On appeal from the Superior Court, Law Division, Bergen County.
Pressler, Brody and Havey. The opinion of the court was delivered by Pressler, P.J.A.D.
The State appeals from defendants' acquittal by the Superior Court, Law Division, on a trial de novo of charges of defiant trespass in violation of N.J.S.A. 2C:18-3. We have concluded that the State's prosecution of this appeal is barred by the double jeopardy interdiction of the Fifth Amendment of the Federal Constitution, and accordingly, we dismiss.
Defendant Eric Gerstmann was an independent candidate for the office of Bergen County freeholder in the 1982 general election. On October 30, 1982, he and his stepfather, defendant Joseph Chuman, were at the Bergen Mall, a large enclosed regional shopping center in Paramus, New Jersey, where they placed campaign leaflets under the windshield wipers of cars parked in the mall parking lot. They continued this activity after having been told to stop, first by mall security officers and then by the Paramus police who were summoned to the scene. Upon defendants' assertion of their constitutional right
to distribute campaign literature on the mall's private property and their disregard of the notices to stop, complaints were issued against them by the Paramus Municipal Court charging them with a violation of N.J.S.A. 2C:18-3. A mall officer was the complainant.
The offense of defiant trespass is defined by N.J.S.A. 2C:18-3b in pertinent suit as follows:
A person commits a petty disorderly persons offense if, knowing that he is not licensed or privileged to do so, he enters or remains in any place as to which notice against trespass is given by:
(1) Actual communication to the actor; * * *.
Defendants did not urge at the municipal court hearing on the complaint that they had not committed the conduct constituting the charge against them. Rather, they asserted that Art. I, par. 6 of the New Jersey Constitution (1947) protected their expressional conduct because of the nature, scope and extent of the public's invitation to use the mall property. See State v. Schmid, 84 N.J. 535 (1980). In effect, this claim of constitutional right to engage in expressional activities on private property constituted an affirmative defense to the charge pursuant to N.J.S.A. 2C:18-3c(2).*fn1
State v. Schmid, supra, 84 N.J. at 562, makes clear that the existence of a state constitutional right to engage in specific expressional activity on specific private property depends on the extent to which the property has been devoted to public use. This is ultimately a fact question requiring inquiry into and evaluation of such circumstances as
(1) the nature, purposes, and primary use of such private property, generally, its "normal" use, (2) the extent and nature of the public's invitation to use that property, and (3) the purpose of ...