                      RECORD IMPOUNDED

                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-2718-12T2

STATE OF NEW JERSEY                  APPROVED FOR PUBLICATION

                                         February 8, 2016
IN THE INTEREST OF C.F.,
                                        APPELLATE DIVISION
    A Juvenile.

__________________________________________________________

         Submitted January 12, 2016 – Decided February 8, 2016

         Before Judges Fisher, Rothstadt and Currier.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Union County, Docket No. FJ-20-1450-12.

         Joseph E. Krakora, Public Defender, attorney
         for appellant/cross-respondent C.F. (Frank
         Pugliese, Assistant Deputy Public Defender,
         of counsel and on the brief).

         Grace   H.   Park,   Acting   Union   County
         Prosecutor, attorney for respondent/cross-
         appellant State of New Jersey (Meredith L.
         Balo, Special Deputy Attorney General/Acting
         Assistant Prosecutor, of counsel and on the
         brief).

    The opinion of the court was delivered by

FISHER, P.J.A.D.

    During the afternoon of March 15, 1976, police responded to

a caller concerned about the welfare of L.T., a fifty-seven-

year-old woman who lived alone in Westfield.        Police entered

L.T.'s home and found her dead, hog-tied face down on a bed with
a broken bottle near her head and a venetian-blind cord wrapped

around her neck. There were no signs of a forced entry or theft.

An autopsy determined that L.T. sustained a stab wound to the

neck and another that pierced her left lung; a vaginal swab

produced evidence of intact spermatozoa. Further investigation

generated no suspects and the case went cold.

      But truth, as Francis Bacon said, is the daughter of time.

In March 2010 — thirty-four years after the murder — Detective

Vincent Byron, working on cold cases, submitted DNA gathered

from the 1976 crime scene and the autopsy to a lab for testing;

a match was found in C.F.'s DNA,1 which was already on file.2 In

the ensuing investigation, police learned that, at the time of

the   murder,   C.F.   was   a   fifteen-year-old   high   school   student

living in a house in Westfield that abutted L.T.'s backyard.3




1
   The State's DNA expert testified there was a one in
40,000,000,000,000,000 chance and a one in 450,000,000 chance,
respectively, that the DNA found in L.T.'s underwear and the DNA
on the vaginal swab obtained during the autopsy belonged to an
African-American other than C.F.
2
  C.F. was an inmate in New Jersey's prison system from 1981 to
1997.
3
   The   judge  heard   testimony  that   C.F.'s  backdoor   was
approximately thirty yards from L.T.'s backdoor. A friend of
L.T.'s testified that L.T. tended to keep the backdoor unlocked,
a fact, as the judge observed, to which C.F. may have been
privy.



                                      2                             A-2718-12T2
         Although he was forty-nine years old, C.F. was charged in

April 2012 in a juvenile delinquency complaint, which alleged he

engaged in conduct in 1976 which, if committed by an adult,

would         constitute     felony      murder,       N.J.S.A.       2A:113-1.4            C.F.

unsuccessfully moved to dismiss the complaint on due process and

laches grounds.            At the conclusion of a four-day bench trial,

during which the State presented fifteen witnesses,5 Judge Robert

A. Kirsch found that C.F. committed felony murder.6

         On    January   31,    2013,    the       judge    considered      the    parties'

disagreement about the sentencing laws to be applied. The State

argued the judge was required to apply the law in effect at the

time of the offense, N.J.S.A. 2A:4-61(h), which authorized an

indeterminate        life      sentence;    C.F.      sought       application         of    the

current law, in effect when he was tried and sentenced, N.J.S.A.

2A:4A(d)(1)(b),          which     authorized         a     maximum    of     ten       years

incarceration. The judge agreed with C.F., for reasons set forth

in   a    comprehensive        written     decision,        and    imposed    a    ten-year

period of incarceration.

4
  By the time of the complaint, a charge of sexual assault would
have been time-barred. N.J.S.A. 2A:159-2.
5
   C.F. neither            testified     nor       called    any    experts       or    other
witnesses.
6
  The judge filed thorough and well-reasoned written opinions
explaining his reasons for denying the motion to dismiss and in
finding C.F. guilty.



                                               3                                    A-2718-12T2
    Both C.F. and the State appeal. The State reprises its

argument that C.F. should have been sentenced pursuant to the

law in effect at the time of the offense and, because the judge

applied current law, the term of incarceration imposed was not

legal.   C.F. argues, in a single point:

          DEFENDANT WAS DEPRIVED OF HIS RIGHT TO THE
          EFFECTIVE ASSISTANCE OF COUNSEL WHEN HIS
          TRIAL COUNSEL FAILED TO OBJECT TO THE
          ADMISSION   OF   A   NON-TESTIFYING  MEDICAL
          EXAMINER'S AUTOPSY FINDINGS, THROUGH THE
          TESTIMONY OF ANOTHER MEDICAL EXAMINER, AS
          SUCH VIOLATED DEFENDANT'S RIGHTS TO CONFRONT
          WITNESSES, DUE PROCESS OF LAW AND A FAIR
          TRIAL. U.S. CONST. AMENDS VI, XIV; N.J.
          CONST. (1947) ART. I, PARS. 1, 9, 10 (Not
          Raised Below).

We reject the State's argument and do not reach the merits of

C.F.'s ineffectiveness argument.


                                I

    Turning first to C.F.'s appeal, we initially observe that

the record on appeal does not disclose why counsel failed to

assert   an   objection,   based    on     the   Sixth   Amendment's

Confrontation Clause, to testimony about the autopsy findings

that came from a witness who did not perform the autopsy. To

understand the significance of the argument, we observe that

C.F.'s theory at trial was that the proofs did not demonstrate

beyond a reasonable doubt that sex with L.T. was anything but

consensual and that the fatal wounds were made later by another,



                                4                           A-2718-12T2
unidentified         person.7    The    persuasiveness        of   C.F.'s    theory      is

greatly affected — as the trial judge's findings reveal — by

evidence about the lapse of time between the sexual encounter

and L.T.'s murder.

       In other words, C.F.'s confrontation argument presents a

very    fine     point.       The      so-called      "substitute       witness"       was

permitted to opine about the evidence, including the autopsy

photographs, the victim's clothing and the report prepared by

another medical examiner, and the substitute witness was also

permitted to explain that death was caused by a stab wound to

the chest and asphyxiation by strangulation. Those opinions were

not necessarily in conflict with C.F.'s third-party-guilt theory

and    we     discern    no     prejudice        to   C.F.    from    the    substitute

witness's       opinions        on   those       points.     The   State's       witness,

however,      also    testified      the   sexual     activity       occurred    between

twenty-four and thirty-six hours prior to the commencement of

the autopsy.         Because the autopsy began at or around 11:15 a.m.,

on Tuesday, March 16, 1976, the judge extrapolated that the time

of    death    was    "between,      approximately         11:00   p.m.,    on   Sunday,

7
  This theory was certainly colorable. An expert called by the
State examined eight fingerprints taken from the crime scene.
Four lacked sufficient detail to make feasible a comparison of
others, and one belonged to L.T.; the remaining three did not
match C.F. or anyone else known to police. In addition, DNA that
matched neither C.F. nor L.T. was obtained from cigarette butts
in an ashtray at the crime scene.



                                             5                                   A-2718-12T2
March 14 [and] approximately 11:00 a.m., Monday, on March 15,

1976"; the judge noted "the defense did not contest" this and

that     evidence          regarding    L.T.'s     activities      Sunday      morning

supported this assertion.

       As    the    judge     thoroughly      explained     in   his     well-reasoned

written opinion, to prove felony murder the State was required

to prove beyond a reasonable doubt that "[t]he fatal wounding of

the     decedent      occurred        sometime    within     the   course      of    the

[predicate         offense,    i.e.,    the    sexual     assault],    including     its

aftermaths of escape and concealment efforts."                     By excluding the

possibility         that    the     sexual    encounter    occurred      on   Sunday    —

because of L.T.'s known activities for a part of Sunday, as well

as testimony from the DNA expert about the "short shelf life of

intact spermatozoa in live persons"8 — the judge concluded that

the sexual event happened at or about the time of death. The

judge       also    relied     on    other     evidence     he   found    credible      —

including evidence demonstrating L.T. was tied up after the rape

but stabbed in the chest before being tied-up — and made the

following findings regarding the sequence of events:




8
  In paraphrasing the State's unrebutted expert testimony, the
judge observed that "intact sperm in a live person remains
visible only within six (6) hours after the sexual event, and no
more than twenty-four (24) hours."



                                              6                                A-2718-12T2
           L.T. was stabbed in the chest, then her
           clothes were removed,[9] a robe was put on and
           her panties remained, the sexual event
           occurred,   presumably    in  the   bed,   and
           thereafter she was tied and bound, and
           ultimately died from the stabbing wounds and
           asphyxiation. As a result of the sum of the
           testimony on the timing and sequence of the
           sexual event and the fatal stabbing and
           strangulation, the court concludes beyond
           any reasonable doubt that L.T. was "fatally
           wounded" during the commission of the rape.

The judge found no logical basis in the defense theory that "a

purported consensual sexual event happened a day or more before

the   physical   attack   and   death,   and   was   thus   separate   and

distinct from it" because

           of the testimony regarding the short-lived
           visibility of intact sperm. . . . [The
           defense theory] would require L.T. or her
           assailant, after the stabbing and removal of
           her blouse, bra and slip, to place back on
           her   the  very   panties   and   robe   which
           coincidentally   and    unluckily    contained
           [C.F.'s] innocently deposited sperm. Such a
           version strains the bounds of credulity well
           beyond the point of rupture.

9
  The judge drew this conclusion because of evidence that an area
rug at the foot of a dresser was blood-stained, "indicating
[L.T.] was out of the bed and injured at some point before she
was bound, tied, and bedridden. In addition, the bottom of her
right foot was caked in blood, with substantial splattering up
to the ankle, strongly suggesting that, at some point prior to
her found state in the bed, she was standing, with her foot
firmly and presumably in her own blood."    The judge also noted
that a blouse found on the dresser had a "visible hole pierced
through it, on its left side, which clearly correlates to the
puncture wound visible on L.T.'s upper left chest[,] . . .
demonstrat[ing] [she] was wearing this blouse when stabbed, and
that it was removed thereafter."



                                    7                            A-2718-12T2
There seems little doubt that in accepting the State's theory

that the murder occurred simultaneously with or very close in

time to the rape, the judge relied in part on the "substitute"

witness's testimony.

      In    this        light   we   examine     C.F.'s     argument       that    the

Confrontation Clause barred this substitute witness from opining

on subjects critical to the defense theory of third-party guilt

and that counsel's failure to object was so detrimental that it

warrants a new trial.             Placing this assertion in the context of

the ineffectiveness standard, C.F. was required to demonstrate

the   failure      to    object   was    "so   serious    that    counsel   was    not

functioning as the 'counsel' guaranteed the defendant by the

Sixth Amendment," and "there is a reasonable probability that,

but   for   counsel's       unprofessional       errors,    the    result    of    the

proceeding would have been different." Strickland v. Washington,

466 U.S. 668, 687, 694, 104 S. Ct. 2052, 2064, 2068, 80 L. Ed.

2d 674, 693, 698 (1984); see State v. O'Neil, 219 N.J. 598, 611

(2014).

      This argument was not presented to the trial judge in any

fashion and the           record does not reveal or suggest counsel's

reason for not objecting to the substitute medical examiner's

testimony. We cannot know, for example, whether there was a

legitimate      tactical        reason    for    counsel's       silence    —     that



                                           8                                 A-2718-12T2
information     "lie[s]     outside      the       trial     record"   —   and     we,

therefore,    cannot    reach     the    merits     of     C.F.'s   ineffectiveness

argument.     State v. Preciose, 129 N.J. 451, 460 (1992).

      Even assuming the decision to refrain from objecting could

not advance some sound tactical goal favorable to the defense,

we still would not be able to appreciate the impact of the

second Strickland prong in light of the record's limitations. A

full and fair consideration of C.F.'s confrontation arguments

should first be explored by the trial judge, whose careful and

painstaking review of the evidence was thoroughly explained in

his   written    opinion.    Because          of   his     familiarity     with    the

evidence, the trial judge will be in a far better position to

appreciate    whether     there    was    a    reasonable      probability        of   a

different outcome once he is presented with a post-conviction

relief petition containing a specific analysis of the testimony

C.F. believes was barred by the Confrontation Clause.10

      For these reasons, we do not further consider whether C.F.

was deprived the effective assistance of counsel; that question

10
  We emphasize C.F.'s need to be specific in future proceedings
because of the uncertain lines the Supreme Court of the United
States has drawn in this setting. See State v. Michaels, 219
N.J. 1, 15-36 (2014) (reviewing the evolution of the Supreme
Court's Confrontation Clause jurisprudence from the landmark
decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct.
1354, 158 L. Ed. 2d 177 (2004) to its members' splintered views
in Williams v. Illinois, 567 U.S. __, 132 S. Ct. 2221, 183 L.
Ed. 2d 89 (2012)).



                                          9                                 A-2718-12T2
may be explored by way of a petition for post-conviction relief.

Preciose, supra, 129 N.J. at 460.


                                        II

     In its appeal, the State contends that the judge imposed an

illegal sentence by applying the law in effect at the time of

sentencing      instead    of    the   law   in   effect   when   the   offense

occurred.       We reject that argument.

     When L.T. was murdered in 1976, the Legislature provided,

by way of N.J.S.A. 2A:4-61(h), that "any time an adjudication of

juvenile delinquency is predicated upon an offense which, if

committed by [an adult] would constitute any form of homicide as

defined     .    .   .,   then   the   period     of   confinement   shall     be

indeterminate and shall continue until the appropriate paroling

authority determines that such person should be paroled; and,

except that in any case the period of confinement and parole

shall not exceed the maximum provided by law for such offense if

committed by [an adult]," i.e., a maximum of life in prison.11 On


11
   In 1976, the law called for every adult convicted of first-
degree murder to "suffer death unless the jury shall by its
verdict . . . recommend life imprisonment, in which case this
and no greater punishment shall be imposed." N.J.S.A. 2A:113-4.
In 1986, the imposition of a death sentence on a juvenile was
barred by legislation, N.J.S.A. 2C:11-3(g), and later found
constitutionally barred, Roper v. Simmons, 543 U.S. 551, 578,
125 S. Ct. 1183, 1200, 161 L. Ed. 2d 1, 28 (2005); State v. Bey,
112 N.J. 45, 104-05 (1988). And see Miller v. Alabama, 567 U.S.
                                                     (continued)


                                        10                              A-2718-12T2
the other hand, C.F. argued — and the trial judge agreed — that

the disposition of this juvenile matter was to be governed by

the   sentencing   laws    in   effect    at       the    time    of       sentencing.

N.J.S.A. 2A:4A-44(d)(1)(b) — enacted in 1982 to become effective

December 31, 1983, L. 1982, c. 77, § 25, and still in effect —

declares   the   court    shall    commit      a    juvenile      found         to    have

committed felony murder to a term "not to exceed . . . 10

years."

      The State argued in the trial court — and argues now — that

the   judge   should   have     looked    back      and    applied         a    law    the

Legislature has since discarded because, as a general matter,

"[c]riminal legislation is presumed to have prospective effect,"

and because the Legislature, by way of its "savings statute,"

has   prohibited   the    retroactive       application          of    a       statutory




(continued)
__, __, 132 S. Ct. 2455, 2460, 183 L. Ed. 2d 407, 414-15 (2012)
(holding the Eighth Amendment bars imposition of a mandatory
life without parole sentence on offenders under the age of
eighteen at the time of their offenses); see also Montgomery v.
Louisiana, No. 14-280, 2016 U.S. LEXIS 862 at *34 (Jan. 25,
2016) (holding Miller's substantive rule of constitutional law
applies retroactively). Consequently, the maximum sentence for a
juvenile prior to the enactment of N.J.S.A. 2A:4A-44(d)(1), was
a life sentence.




                                     11                                         A-2718-12T2
amendment    reducing   a   criminal   penalty12   unless   otherwise

declared; this savings statute declares:

            No offense committed, and no liability,
            penalty or forfeiture, either civil or
            criminal, incurred, previous to the time of
            the repeal or alteration of any act or part
            of any act, . . . shall be discharged,
            released or affected by the repeal or
            alteration of the statute under which such
            offense, liability, penalty or forfeiture
            was   incurred,   unless  it   is  expressly
            declared in the act by which such repeal or
            alteration is effectuated, that an offense,
            liability, penalty or forfeiture already
            committed or incurred shall be thereby
            discharged, released or affected.

            [N.J.S.A. 1:1-15.]

On its surface, this savings statute does not clearly reveal

"the precise circumstances that trigger" its application. State

v. Chambers, 377 N.J. Super. 365, 372-73 (App. Div. 2005).13

Instead, the statute lumps together multiple concepts which do

not occur simultaneously.

     That is, the savings statute was designed to prevent a new

law — absent an express declaration when the new law is enacted


12
   The ex post facto clauses in both the federal and state
constitutions, U.S. Const. art. I, § 10; N.J. Const. art. IV, §
7, ¶ 3, prohibit application of a new law authorizing a more
severe penalty for a prior offense. See State v. Witt, 223 N.J.
409 (2015).
13
   Congress and most state legislatures have enacted similar
provisions but courts have not applied them uniformly. Id. at
373.



                                 12                          A-2718-12T2
—     from   "discharg[ing],                 releas[ing]         or     affect[ing]"          the

application       of     an       existing       law,      but   it    contains       different

triggering events for different occurrences. N.J.S.A. 1:1-15. By

the     statute's       own        terms,     "offense[s]"        are     "committed"         and

"penalt[ies]" are "incurred." Ibid. Consequently, we look to the

date an offense was committed in determining whether a new law,

which    discharges,          releases       or       affects    an    offense,      should    be

applied to that offense, but we look to the date a penalty was

incurred     to    determine            whether        a   new   law    should       discharge,

release or affect the penalty for the offense.

       For example, in considering how the statute applies to an

"offense," a subsequent change in the law defining felony murder

would not govern this case absent a legislative declaration to

that effect; in that circumstance, the argument in favor of

applying     the       new        law   would      actually      seek     its       retroactive

application.       But        a    legislative         change    in     the   "penalty"       for

committing an offense — even if the offense was committed prior

to the change — would not be hampered by the savings statute

because,     in        that       instance,       the      new    law     would      be   given

prospective application; in that circumstance, we would look to

the part of the savings statute that applies to "penalties," not

"offenses," and observe that the statute declares no penalty

"incurred    .     .    .     shall     be   .    .    .   affected     by    the    repeal   or




                                                  13                                   A-2718-12T2
alteration of the statute under which such . . . penalty . . .

was incurred." N.J.S.A. 1:1-15 (emphasis added). In reading the

statute this way, as we believe we must, the new sentencing law

cannot be said to have been applied retroactively here because

the new law, N.J.S.A. 2A:4A-44, was enacted before C.F. incurred

a penalty. Accord State v. Parks, 192 N.J. 483, 488 (2007).14

     To   be   sure,   a    large   gulf   in    time    passed   between     the

offense's      commission     and    a     penalty's       incurrence;       C.F.

"committed" his offense in 1976 but did not "incur" a penalty

until 2013. No matter how striking or unusual that circumstance

may seem, it does not call for a different application of the

savings statute than warranted by its express language. Put into

the present context, had the Legislature redefined what it meant

to "commit" felony murder after 1976, the savings statute would

bar application of the new law. Our focus, however, is not on

the elements of the offense but on the penalty to be imposed.

C.F. did not incur a "penalty" until well after 1983, when the

current     juvenile   sentencing    laws       took    effect;   the   savings

statute simply has no impact on the application of those new

14
  In Chambers, we considered the application of an amendment to
the drunk driving statutes that, like here, called for a less
severe penalty than before. Id. at 367. We held that the
defendant was not entitled to the benefit of the new law not
because it was enacted after the offense but because, unlike
here, it was enacted after defendant was sentenced in municipal
court. Id. at 372.



                                      14                                A-2718-12T2
laws to him in 2013 because, in this sense, the new law is being

applied prospectively, not retroactively.15

      This same conclusion must be drawn when considering that

punishment for criminal offenses is based not only on the need

to confine an offender for the protection of society, but also

to    deter    future   criminal   conduct     and   to    rehabilitate           the

offender.      These concerns are not necessarily served by imposing

a penalty society no longer deems proper.            In this sense, it has

been recognized that an "ameliorative" statute "may be applied

retroactively." In re Smigelski, 30 N.J. 513, 527 (1959); see

also Gibbons v. Gibbons, 86 N.J. 515, 523 (1981).                      In similar

circumstances, Judge Stanley Fuld recognized, in speaking for

New   York's    highest   court,   that   a   refusal     to   apply    a    newer,

ameliorative law serves only a vengeful purpose that does no

honor to an enlightened society:

              A legislative mitigation of the penalty for
              a particular crime represents a legislative
              judgment that the lesser penalty or the
              different treatment is sufficient to meet

15
  State v. Parolin, 171 N.J. 223 (2002) is not inconsistent with
our holding.   Without reference to N.J.S.A. 1:1-15, the Court
held that a version of the No Early Release Act enacted after
the crime was inapplicable. There, however, as was the
circumstance in Chambers, the new version of NERA was enacted
not only after the offense but, more importantly, after that
defendant was sentenced. It is in that context that the Court
invoked "the presumption," upon which the State chiefly relies,
"that criminal legislation is to have prospective effect."
Parolin, supra, 171 N.J. at 233.



                                     15                                     A-2718-12T2
          the legitimate ends of the criminal law.
          Nothing is to be gained by imposing the more
          severe penalty after such a pronouncement;
          the excess in punishment can, by hypothesis,
          serve no purpose other than to satisfy a
          desire for vengeance. As to mitigation of
          penalties, then, it is safe to assume, as
          the modern rule does, that it was the
          legislative design that the lighter penalty
          should   be  imposed   in   all  cases  that
          subsequently reach the courts.

          [People v. Oliver, 134 N.E.2d 197, 202 (N.Y.
          1956).]

We agree that this presumption in favor of application of a

subsequent ameliorative statute warrants our affirmance of Judge

Kirsch's decision to apply the sentencing laws in effect at the

time he incarcerated C.F., and not the harsher law on the books

when the murder was committed.16




16
  Our criminal code, in fact, embodies this concept, declaring
that in any case "pending on or initiated after" the code's
effective date, "[t]he court, with the consent of the defendant,
may impose sentence" under the new code's provisions. N.J.S.A.
2C:1-1(c)(2). There apparently is no corollary to this statute
in our juvenile laws, but the Supreme Court has recognized the
application of a broader notion of fundamental fairness in
similar circumstances that would further support the conclusion
we reach. See Bey, supra, 112 N.J. at 104-05 (applying the
Legislature's abolishment of the death penalty for juvenile
offenders, without reference to N.J.S.A. 1:1-15, even though the
offense occurred before the legislative action because, among
other things, "sound public policy and fundamental fairness
dictate that defendant not be singled out to be the only
juvenile ever executed or even eligible for execution under our
current death penalty law"); State v. Biegenwald, 106 N.J. 13,
65-67 (1987) (holding N.J.S.A. 2C:1-1(c) "signifies generally a
legislative intention to give the benefit of new laws, when
                                                     (continued)


                                   16                    A-2718-12T2
    Affirmed in all respects but with the understanding that

C.F. may pursue his ineffectiveness argument by way of post-

conviction relief petition.




(continued)
possible, and where just, to those who are charged under old
laws").



                              17                     A-2718-12T2
