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State v. Nicholson

Superior Court of New Jersey, Appellate Division

August 31, 2017

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
JOSHUA NICHOLSON, Defendant-Appellant.

          Argued December 20, 2016

         On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 13-12-0773.

          Michael J. Rogers argued the cause for appellant (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the briefs).

          Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Garima Joshi, Deputy Attorney General, and Mr. Yomtov, of counsel and on the brief).

          Before Judges Ostrer, Leone, and Vernoia.

          OPINION

          LEONE, J.A.D.

         Defendant Joshua Nicholson appeals his August 12, 2015 judgment of conviction. He engaged in "upskirting, " that is, "taking pictures of women up their skirts." Nancy Danforth Zeronda, Note, Street Shootings: Covert Photography and Public Privacy, 63 Vand. L. Rev. 1131, 1133-34 (2010). He pled guilty to third-degree invasion of privacy under N.J.S.A. 2C:14-9(b) (2004), now renumbered N.J.S.A. 2C:14-9(b)(1).

         Defendant challenges the trial court's denial of his motion to dismiss his indictment and of his motion for reconsideration. He claims the victim's intimate parts were not "exposed" under N.J.S.A. 2C:14-9(b) (2004) because the victim was wearing pantyhose. We hold that "exposed" means "open to view" and "visible, " and that defendant violated N.J.S.A. 2C:14-9(b) (2004) because the victim's inner thighs and buttocks were open to view and visible through her sheer pantyhose. Defendant also argues N.J.S.A. 2C:14-9(b) (2004) did not apply because the Legislature in 2016 enacted a fourth-degree offense of filming "undergarment-clad intimate parts, " N.J.S.A. 2C:14-9(b)(2). We hold the broader 2016 enactment did not alter the meaning of the 2004 statute. Finally, we reject defendant's challenge to the denial of his application for admission into pre-trial intervention (PTI). Accordingly, we affirm.

         I.

         The grand jury heard the following testimony. On October 18, 2013, a surveillance camera showed defendant looking around nervously while walking in the aisles of a supermarket, which attracted the attention of a loss prevention officer. The officer observed defendant take out his cell phone and place it under the female victim's skirt. The officer then observed the cell phone's flash illuminate under the victim's skirt. Once defendant and the victim separated, defendant followed her into a different aisle and again pulled out his cell phone and placed it under the victim's skirt. The officer again saw the flash illuminate. As defendant was leaving the store, the officer confronted him and the police were called.

         The victim did not know defendant and was unaware he had placed his cell phone under her skirt. After waiving his Miranda[1] rights, defendant admitted taking two videos under the victim's skirt without her consent. He also admitted he went to the supermarket for the purpose of recording such a video so he could watch it for his sexual gratification at a later time.

         The grand jury charged defendant with two counts of third-degree invasion of privacy. N.J.S.A. 2C:14-9(b) (2004). After being indicted, defendant applied for admittance into PTI, which was rejected by the prosecutor. Defendant submitted supplemental materials, but the prosecutor again denied defendant admittance into PTI. Defendant appealed, and the trial court found the prosecution did not abuse its discretion in denying PTI.

         Defendant filed a motion to dismiss the indictment. The trial court denied it, finding the State presented a prima facie case to the grand jury. Defendant filed a motion for reconsideration. At the request of both parties, the court viewed the videos from defendant's phone.

         In its opinion, the trial court found the video footage revealed the victim's body under her skirt, including her inner thighs, buttocks, and groin. It did not appear the victim was wearing underwear covering her buttocks, but she was wearing pantyhose of varying degrees of sheerness. Specifically, the portion of pantyhose on her inner thighs was "extremely sheer, " the portion on her buttocks was "slightly darker, but still sheer, " and the groin was covered by "an opaque gusset."[2]

         The trial court found "the video shows a clear visual of the inner thighs and buttocks" which were "clearly depicted" due to the "sheerness of the pantyhose." The court concluded "there was exposure of the inner thighs and buttocks as the pantyhose was essentially see through in its sheerness." Therefore, the court ruled that "Defendant has recorded, without license or privilege to do so, [the] 'image of another person whose intimate parts are exposed, without consent and under circumstance in which a reasonable person would not expect to be observed' in violation of N.J.S.A. 2C:14-9(b)." Accordingly, the court denied defendant's motion for reconsideration.

         Defendant conditionally pled guilty to both counts of third-degree invasion of privacy, "specifically reserv[ing] the right to appeal the denial of his motion to dismiss the indictment and motion for reconsideration based upon legal and factual insufficiency." In accordance with the plea agreement, defendant was sentenced to two years' non-custodial probation and a $1000 fine. Defendant was also ordered to complete a psychological evaluation, follow any recommended treatment, and have no contact with the victim.

         On appeal, defendant argues:

POINT 1 - DEFENDANT DID NOT VIOLATE THE INVASION OF PRIVACY STATUTE BECAUSE THE VICTIM'S INTIMATE PARTS WERE NOT EXPOSED WHEN DEFENDANT VIDEOTAPED HER WITH HIS CELL PHONE BECAUSE SHE WAS CLOTHED WITH LINGERIE UNDER HER SKIRT.
POINT 2 - THE NEW JERSEY LEGISLATURE HAS REVEALED ITS INTERPRETATION THAT THE RELEVANT SECTION OF THE INVASION OF PRIVACY STATUTE DOES NOT COVER DEFENDANT'S BEHAVIOR.
POINT 3 - THE PROSECUTOR'S REJECTION OF DEFENDANT FOR ADMISSION INTO PTI WAS A PATENT AND GROSS ABUSE OF DISCRETION.

         II.

         We begin by considering the nature of our review. "An indictment is presumed valid and should only be dismissed if it is 'manifestly deficient or palpably defective.'" State v. Feliciano, 224 N.J. 351, 380 (2016) (citation omitted). "A motion to dismiss is addressed to the discretion of the trial court, and that discretion should not be exercised except for 'the clearest and plainest ground.'" Ibid, (citation omitted).

         "At the grand jury stage, the State is not required to present enough evidence to sustain a conviction. As long as the State presents 'some evidence establishing each element of the crime to make out a prima facie case, ' a trial court should not dismiss an indictment." Ibid, (citations omitted). "[A] court examining a grand jury record should determine whether, 'viewing the evidence and the rational inferences drawn from that evidence in the light most favorable to the State, a grand jury could reasonably believe that a crime occurred and that the defendant committed it.'" Id. at 380-81 (citation omitted).

         Defendant's notice of appeal contested "the trial judge's pretrial determinations that he violated the invasion of privacy statute after an evidentiary hearing." Defendant is referring to the trial court's hearing and denial of his motion for reconsideration after viewing the upskirting videos he submitted. At that hearing, the parties agreed the court should view the upskirting videos taken by defendant, even though the grand jury was not shown the videos or provided with testimony as to what was recorded in the videos. This effectively resulted in a summary-judgment-type proceeding, in which the court reviewed anticipated trial evidence to determine whether it would be sufficient to satisfy the statute. However, the Rules of Court authorize summary judgment procedures only in civil cases. R. 4:46. The rules do not authorize summary judgment in criminal cases. See State v. Parker, 198 N.J.Super. 272, 278 (App. Div. 1984), certif. denied, 99 N.J. 239 (1985); State v. Bass, 191 N.J.Super. 347, 351 (Law Div. 1983).[3] Absent authorization in the rules, we do not endorse such a procedure.[4]

         However, that procedure was used here at the request and with the consent of the parties, and neither party has challenged that procedure on appeal. Thus, in reviewing whether the evidence was sufficient to satisfy the statute, we, like the trial court, consider the videos submitted by defendant with his motion for reconsideration. Moreover, we defer to and accept the trial ...


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