
         penalty for that new conduct.      There is
         nothing unconstitutional about treating such
         prior offenses as enhancement factors for
         wrongful conduct that post-dates the new
         law.

         [Id. at 621-22.]




                              22                         A-0068-16T1
    In contrast here, N.J.S.A. 2C:43-6.4 "enhances the punitive

consequences of [] CSL," a supervisory penal sentence, after the

fact.     Perez,   supra,    220   N.J.     at    442.     Notably,    under       the

recidivist    statutes,     penalties       are   increased    for    the    latest

crime — every offense is an independent crime and the punishment

increases    for   each   additional      crime    committed    because       it   is

considered to be an aggravated offense.              Vartelas v. Holder, 566

U.S. 257, 271-72, 132 S. Ct. 1479, 1490, 182 L. Ed. 2d 473, 488

(2012); Gryger, supra, 334 U.S. at 732, 68 S. Ct. at 1258, 92 L.

Ed. at 1687; Zeikel, supra, 423 N.J. Super. at 42.                    Here, such

is not the case.

    Conversely, not all conduct violating the conditions of CSL

contrary to N.J.S.A. 2C:43-6.4 need be criminal.                     For example,

an offender sentenced to CSL must reside at a residence approved

by a parole officer, obtain permission prior to leaving the

state, and secure permission prior to engaging in any employment

or volunteer activity.        N.J.A.C. 10A:71-6.11(7),(9),(16).                  None

of this conduct constitutes an independent criminal act.

    For     defendants,     conduct   violating      the    conditions      of     CSL

clearly constitutes a crime, but that is so solely because it

violates conditions imposed as part of the supervisory sentence,

which in turn, relates back to the commission of the initial

predicate offense.        See State v. Schubert, 212 N.J. 295, 307




                                       23                                   A-0068-16T1
(2012)    (indicating       that   the   Legislature      viewed   CSL   "as     an

integral part of a defendant's sentence, imposed as part of a

court's sentencing authority").               Defendants' violation of the

terms    of   their   CSL    is    therefore   not   an    aggravated    offense

because it is not a repetitive crime.

    Affirmed.




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