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

Although he was fifty-one 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.

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:

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, 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, 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:

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

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, 99 A.3d 814 (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 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, 609 A.2d 1280 (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 may be explored by way of a petition for post-conviction relief. Preciose, supra, 129 N.J. at 460, 609 A.2d 1280.

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 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 amendment reducing a criminal penalty12 unless otherwise declared; this savings statute declares:

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, 872 A.2d 1109 (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—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 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, 933 A.2d 586 (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 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, 154 A.2d 1 (1959); see also Gibbons v. Gibbons, 86 N.J. 515, 523, 432 A.2d 80 (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:

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

Affirmed in all respects but with the understanding that C.F. may pursue his ineffectiveness argument by way of post-conviction relief petition.