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Argued October 11, 2000

This appeal raises questions concerning the scope of the mandatory sentencing provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Specifically, we must decide whether NERA may be applied to a defendant who pled guilty to second- degree sexual assault, N.J.S.A. 2C:14-2b, for touching an eleven- year-old victim in her vaginal area. To answer that question, we must interpret the meaning of the term “physical force” as used in NERA. In a published opinion, the Appellate Division concluded that, based on its legislative history, NERA should not apply to defendant because “physical force” was not an element of the offense to which he pled guilty and he did not admit to committing an “independent act of force or threat of immediate force against the victim that is additional to the constituent elements of the crime.” State v. Thomas, 322 N.J. Super. 512, 516 (App. Div. 1999). We granted certification, 162 N.J. 489 (1999), and now affirm. We hold that where none of the NERA factors is an element of the offense charged, there must be additional proof of a NERA factor before there can be sentence enhancement under the Act.


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