RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0527-13T4

STATE OF NEW JERSEY, APPROVED FOR PUBLICATION

Plaintiff-Respondent, February 24, 2014

APPELLATE DIVISION v.

J.B.W.,

Defendant-Appellant. ______________________________

Argued January 29, 2014 – Decided February 24, 2014

Before Judges Grall, Waugh1 and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 13-04-1052.

Brian P. Keenan, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Keenan, of counsel and on the brief).

Samuel Marzarella, Assistant Prosecutor, argued the cause for respondent (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel and on the brief; Shiraz Deen, on the brief).

1 Judge Waugh did not participate in oral argument. However, the parties consented to his participation in the decision. R. 2:13-2(b). The opinion of the court was delivered by

GRALL, P.J.A.D.

We granted defendant J.B.W. leave to appeal an order

denying his motion to dismiss a one-count indictment. As a

consequence of a juvenile adjudication requiring registration

pursuant to N.J.S.A. 2C:7-2, he is required to register as a sex

offender, and he complied with that obligation. His offense

involved a victim under the age of eighteen. The grand jurors

for Ocean County charged defendant with a crime of the third

degree — participating in a "youth serving organization" despite

being an "an excluded sex offender," N.J.S.A. 2C:7-23a,

specifically that he held a position in "[X] High School

Marching Band 'Pit Crew.'"

The Pit Crew is a committee of a larger association

organized for "charitable and educational purposes." By its

constitution, the association's purpose is promoting interest in

the school's band programs. Its members pay annual dues fixed

by its board of directors, and its membership "consists of

parents and/or [sic] guardians, and interested persons of

members of the . . . band programs." J.B.W. is a friend of a

parent of a member of the band.

The association's constitution provides for it to work "in

cooperation with the Board of Education, the administration, the

2 A-0527-13T4 faculty, the band director, unit advisors and students" of the

high school. By its constitution, the association's board of

directors includes the "band director and assistant band

director" and the "faculty band advisor(s)." The association's

bylaws describe the Pit Crew's duties as working with the band's

director, assistant band director and staff "to acquire,

assemble, store and transport" band equipment.

The question presented in the trial court and on this

appeal, is whether the term "youth serving organization," as

defined in N.J.S.A. 2C:7-22, excludes organizations that work in

cooperation with a public school and its staff to promote a

school program. The trial court concluded that this group was

not excluded and, for that reason, denied the motion to dismiss

the indictment. This court, however, must consider the

interpretation of a statute de novo and without affording any

deference to the trial court. State v. Buckley,

(2013); In re Liquidation of Integrity Ins. Co.,

(2007). We also conclude that the statute applies to

such organizations, and we set forth our reasons in the

remainder of this opinion.

A court's primary goal in interpreting a statute is

determining the Legislature's intent. Higgins v. Pascack Valley

Hosp.,

(1999). That inquiry begins with the

3 A-0527-13T4 language of the statute, which generally controls when the

meaning is clear.

When the statutory language is

susceptible of different meanings, courts "seek to effectuate

the fundamental purpose for which the legislation was enacted"

and may look to legislative history to identify the intended

goals. Klumb v. Bd. of Educ. of Manalapan–Englishtown Reg'l

High Sch. Dist.,

(2009) (internal quotations

omitted); Daidone v. Buterick Bulkheading,

(2007). Where a criminal statute defining a crime is at issue,

language "susceptible of differing constructions," must be

interpreted "to further" the "general purposes" stated in

N.J.S.A. 2C:1-2a and the "special purposes" of the provision at

issue. N.J.S.A. 2C:2-1a, c. Most important here is the Code's

purpose of giving "fair warning of the nature of the conduct

proscribed," N.J.S.A. 2C:2-1a(4). Fair notice of prohibited

conduct is the fundamental principle underlying the rule of

construction calling for resolution of ambiguities in criminal

statutes against the State. State v. Gelman,

(2008).

The crime at issue here is defined in two sections of the

Code, one setting forth the elements and the other defining the

critical terms, respectively N.J.S.A. 2C:7-23 and N.J.S.A. 2C:7-

4 A-0527-13T4 22. The prohibited conduct is defined in plain and unambiguous

language. In pertinent part, N.J.S.A. 2C:7-23 provides:

a. Except as otherwise provided in subsection e. of this section, [which is not implicated in this case,] it shall be unlawful for an excluded sex offender to hold a position or otherwise participate, in a paid or unpaid capacity, in a youth serving organization.

b. A person who violates subsection a. of this section is guilty of a crime of the third degree.

. . . .

There is no question that the language set forth above warns a

person who is "an excluded sex offender" that he or she commits

a crime of the third degree by holding any position or in any

way participating in "a youth serving organization."

The definition of the term "excluded sex offender" is

equally plain and unambiguous. N.J.S.A. 2C:7-22 provides:

"'Excluded sex offender' means a person who has been convicted,

adjudicated delinquent or found not guilty by reason of insanity

for the commission of a sex offense, as defined in subsection b.

of section 2 of P.L.1994, c. 133 [N.J.S.A. 2C:7-2], which

involves a victim under 18 years of age." As previously noted,

5 A-0527-13T4 N.J.S.A. 2C:7-2 is the statute that identifies the crimes that

require a person convicted to register as a sex offender.2

The question here is whether the association to which

defendant belongs falls within the statutory definition of the

term "youth serving organization." That term is defined to

"mean[] a sports team, league, athletic association or any other

corporation, association or organization, excluding public and

nonpublic schools, which provides recreational, educational,

cultural, social, charitable or other activities or services to

persons under 18 years of age." N.J.S.A. 2C:7-22 (emphasis

added). Defendant argues that the language excluding "public

and nonpublic schools" excludes his organization.

The plain meaning of the statutory definition does not

permit the reading of the statute defendant urges, which is that

the language emphasized excludes his association as a school.

But the definition reaches all organizations except schools, and

the Pit Crew is a committee of an association that is distinct

from the school. Granted, the association and its Pit Crew are

affiliated with the high school in the sense that its members

work with school employees, but that does not make the committee

2 N.J.S.A. 2C:7-2 has been amended by L. 2013, c. 214. The amendment has no relevance here.

6 A-0527-13T4 a school. Pit Crew members hold positions and participate in

the association, not the school.

If the Legislature intended to exclude from the reach of

this crime associations that have connections with or assist a

school similar to the arrangement enjoyed by this association,

then it could have done that. For example, the Legislature

could have stated that it was excluding public and nonpublic

schools and organizations participating with or assisting public

or nonpublic schools. But the Legislature did not so provide.

To the extent defendant attempts to bring himself within

the exclusion on the ground that the band program is a school

program, the definition does not permit that interpretation

either. It plainly covers organizations that provide

"activities or services to persons under 18 years of age."

Thus, while the association, through its Pit Crew, does not

provide the band activity, it does provide "services to persons

under 18 years of age" who are members of the band. In fact, in

the brief submitted on defendant's behalf, the responsibilities

of the Pit Crew are described as "helping 'the band members [by]

loading their equipment and unloading their equipment at

football games or band[] competitions.'" (quoting the grand jury

transcript with alterations).

7 A-0527-13T4 We have no question that the statutory definition provides

fair warning to any "excluded sex offender" who participates in

this association. Defendant, who as a member of the Pit Crew

committee, was responsible for helping band members by

transporting the band's equipment to events, falls within its

plain terms. He provided a service for members of the high

school band through participation in the Pit Crew committee.

Even if we were to conclude that the exclusion of schools

is sufficiently ambiguous to warrant reliance on legislative

history, the legislative history does not cast doubt on the

statute's plain meaning. The legislative statements on which

defendant relies simply state: "The bill does not apply to

employees and volunteers of public and nonpublic schools, as

criminal background checks and employment restrictions of these

persons are governed under separate law. (N.J.S. 18A:6-4.13 et

seq., N.J.S. 18A:6-7.1 et seq.)." Introduction to S. 532 at 3;

accord Assembly Law and Public Safety Committee Statement to

S. 532 at 1; Senate Law and Public Safety Committee Statement

and Veterans' Affairs Committee Statement to S. 532 at 1 (Feb.

14, 2008).

Like the statutory language, the statements refer to

persons who are "volunteers of public and nonpublic schools."

Neither the statements nor the statute suggests an exemption for

8 A-0527-13T4 persons who volunteer to help in a school activity by virtue of

a position they hold in an organization that is not in fact a

school.3 In contrast, an individual who volunteered to provide

the same service informally — for example through the band

director, the principal, or school board rather than as a member

of an organization — is in a different position than defendant.

Defendant argues that if he is not considered a volunteer

for the school, then the school would be prohibited from

requiring volunteers of his association and others like it to

undergo a background check. Even if that is so, it is beside

the point. This is a policy argument better addressed by the

Legislature than a court. In re Adoption of N.J.A.C. 5:96,

(2013).

True, our courts will construe a statute to avoid an absurd

result even when it appears to be dictated by a literal

interpretation of the statutory language. See N.J.S.A. 1:1-1;

3 It is not clear why the Legislature excluded volunteers for public and nonpublic schools from this law adopted in 2009. L. 2009, c. 139. When this law was enacted, N.J.S.A. 18A:6-4.13 to -4.17 addressed background checks for employees of nonpublic schools, and N.J.S.A. 18A:6-7.1 to -7.2, simply permitted background checks for volunteers at facilities under the supervision of the Department of Education or a board of education caring for or involved in the education of children under the age of 18. See N.J.S.A. 18A:6-7.1 as amended by L. 2007, c. 82, § 1; L. 2010, c. 122, § 3; L. 2011, c. 72, § 9. The State has presented an alternative argument based on statutes related to education, which we do not find persuasive and have no reason to address.

9 A-0527-13T4 Hubbard ex rel. Hubbard v. Reed,

(2001).

But there is nothing patently absurd about the Legislature's

obvious intention. The intention is to rely on schools and the

laws governing their hiring and acceptance of volunteers to

exclude those who are unfit and to rely on the deterrent impact

of criminal sanctions to exclude those who provide services for

minors as holders of positions in an organization that is not a

school.

Affirmed.

10 A-0527-13T4