On appeal from Superior Court, Law Division, Camden County.
Petrella, Gruccio and Landau. The opinion of the court was delivered by Gruccio, J.A.D.
Defendant Catherine Wright was charged, in a 45-count indictment returned by the Camden County Grand Jury, with promoting prostitution, N.J.S.A. 2C:34-1b(1), N.J.S.A. 2C:34-1b(2), N.J.S.A. 2C:34-1b(3), N.J.S.A. 34:1b(4) and N.J.S.A. 2C:34-1b(5); possession of hollow nose bullets, N.J.S.A. 2C:39-3f, and maintaining a premises as a house of prostitution, N.J.S.A. 2C:33-12c. Defendant entered a retraxit plea of guilty to maintaining a house of prostitution pursuant to a plea bargain. The plea agreement provided for a probationary sentence with such conditions as the court would impose in its discretion, a $30 Violent Crimes Compensation Board penalty, dismissal of the remaining counts of the indictment, closing of the private show portion of plaintiff's business for up to six months and confiscation of $2,800 in cash and $1,600 in credit card receipts. The plea was not to be evidential in any civil proceedings. Defendant also retained the right to appeal the conviction but waived all rights to the forfeited money in the event of a reversal.
At sentencing, the judge imposed a sentence in substantial compliance with the plea agreement. Defendant was sentenced to a 3-year term of probation conditioned on her ceasing the above prohibited activity and performing 250 hours of community service. Defendant was ordered to forfeit the $2,800 in cash as agreed to in a consent order.*fn1 All remaining counts against defendant were dismissed.
We briefly review the facts which are essentially uncontested. Defendant owned an establishment known as the Adult House in Woodlynne, New Jersey, where she maintained an adult bookstore which also offered live entertainment. As a result of a complaint, a prosecutor's investigator went to defendant's establishment. A counter man exchanged the investigator's $10 bill for five one-dollar bills and coins then directed him to a booth where a woman appeared on the other side of a glass partition. The investigator put money in the coin slots, picked up a telephone and spoke with the woman. She said that for $40 they could take off their clothing in a back room where they could feel and touch each other for 15 minutes or $30, for 10 minutes. The woman said they could do anything and everything they wanted except engage in intercourse and that she would sit on his lap and masturbate him. She also indicated tips were accepted and that the fees could be charged on Mastercard or Visa.
Defendant pled guilty to N.J.S.A. 2C:33-12c, admitted splitting fees with her employees and stated facts which substantiated the investigator's report. Defendant essentially admits these allegations in her statement of facts in her brief at the trial level and before us.
On appeal defendant contends:
1. For the reasons set forth in appellant's motion to dismiss the indictment, defendant's conviction should be reversed and the indictment dismissed.
1a. N.J.S.A. 2C:34-1 denies defendant due process of law contrary to the Fourteenth Amendment of the United States Constitution in that it fails to define what conduct would be considered deviant sexual relations and thus fails to give defendant fair warning and proper notice of what conduct is to be proscribed.
2. N.J.S.A. 2C:34-1 is unconstitutionally void for vagueness in that, while attempting to prohibit prostitution, it fails to describe what acts of sexual activity or deviate relations are to be considered as elements of the prostitution charge.
We begin our analysis of this case with a statement of what legal principles are and are not involved. What is involved is a form of sexual activity for money. What is not involved is the constitutionally ...