New Jersey v. Twiggs

Annotate this Case

In 2009, a detective responded to a robbery call and met with S.T. (the victim) and defendant Gary Twiggs, who stated they had been robbed by a white male wearing a mask, later identified as Dillon Tracy. A police officer took the mask for DNA analysis. In July 2014, police collected DNA from Tracy. His DNA matched the sample found on the mask. Tracy later confessed, implicating Twiggs. Based on Tracy’s testimony, police arrested Twiggs for conspiracy and the robbery, and a grand jury returned an indictment. Twiggs moved to dismiss the indictment, arguing that the claim was barred by the general criminal statute of limitations. The State responded that the DNA exception within N.J.S.A. 2C:1-6(c) tolled the statute of limitations. The trial court found the DNA-tolling provision inapplicable and dismissed the indictment. A divided panel of the Appellate Division affirmed.

In 2002, ten-year-old Iyonna Jones found a note from her mother, Elisha Jones -- intended for Iyonna’s aunt, Likisha Jones -- explaining that Iyonna’s nine-year-old sister, Jon-Niece Jones, had stopped breathing and that Elisha went to “tak[e] care of it.” Likisha called her brother, James Jones, telling him that there was a family emergency. James and Iyonna’s uncle, Godfrey Gibson, traveled to Elisha’s home. James, Gibson, and Elisha drove to a wooded area in Upper Freehold, New Jersey. Elisha took the bin into the woods. Nearly four months later, Elisha died. Years later, in March 2005, a hunter found a child’s skeletal remains. In July 2012, Iyonna provided information relating to the disappearance of Jon-Niece. Law enforcement compared Iyonna’s DNA and the DNA of Jon-Niece’s father to the DNA generated from the skeletal remains. In January 2013, a grand jury returned an indictment, charging James, Likisha, and Gibson with third-degree conspiracy, as well as substantive tampering, obstruction, and hindering charges. James and Likisha moved to dismiss the indictment, arguing expiration of the applicable statute of limitations. The trial court denied the motion. The Appellate Division reversed the denial of defendants’ motion to dismiss the tampering, obstruction, and hindering charges; affirmed the denial of the motion to dismiss the conspiracy charge; and
remanded for resentencing on the conspiracy charge. The Court granted the State’s petition and defendants’ cross-petitions for certification.

Both cases implicated the DNA-tolling exception. The New Jersey Supreme Court determined the exception applied only when the State obtained DNA evidence that directly matched the defendant to physical evidence of a crime. Because the DNA identifications at issue in these cases did not directly link defendants to the relevant offenses, the Court affirmed the Appellate Division’s affirmance of the trial court’s dismissal of the indictments against defendant Gary Twiggs in its entirety and against defendants James and Likisha Jones in relevant part.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of
the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.)

State v. Gary Twiggs (A-51-16) (077686)
State v. James E. Jones & Likisha Jones (A-63/64/65-16) (077964)

Argued January 29, 2018 -- Decided June 19, 2018

TIMPONE, J., writing for the Court.

The New Jersey Code of Criminal Justice (the Code) contains a tolling provision that
delays the start of the clock on the statute of limitations “when the prosecution is supported
by physical evidence that identifies the actor by means of DNA testing . . . until the State is
in possession of both the physical evidence and the DNA . . . evidence necessary to establish
the identification of the actor by means of comparison to the physical evidence.”
N.J.S.A.
2C:1-6(c). These consolidated appeals hinge on whether the provision applies when a DNA
identification does not directly identify the defendant but rather begins an investigative chain
that leads to the defendant. A separate issue in State v. Jones is whether the indictment on
the conspiracy count survives under a “continuing course of conduct” analysis.

State v. Twiggs: On June 16, 2009, a detective responded to a robbery call and met
with S.T. (the victim) and defendant Gary Twiggs, who stated they had been robbed by a
white male wearing a mask, later identified as Dillon Tracy. A police officer took the mask
for DNA analysis. In July 2014, police collected DNA from Tracy. His DNA matched the
sample found on the mask. Tracy later confessed, implicating Twiggs. Based on Tracy’s
testimony, police arrested Twiggs for conspiracy and the robbery, and a grand jury returned
an indictment. Twiggs moved to dismiss the indictment, arguing that the claim was barred
by the general criminal statute of limitations,
N.J.S.A. 2C:1-6(b)(1). The State responded
that the DNA exception within
N.J.S.A. 2C:1-6(c) tolled the statute of limitations. The trial
court found the DNA-tolling provision inapplicable and dismissed the indictment. A divided
panel of the Appellate Division affirmed.
445 N.J. Super. 23, 36 (App. Div. 2016). The
State filed a notice of appeal as of right pursuant to Rule 2:2-1(a)(2).

State v. Jones: On August 15, 2002, ten-year-old Iyonna Jones found a note from her
mother, Elisha Jones -- intended for Iyonna’s aunt, Likisha Jones -- explaining that Iyonna’s
nine-year-old sister, Jon-Niece Jones, had stopped breathing and that Elisha went to “tak[e]
care of it.” Likisha called her brother, James Jones, telling him that there was a family
emergency. James and Iyonna’s uncle, Godfrey Gibson, traveled to Elisha’s home. Upon
their arrival, Elisha packed a plastic bin and garbage bag in the rear of Gibson’s car. James,
Gibson, and Elisha drove to a wooded area in Upper Freehold, New Jersey. Elisha took the
bin into the woods. A few days later at a family meeting, everyone present made a compact
to keep the incident secret and to answer any inquiries as to Jon-Niece’s whereabouts with
1
“she’s with her father.” Nearly four months later, Elisha died. Years later, in March 2005, a
hunter found a child’s skeletal remains. In July 2012, Iyonna provided information relating
to the disappearance of Jon-Niece. Law enforcement compared Iyonna’s DNA and the DNA
of Jon-Niece’s father, Jamal Kerse, to the DNA generated from the skeletal remains. In
January 2013, a grand jury returned an indictment, charging James, Likisha, and Gibson with
third-degree conspiracy, as well as substantive tampering, obstruction, and hindering
charges. James and Likisha moved to dismiss the indictment, arguing expiration of the
applicable statute of limitations. The trial court denied the motion. The Appellate Division
reversed the denial of defendants’ motion to dismiss the tampering, obstruction, and
hindering charges; affirmed the denial of the motion to dismiss the conspiracy charge; and
remanded for resentencing on the conspiracy charge.
445 N.J. Super. 555, 560 (App. Div.
2016). The Court granted the State’s petition and defendants’ cross-petitions for
certification.
230 N.J. 361 (2017);
230 N.J. 374 (2017);
230 N.J. 375 (2017).

HELD: The DNA-tolling exception applies only when the State obtains DNA evidence that
directly matches the defendant to physical evidence of a crime. In Jones, the State presented
sufficient evidence of a continuing course of conduct to survive the motion to dismiss.

1. If the State does not file charges against an individual within the relevant statutory
timeframe, the statute of limitations serves as an absolute bar to the prosecution of the offense.
The DNA-tolling exception tolls the statute of limitations if the State’s prosecution of an
individual, “the actor,” is “supported by” DNA evidence that matches, or “identifies,” the actor
to physical evidence within its possession.
N.J.S.A. 2C:1-6(c). Because of its unique nature,
DNA testing has become a widespread and standard practice in identifying criminal
perpetrators that courts have accepted as scientifically reliable and admissible in criminal trials
against defendants to whom the DNA matched.
N.J.S.A. 2C:1-6(c) permits tolling when
identification is achieved directly by DNA evidence rather than DNA evidence in addition to
other means. It is apparent that the Legislature intended the provision to apply to the sole actor
whom the DNA distinctly identifies. (pp. 22-25)

2. Nothing in the legislative history of the tolling statute calls into question the plain-language
reading identified above. Under the State’s interpretation, the tolling provision would apply
even when the primary evidence used to support its prosecution of a defendant is not the DNA
evidence but rather a statement by a third party. Such evidence is the very kind of stale
evidence the criminal statutes of limitations operate to guard against. The statute of limitations
is not intended to assist the State in its investigations; it is intended to protect a defendant’s
ability to sustain his or her defense. Unlike other forms of evidence, DNA evidence can never
become stale. For the DNA-tolling provision to apply, the State must have DNA evidence that
establishes a direct link between physical evidence already within its possession and the
defendant it seeks to prosecute. (pp. 26-31)

3. The DNA evidence obtained from the physical evidence in Jones -- the remains --
established no link beyond a familial connection to Iyonna and Kerse. That evidence
certainly did not directly implicate defendants as perpetrators of the substantive crimes

2
charged. The implication came only through third-party testimony, which
N.J.S.A. 2C:1-
6(c) does not operate to preserve. Without the exception, the statute of limitations expired.
The judgment of the Appellate Division reversing the trial court’s denial of defendants’
motion to dismiss the indictment on the substantive charges is affirmed. (pp. 31-32)

4. In Twiggs, a grand jury indicted Twiggs based primarily on Tracy’s confession and his
subsequent implication of Twiggs as a co-conspirator in the armed robbery. There exists no
direct link between the DNA extracted from the physical evidence and Twiggs. Unless DNA
evidence establishes a direct identification to the defendant charged, the mere existence of
DNA evidence in a case cannot work to toll general statutes of limitations. The State argues
that the reading of the term “defendant” to include principals and accomplices for purposes
of the No Early Release Act (NERA) in State v. Rumblin,
166 N.J. 550 (2001), should apply
to the DNA-tolling context. NERA uses the term “actor” in a wholly distinct framework to
achieve underlying policy goals separate from those of the DNA-tolling provision. NERA is
not influenced by stale-evidence concerns because it is triggered only after a defendant’s trial
or guilty plea. In contrast, the DNA-tolling provision creates an exception at the front end of
the judicial process by permitting criminal prosecutions outside of the generally prescribed
statute of limitations. The discussion of “actor” in Rumblin to include principals and
accomplices under NERA is simply inapplicable to the DNA-tolling provision. In Twiggs,
the DNA-tolling exception does not apply. The judgment of the Appellate Division
affirming the trial court’s dismissal of the indictment against Twiggs is affirmed. (pp. 33-36)

5. As to the motions to dismiss the conspiracy count of the indictment in Jones,
“[c]onspiracy is a continuing course of conduct” that terminates, for statute of limitations
purposes, when (1) “the crime or crimes which are its object are committed,” or (2) “the
agreement that they be committed is abandoned by the defendant and by those with whom he
conspired.”
N.J.S.A. 2C:5-2(f)(1). In Grunewald v. United States, the Supreme Court
stressed a “vital distinction” “between acts of concealment done in furtherance of the main
criminal objectives of the conspiracy,” which extend the conspiracy and toll the statute of
limitations, and “acts of concealment done after these central objectives have been attained,
for the purpose only of covering up after the crime.”
353 U.S. 391, 405 (1957). Here, the
State presented sufficient evidence to survive defendants’ motions to dismiss. The co-
conspirators exhibited a continuing course of conduct beginning before and extending
beyond Elisha’s death. The potential exists that those actions were not merely intended to
protect Elisha, but also to insulate from discovery the co-conspirators’ roles. Defendants are
entitled to challenge the evidence advanced by the State. And, if this case proceeds to trial,
defendants would be entitled to a jury charge explaining Grunewald’s application. The
judgment of the Appellate Division affirming the denial of defendants’ motion to dismiss the
indictment on the conspiracy charge in Jones is affirmed. (pp. 36-40)

AFFIRMED.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON,
FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s opinion.

3
SUPREME COURT OF NEW JERSEY
A-
51 September Term 2016
A-63/64/
65 September Term 2016
077686 and 077964

STATE OF NEW JERSEY,

Plaintiff-Appellant,

GARY TWIGGS,

Defendant-Respondent.

STATE OF NEW JERSEY,

Plaintiff-Appellant-
Cross-Respondent,

JAMES E. JONES and LIKISHA
JONES,

Defendants-Respondents-
Cross-Appellants,

and

GODFREY J. GIBSON,

Defendant.

Argued January 29, 2018 – Decided June 19, 2018

State of New Jersey v. Gary Twiggs (A-51-
16): On appeal from the Superior Court,
Appellate Division, whose opinion is
reported at
445 N.J. Super. 23 (App. Div.
2016).

State of New Jersey v. James E. Jones and
Likisha Jones (A-63/64/65-16): On
certification to the Superior Court,
1
Appellate Division, whose opinion is
reported at
445 N.J. Super. 555 (App. Div.
2016).

Sarah Lichter, Deputy Attorney General,
argued the cause for appellant in State of
New Jersey v. Gary Twiggs (A-51-16) (Gurbir
S. Grewal, Attorney General, attorney;
Joseph A. Glyn, Deputy Attorney General, of
counsel and on the brief).

Vincent P. Sarubbi argued the cause for
respondent in State of New Jersey v. Gary
Twiggs (A-51-16) (Archer & Greiner,
attorneys; Vincent P. Sarubbi and Bailey E.
Axe, on the brief).

Sarah Lichter, Deputy Attorney General,
argued the cause for appellant in State of
New Jersey v. James E. Jones and Likisha
Jones (A-63/64/65-16) (Gurbir S. Grewal,
Attorney General, attorney; Sarah Lichter
and Joseph A. Glyn, Deputy Attorney General,
of counsel and on the briefs).

Daniel V. Gautieri, Assistant Deputy Public
Defender, argued the cause for respondent
James E. Jones in State of New Jersey v.
James E. Jones and Likisha Jones (A-
63/64/65-16) (Joseph E. Krakora, Public
Defender, attorney; Daniel V. Gautieri, of
counsel and on the briefs).

Christopher T. Campbell argued the cause for
respondent Likisha Jones in State of New
Jersey v. James E. Jones and Likisha Jones
A-63/64/65-16) (Law Offices of Christopher
T. Campbell, attorneys; Christopher T.
Campbell, of counsel and on the briefs).

JUSTICE TIMPONE delivered the opinion of the Court.

The New Jersey Code of Criminal Justice (the Code) contains

a tolling provision that delays the start of the clock on the

2
statute of limitations “when the prosecution is supported by

physical evidence that identifies the actor by means of DNA

testing . . . until the State is in possession of both the

physical evidence and the DNA . . . evidence necessary to

establish the identification of the actor by means of comparison

to the physical evidence.”
N.J.S.A. 2C:1-6(c). These

consolidated appeals hinge on the meaning of the term “actor”

within that provision and require us to determine whether the

provision applies when a DNA identification does not directly

identify the defendant but rather begins an investigative chain

that leads to the defendant. Because of the common issues in

this opinion, we are consolidating these appeals.

Based on the plain language of
N.J.S.A. 2C:1-6(c) and the

policy rationale underlying the criminal statute of limitations,

we conclude that the DNA-tolling exception applies only when the

State obtains DNA evidence that directly matches the defendant

to physical evidence of a crime. Because the DNA

identifications at issue in these cases did not directly link

defendants to the relevant offenses, we affirm the Appellate

Division’s affirmance of the trial court’s dismissal of the

indictments against defendant Gary Twiggs in its entirety and

against defendants James and Likisha Jones in relevant part.

A separate issue in State v. Jones is whether the

indictment on the conspiracy count survives under a “continuing

3
course of conduct” analysis that would toll the applicable

statute of limitations under
N.J.S.A. 2C:1-6(c). We agree that

the State presented sufficient evidence of a continuing course

of conduct to survive the motion to dismiss the indictment, so

we also affirm the Appellate Division on that count.

We derive the facts in State v. Twiggs from pretrial motion

practice.

On June 16, 2009, a detective from the Wildwood Crest

Police Department responded to a robbery call. At the scene,

the detective met with S.T. (the victim) and defendant Gary

Twiggs, who stated they had been robbed of their money and cell

phones by a white male wearing a black hoodie, jeans, and a

black mask, later identified as Dillon Tracy. S.T. told the

detective that after Twiggs pulled up in his vehicle, Tracy

approached S.T. from behind, placed a gun in his side, and

ordered him into the passenger seat of Twiggs’s vehicle. Tracy

then demanded their cell phones and money and escaped into a

black SUV after both Twiggs and S.T. complied. Police later

found a black mask where S.T. said the black SUV had been

parked. A police officer took the mask for DNA analysis and

later entered the extracted DNA into the Combined DNA

Information System (CODIS).

4
Twiggs and S.T. submitted to multiple interviews with

police. During one interview, S.T. admitted that he met Twiggs

on the night of the robbery to sell Twiggs Percocet tablets.

S.T. said he believed Twiggs and Tracy were friends and had

arranged the robbery. In a later interview, Twiggs claimed he

was a victim of the robbery.

In July 2014, police collected DNA from Tracy after he

entered a guilty plea in drug court. His DNA matched the sample

found on the mask. Tracy later confessed, implicating Twiggs in

the 2009 robbery. In September 2014, based on Tracy’s

testimony, police arrested Twiggs for conspiracy and the

robbery.

In December 2014, a Cape May Grand Jury returned an

indictment, charging Twiggs and Tracy with conspiracy to commit

robbery,
N.J.S.A. 2C:5-2(a), and robbery,
N.J.S.A. 2C:15-1(a).

Twiggs moved to dismiss the indictment, arguing that the claim

was barred by the general criminal statute of limitations,

N.J.S.A. 2C:1-6(b)(1). The State responded that the DNA

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

limitations.

The trial court found the DNA-tolling provision

inapplicable because the DNA evidence recovered in connection

with the offense did not identify Twiggs, but rather Tracy, who

in turn implicated Twiggs as an alleged co-conspirator. The

5
court consequently dismissed the indictment, and the State

appealed.

A divided panel of the Appellate Division affirmed. State

v. Twiggs,
445 N.J. Super. 23, 36 (App. Div. 2016). The

majority held that “the actor” in the DNA-tolling provision

“refers to the individual whose DNA is analyzed. It does not

apply to a third party identified by that individual.” Id. at

25-26. The majority determined that the plain language of the

statute “only applies to persons whose DNA directly identifies

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

later named by those same criminal actors.” Id. at 30. Because

the physical evidence recovered and the DNA evidence later

obtained did not directly, by itself, implicate Twiggs, the

panel found the DNA-tolling provision inapplicable for a

prosecution against him. Id. at 31 (“[T]he only evidence that

the State derived from the DNA evidence was Tracy’s identity,

and, subsequently, his confession that he and defendant

conspired to commit robbery.”).

The majority considered the DNA-tolling exception’s

legislative history and rejected the State’s argument that our

decision in State v. Rumblin,
166 N.J. 550 (2001), supports a

broader definition of the term “actor.” Id. at 33-34. The

Rumblin Court concluded that the term “actor” was synonymous

with “principal” and “accomplice” for purposes of the No Early

6
Release Act (NERA),
N.J.S.A. 2C:43-7.2.
166 N.J. at 555-56.

The majority in Twiggs distinguished N.J.S.A. 2C:1-6(c)’s use of

the term “actor” as different “both syntactically and

lexicologically” from NERA’s use of the word.
445 N.J. Super.

at 35. Focusing, therefore, on the text of the tolling

provision, the panel concluded that its “syntactical use of the

word 'actor’ . . . is more specific than the use of the term in

NERA and Rumblin.” Id. at 35-36.

According to the dissent, the “majority opinion’s reasoning

[cannot square] with the Supreme Court’s interpretation of the

term 'the actor’ in State v. Rumblin.” Id. at 37 (Leone, J.,

dissenting). Judge Leone’s primary concern was to avoid an

interpretation that “would enable the leaders of conspiracies to

evade prosecution under
N.J.S.A. 2C:1-6(c) by having the crime

committed by minions, who alone could be prosecuted when the

minion’s DNA is matched.” Id. at 46.

On May 4, 2016, the State filed a notice of appeal as of

right pursuant to Rule 2:2-1(a)(2).

We glean the following facts from the grand jury

proceedings in State v. Jones.

On August 14, 2002, ten-year-old Iyonna Jones left summer

school and went to her aunt Likisha Jones’s Manhattan apartment.

After she arrived, Iyonna fed her nine-year-old sister, Jon-

7
Niece Jones. Jon-Niece1 became ill after eating and fell over.

When Iyonna picked her up, Jon-Niece made Iyonna promise she

would not let her die. Jon-Niece then closed her eyes, and

Iyonna carried her to bed.

In the early morning hours of the next day, Iyonna’s and

Jon-Niece’s mother, Elisha Jones, woke Iyonna and instructed her

to get a large garbage bag. Elisha took the garbage bag into

Jon-Niece’s room while Iyonna went back to sleep. The next

morning, Iyonna found a note from Elisha -- intended for Likisha

-- explaining that Jon-Niece had stopped breathing and that

Elisha went to her Staten Island home to “tak[e] care of it.”

In the meantime, Likisha called her brother, James Jones,

telling him that there was a family emergency and instructing

him to go immediately to the Manhattan apartment.

About two days later, Iyonna overheard a phone conversation

between Likisha and Elisha, during which Elisha said “she was

scared and didn’t know what to do” because Jon-Niece was “dead

at [her] apartment . . . sitting in a bucket [and] bag, along

with cement and gasoline,” and Elisha was contemplating

“burn[ing] the apartment down.” Likisha told Elisha to hold off

and that help was on the way to Elisha in Staten Island.

1 We refer to members of the Jones family by their first names
for the sake of clarity.
8
James and Iyonna’s uncle, Godfrey Gibson, traveled to

Elisha’s home. Likisha left the Manhattan apartment but

stressed she did not accompany the men to Staten Island. Upon

their arrival, Elisha packed a plastic bin and garbage bag in

the rear of Gibson’s car. James, Gibson, and Elisha drove to a

wooded area in Upper Freehold, New Jersey. Elisha took the bin

into the woods. When she returned, James recalled smelling

gasoline and seeing a large fire coming from the area from which

Elisha was returning.

A few days later at a family meeting, everyone present made

a compact to keep the incident secret and to answer any

inquiries as to Jon-Niece’s whereabouts with “she’s with her

father.” Likisha denied the meeting occurred. Nearly four

months later, on December 26, 2002, Elisha died, leaving behind

a note that took the form of an apology. It conveyed that

Elisha did not want anyone to get in trouble and that when Jon-

Niece got hurt she did not know what to do. Elisha ended the

note by writing that “only God” can judge her.

Years later, in March 2005, a hunter found a child’s

skeletal remains in Upper Freehold, New Jersey. The Monmouth

County Medical Examiner’s Office declared the death to be a

homicide based on the charred remains containing two healed rib

fractures in the skeleton. The surrounding brush area was also

charred. The investigation continued. The University of North

9
Texas generated a DNA profile from the remains, but no new leads

emerged. On television, “America’s Most Wanted” aired a segment

on the skeletal remains, dubbing it the “Baby Bones case.”

Still, none of the tips generated by the show revived the very

cold case.

The issue was never far from the surface among the

participants. In 2006, during an argument with Likisha, Iyonna

threatened to “tell everyone what happened” to Jon-Niece.

Likisha struck Iyonna, telling her that if she told anyone,

Iyonna would also go to jail.

In 2010, some eight years after Jon-Niece’s demise, Iyonna

learned from James the details of the concealment of Jon-Niece’s

corpse: how Jon-Niece’s body was placed in a bucket filled with

water, gasoline, and cement and set ablaze in a dark area

somewhere in New Jersey.

In July 2012, during an interview with the New York City

Administration of Children’s Services (Children’s Services),

Iyonna provided information relating to the disappearance of

Jon-Niece. Iyonna recounted to Children’s Services the gruesome

details of the exchange she had with James about the burning of

Jon-Niece’s remains somewhere in New Jersey. This exchange

contributed to the discovery of Jon-Niece’s birth certificate,

social security card, and medical card, with her documentation

trail ending in 2002. After her interview with Children’s

10
Services, Iyonna received a phone call from Gibson who

threatened to kill her if he discovered that she talked to the

police about Jon-Niece’s death.

As Iyonna’s information came to light, law enforcement

compared Iyonna’s DNA to the DNA generated from the skeletal

remains. It confirmed Iyonna as a relative of the skeletal

remains on the maternal side. Law enforcement also compared the

skeletal DNA to the DNA of Jon-Niece’s father, Jamal Kerse. It

matched on the paternal side. The Medical Examiner received

copies of those DNA studies in September 2012. The Medical

Examiner issued a death certificate for Jon-Niece, listing the

cause of death as homicidal violence including physical abuse

and neglect.

In January 2013, a Monmouth County Grand Jury returned an

indictment, charging James, Likisha, and Gibson with third-

degree conspiracy to commit the crimes of tampering with

physical evidence, obstructing the administration of law, and/or

hindering the apprehension of another,
N.J.S.A. 2C:5-2; fourth-

degree tampering with physical evidence,
N.J.S.A. 2C:28-6(1);

fourth-degree obstructing the administration of law,
N.J.S.A.

2C:29-1; and third-degree hindering the apprehension of another,

N.J.S.A. 2C:29-3(a). The indictment separately charged Gibson

with second-degree hindering the apprehension of another,

11 N.J.S.A. 2C:29-3(a)(5); and second-degree hindering the

apprehension of himself,
N.J.S.A. 2C:29-3(b)(3).

Defendants James and Likisha moved to dismiss the

indictment, arguing expiration of the applicable statute of

limitations. The trial court denied the motion, ruling that the

statute of limitations tolled under the DNA-tolling provision,

N.J.S.A. 2C:1-6(c). The court reasoned that the provision

applied to the State’s case against defendants because the case

was “supported by” physical evidence that identified the actors

-- defendants -- by means of DNA testing. The court held that

Jon-Niece’s physical remains and the DNA evidence did not need

to identify defendants directly as the “alleged wrongdoers” as

long as it supported the prosecution, and that Iyonna’s

corroborating statements to police could serve as the primary

evidence against defendants. The trial court reset the statute

of limitations on the theory that the statute did not start to

run until 2012 -- when law enforcement came into possession of

the DNA of Iyonna and Kerse.

Defendants James and Likisha entered into conditional plea

agreements, with each pleading to third-degree conspiracy to

hinder apprehension and/or obstruct the administration of law,

N.J.S.A. 2C:5-2, and third-degree hindering apprehension,

N.J.S.A. 2C:29-3(a). The court sentenced defendants to

12
concurrent probationary terms of two years in accordance with

the plea agreements. Defendants appealed.

The Appellate Division reversed the denial of defendants’

motion to dismiss the tampering, obstruction, and hindering

charges; affirmed the denial of the motion to dismiss the

conspiracy charge; and remanded for resentencing on the

conspiracy charge. State v. Jones,
445 N.J. Super. 555, 560

(App. Div. 2016).

The appellate panel highlighted the tampering, obstruction,

and hindering charges as discrete offenses subject to the

standard five-year statute-of-limitation period. Id. at 569-70.

In assessing the applicability of the DNA-tolling provision to

the statute of limitations on those charges, the panel

underscored the overarching inquiry as “whether the DNA evidence

itself identifies the perpetrator.” Id. at 566 (emphasis

added). Although the DNA evidence identified Jon-Niece,

corroborating Iyonna’s statements, the panel held that the DNA-

tolling provision is inapplicable where DNA evidence is used “to

identify persons other than the actor, even if the match may

ultimately lead investigators to the perpetrator of the crime.”

Ibid.

Crucially, because the DNA results did not identify “the

perpetrators whose conduct led to the child’s death, or the

destruction of her remains,” ibid., the panel noted that “only

13
non-DNA, purely circumstantial evidence establishes the identity

of the perpetrators,” id. at 567. The panel observed that

permitting the State to circumvent general statute-of-limitation

law by applying the DNA-tolling provision to individuals not

directly identified through DNA “would eliminate in one stroke

the protection found in the statute of limitations.” Id. at

568. The panel resolved that defendants’ motion to dismiss the

tampering, obstruction, and hindering charges should have been

granted. Id. at 573-74. The panel reached a different

conclusion as to the conspiracy charge. Id. at 573.

The appellate panel classified defendants’ conspiratorial

conduct as a “continuing offense” rather than a “discrete

offense,” thereby affirming the trial court’s denial of the

motion to dismiss the conspiracy charge. Id. at 568-73. The

panel noted that “[a] continuing offense involves conduct

spanning an extended period of time and generates harm that

continues uninterrupted until the course of conduct ceases.”

Id. at 568 (quoting State v. Diorio,
216 N.J. 598, 614 (2014)).

The panel addressed defendants’ initial conspiracy to conceal

their criminal involvement in 2002 and identified overt acts

taken by defendants in furtherance of the conspiracy to conceal

from that time through 2012. Id. at 572 (indicating Likisha’s

2006 threats, James’s 2010 discussion with Iyonna, and Gibson’s

2012 threats). Finding that defendants’ continued reaffirmation

14
of the conspiracy through the years rendered that conspiracy a

“continuing offense,” the panel held that the conspiracy charge

was not barred by the five-year statute of limitations and did

not compel dismissal of that charge. Id. at 573.

We granted the State’s petition for certification and

defendants’ cross-petitions for certification.
230 N.J. 361

(2017);
230 N.J. 374 (2017);
230 N.J. 375 (2017).

II.

The State urges us to adopt a broad definition of “actor”

under
N.J.S.A. 2C:1-6(c), arguing that DNA evidence matching one

individual can support prosecutions of multiple defendants whose

identities and involvement “[are] not known to law enforcement”

until that DNA evidence is obtained. The State asserts that the

definition of “actor” under
N.J.S.A. 2C:1-14(g) applies to all

provisions in the Code “unless a different meaning is plainly

required.” According to the State,
N.J.S.A. 2C:1-6(c), unlike

other areas of the Code, “contains no other definition of

'actor,’” and so the term must refer to “any natural person” as

defined in
N.J.S.A. 2C:1-14(g). Pivoting off that definition,

the State argues that the statute of limitations should have

been tolled because its prosecutions of defendants in each case

were supported by DNA evidence that identified a natural person:

the victim in Jones and the co-conspirator in Twiggs.

15
The State maintains that its interpretation is consistent

with the legislative intent behind the exception as supported by

(1) the Legislature’s decision to modify its initial narrowly

tailored term from “the person who commits a crime” to the

broader term “the actor”; and (2) the Legislature’s failure to

use the term “the defendant,” which would reflect Rumblin’s

definition for “actor.” The State argues that a narrower

definition “would lead to anomalous results,” like foreclosing

prosecution of “more culpable” parties to a crime simply because

the State obtained DNA from less culpable accomplices.

Turning to the conspiracy charge in Jones, the State argues

that the appellate panel correctly determined “that defendants’

conspiracy was a continuing course of conduct that fell within

the five year statute of limitations.” The State asserts that

the scope of the conspiracy was not to protect Elisha from

prosecution, but rather “to conceal all the crimes committed

against [the victim]” and to prevent police from ever

investigating those crimes. The State distinguishes this case

from that in Grunewald v. United States,
353 U.S. 391 (1957),

claiming that “defendants’ acts of concealment were part of the

charged conspiracy, not a subsidiary conspiracy to conceal after

the central criminal purposes of the conspiracy was attained,”

and highlighting four overt acts by defendants to support that

argument.

16
Finally, the State asserts that courts at the motion-to-

dismiss stage are bound to the language in the indictment to

determine whether it is facially valid. Here, according to the

State, the indictment’s plain language “alleged a conspiracy

that 'necessitates concealment’” despite its failure to allege

all the overt acts in furtherance of the conspiracy. (quoting

Grunewald,
353 U.S. at 405). The State insists that defendants’

conspiracy prevented police from identifying the victim and

prosecuting defendants earlier. For that reason, the State

submits, it would be “abhorrent” for the statute of limitations

to bar defendants’ conspiracy charge as defendants would “reap

an unjust windfall for so thoroughly destroying Jon-Niece’s body

and intimidating Iyonna to prevent her from revealing the

crimes.”

Defendants Likisha, James, and Twiggs (collectively,

“defendants”) rely primarily on the same arguments to assert

that the term “actor” under
N.J.S.A. 2C:1-6(c) refers to a

criminal offender who is directly identified by DNA evidence.

Likisha and James distinguish the “generally accepted

definition” of actor -- “one who acts” -- from that of “victim”

-- one who “has been acted upon.” In a similar vein, Twiggs

argues that the statute does not explicitly include phrases that

extend the exception to anyone connected to the crime.

17
Defendants stress that N.J.S.A. 2C:1-14(g)’s definition of

actor “provide[s] the broadest possible interpretation of the

word” and is not intended “to be the one and only definition of

the word” in the Code. To that end, defendants maintain that

the Legislature “clearly intended that the term 'actor’ be

synonymous with 'suspect’” for purposes of the DNA exception, as

demonstrated by a Sponsors’ Statement that “used the words

'suspect’ and 'actor’ interchangeably.” Defendants emphasize

the enhanced reliability of DNA evidence to identify

perpetrators and the statute of limitations’ purpose to protect

against overly stale charges based on equally stale evidence.

For those reasons, defendants assert that “it makes sense” for

the DNA exception to relax the statute of limitations only “for

an actor whose DNA is later implicated as evidence of the

crime.”

Applying that definition, defendants argue that third-party

statements, not the DNA obtained by the State, identified them

as “suspects” in the respective crimes. Defendants urge us to

reject a broader definition that will allow any person whose DNA

is matched to “come forward after the statute of limitations has

expired [and] unreliably identify to law enforcement [any other

individuals] alleged to have been involved in the commission of

a crime.”

18
Considering the State’s conspiracy charge, defendants

Likisha and James argue that the central aim of their conspiracy

was to protect Elisha from prosecution. Likisha and James argue

that the appellate panel’s decision conflicts with Grunewald

because the indictment here “fails to state that the conspiracy

included an express agreement” between Likisha and James to

conceal the crime to avoid their own -- not Elisha’s --

prosecution. In short, Likisha and James maintain they achieved

“the central goal of the conspiracy” “[o]nce Elisha died in

December 2002,” and “the statute of limitations commenced to

run” at that moment. According to Likisha and James, any overt

acts taken afterward could not extend the life of an already

extinguished conspiracy. In the alternative, Likisha and James

assert that the conspiracy was abandoned because they did not

commit any overt act within the five-year timeframe. Under

either scenario, Likisha and James claim the statute of

limitations bars prosecution for conspiracy.

III.

The question common to both appeals before us and the

conspiracy question unique to Jones requires review of the

dismissal of an indictment. We have stressed that a court

should dismiss an indictment “'only on the clearest and plainest

ground,’ and only when the indictment is manifestly deficient or

19
palpably defective.” State v. Hogan,
144 N.J. 216, 228-29

(1996) (quoting State v. Perry,
124 N.J. 128, 168 (1991)).

We generally review a trial court’s decision to dismiss an

indictment under the deferential abuse of discretion standard.

Id. at 229. When the decision to dismiss relies on a purely

legal question, however, we review that determination de novo.

See State v. Cagno,
211 N.J. 488 505-06 (2012) (noting

appropriateness of plenary review of dismissal of indictment as

untimely under
N.J.S.A 2C:1-6(b)(1)). So, we review the

questions of law presented in this case de novo and need not

defer to the trial court or appellate panel’s interpretations.

State v. S.B.,
230 N.J. 62, 67 (2017) (relying on State v.

Grate,
220 N.J. 317, 329 (2015)).

The Legislature’s intent guides us in deciding the meaning

of a statute. DiProspero v. Penn,
183 N.J. 477, 492 (2005). To

determine the Legislature’s intent, as always, we begin our

analysis with the statute’s plain language. S.B.,
230 N.J. at
68 (citing DiProspero,
183 N.J. at 492). We are bound by

clearly defined statutory terms. Febbi v. Bd. of Review, Div.

Emp. Sec.,
35 N.J. 601, 606 (1961). Where a specific definition

is absent, “[w]e must presume that the Legislature intended the

words it chose and the plain and ordinary meaning ascribed to

those words.” Paff v. Galloway Township,
229 N.J. 340, 353

(2017).

20
Statutory language is, “generally, the best indicator” of

legislative intent, DiProspero,
183 N.J. at 492, but our review

is not limited to the words in a challenged provision. “[W]e

can also draw inferences based on the statute’s overall

structure and composition,” S.B.,
230 N.J. at 68, and may

consider “the entire legislative scheme of which [the statute]

is a part,” Kimmelman v. Henkels & McCoy, Inc.,
108 N.J. 123,

129 (1987). After all, courts must make “every effort . . . to

avoid rendering any part of the statute superfluous.” State in

Interest of K.O.,
217 N.J. 83, 91 (2014). “We do not view

[statutory] words and phrases in isolation but rather in their

proper context and in relationship to other parts of [the]

statute, so that meaning can be given to the whole of [the]

enactment.” State v. Rangel,
213 N.J. 500, 509 (2013).

When the statutory language is ambiguous and “leads to more

than one plausible interpretation,” courts may resort to

extrinsic sources, like legislative history and committee

reports. DiProspero,
183 N.J. at 492-93. We “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) (quoting Wilson ex rel. Manzano v. City of Jersey City,

209 N.J. 558, 572 (2012)). And we must be careful not to

“rewrite a statute or add language that the Legislature

21
omitted.” State v. Munafo,
222 N.J. 480, 488 (2015). After

considering extrinsic aids, we resolve any remaining ambiguities

in defendants’ favor “given our strict construction of penal

statutes.” State v. Williams,
218 N.J. 576, 586 (2014); State

v. Gelman,
195 N.J. 475, 482 (2008).

IV.

We begin with the question common to both appeals: whether

the statute of limitations was tolled as to defendants’ charges

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

The public has an undeniable interest in having criminal

offenders “charged, tried, and sanctioned.” Diorio,
216 N.J. at
612. But the State’s power to further that interest is not

unlimited. Our law recognizes a criminal defendant’s right “to

a prompt prosecution,” stemming from the potential prejudice

likely to result “when the basic facts have become obscured by

time.” Ibid.

Criminal statutes of limitations operate to protect

defendants from that prejudice. Ibid. They are “the primary

guarantee against . . . overly stale criminal charges,” United

States v. Ewell,
383 U.S. 116, 122 (1966), that are based on

“acts in the far-distant past,” Toussie v. United States,
397 U.S. 112, 114-15 (1970). “These statutes provide predictability

by specifying a limit beyond which there is an irrebuttable

22
presumption that a defendant’s right to a fair trial would be

prejudiced.” United States v. Marion,
404 U.S. 307, 322 (1971);

accord State v. Townsend,
186 N.J. 473, 487 (2006).

The Code includes statute-of-limitations periods for

criminal offenses.
N.J.S.A. 2C:1-6. The Legislature modeled

N.J.S.A. 2C:1-6 after section 1.06 of the Model Penal Code.

Cannel, N.J. Criminal Code Annotated, cmt. 1 on
N.J.S.A. 2C:1-6

(2017). If the State does not file charges against an

individual within the relevant statutory timeframe, the statute

of limitations serves as “an absolute bar to the prosecution of

the offense.” State v. Short,
131 N.J. 47, 55 (1993).

Courts are bound to the statute of limitations and “cannot

unilaterally nullify [its] protection.” Ibid. The Legislature

has lifted the bar on only a small number of “heinous” offenses

that may be charged at any time. Diorio,
216 N.J. at 612-13

(citing
N.J.S.A 2C:11-3 (murder);
N.J.S.A. 2C:11-4

(manslaughter); and
N.J.S.A. 2C:14-2 (sexual assault)). The

Legislature also provided an exception for cases involving DNA

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

As an exception to the general rules governing statutes of

limitations, the DNA-tolling provision is interpreted narrowly.

See, e.g., In re Expungement Application of P.A.F.,
176 N.J.
218, 223 (2003) (noting exceptions to general rule “are to be

construed narrowly”); see also Prado v. State,
186 N.J. 413, 426

23
(2006) (“[E]xceptions in a legislative enactment are to be

strictly but reasonably construed, consistent with the manifest

reason and purpose of the law.” (quoting Serv. Armament Co. v.

Hyland,
70 N.J. 550, 558-59 (1976))).

The DNA-tolling exception that lies at the center of these

consolidated appeals provides that

[a]n offense is committed either when every
element occurs or, if a legislative purpose to
prohibit a continuing course of conduct
plainly appears, at the time when the course
of conduct or the defendant’s complicity
therein is terminated. Time starts to run on
the day after the offense is committed, except
that when the prosecution is supported by
physical evidence that identifies the actor by
means of DNA testing . . . time does not start
to run until the State is in possession of
both the physical evidence and the DNA . . .
evidence necessary to establish the
identification of the actor by means of
comparison to the physical evidence.

[
N.J.S.A. 2C:1-6(c) (emphasis added).]

Read narrowly, the exception tolls the statute of limitations if

the State’s prosecution of an individual, “the actor,” is

“supported by” DNA evidence that matches, or “identifies,” the

actor to physical evidence within its possession.
N.J.S.A.

2C:1-6(c). The very nature of DNA evidence makes it clear that

the statute should be read that way.

The word “identifies,” undefined within the statute, is

commonly defined as “to establish the identity of.” Merriam-

Webster’s Collegiate Dictionary 616 (11th ed. 2004); see also

24
Black’s Law Dictionary 813 (9th ed. 2009). “Identity,” in this

context, means “the distinguishing character or personality of

an individual.” Merriam-Webster’s Collegiate Dictionary 616

(11th ed. 2004). And here, identity must be established “by

means of” DNA evidence.

Aside from identical twins, DNA evidence is unique to each

individual. State v. Harvey,
151 N.J. 117, 157 (1997); Passaic

Cty. Bd. of Soc. Servs. ex rel. T.M. v. A.S.,
442 N.J. Super.
59, 64 (Ch. Div. 2015) (quoting National Research Council, DNA

Technology in Forensic Science 3 (1992)). Because of its unique

nature, DNA testing has become a “widespread and standard

practice” in identifying criminal perpetrators. A.S.,
442 N.J.

Super. at 64. We have accepted DNA evidence as scientifically

reliable and admissible in criminal trials against defendants to

whom the DNA matched. See, e.g., State v. Sterling,
215 N.J.
65, 102-05 (2013) (observing DNA evidence’s “'unparalleled

accuracy’ . . . in linking defendants to crimes at which their

DNA is found” (quoting Maryland v. King,
569 U.S. 435, 436, 451

(2013))); Harvey,
151 N.J. 117.

N.J.S.A. 2C:1-6(c) permits tolling when identification is

achieved directly by DNA evidence rather than DNA evidence in

addition to other means. Accordingly, it is apparent that the

Legislature intended the DNA-tolling provision to apply to the

sole actor whom the DNA distinctly identifies.

25
Although we need not resort to extrinsic sources to

ascertain the Legislature’s intent here, the legislative history

of
N.J.S.A. 2C:1-6(c) leads us to the same conclusion.

In 2002, the Senate and General Assembly amended
N.J.S.A.

2C:1-6 to include the DNA exception. L. 2001, c. 308, § 1(c)

(effective Jan. 3, 2002). During its drafting phase, the

initial bill used the phrases “the person who commits a crime”

and “the person who committed the crime” instead of “the actor.”

S. 1516/A. 2658 (2000). The Sponsors’ Statement accompanying

that draft stated: “[t]his bill would remove the time

limitations on the prosecution of crimes when the person who

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

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

at a later date.” Sponsors’ Statement to S. 1516 (Sept. 14,

2000); Sponsors’ Statement to A. 2658 (June 29, 2000). The

Legislature noted the purpose behind the criminal statutes of

limitations is “to protect defendants from the use of 'stale’

evidence against them,” but pointedly distinguished “properly

collected[,] . . . handled and stored” DNA evidence because it

“can reliably identify defendants many years after a crime has

been committed.” Ibid.

The final-adopted bill’s Sponsors’ Statement provides that

the DNA exception “would toll the applicable statute of

limitations for the commission of a crime in certain cases until

26
the State is in possession of DNA evidence taken from the

suspect.” Sponsors’ Statement to S. 1516 (Jan. 3, 2002)

(emphasis added). In the final bill’s legislative fiscal

analysis, the Legislature further explained: “[p]resently,

certain guilty persons may avoid standing trial in cases where

DNA . . . evidence is received that would establish their

identities after the statute of limitations for a particular

crime has expired.” Legis. Fiscal Estimate to S. 1516 (Jan. 22,

2002) (emphasis added).

The Legislature’s persistent use of words and phrases like

“persons who committed the crime,” “suspect,” and “guilty

persons” is evidence that it intended for the word “actor” to

mean “defendant.” Nothing in the legislative history of the

tolling statute calls into question the plain-language reading

identified above or suggests that “actor” should be construed

according to the expansive definition proposed by the State.

The State urges a broader reading of the term “actor” in

keeping with the definition set forth in
N.J.S.A. 2C:1-14(g).

We reject the State’s argument that the statutory definition for

“actor” is unambiguous in the Code.
N.J.S.A. 2C:1-14 is a

“general definitions” section that lists key words that appear

throughout the Code. The statute includes two subsections that

offer potentially relevant guidance as to the term “actor”:

subsection (e) (“'Actor’ includes, where relevant, a person

27
guilty of an omission”), and subsection (g) (“'Person,’ 'he,’

and 'actor’ include any natural person and, where relevant, a

corporation or an unincorporated association”).

Neither of those definitions, however, is automatically

binding. Rather,
N.J.S.A. 2C:1-14 begins with the disclaimer

that its subsections apply throughout the Code “unless a

different meaning plainly is required,” in which case that

plainly required meaning controls.

The clearest way for a different meaning to be plainly

required is, of course, for a statute specifically to define one

of the terms that appear in
N.J.S.A. 2C:1-14. For example,

N.J.S.A. 2C:14-1, relating to sexual offenses, defines “actor”

as “a person accused of an offense proscribed under this act.”

Because Section 14-1 attaches its own meaning to the word

“actor,” neither definition of that word in
N.J.S.A. 2C:1-14

applies to sexual offense charges. See
N.J.S.A. 2C:1-14.

It is not necessary for a statute to specifically define a

term from
N.J.S.A. 2C:1-14 for that statute to plainly require a

different meaning in a particular context. In Rumblin, for

example, we declined to ascribe either statutory definition

listed in
N.J.S.A. 2C:1-14 to the word “actor” for purposes of

NERA, despite NERA’s failure to define the term itself.
166 N.J. at 556. We observed that the Code “uses the word 'actor’

in at least eighty-seven subsections and in at least seventy

28
additional subparts.” Id. at 555; see also id. at 555 n.1

(listing those Code provisions that use “actor”). After

reviewing the statutory definitions and “viewing the term in its

proper syntax,” we concluded that the word “actor” is synonymous

with “defendant” in NERA and includes both principals and

accomplices. Ibid.

Just as we found that NERA, by its own use of the term,

compelled a particular definition of “actor,” so we find that

the tolling statute uses “actor” to denote the defendant, the

object of prosecution. Indeed, we find that adopting the

State’s interpretation and applying the “any natural person”

language set forth in
N.J.S.A. 2C:1-14(g) would undermine the

purpose and policy goals of the criminal statutes of

limitations.

Under the State’s expansive reading, “actor” in the tolling

statute could be read to mean “victim” -- in Jones, for example,

the identified DNA was that of Jon-Niece. But such a reading

conflicts with the ordinary definition of the terms “actor” and

“victim.” Black’s Law Dictionary defines the word “actor” as

“[o]ne who acts; a person whose conduct is in question,” Black’s

Law Dictionary 40 (9th ed. 2009), and the word “victim” as “[a]

person harmed by a crime, tort or other wrong,” id. at 1703.

Clearly, those two definitions have distinct and contrasting

29
meanings: the actor is one who acts, and the victim is one who

is acted upon.

The State’s position would require courts to take multiple

leaps in the investigative chain to find that the tolling

provision applies. Under the State’s interpretation, the

tolling provision would apply even when the primary evidence

used to support its prosecution of a defendant is not the DNA

evidence but rather a statement by a third party. In Twiggs,

for example, the DNA evidence connected a co-defendant to the

crime who then implicated defendant Twiggs. Such evidence is

the very kind of stale evidence the criminal statutes of

limitations operate to guard against. See, e.g., Jones,
445 N.J. Super. at 567 (“Unlike when a perpetrator is identified by

DNA evidence, a prosecution based solely on the word of another

who is identified by DNA raises the precise jeopardy the statute

is intended to avoid: the difficulties in mounting a defense

'when the basic facts have become obscured by time.’” (quoting

Diorio,
216 N.J. at 612)).

The statute of limitations is not intended to assist the

State in its investigations; it is intended to protect a

defendant’s ability to sustain his or her defense. Outside of

the limitations period, a defendant faces a diminished ability

to find alibi witnesses and evidence to defend against “basic

facts [that] have become obscured by time.” Diorio, 216 N.J. at

30
612; see Marion,
404 U.S. at 322. Unlike other forms of

evidence, DNA evidence can never become stale. DNA evidence has

proven to be a reliable source of evidence linking a perpetrator

to a crime. See Sterling,
215 N.J. at 102-03. It logically

flows that the DNA-tolling provision only tolls the statute of

limitations when the State is in possession of the defendant’s

DNA.

We conclude that, for the DNA-tolling provision to apply,

the State must have DNA evidence that establishes a direct link

between physical evidence already within its possession and the

defendant it seeks to prosecute.

B.
1.
We now apply our analysis to the facts of these cases. In

Jones, police obtained a DNA profile from skeletal remains that

were unidentified until 2012. That year, based on Iyonna’s

statements identifying Likisha and James as participants in her

sister’s disappearance, police obtained and tested DNA samples

from Iyonna and Kerse. Comparing Iyonna’s and Kerse’s DNA to

the then-unidentified DNA profile, police established familial

links with Jon-Niece’s remains. None of defendants’ DNA was

found on the remains. With Iyonna’s corroborating statements

and the familial link between and among the DNA profiles, a

grand jury in 2013 returned an indictment charging defendants

31
with substantive and conspiratorial offenses long after the

expiration of the five-year statute of limitations.

The State attempts to salvage its case by applying the DNA-

tolling exception through the uncovering of the victim Jon-

Niece’s DNA from her remains and its indirect link to

defendants. That is, according to the State, the DNA-tolling

provision should apply because the State did not possess any

link to Jon-Niece’s remains until 2012 when it acquired Iyonna’s

and Kerse’s DNA.

As explained above, the DNA-tolling exception tolls the

statute of limitations only when the State possesses DNA

extracted from physical evidence that directly identifies the

defendant. The DNA evidence obtained from the physical evidence

in Jones -- the remains -- established no link beyond a familial

connection to Iyonna and Kerse. That evidence certainly did not

directly implicate defendants as perpetrators of the substantive

crimes charged. The implication came only through third-party

testimony, which
N.J.S.A. 2C:1-6(c) does not operate to

preserve.

We find the DNA-tolling exception inapplicable to the

State’s substantive charges against Likisha and James. Without

the exception, the statute of limitations expired, and the

indictment as to those charges should have been dismissed.

32
2.

In Twiggs, a grand jury indicted Twiggs based primarily on

Tracy’s confession and his subsequent implication of Twiggs as a

co-conspirator in the armed robbery. The DNA extracted from the

physical evidence -- the hair from the mask -- identified Tracy,

who, in turn, identified Twiggs.

The State contends that although the DNA evidence did not

directly identify Twiggs, it began an investigative chain that

later assisted in identifying him. The State suggests that the

five-year statute of limitations for armed robbery tolled until

the State possessed Tracy’s matching DNA sample, taken after his

admission into drug court. Twiggs counters that the DNA-tolling

provision is inapplicable because the DNA did not directly

identify him -- Tracy did.

In the same way that DNA evidence in Jones is insufficient

to identify the alleged wrongdoer and trigger the DNA-tolling

provision, DNA evidence of a co-defendant is likewise

insufficient. There exists no direct link between the DNA

extracted from the physical evidence and Twiggs. The State’s

case against Twiggs is based primarily on Tracy’s statements

implicating Twiggs and other circumstantial proof. Tracy’s

statements in Twiggs are no different than Iyonna’s statements

in Jones. Such statements are exactly the type of stale

evidence the statute of limitations is designed to guard

33
against. Diorio,
216 N.J. at 612. So, unless DNA evidence

establishes a direct identification to the defendant charged,

the mere existence of DNA evidence in a case cannot work to toll

general statutes of limitations.

The State argues that our reading of the term “defendant”

to include principals and accomplices for NERA purposes in

Rumblin should apply to the DNA-tolling context. We decline to

adopt a similarly expansive reading under
N.J.S.A. 2C:1-6(c).

Rumblin’s NERA-sentencing analysis is inapplicable to the DNA-

tolling statute.

NERA uses the term “actor” in a wholly distinct framework

to achieve underlying policy goals separate from those of the

DNA-tolling provision. As the Appellate Division in Rumblin

observed, it is apparent that “actor” includes both principals

and accomplices in the NERA context because “the Legislature

would not have intended that the mastermind of an armed robbery

could avoid the consequences of [NERA] sentencing by having a

confederate carry out the crime.”
326 N.J. Super. 296, 302

(App. Div. 1999). Within NERA, an “actor” plainly encompasses

both principals and accomplices as both are co-defendants, and a

co-defendant cannot escape sentencing liability simply by

operating as an accomplice. See, e.g., State v. Roach,
146 N.J.
208, 223 (1996) (noting defendant may be found guilty whether

principal, accomplice, or co-conspirator). For NERA purposes,

34
then, “actor” includes accomplices because any narrower reading

would undercut the State’s ability to sentence equally culpable

defendants.

NERA’s use of “actor” peacefully coexists with statutes of

limitations because it is not triggered until the sentencing

phase of criminal proceedings, at the back end of the judicial

process. For NERA purposes, the State has already initiated

criminal proceedings within the applicable statute of

limitations. NERA is not influenced by stale-evidence concerns

because it is triggered only after a defendant’s trial or guilty

plea.

In contrast, the DNA-tolling provision creates an exception

at the front end of the judicial process by permitting criminal

prosecutions outside of the generally prescribed statute of

limitations.
N.J.S.A. 2C:1-6(c). Public policy supports such

belated prosecutions because the reliability of the DNA

connection to a specific individual has led the Legislature to

decide that the general statute of limitations must give way.

The hallmark of a statute of limitations is that it avoids

unfairly forcing a criminally accused individual to defend

against stale evidence. See Diorio,
216 N.J. at 612. DNA

evidence works to implicate a single individual. After that,

all the usual issues of stale evidence resurface when the DNA-

identified individual begins implicating others.

35
For that reason, this Court’s discussion of “actor” in

Rumblin to include principals and accomplices under NERA is

simply inapplicable to the DNA-tolling provision.

In Twiggs, the DNA-tolling exception does not apply. The

State’s DNA evidence only tangentially connected Twiggs to the

charged crime; its primary evidence against Twiggs was Tracy’s

testimony. The statute of limitations tolled only against Tracy

and expired on Twiggs’s charges. We find that the trial court

correctly dismissed the indictment in Twiggs.

We now consider whether the Appellate Division properly

affirmed the trial court’s denial of defendants James’s and

Likisha’s motions to dismiss the conspiracy count of the

indictment in Jones.

A defendant “is guilty of conspiracy . . . to commit a

crime if with the purpose of promoting or facilitating its

commission” he or she “[a]grees with such other person or

persons that they or one or more of them will engage in conduct

which constitutes such crime or an attempt or solicitation to

commit such crime.”
N.J.S.A. 2C:5-2(a)(1). “Conspiracy is a

continuing course of conduct” that terminates, for statute of

limitations purposes, when (1) “the crime or crimes which are

its object are committed,” or (2) “the agreement that they be

36
committed is abandoned by the defendant and by those with whom

he conspired.”
N.J.S.A. 2C:5-2(f)(1). To convict a defendant

of “conspiracy to commit a crime other than a crime of the first

or second degree,” “an overt act in pursuance of such

conspiracy” must be proven “to have been done by him or by a

person with whom he conspired.”
N.J.S.A. 2C:5-2(d). The State

is not confined to overt acts alleged in the indictment and may

later prove additional overt acts. State v. LeFurge,
101 N.J.
404, 412-13 (1986) (discussing how the Code “did not adopt the

[Model Penal Code’s] requirement that the overt act be alleged

in the indictment”).

In Grunewald, the United States Supreme Court concluded

that prosecutors cannot “extend the life of a conspiracy

indefinitely” by inferring a conspiracy to conceal “from mere

overt acts of concealment.”
353 U.S. at 402. Specifically, the

Supreme Court held that

after the central criminal purposes of a
conspiracy have been attained, a subsidiary
conspiracy to conceal may not be implied from
circumstantial evidence showing merely that
the conspiracy was kept a secret and that the
conspirators took care to cover up their crime
in order to escape detection and punishment.
[Id. at 401–02.]

The Supreme Court stressed a “vital distinction” “between acts

of concealment done in furtherance of the main criminal

objectives of the conspiracy,” which extend the conspiracy and

37
toll the statute of limitations, and “acts of concealment done

after these central objectives have been attained, for the

purpose only of covering up after the crime.” Id. at 405. In

Grunewald, the Supreme Court ultimately reversed the defendants’

convictions for conspiracy to defraud the United States because

the Government failed to “show anything like an express original

agreement among the conspirators to continue to act in concert

in order to cover up, for their own self-protection, traces of

the crime after its commission.” Id. at 404, 424.

On a motion to dismiss a criminal indictment, a court

“view[s] the evidence and the rational inferences drawn from

that evidence in the light most favorable to the State.” State

v. Saavedra,
222 N.J. 39, 56-57 (2015). A criminal indictment

is proper if the State presented the grand jury with at least

“'some evidence’ as to each element of a prima facie case.”

State v. Bennett,
194 N.J. Super. 231, 234 (App. Div. 1984)

(quoting State v. Donovan,
129 N.J.L. 478, 483 (1943)). A trial

court’s denial of a motion to dismiss an indictment is reviewed

for abuse of discretion. Saavedra,
222 N.J. at 55 (citing State

v. Hogan,
144 N.J. 216, 229 (1996)).

Viewing the facts in a light most favorable to the State,

we find the State presented sufficient evidence to survive

defendants James’s and Likisha’s motions to dismiss their

38
indictments’ conspiracy counts. The co-conspirators here

exhibited a continuing course of conduct beginning well before

and extending far beyond Elisha’s death in 2002. Their acts

allegedly included (1) the family meeting in 2002 at which all

entered into a compact to keep the incidents leading to Jon-

Niece’s death a secret and to lie about her whereabouts with no

apparent dissent; (2) Likisha’s threatening of Iyonna in 2006

when Iyonna considered imperiling the conspiracy by exposing it;

(3) James’s explicit discussion with Iyonna in 2010 concerning

the details of the burning of Jon-Niece’s body; and (4) Gibson’s

threat in 2012 to kill Iyonna if he were to discover that she

disclosed the conspiracy to the police. The potential exists

that those actions were not merely intended to protect Elisha

from prosecution, as they postdated her death, but also to

insulate from discovery the co-conspirators’ roles in hindering

and in the destruction of evidence.

Their corresponding actions, the early stages of the

proceedings, and the low evidentiary bar necessary to overcome

defendants’ motion, combine to provide sufficient evidence of a

continuing course of conduct for the State to survive

defendants’ motion to dismiss the indictment.

Whether at trial or at further hearings, defendants are

entitled to challenge the evidence advanced by the State. And,

39
if this case proceeds to trial, defendants would be entitled to

a jury charge explaining Grunewald’s application.

Finally, the State’s concession before the trial court that

the “continuing course of conduct” exception to the statute of

limitations was inapplicable is not binding on our analysis.

State v. Josey,
290 N.J. Super. 17, 32 (App. Div. 1996) (“[A]

position by the prosecutor favorable to a defendant should be

given great weight but is not binding on a court.” (discussing

Young v. United States,
315 U.S. 257, 258 (1942))). We find

that there may have been a continuing course of conduct, for

tolling purposes, which will be determined by a jury upon

remand.

VI.

We affirm the judgment of the Appellate Division affirming

the trial court’s dismissal of the indictment against defendant

in Twiggs.

We also affirm the judgment of the Appellate Division in

Jones, reversing the trial court’s denial of defendants’ motion

to dismiss the indictment on the substantive tampering,

obstruction, and hindering charges and affirming the denial of

defendants’ motion to dismiss the indictment on the conspiracy

charge.

The cases are remanded to the respective trial courts for

proceedings consistent with this opinion.

40
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and SOLOMON join in JUSTICE TIMPONE’s
opinion.

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