Argued January 13, 2015
Approved for Publication February 10, 2015.
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 12-09-00698.
Kimberly L. Donnelly, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for appellant ( Grace H. Park, Acting Union County Prosecutor, attorney; Sara B. Liebman, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
John D. Williams argued the cause for respondent ( Nicosia Fahey & Williams, attorneys; Mr. Williams, of counsel; Vanessa L. Henderson, on the brief).
Before Judges REISNER, HAAS and HIGBEE.
[439 N.J.Super. 306] OPINION
By leave granted, the State appeals from a June 17, 2013 order dismissing the indictment in this case, without prejudice, due to blatant error in the legal instructions presented to the grand jury. The central issue in this appeal concerns the interpretation of N.J.S.A. 2C:34-7(a), which provides in relevant part: " [N]o person shall operate a sexually oriented business . . . within 1,000 feet of any area zoned for residential use." Like the trial judge, we conclude that the location of the business is a material [439 N.J.Super. 307] element of the offense and the State must prove that defendant acted knowingly with respect to that element.
Defendant was accused of operating a sexually oriented business, known as Hott 22, within 1000 feet of a residential zone. The prosecutor instructed the grand jury that the State was required to prove that defendant knowingly operated a sexually oriented business but did not have to prove that defendant knew the business was within 1000 feet of a residential zone. Defendant moved to dismiss the indictment. Applying the dictates of N.J.S.A. 2C:2-2(a) and N.J.S.A. 2C:2-2(c)(3), Judge
Robert J. Mega concluded that the business's prohibited location was a [439 N.J.Super. 308] material element of the offense, and the State must prove that defendant acted knowingly with respect to that element.
Finding nothing in the statutory language or legislative history of N.J.S.A. 2C:34-7(a) that would indicate the Legislature's intent to create a crime of strict liability, Judge Mega reasoned that the mens rea default standard (knowingly) applied, and thus, the State must prove that defendant knew he was operating a sexually oriented business and knew the business was located within 1000 feet of a residential zone. Judge Mega rejected the State's attempted analogy to the " 1000-foot" drug legislation, N.J.S.A. 2C:35-7 and N.J.S.A. 2C:35-7.1, because those statutes specifically provide for strict liability with respect to the location of a school or public facility. The judge further reasoned that, under the rule of lenity, any ambiguity with respect to the mens rea requirement must be resolved in defendant's favor. See State v. McDonald, 211 N.J. 4, 18, 47 A.3d 669 (2012); State v. Gelman, 195 N.J. 475, 482, 950 A.2d 879 (2008).
The judge considered that, while an indictment is not to be dismissed unless it is manifestly deficient or palpably defective, State v. Hogan, 144 N.J. 216, 228-29, 676 A.2d 533 (1996), dismissal is proper where the instructions presented to the grand jury are " blatantly wrong." State v. Triestman, 416 N.J.Super. 195, 205, 3 A.3d 634 (App.Div. 2010); State v. Hogan, 336 N.J.Super. 319, 344, 764 A.2d 1012 (App.Div.), certif. denied, 167 N.J. 635, 772 A.2d 937 (2001). Applying those principles, he concluded that the prosecutor's [439 N.J.Super. 309] instruction to the grand jury, which relieved the State of ...