NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0299-15T4

STATE OF NEW JERSEY,

Plaintiff-Respondent, APPROVED FOR PUBLICATION

v. August 31, 2017

APPELLATE DIVISION JOSHUA NICHOLSON,

Defendant-Appellant.

___________________________________

Argued December 20, 2016 – Decided August 31, 2017

Before Judges Ostrer, Leone, and Vernoia.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-12-0773.

Michael J. Rogers argued the cause for appellant (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the briefs).

Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Garima Joshi, Deputy Attorney General, and Mr. Yomtov, of counsel and on the brief).

The opinion of the court was delivered by

LEONE, J.A.D.

Defendant Joshua Nicholson appeals his August 12, 2015

judgment of conviction. He engaged in "upskirting," that is, "taking pictures of women up their skirts." Nancy Danforth

Zeronda, Note, Street Shootings: Covert Photography and Public

Privacy,

, 1133–34 (2010). He pled guilty

to third-degree invasion of privacy under N.J.S.A. 2C:14-9(b)

(2004), now renumbered N.J.S.A. 2C:14-9(b)(1).

Defendant challenges the trial court's denial of his motion

to dismiss his indictment and of his motion for reconsideration.

He claims the victim's intimate parts were not "exposed" under

N.J.S.A. 2C:14-9(b) (2004) because the victim was wearing

pantyhose. We hold that "exposed" means "open to view" and

"visible," and that defendant violated N.J.S.A. 2C:14-9(b)

(2004) because the victim's inner thighs and buttocks were open

to view and visible through her sheer pantyhose. Defendant also

argues N.J.S.A. 2C:14-9(b) (2004) did not apply because the

Legislature in 2016 enacted a fourth-degree offense of filming

"undergarment-clad intimate parts," N.J.S.A. 2C:14-9(b)(2). We

hold the broader 2016 enactment did not alter the meaning of the

2004 statute. Finally, we reject defendant's challenge to the

denial of his application for admission into pre-trial

intervention (PTI). Accordingly, we affirm.

I.

The grand jury heard the following testimony. On October

18, 2013, a surveillance camera showed defendant looking around

2 A-0299-15T4 nervously while walking in the aisles of a supermarket, which

attracted the attention of a loss prevention officer. The

officer observed defendant take out his cell phone and place it

under the female victim's skirt. The officer then observed the

cell phone's flash illuminate under the victim's skirt. Once

defendant and the victim separated, defendant followed her into

a different aisle and again pulled out his cell phone and placed

it under the victim's skirt. The officer again saw the flash

illuminate. As defendant was leaving the store, the officer

confronted him and the police were called.

The victim did not know defendant and was unaware he had

placed his cell phone under her skirt. After waiving his

Miranda1 rights, defendant admitted taking two videos under the

victim's skirt without her consent. He also admitted he went to

the supermarket for the purpose of recording such a video so he

could watch it for his sexual gratification at a later time.

The grand jury charged defendant with two counts of third-

degree invasion of privacy. N.J.S.A. 2C:14-9(b) (2004). After

being indicted, defendant applied for admittance into PTI, which

was rejected by the prosecutor. Defendant submitted

supplemental materials, but the prosecutor again denied

1 Miranda v. Arizona,

,

,

(1966).

3 A-0299-15T4 defendant admittance into PTI. Defendant appealed, and the

trial court found the prosecution did not abuse its discretion

in denying PTI.

Defendant filed a motion to dismiss the indictment. The

trial court denied it, finding the State presented a prima facie

case to the grand jury. Defendant filed a motion for

reconsideration. At the request of both parties, the court

viewed the videos from defendant's phone.

In its opinion, the trial court found the video footage

revealed the victim's body under her skirt, including her inner

thighs, buttocks, and groin. It did not appear the victim was

wearing underwear covering her buttocks, but she was wearing

pantyhose of varying degrees of sheerness. Specifically, the

portion of pantyhose on her inner thighs was "extremely sheer,"

the portion on her buttocks was "slightly darker, but still

sheer," and the groin was covered by "an opaque gusset."2

The trial court found "the video shows a clear visual of

the inner thighs and buttocks" which were "clearly depicted" due

to the "sheerness of the pantyhose." The court concluded "there

2 Defendant's counsel stated the brief first video provided "a video depiction of the woman's private areas. You can see her inner thigh and I think you can even see part of her buttocks that are covered in pantyhose." He added that the second video was longer and "more clear." No one has argued the videos should be treated differently.

4 A-0299-15T4 was exposure of the inner thighs and buttocks as the pantyhose

was essentially see through in its sheerness." Therefore, the

court ruled that "Defendant has recorded, without license or

privilege to do so, [the] 'image of another person whose

intimate parts are exposed, without consent and under

circumstance in which a reasonable person would not expect to be

observed' in violation of N.J.S.A. 2C:14-9(b)." Accordingly,

the court denied defendant's motion for reconsideration.

Defendant conditionally pled guilty to both counts of

third-degree invasion of privacy, "specifically reserv[ing] the

right to appeal the denial of his motion to dismiss the

indictment and motion for reconsideration based upon legal and

factual insufficiency." In accordance with the plea agreement,

defendant was sentenced to two years' non-custodial probation

and a $1000 fine. Defendant was also ordered to complete a

psychological evaluation, follow any recommended treatment, and

have no contact with the victim.

On appeal, defendant argues:

POINT 1 – DEFENDANT DID NOT VIOLATE THE INVASION OF PRIVACY STATUTE BECAUSE THE VICTIM'S INTIMATE PARTS WERE NOT EXPOSED WHEN DEFENDANT VIDEOTAPED HER WITH HIS CELL PHONE BECAUSE SHE WAS CLOTHED WITH LINGERIE UNDER HER SKIRT.

POINT 2 – THE NEW JERSEY LEGISLATURE HAS REVEALED ITS INTERPRETATION THAT THE

5 A-0299-15T4 RELEVANT SECTION OF THE INVASION OF PRIVACY STATUTE DOES NOT COVER DEFENDANT'S BEHAVIOR.

POINT 3 – THE PROSECUTOR'S REJECTION OF DEFENDANT FOR ADMISSION INTO PTI WAS A PATENT AND GROSS ABUSE OF DISCRETION.

II.

We begin by considering the nature of our review. "An

indictment is presumed valid and should only be dismissed if it

is 'manifestly deficient or palpably defective.'" State v.

Feliciano,

(2016) (citation omitted). "A

motion to dismiss is addressed to the discretion of the trial

court, and that discretion should not be exercised except for

'the clearest and plainest ground.'"

(citation omitted).

"At the grand jury stage, the State is not required to

present enough evidence to sustain a conviction. As long as the

State presents 'some evidence establishing each element of the

crime to make out a prima facie case,' a trial court should not

dismiss an indictment."

(citations omitted). "[A] court

examining a grand jury record should determine whether, 'viewing

the evidence and the rational inferences drawn from that

evidence in the light most favorable to the State, a grand jury

could reasonably believe that a crime occurred and that the

defendant committed it.'"

(citation omitted).

Defendant's notice of appeal contested "the trial judge's

pretrial determinations that he violated the invasion of privacy

6 A-0299-15T4 statute after an evidentiary hearing." Defendant is referring

to the trial court's hearing and denial of his motion for

reconsideration after viewing the upskirting videos he

submitted. At that hearing, the parties agreed the court should

view the upskirting videos taken by defendant, even though the

grand jury was not shown the videos or provided with testimony

as to what was recorded in the videos. This effectively

resulted in a summary-judgment-type proceeding, in which the

court reviewed anticipated trial evidence to determine whether

it would be sufficient to satisfy the statute. However, the

Rules of Court authorize summary judgment procedures only in

civil cases. R. 4:46. The rules do not authorize summary

judgment in criminal cases. See State v. Parker,

(App. Div. 1984), certif. denied,

(1985); State v. Bass,

(Law Div. 1983).3

3 Federal courts have reached a similar conclusion under the federal rules. "Unless there is a stipulated record, or unless immunity issues are implicated, a pretrial motion to dismiss an indictment is not a permissible vehicle for addressing the sufficiency of the government's [trial] evidence." United States v. DeLaurentis,

(3d Cir. 2000). Here, the parties did not clearly ask the trial court to address the sufficiency of the trial evidence, but they asked the court to reconsider a motion to dismiss the indictment based on evidence which apparently would be introduced only at trial. Arguably, the parties created a stipulated record.

7 A-0299-15T4 Absent authorization in the rules, we do not endorse such a

procedure.4

However, that procedure was used here at the request and

with the consent of the parties, and neither party has

challenged that procedure on appeal. Thus, in reviewing whether

the evidence was sufficient to satisfy the statute, we, like the

trial court, consider the videos submitted by defendant with his

motion for reconsideration. Moreover, we defer to and accept

the trial court's reasonable interpretation of the video. See

State v. S.S., ___ N.J. ___, (2017) (slip op. at 24-25).

III.

Defendant argues that, as the videos revealed the victim

was wearing pantyhose under her skirt, her intimate parts were

not "exposed" as required by N.J.S.A. 2C:14-9(b) (2004). We

first address the meaning of that statute as enacted in 2004.

N.J.S.A. 2C:14-9(b) (2004) provided:

An actor commits a crime of the third degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of another person whose intimate parts are exposed or who is engaged in an act of sexual penetration or

4 Similarly, we do not endorse the State's partial presentation to the grand jury, or the parties' agreement that the trial court would determine the validity of the indictment based on evidence never considered by the grand jury.

8 A-0299-15T4 sexual contact, without that person's consent and under circumstances in which a reasonable person would not expect to be observed.

"Intimate parts" were and are defined as "sexual organs, genital

area, anal area, inner thigh, groin, buttock or breast of a

person." N.J.S.A. 2C:14-1(e).

However, the statute does not define "exposed" and neither

this court nor our Supreme Court has interpreted its meaning as

used in N.J.S.A. 2C:14-9(b) (2004). As the interpretation of a

statute is an issue of law, "[a]ppellate courts review a trial

court's construction of a statute de novo." State v. Revie,

(2014). We must hew to that standard of review.

"When construing a statute, our primary goal is to discern

the meaning and intent of the Legislature. In most instances,

the best indicator of that intent is the plain language chosen

by the Legislature." State v. Gandhi,

(2010)

(citation omitted); accord State v. Hudson,

(2012).

The inquiry thus begins with the language of the statute, and the words chosen by the Legislature should be accorded their ordinary and accustomed meaning. If the language leads to a clearly understood result, the judicial inquiry ends without any need to resort to extrinsic sources.

[Hudson, supra,

.]

9 A-0299-15T4 "When such [extrinsic] evidence is needed, we look to a variety

of sources. Central among them is a statute's legislative

history." Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys.,

(2007).

A.

We begin with the plain language of the statute.

Ordinarily, words in a statue must "be given their generally

accepted meaning, according to the approved usage of the

language." N.J.S.A. 1:1-1. "In determining the common meaning

of words, it is appropriate to look to dictionary definitions."

Macysyn v. Hensler,

(App. Div. 2000).

Giving "exposed" its generally accepted meaning, the plain

language of N.J.S.A. 2C:14-9(b) (2004) encompasses defendant's

conduct here. "Exposed" has long been defined as "open to view"

or "not shielded or protected." E.g., Webster's Ninth New

Collegiate Dictionary 438 (1990); accord Merriam-Webster's

Collegiate Dictionary 441 (11th ed. 2014). The most pertinent

definition of "expose" is "to cause to be visible or open to

view." Webster's Ninth New Collegiate Dictionary, supra, at

438; Merriam-Webster's Collegiate Dictionary, supra, at 441; see

Webster's II New College Dictionary 403 (3d ed. 2005) ("To make

visible").

10 A-0299-15T4 When defendant stuck a camera under the victim's skirt, the

victim's inner thighs and buttocks were no longer shielded or

protected, but were open to view and visible through her sheer

pantyhose. The victim's inner thighs were particularly visible,

as her pantyhose were "extremely sheer" there. Defendant's

filming of the victim's visible inner thighs was itself

sufficient to violate N.J.S.A. 2C:14-9(b) (2004). See State v.

Gray,

(App. Div. 1985), certif.

denied,

(1986).5

B.

This reading of the statute is supported by its legislative

history. In the 2002-2003 term, legislators introduced four

bills in the General Assembly and one bill in the Senate

prohibiting "video voyeurism" and "penalizing those who rely on

tiny cameras and other [advanced] technological tools for sexual

spying." E.g., Statement to Assemb. Bill No. 3426, 210th Leg.,

at 2 (Mar. 6, 2003); Statement to S. Bill No. 2366, 210th Leg.,

at 2 (Mar. 10, 2003); accord Statement to Assemb. Bill No. 3286,

210th Leg., at 2 (Feb. 4, 2003); Statement to Assemb. Bill No.

3302, 210th Leg., at 4 (Feb. 4, 2003). The Senate bill and one

Assembly bill prohibited only photographing or filming "a person

5 By contrast, the victim's groin was not open to view, visible, or exposed because it was covered by an opaque gusset.

11 A-0299-15T4 in a state of undress" while "in a place where that person would

have a reasonable expectation of privacy." Assemb. Bill No.

3426, 210th Leg., at 2 (Mar. 6, 2003); S. Bill No. 2366, 210th

Leg., at 2 (Mar. 10, 2003). The sponsor's statements indicated

"[t]he current law is not well tailored to cope with video

voyeurs who conceal devices utilizing advanced technology and

disseminate images of undressed individuals on the Internet and

elsewhere." Statement to Assemb. Bill No. 3426, supra, at 2;

Statement to S. Bill No. 2366, supra, at 2.

The other Assembly bills instead used the "intimate parts

are exposed" language. Assemb. Bill No. 3302, 210th Leg., at 2

(Feb. 4, 2003); Assemb. Bill No. 3286, 210th Leg., at 2 (Feb. 4,

2003); Assemb. Bill No. 57, 210th Leg., at 2 (prefiled for

2002). One Assembly bill also penalized a person who used a

concealed camera to film "another person, under circumstances in

which a reasonable person would not expect to be observed, under

or through the clothing worn by that other person." Assemb.

Bill No. 3286, supra, at 2.

The Assembly Judiciary Committee adopted a substitute bill

which used the "intimate parts are exposed" language. Assemb.

Comm. Substitute for Assemb. Bill Nos. 3302, 3286, 3426, & 57,

210th Leg., at 2-3 (May 8, 2003). The Committee explained the

substitute bill penalized an individual who "observes another

12 A-0299-15T4 person with the knowledge that person may expose intimate parts

. . . or videotape[s] or otherwise record[s] that person or

disclose[s] such images of the same." Assemb. Judiciary Comm.

Statement to Assemb. Comm. Substitute for Assemb. Bill Nos.

3302, 3286, 3426, & 57, 210th Leg., at 1 (May 8, 2003).

The Senate Judiciary Committee replaced the Senate's "state

of undress" bill with a Senate Committee Substitute for Senate

Bill No. 2366 using the "intimate parts are exposed" language.

S. Comm. Substitute for S. Bill No. 2366, 210th Leg., at 1-2

(Nov. 24, 2003). The Committee explained its "amendments make

this bill identical to [the] Assembly Committee Substitute" and

reiterated that the substitute bill penalized an individual who

"observes another person with knowledge that the person may

expose intimate parts . . . or who videotapes or otherwise

records the image of that person or discloses such images." S.

Judiciary Comm. Statement to S. Comm. Substitute for S. Bill No.

2366, 210th Leg., at 2-3 (Nov. 24, 2003). The Legislature

enacted the Senate substitute bill without change. L. 2003, c.

206, § 1.

This legislative history shows the legislators' concerns

included the situation before us - video voyeurism using small

cameras to film or photograph under and through the clothing of

a victim which may expose intimate parts. It also shows the

13 A-0299-15T4 Legislature rejected the requirement that the victim be "in a

'state of undress'" in favor of penalizing any photographing or

filming where "the intimate parts are exposed." Compare

Statement to S. Bill No. 2366, supra, at 3, with S. Comm.

Substitute for S. Bill No. 2366, supra, at 1-2. Thus, the

legislative history supports the plain language reading that the

statute applies if the victim's intimate parts are exposed –

open to view and visible – even if not undressed.

C.

Defendant compares this case to Commonwealth v. Robertson,

(Mass. 2014), but that case involved much different

and narrower statutory language. The Massachusetts statute

read: "Whoever willfully photographs, videotapes or

electronically surveils another person who is nude or partially

nude, with the intent to secretly conduct or hide such activity

. . . shall be punished by imprisonment[.]"

(emphasis added) (quoting

(b)

(2008)). Accordingly, it was an element of the Massachusetts

statute that "the subject was . . . nude or partially nude."

Robertson involved the upskirting of a woman on a Boston

trolley. Robertson argued the "clothed female passenger . . .

was not 'nude or partially nude.'"

The Massachusetts

14 A-0299-15T4 court agreed. Id. at 528. The Massachusetts court noted the

dictionary definition of "nude" is "'naked'; 'devoid of

clothing'; 'unclothed.'" Id. at 528 n.13 (citation omitted).

Specifically, the court ruled that a woman "who is wearing a

skirt, dress, or the like covering these parts of her body is

not a person who is 'partially nude,' no matter what is or is

not underneath the skirt by way of underwear or other clothing."

Ibid. As a result, the court found the Massachusetts statute

"does not apply to photographing . . . persons who are fully

clothed and, in particular, does not reach the type of

upskirting that the defendant is charged with attempting to

accomplish." Id. at 529. The court acknowledged a woman's

"expectation of privacy in not having a stranger secretly take

photographs up her skirt . . . is eminently reasonable," but

ruled the Massachusetts statute did not address that situation.

Ibid.

Robertson is plainly distinguishable. Indeed, it

illustrates the much greater breadth of N.J.S.A. 2C:14-9(b)

(2004). Our Legislature did not require the victim be nude or

partially nude. Instead, N.J.S.A. 2C:14-9(b) (2004) required

only that the victim's intimate parts be "exposed," that is,

open to view and visible.

15 A-0299-15T4 Here, the victim's inner thighs and buttocks were

"exposed," even though she was not "nude or partially nude,"

because they were open to view and visible through her "see

through" pantyhose. Accordingly, defendant's conduct fell

within N.J.S.A. 2C:14-9(b) (2004).

IV.

We next consider defendant's arguments that his conduct in

2013 did not fall within N.J.S.A. 2C:14-9(b) (2004) because of

subsequent legislative action, namely a failed attempt to amend

it in the 216th Legislature and an amendment later enacted by

the 217th Legislature. However, neither legislative effort

undermines the interpretation of N.J.S.A. 2C:14-9(b) (2004) or

its application to defendant's offense. "No offense committed

. . . shall be discharged, released or affected by the repeal or

alteration of the statute" after the offense was committed.

N.J.S.A. 1:1-15; accord State ex rel. C.F.,

(App. Div. 2016).

A.

Defendant first cites a failed attempt in the 216th

Legislature to amend N.J.S.A. 2C:14-9(b) (2004) in response to

Robertson. In 2014, a senator introduced a bill which sought to

add a third-degree offense penalizing the photographing or

filming of "the image of another person's intimate parts under

16 A-0299-15T4 or around the person's clothing" and to provide that the

definition of "intimate parts" applied "whether clothed of

unclothed." S. Bill. No. 1847, 216th Leg., at 3-4 (Mar. 24,

2014). The senator's statement accompanying the bill stated:

"This bill clarifies that it is a crime under this State's

invasion of privacy law to secretly photograph underneath a

person's clothing. Referred to as 'upskirting,' this practice

occurs when perpetrators use their cell phones to take pictures

and record video under the skirts and dresses of unsuspecting

victims[.]" Statement to S. Bill No. 1847, 216th Leg., at 5

(Mar. 24, 2014) (emphasis added). The senator stated:

In response to a court decision ruling that upskirting was not illegal, a state law was recently enacted in Massachusetts criminalizing the practice. It is the sponsor's intent to similarly protect women in this State from the vile and degrading practice of upskirting by making it clear that it constitutes an invasion of privacy under criminal and civil law.

[Id. at 6 (emphasis added).]

A member of the Assembly introduced a different bill

seeking to add a fourth-degree offense penalizing the

photographing or filming of intimate parts "whether naked or

clothed." Assemb. Bill No. 3864, 216th Leg., at 2 (Oct. 27,

2014). The member stated that the bill would "establish[] the

crime of 'upskirting,'" that "[p]rosecuting the crime of

17 A-0299-15T4 upskirting . . . has prove[n] challenging in other states"

because the victim was "typically clothed," and that the bill

would add the fourth-degree offense "to prevent such challenges

in New Jersey." Statement to Assemb. Bill No. 3864, 216th Leg.,

at 4-5 (Oct. 27, 2014).

Neither bill altered the language of N.J.S.A. 2C:14-9(b)

(2004) or indicated the 2004 statute did not cover the

photographing or filming of visible intimate parts. Rather,

each sought to add a provision covering the filming of "clothed"

intimate parts without requiring them to be visible.

In any event, neither bill was approved by committee, let

alone by either house. Rather, the Assembly passed a different

substitute bill, which died in the Senate after Senate Committee

approval of an identical Senate version. See Assemb. Comm.

Substitute for Assemb. Bill Nos. 3864, 3938, & 2992, 216th Leg.,

at 2 (June 4, 2015); Assemb. Judiciary Comm. Statement to

Assemb. Comm. Substitute for Assemb. Bill Nos. 3864, 3938, &

2992, 216th Leg., at 1 (June 4, 2015); S. Judiciary Comm.

Statement to S. Comm. Substitute for S. Bill. No. 1847, 216th

Leg., at 1 (Dec. 17, 2015).

Defendant argues the unsuccessful bills somehow changed the

plain meaning and intent of N.J.S.A. 2C:14-9(b) (2004).

However, "unsuccessful attempts to amend a statute are of little

18 A-0299-15T4 use in determining the intent of the Legislature when enacting

the original law." Perez v. Rent-A-Ctr., Inc.,

(2006). "[S]ubsequent legislative history . . . is a

particularly dangerous ground on which to rest an interpretation

of a prior statute when it concerns . . . a proposal that does

not become law." Pension Benefit Guar. Corp. v. LTV Corp.,

,

,

(1990).

We reject defendant's claim that the unsuccessful bills

show N.J.S.A. 2C:14-9(b) (2004) did not already prohibit

upskirting where the victim's intimate parts were visible.

"Although the failure to adopt an amendment can, at times,

indicate a conscious decision to reject the amendment's

provisions, such inaction conversely may signal that the law as

written already achieves the sought-after objective." Am. Civil

Liberties Union of N.J. v. Hendricks,

(App. Div.) (citation omitted) (citing 2A Norman J. Singer &

J.D. Shambie Singer, Sutherland Statutory Construction § 48:18,

at 633-37 (7th ed. 2014) [hereinafter Sutherland]), certif.

granted,

(2016); see Pension Benefit Guar. Corp.,

supra,

,

,

.

19 A-0299-15T4 B.

Defendant also cites an amendment passed by the 217th

Legislature. In 2016, the Legislature enacted a bill identical

to the substitute bills of the prior session. Assemb. Bill No.

156 (First Reprint), 217th Leg. (2016), enacted as L. 2016, c.

2. The amendment renumbered N.J.S.A. 2C:14-9(b) (2004) as

subsection (b)(1), with no change in language of that third-

degree offense. The amendment also added a fourth-degree

offense as subsection (b)(2):

An actor commits a crime of the fourth degree if, knowing that he is not licensed or privileged to do so, he photographs, films, videotapes, records, or otherwise reproduces in any manner, the image of the undergarment-clad intimate parts of another person, without that person's consent and under circumstances in which a reasonable person would not expect to have his undergarment-clad intimate parts observed.

[L. 2016, c. 2, § 1 (emphasis added).]

Thus, the 2016 amendment extended the coverage of N.J.S.A.

2C:14-9(b) by making it a fourth-degree offense to photograph or

film "undergarment-clad intimate parts" without requiring they

be visible. N.J.S.A. 2C:14-9(b)(2) (2016); see Merriam-

Webster's Collegiate Dictionary, supra, at 227 (defining "clad"

as "being covered or clothed"). The statements accompanying the

bills and issued by the committees stated N.J.S.A. 2C:14-9(b)

(2004) already made it a third-degree offense to photograph or

20 A-0299-15T4 film where "intimate parts are exposed," and that the bill

"expand[ed] the crime of invasion of privacy to include

'upskirting': photographing or filming the image of the

undergarment-clad intimate parts of another." Assemb. Bill No.

156, 217th Leg., at 2 (prefiled for 2016); Assemb. Judiciary

Comm. Statement to Assemb. Bill No. 156, 217th Leg., at 1 (Feb.

8, 2016); S. Law & Public Safety Comm. Statement to Assemb. Bill

No. 156 (First Reprint), 217th Leg., at 1 (Mar. 3, 2016). Thus,

the statements made clear the bills "expand[ed]" N.J.S.A. 2C:14-

9(b) (2004) to prohibit photographing or filming intimate parts

even if they were not visible because they were concealed by

undergarments. Assemb. Judiciary Comm. Statement to Assemb.

Bill No. 156, supra, at 1; S. Law & Public Safety Comm.

Statement to Assemb. Bill No. 156, supra, at 1.

Although the 2016 amendment left unchanged the language of

N.J.S.A. 2C:14-9(b) (2004)'s third-degree offense for filming

visible intimate parts, defendant argues it showed the 2004

statute did not cover his behavior. We reject his argument.

The plain meaning of the unchanged third-degree offense remains

unambiguous, and its meaning and legislative history is

unaltered. The amendment expanded the statute by adding a

provision penalizing the photographing or filming of

"undergarment-clad intimate parts" which are not visible. That

21 A-0299-15T4 expansion in no way invalidates its existing penalization of

photographing or filming visible intimate parts. See N.J.S.A.

2C:14-9(b)(1), (2).

To the extent the added provision also encompasses

photographing or filming intimate parts visible through sheer

undergarments, "'[t]he mere fact that two statutes overlap in

prohibiting the same act does not mean that the later law

automatically repeals the earlier one pro tanto'" or precludes

prosecution. State v. Gledhill,

(1975)

(citation omitted). "It is well settled that specific conduct

may violate more than one statute." State ex rel. M.C.,

(App. Div. 1997). A legislature "may

choose a belt-and-suspenders approach to promote its policy

objectives" by amending a statute to add an overlapping

provision. See McEvoy v. IEI Barge Servs., Inc.,

(7th Cir. 2010). "[S]ometimes, . . . legislatures adopt an

amendment only because it better expresses an idea already

embodied by the original bill[.]" Sutherland, supra, § 48:18,

at 635-37. In any event, "'the views of subsequent

[Legislatures] cannot override the unmistakable intent of the

enacting one.'" Exxon Corp. v. Hunt,

, 539 n.8

(1984) (citation omitted), aff’d in part, rev'd in part on other

grounds,

,

,

(1986).

22 A-0299-15T4 Furthermore, the 2016 amendment's grading of the offenses

is consistent with the continued applicability of N.J.S.A.

2C:14-9(b) (2004) to defendant's conduct. Under the amendment,

if an upskirting defendant photographs or films only

undergarments that cover and conceal an intimate part, he can be

charged with the fourth-degree offense under N.J.S.A. 2C:14-

9(b)(2), but he can be charged with a third-degree offense under

N.J.S.A. 2C:14-9(b)(1) if the intimate part is visible through

an undergarment, as it is a more intrusive and humiliating

experience for the victim.6

Defendant cites the rule of lenity. "That doctrine 'holds

that when interpreting a criminal statute, ambiguities that

cannot be resolved by either the statute's text or extrinsic

aids must be resolved in favor of the defendant.'" State v.

Rangel,

(2013) (citation omitted). "'It does

not invariably follow, that every time someone can create an

argument about the meaning of a penal sanction, the statute is

impermissibly vague, or that the lowest penalty arguably

applicable must be imposed.'" State v. Olivero,

(2015) (citation omitted). "Instead, the rule of lenity

6 A defendant may also be chargeable with the third-degree offense of attempt to commit a violation of N.J.S.A. 2C:14- 9(b)(1) if his offense satisfies the requirements of N.J.S.A. 2C:5-1.

23 A-0299-15T4 is applied only if a statute is ambiguous, and that ambiguity is

not resolved by a review of 'all sources of legislative

intent.'" State v. Regis,

(2011) (citation

omitted). Here, the statute's text and all extrinsic aids show

defendant's conduct fell within N.J.S.A. 2C:14-9(b) (2004).

Therefore, the trial court did not err in denying the motion to

dismiss the indictment.

V.

Defendant next challenges the trial court's order upholding

the prosecutor's denial of his application for PTI. Our "scope

of review is severely limited." State v. Negran,

(2003). "Reviewing courts must accord the prosecutor

'"extreme deference."'" State v. Waters,

(App. Div. 2015) (quoting State v. Nwobu,

(1995)). "In order to overturn a prosecutor's rejection, a

defendant must 'clearly and convincingly establish that the

prosecutor's decision constitutes a patent and gross abuse of

discretion.'"

at 226 (quoting State v. Watkins,

(2008)). We apply the same standard as the trial

court, and review its decision de novo.

Defendant claims the prosecutor did not consider factors

favorable to him. In fact, the prosecutor specifically noted

defendant's age, his marriage, his two children, his employment,

24 A-0299-15T4 his lack of criminal history, and that he sought psychological

treatment after PTI denial.

The prosecutor determined defendant was not an appropriate

candidate for PTI after considering "all of the factors,"

particularly "[t]he nature of the offense," "[t]he facts of the

case," "[t]he desire of the . . . victim [not] to forego

prosecution," and "[t]he needs and interests of society," and

that "the crime is of such a nature that the value of

supervisory treatment would be outweighed by the public need for

prosecution." N.J.S.A. 2C:43-12(e)(1), (2), (4), (7), (14).

In particular, the prosecutor focused on defendant's

"deviant sexual arousal and/or interest" and his repeated

filming of the victim despite his knowledge of "the 'disgusting'

nature of his conduct." The prosecutor noted that defendant

previously engaged in the same conduct and that "the present

offense constitutes part of a continuing pattern of 'antisocial

behavior,'" citing defendant's psychological evaluation. The

prosecutor found "such behavior requires more structured,

rigorous supervision that only traditional probation can offer"

and that such treatment would be more effective than PTI. See

N.J.S.A. 2C:43-12(e)(5).

Thus, we reject defendant's claim that the only basis for

the prosecutor's decision was the victim's opposition to PTI.

25 A-0299-15T4 Moreover, the victim's opposition to PTI "is an appropriate

factor to consider under Guideline 3 and N.J.S.A. 2C:43-

12(e)(4)." State v. Imbriani,

(App.

Div. 1996). The prosecutor properly considered the devastating

effect of defendant's conduct on the victim, who became

withdrawn and frightened and who opposed PTI to deter defendant

from victimizing anyone else. Accordingly, the trial court did

not err in finding no patent or gross abuse of discretion in the

prosecutor's denial of PTI.

Affirmed.

26 A-0299-15T4