On appeal from the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The issue in this appeal is whether defendant's petty disorderly persons conviction under a differently-worded predecessor prostitution statute was a legally cognizable predicate offense under the current statute, thus justifying the upgraded charge of fourth-degree prostitution.
On March 18, 2004, Sergeant Edward O'Rourke, working undercover as part of an operation targeting businesses and individuals suspected of involvement in prostitution activities, made a telephone call to the Pink Garter escort agency and made arrangements with defendant to meet with a woman named "Cindy" the following night at the Hilton Garden Inn in Rockaway Township. Sergeant O'Rourke cancelled the "date" because he thought defendant suspected that he was part of an undercover operation. The next evening, however, defendant appeared at the Sergeant's hotel room. Defendant asked for identification and for advance payment, but she immediately left because she did not like the type of service requested by Sergeant O'Rourke. Defendant was arrested as she left the hotel room.
Sergeant O'Rourke informed the grand jury that defendant's "criminal history report" indicated that she had been convicted of prostitution on December 27, 1989 in Parsippany-Troy Hills. Based on Sergeant O'Rourke's testimony and the prior conviction, the grand jury indicted defendant for fourth-degree engaging in prostitution.
The trial court dismissed the indictment, finding that defendant's 1989 petty disorderly persons conviction for soliciting in a public place under the predecessor prostitution statute, L. 1978, c. 95, § 2C:34-1, did not constitute a predicate offense for upgrading the disorderly persons offense of prostitution to a fourth-degree crime under the current statute, N.J.S.A. 2C:34-1(c)(4). In reaching that conclusion, the court analyzed the grading provision of N.J.S.A. 2C:34-1(c)(4), which provides that "engag[ing] in prostitution," N.J.S.A. 2C:34-1(b)(1) , is "a disorderly persons offense . . . except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree," N.J.S.A. 2C:34-1(c)(4) (emphasis added). Finding that the words "such an offense" clearly referred back to the term "disorderly persons offense," the court determined that defendant's prior petty disorderly persons offense was not a predicate conviction under the statute and therefore defendant could not be charged with a fourth-degree crime. Alternatively, the court held that the statutory language was, at best, ambiguous, yielding two possible interpretations. Because, in resolving a statutory ambiguity, penal statutes are strictly construed against the State, the court based its dismissal of the indictment on that alternate ground as well.
After the trial court denied the State's motion for reconsideration, the Appellate Division granted the State's motion for leave to appeal. In an unpublished opinion, the Appellate Division reversed the trial court and reinstated the indictment. Finding no ambiguity in the applicable provisions of the current statute, the panel held that in both 1989 and 2004 defendant was charged with the same prohibited act -- "offering to engage in sexual activity in exchange for money." Because defendant was convicted of committing an act of prostitution in 1989, the panel maintained that a conviction of the 2004 charge would constitute "a second or subsequent conviction for such an offense," thus justifying the elevation of what would ordinarily be a disorderly persons offense to an indictable fourth-degree crime. The Appellate Division denied defendant's motion for reconsideration.
The Supreme Court granted defendant's motion for leave to appeal.
HELD: The current N.J.S.A. 2C:34-1 is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. The Court is thus compelled to apply the doctrine of lenity and dismiss the indictment.
1. The primary goal in construing any statute is to divine the Legislature's intent. As always, the Court begins by examining the actual words of the statute, giving them their ordinary and commonsense meaning. If the meaning of those words on their face is clear enough to yield the answer, the Court looks no further. Only if the statutory language is susceptible to "more than one plausible interpretation" does the Court turn to such extrinsic aids as legislative history for help in deciphering what the Legislature intended. Moreover, the Court is guided by the doctrine of lenity, which 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. (Pp. 7-9)
2. At issue here is the meaning of the phrase "such an offense" in the grading provision of the current prostitution statute. Defendant and the State both have plausible interpretive claims on N.J.S.A. 2C:34-1(c)(4). Defendant argues, relying in part on the doctrine of the last antecedent, that given the structure of the statute, "such an offense" refers only to prior disorderly persons offenses and therefore excludes her 1989 conviction for a petty disorderly persons offense. The State counters that a petty disorderly persons offense under the superseded prostitution statute is the "functional equivalent" of a disorderly persons offense under the current law and that they both proscribe the same "evil." The State argues that the statute's legislative history buttresses that interpretation. (Pp. 9-14)
3. The Court finds the legislative history of the statutory amendments to be unenlightening in resolving the textual ambiguity. The Legislature did not give an unmistakable signal that it intended a 1999 amendment to allow a prior petty disorderly persons offender to be subjected to an enhanced second charge with a sentencing range eighteen times greater than the first one. Whether the Legislature intended defendant to be treated as a first offender or second offender is mired in ambiguity. When the Legislature intends to include within a statute's sweep offenses under a predecessor statute for sentencing enhancement purposes, it knows how to draft language to accomplish that objective. That was not accomplished here and the Court cannot rewrite a criminal statute to increase sentencing penalties that do not appear clearly on the face of that statute. There is more than one reasonable interpretation of N.J.S.A. 2C:34-1(c)(4). It is the clash of those reasonable interpretations that produces the ambiguity that the Court now resolves in favor of the defendant. (Pp. 14-16)
4. Because the statutory language and legislative history do not resolve the ambiguity in N.J.S.A. 2C:34-1(c)(4), that ambiguity must be resolved in favor of defendant under the doctrine of lenity. Pursuant to N.J.S.A. 2C:34-1(c)(4), defendant's 1989 petty disorderly persons conviction for soliciting is not a prior offense that elevates the current charge of engaging in prostitution from a disorderly person offense to a fourth-degree crime. (Pp. 16-17)
The judgment of the Appellate Division is REVERSED, the trial court's dismissal of the indictment is reinstated, and the matter is remanded for further proceedings consistent with this opinion.
Justice RIVERA-SOTO filed a separate dissenting opinion, stating that when the Code of Criminal Justice is read as a whole, and in particular the Code's explicit definitional provisions, the plain meaning of current N.J.S.A. 2C:34-1(c)(4) brooks no ambiguity.
CHIEF JUSTICE RABNER and JUSTICES LONG, LaVECCHIA, WALLACE, and HOENS join in JUSTICE ALBIN's opinion. Justice RIVERA-SOTO filed a separate, dissenting opinion.
The opinion of the court was delivered by: Justice Albin
A person found guilty of "engag[ing] in prostitution," N.J.S.A. 2C:34-1(b)(1), is punishable as a disorderly person, "except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree," N.J.S.A. 2C:34-1(c)(4) (emphasis added). With that law in mind, a Morris County grand jury returned an indictment charging defendant Janet Gelman with fourth-degree engaging in prostitution based, in part, on defendant's prior petty disorderly persons conviction for prostitution under a differently-worded predecessor statute, L. 1978, c. 95, § 2C:34-1 (cu rrent version at N.J.S.A. 2C:34-1). In this appeal, we must decide whether that petty disorderly persons conviction was a legally cognizable predicate offense under the current statute, thus justifying the upgraded charge of fourth-degree prostitution.
We now hold that the current N.J.S.A. 2C:34-1 -- even after consideration of its legislative history -- is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. We therefore are compelled to apply the doctrine of lenity and dismiss the indictment.
The indictment against defendant was based on the testimony of Dover Township Police Sergeant Edward O'Rourke, the sole witness to testify before the Morris County grand jury. In March 2004, Sergeant O'Rourke was assigned to an undercover operation conducted by the Morris County Prosecutor's Office targeting businesses and individuals suspected of involvement in prostitution activities. On March 18, 2004, Sergeant O'Rourke made a telephone call to the Pink Garter escort agency, which advertised its services in The Star Ledger. During a conversation with defendant, he arranged to meet with a ...