June 27, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
MICHAEL SUMULIKOSKI, Defendant-Appellant. STATE OF NEW JERSEY, Plaintiff-Respondent,
ARTUR SOPEL, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 30, 2013
On appeal from an interlocutory order of Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-12-2152.
Philip DeVencentes argued the cause for appellant Michael Sumulikoski (Galantucci & Patuto, attorneys; Mr. DeVencentes, on the briefs).
Alan L. Zegas argued the cause for appellant Artur Sopel (Law Offices of Alan L. Zegas and Flood & Basile, attorneys; Mr. Zegas, on the briefs; Raymond F. Flood and Terel L. Klein, on the briefs).
Catherine A. Foddai, Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Kenneth Ralph, Senior Assistant Prosecutor, of counsel; David A. Malfitano, Assistant Prosecutor, on the brief).
Before Judges Alvarez, Waugh and St. John.
Pursuant to leave granted, defendants Michael Sumulikoski and Artur Sopel appeal a Law Division order denying each defendant's motion to dismiss the indictment. Defendants contend that the alleged wrongful acts occurred outside New Jersey's borders and therefore the State lacks territorial jurisdiction over the counts of the indictment relating to those acts. We consolidate the matters, and now affirm.
The record discloses the following facts and procedural history leading to the determination under review.
On December 21, 2011, Bergen County Indictment S-2152-11 charged Sumulikoski with three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3)(b) (Counts Two, Three, and Four); one count of second-degree endangering the welfare of a child by engaging in sexual contact, N.J.S.A. 2C:24-4(a) (Count One); and two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Counts Five and Six), by allowing Sopel to perform unlawful acts in the presence of the victim.
Sopel was charged with six counts of second-degree sexual assault, involving two victims, N.J.S.A. 2C:14-2(c)(3)(b) (Counts Eight, Nine, Thirteen, Fourteen, Fifteen, and Sixteen); and two counts of second-degree endangering the welfare of a child by engaging in sexual contact N.J.S.A. 2C:24-4(a) (Counts Seven and Twelve).
Sumulikoski and Sopel were both employed at Paramus Catholic High School. Sopel was vice president of operations, and Sumulikoski was a permanent substitute teacher and an athletic coach. At the time of the conduct underlying the indictments, Sopel was twenty-eight years old and Sumulikoski was thirty-one years old. The victims were students at the school, and were all seventeen years old. Defendants and the victims all resided in New Jersey.
Paramus Catholic High School sponsored a trip from New Jersey to Germany. Sopel and Sumulikoski agreed to act as chaperones for the victims and the other students going on the trip. Permission slips were signed for the students in New Jersey.
Both defendants moved to dismiss their indictments on the ground that the State lacked jurisdiction to prosecute. They contended that because the alleged sexual contacts occurred in Germany, the State lacks territorial jurisdiction over those counts of the indictment relating to those acts. The State agreed that the sexual contacts between the defendants and the victims occurred in Germany, but argued that the assumption of the duty in New Jersey to protect the New Jersey victims conferred jurisdiction.
In a July 10, 2012 written opinion the motion judge denied defendants' motions to dismiss the indictment. On September 11, 2012, we granted leave to appeal.
On appeal, defendant Michael Sumulikoski presents the following issue for our consideration:
LEAVE TO APPEAL SHOULD BE GRANTED TO REVIEW THE COURT'S DENIAL OF DEFENDANT'S MOTION TO DISMISS THE INDICTMENT FOR LACK OF JURISDICTION BECAUSE THE COURT'S FIRST IMPRESSION RULING AS A MATTER OF LAW THAT THE "HAVING" OR "ASSUMING" OF SUPERVISORY POWER AND "DUTY OF CARE" CONSTITUTE "CONDUCT WHICH IS AN ELEMENT OF THE OFFENSE" of N.J.S.A. 2C:14-2c. (3)(b) AND N.J.S.A. 2C:24-4a. UNDER N.J.S.A. 2C:1-3a(1) WAS CLEARLY ERRONEOUS.
Defendant Artur Sopel presents the following issues for our consideration:
THE TRIAL COURT WRONGLY DENIED DEFENDANT'S MOTION TO DISMISS COUNTS 7-18 OF THE INDICTMENT FOR LACK OF JURISDICTION BECAUSE THE CRIMES ALLEGED OCCURRED OUTSIDE THE TERRITORIAL JURISDICTION OF NEW JERSEY AND THE UNITED STATES, AND THE STATE LACKS AUTHORITY TO TRY DEFENDANT.
A. THE TRIAL COURT'S DETERMINATION THAT THE STATE MAY ESTABLISH TERRITORIAL JURISDICTION BASED SOLELY ON ELEMENTS OF CRIMES CONSTITUTING ATTENDANT CIRCUMSTANCES AND NOT CONDUCT IS ILLOGICAL, VIOLATES PRINCIPLES GOVERNING TERRITORIAL JURISDICTION, IS INCONSISTENT WITH RULES OF INTERPRETATION FOR CRIMINAL STATUTES, AND VIOLATES THE STATE AND FEDERAL CONSTIUTIONAL RIGHTS OF DEFENDANT.
B. THE TRIAL COURT'S DETERMINATION THAT THE STATE MAY ESTABLISH TERRITORIAL JURISDICTION BASED SOLELY ON ELEMENTS OF CRIMES CONSTITUTING ATTENDANT CIRCUMSTANCES AND NOT "CONDUCT" IS UNPRECEDENTED.
Defendants argue the motion judge erred, as a matter of law, when he determined that defendants' assumption of supervisory power over the victims constituted "conduct" giving rise to territorial jurisdiction, because the assumption of a legal duty cannot constitute "conduct." Defendants maintain that while a legal duty must be breached in order for conduct to rise to the level of sexual assault, the duty itself does not constitute conduct.
The State argues that, acting in New Jersey, defendants assumed the duty to properly supervise the students in Germany. The State maintains that defendants are not being prosecuted for their status, but rather for the fact that they assumed a duty in New Jersey to protect and subsequently committed acts of sexual assault in Germany.
We affirm substantially for the reasons set forth in Judge Guida's comprehensive and cogent opinion. We add the following brief comments.
Writing for a unanimous Supreme Court, Justice Holmes laid down a broad basis for criminal territorial jurisdiction: "Acts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect . . . ." Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 560, 55 L.Ed. 735, 738 (1911); see also Ford v. United States, 616 A.2d 1245, 1251-52 (D.C. 1992) (relying on Strassheim to support jurisdiction over a defendant who committed offenses in Maryland as part of attempt to obstruct justice in the District of Columbia); State v. Meyers, 825 P.2d 1062, 1064 (Haw. 1992) (citing Strassheim as support for state court jurisdiction over threatening phone calls originating from outside the state); People v. Aspy, 808 N.W.2d 569, 573 (Mich. Ct. App. 2011) (relying on Strassheim to hold that Michigan had territorial jurisdiction over conduct committed in another state that was intended to have a detrimental effect within the state); Jaynes v. Commonwealth, 666 S.E.2d 303, 307 (Va. 2008) (relying on Strassheim as support for the principle that "a state may exercise jurisdiction over criminal acts that are committed outside the state, but are intended to, and do in fact, produce harm within the state").
Further, "the scope of a state's jurisdiction over defendants in criminal cases is bound up with the scope of its substantive criminal law" and criminal jurisdictional doctrine evolved quite independently from the doctrine of civil jurisdiction. Allan Erbsen, Impersonal Jurisdiction, 60 Emory L.J. 1, 37 (2010) (listing reasons for analyzing questions of criminal jurisdiction separately from questions of civil jurisdiction). Cf. In re Vasquez, 705 N.E.2d 606, 609 (Mass. 1999) ("The jurisprudence of personal jurisdiction has no bearing on the question whether a person may be brought to a State and tried there for crimes under that State's laws."). Today, criminal jurisdiction is for the most part a creature of expansive state statutes designed in part to permit prosecution for consequences felt within a state resulting from criminal acts occurring outside a state. See Wayne R. LaFave, et al., 4 Criminal Procedure § 16.4(c) at 847-49 (3d ed. 2007).
Given this precedent, it is not surprising that, as the motion judge recognized, the Restatement provides that a state may regulate conduct occurring outside of its territorial boundaries if the conduct has, or is intended to have, a substantial effect within the territory and the regulation itself is otherwise reasonable. See Restatement (Third) of Foreign Relations Law of the United States §§ 402(1)(c), 403 (1987).
"Any objection to the State's jurisdiction to prosecute a crime should be raised as early as possible before trial." State v. Denofa, 187 N.J. 24, 43 (2006). When raised, the defendant "must carry the burden by showing that no inference could reasonably be drawn placing the site of the crime within the State." Ibid. (quoting State v. McDowney, 49 N.J. 471, 475 (1967)) (internal quotation marks omitted).
Where the facts giving rise to jurisdiction are not in dispute, our courts have no difficulty determining as a matter of law under N.J.S.A. 2C:1-3 that we could prosecute crimes when some of the predicate conduct occurs out-of-state. See, e.g., State v. Streater, 233 N.J.Super. 537 (App. Div.), certif. denied, 117 N.J. 667 (1989) (conspiracy in New Jersey to commit a crime in Connecticut gave New Jersey jurisdiction to try the substantive offense); State v. Sanders, 230 N.J.Super. 233 (App. Div. 1989) (conduct in New Jersey which constituted an attempt to endanger the welfare of a child in Pennsylvania provided jurisdiction in our courts to try the defendant for abandonment of the child in the Commonwealth).
When the trial judge analyzed the application of N.J.S.A. 2C:1-3 to the charges against the defendants, he posited the question thus:
Whether or not New Jersey can exercise territorial jurisdiction over the above offenses in this case turns on whether the "supervisory or disciplinary power" requirement under N.J.S.A. 2C:14-2(c)(3)(b) and the "assumption of responsibility" requirement under N.J.S.A. 2C:24-4(a) are considered "conduct" which are material elements of those respective offenses as set forth in N.J.S.A. 2C:1-3(a)(1).
He concluded that the "supervisory or disciplinary power" over the students or the "assuming the responsibility for the care" of the students, are material elements of the offenses charged in the indictment. Since those foundational elements of the offenses occurred in New Jersey, the fact that additional material elements of the offenses occurred in Germany does not deprive the State of territorial jurisdiction to prosecute the offenses. We agree.
This state has jurisdiction over an offense that a person commits by his own conduct or the conduct of another for which he is legally accountable if: "Conduct constituting any element of the offense or a result of such conduct occurs within this state" NJSA 2C:1-3(a)(1) Defendants argue in effect that they are being prosecuted for their status as chaperones We disagree The State is not contending that if defendants engaged in sexual acts with children from another New Jersey school that they met in Germany territorial jurisdiction would ensue Nor is the State arguing that if defendants engaged in sexual acts with German children that territorial jurisdiction would ensue merely because of defendants' status Jurisdiction arises from defendants' role as having "supervisory or disciplinary power" over the alleged victims see NJSA 2C:14-2(c)(3)(b) or having "assumed responsibility" over them see NJSA 2C:24-4(a) This case bears a factual nexus between the crimes and New Jersey namely that parents entrusted their children to defendants in this state and that legal obligation ended upon their return to New Jersey
In sum we cannot conclude as a matter of law that the defendants did not engage in conduct in New Jersey that was an element of the contested charges The motion judge did not err in denying defendants' motion to dismiss for lack of jurisdiction