December 20, 2016
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
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).
Judges Ostrer, Leone, and Vernoia.
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).
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.
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.
victim did not know defendant and was unaware he had placed
his cell phone under her skirt. After waiving his
Miranda 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.
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.
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.
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."
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.
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.
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
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,
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
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). Absent authorization in the rules, we do
not endorse such a procedure.
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 ...