On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 08-06-1805.
The opinion of the court was delivered by: Ashrafi, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 20, 2010
Before Judges Fuentes, Gilroy and Ashrafi.
The opinion of the court was delivered by ASHRAFI, J.A.D.
The State appeals from an order of the Law Division dismissing a one-count indictment. We affirm.
Our standard of review is plenary from a question of law. We must interpret provisions of New Jersey's Code of Criminal Justice (the Code) to determine whether a defendant who knowingly masturbates within view of a non-consenting adult has committed criminal sexual contact in violation of N.J.S.A. 2C:14-3b, a crime of the fourth degree, or only the disorderly persons offense of lewdness in violation of N.J.S.A. 2C:14-4. We agree with the Law Division's ruling that the conduct alleged against defendant does not prove all the essential elements of criminal sexual contact.
The State presented two witnesses to the grand jury. The adult female victim testified that she was a student at Essex County Community College. At about 6:50 a.m. on February 11, 2008, the victim stepped into an elevator on her way to class.
A man also got into the elevator. As the elevator was ascending, the victim looked toward the man and saw that his penis was exposed, and he was "touching himself," masturbating. The man followed the victim off the elevator as she hurried to her class. She reported the incident to campus security the same morning.
Detective Nathan Gonzalez of the college police testified that he viewed surveillance videotapes of the area of the elevator. On the tapes, he saw a man enter and leave the elevator together with the victim and later identified that man as defendant James Lee. Upon questioning, defendant admitted he had been on the elevator at the time of the incident but denied he had been masturbating. He said he was "just adjusting himself."
The grand jury returned a one-count indictment charging defendant with fourth-degree criminal sexual contact in violation of N.J.S.A. 2C:14-3b. Defendant moved to dismiss the indictment on the ground that the evidence did not establish all the essential elements of an offense under that statute. The trial court heard argument and granted the motion by oral decision on September 14, 2009, and an order executed the following day.
N.J.S.A. 2C:14-3b, states:
An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the ...