2002 Amendment to the Criminal Statute of Limitations Cannot Apply Retroactively to Allow Prosecution of an Offense Allegedly Committed in 1990

State v. Rosado, 475 N.J. Super. 266 (App. Div. 2023). Judge Gilson began his opinion for the Appellate Division in this case today as follows: “This appeal presents a novel question: does the January 3, 2002 amendment to the criminal statute of limitations, N.J.S.A. 2C:1-6, apply to and toll the five-year limitations period in effect in 1990, when defendant allegedly committed a sexual assault? We hold that the amendment does not apply because the statute of limitations governing defendant’s alleged assault had expired in 1995, years before the 2002 amendment took effect. Moreover, if we were to construe the 2002 amendment to apply to defendant’s criminal charge, it would violate the ex post facto clauses of both the federal and New Jersey constitutions. U.S. Const. art. I, § 10, cl. 1; N.J. Const. art. IV, § 7, ¶ 3…. We, therefore, reverse the order denying defendant’s motion and remand with direction that the trial court enter an order dismissing, with prejudice, the criminal complaint in this matter.”

Judge Gilson applied the de novo standard of review to the purely legal issues presented. He divided the appeal into “two related legal questions. First, does the 2002 amendment to N.J.S.A. 2C:1-6 apply to defendant’s charge? Second, if it does, does that application violate defendant’s constitutional rights under the Ex Post Facto Clause?”

The panel’s focus in answering the first question was on two amendments to N.J.S.A. 2C:1-6. The first, which occurred in 1996, provided that a prosecution for sexual assault “may be commenced at any time.” That amendment stated that it would “take effect immediately and shall be applicable to all offenses not yet barred from prosecution under the statute of limitations as of the effective date.”

Judge Gilson observed that “[t]he State effectively concedes that the elimination of the time limit for prosecuting a sexual assault made effective in 1996 does not apply to defendant’s charge of sexual assault that allegedly took place on May 26, 1990.” That was consistent with the amendment’s language that it would take effect immediately and would apply to offenses not yet barred by the five-year statute of limitations. By 1996, of course, the alleged sexual assault in 1990 was so barred.

The State relied instead on the 2002 amendment. “Under the 2002 amendment, the statute of limitations for prosecutions supported by DNA evidence does not begin to run until the State possesses both the physical evidence and the DNA or fingerprint evidence necessary to establish the identity of the ‘actor,'” Judge Gilson summarized. The State contended that the amendment applied retroactively, and that since detectives did not obtain buccal swabs from defendant until May 2021, the statute (as amended) did not begin to run until then. The Law Division agreed.

The Appellate Division, however, did not. “A plain reading of the statute and its amendments establishes that the 2002 amendment does not apply to an expired statutory-limitations period. The 1996 amendment reveals that the Legislature clearly understood that amendments could be applied prospectively or retroactively. The 1996 amendment was applied prospectively ‘to all offenses not yet barred from prosecution’ as of May 1, 1996. The 2002 amendment does not contain any language indicating that the Legislature intended to apply that amendment retroactively. Instead, in enacting the 2002 amendment, the Legislature stated that the amendment ‘shall take effect immediately.’ L. 2001, c. 308, § 2.” Judge Gilson cited Supreme Court criminal and civil opinions that made clear that “an amendment that is to take effect immediately is to be applied only prospectively.”

Turning to the second question, involving ex post facto, Judge Gilson stated that ex post facto principles under both the federal and New Jersey Constitutions, which are construed identically, “prevent the time for prosecution to be extended in any case where the pre-existing limitations period has already expired.” That was the case here.

The State argued that the 2002 amendment did not revive an expired limitations period but merely “tolled” the running of the statute. Judge Gilson did not agree. “The obvious problem with that contention is that one cannot toll something that has already expired…. No one can dispute that if defendant had been charged in 1997 with the sexual assault, that charge would have been dismissed with prejudice as time-barred under the criminal statute of limitations then in effect. Therefore, a 2002 amendment to the same statute cannot constitutionally revive what has already expired.” Accordingly, the panel reversed the Law Division and remanded with instructions for that court to grant defendant’s motion to dismiss.