On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 00-09-01561.
Before Judges Kestin, Fall and Weissbard.
The opinion of the court was delivered by: Fall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
In this appeal, we examine application of N.J.S.A. 2C:18-3c, the so-called"peeping Tom" provision contained in the trespass section of the New Jersey Code of Criminal Justice to acts of video voyeurism occurring within a residential dwelling. We conclude that the conduct alleged in the indictment is not proscribed by the provisions of N.J.S.A. 2C:18-3c. Accordingly, we reverse and remand for entry of an order dismissing the indictment.
Defendant Stephen Burke was charged in Monmouth County Indictment Number 00-09-1561 with fourth-degree trespass, contrary to N.J.S.A. 2C:18-3c by, on or about June 10, 2000,"peering into a window or other opening of a dwelling, knowing he is not licensed or privileged to do so, for the purpose of invading the privacy of B.R. and/or J.B., under circumstances in which a reasonable person in the dwelling or structure would not expect to be observed[.]"
The State contends it would be able to establish the following facts at trial. On June 10, 2000, defendant was residing at 364 First Avenue, Manasquan. On that date, he had two female guests CC B.R. and J.B. CC staying at his residence. Defendant owned and operated a taxi service. At approximately 4:00 p.m., defendant left the residence to operate his taxi service, and did not return to the premises until after midnight on June 11, 2000. B.R. and J.B. remained at the 364 First Avenue residence.
After taking a shower in the bathroom of the residence, B.R. noticed that the floral arrangement located on a shelf had a wire leading into it. B.R. moved the flowers and discovered a concealed video camera. B.R. informed J.B. of her discovery and the two followed the wire from the camera into an adjoining laundry room and found, hidden behind a curtain, a video cassette recorder with a tape inside it. B.R. and J.B. played the tape and saw that it contained images of them taking showers and using the bathroom. B.R. and J.B. also found another tape that, when played, showed defendant testing and setting up the camera and recording device. B.R. and J.B. took the two tapes and the video camera, and left defendant's residence.
On June 12, 2000, B.R. and J.B. went to the Manasquan Police Station with the tapes and video camera and reported the matter.
On June 13, 2000, the police searched defendant's residence and found a monitor and box for the video camera.*fn1
Upon questioning by the police, defendant stated that his purpose in video recording B.R. and J.B. was to see them naked. Defendant admitted he had left the camera in the bathroom knowing that it would monitor and film anyone who entered the room; that he knew B.R. and J.B. were coming to stay at his residence and did not know about the camera; that he had placed the camera in the bathroom, a place where he knew those using the bathroom had a reasonable expectation of privacy; that he knew B.R. and J.B. would not want to be filmed in the bathroom; and that he had the ability to remove the camera or turn it off before B.R. and J.B. arrived, but did not.
On or about August 13, 2001, defendant filed a motion to dismiss the indictment, contending the alleged conduct did not constitute a violation of N.J.S.A. 2C:18-3c. The motion was opposed by the State, and argued in the Law Division on October 26, 2001. The judge denied the motion, concluding that the State was not obligated to prove that the persons being observed knew that they were being observed or that the defendant had actually observed anyone.
On January 14, 2002, defendant entered a conditional plea to the trespass charge, reserving his right to appeal from the denial of his motion to dismiss the indictment. On March 15, 2002, defendant was sentenced to a period of one year probation. A fine of $1,000 was imposed, along with the applicable VCCB assessment.
On appeal, defendant argues that N.J.S.A. 2C:18-3(c) does not prohibit, as unlawful, the conduct alleged here. The ...