No. A-0299-15T4

Aug. 31, 2017 (Date Decided)

Judge Leone

FOR APPELLANT: Michael J. Rogers (McDonald & Rogers, LLC, attorneys; Mr. Rogers, of counsel and on the briefs).

FOR RESPONDENT: Steven A. Yomtov, Deputy Attorney General (Christopher S. Porrino, Attorney General, attorney; Garima Joshi, Deputy Attorney General, and Mr. Yomtov, of counsel and on the brief).

Defendant appealed from his judgment of conviction, following a guilty plea to third-degree invasion of privacy, after he took upskirt photos of a woman. On appeal, defendant challenged the trial court’s denial of his motion to dismiss his indictment, arguing that the victim’s intimate parts were not “exposed” under the criminal state because the victim was wearing pantyhose. Defendant further argued that the statute he was charged under did not apply because the legislature had enacted a fourth-degree offense of filming “undergarment-clad intimate parts.” Finally, defendant challenged the denial of his application for admission into pretrial intervention.

The court first rejected defendant’s argument that his indictment should have been dismissed because the victim’s intimate parts were not “exposed” when he took photos. The court ruled that “exposed” under the statute took on its plain, ordinary meaning of “open to view.” The court concluded that defendant violated the charged statute because the victim’s inner thighs and buttocks were visible, and therefore open to view, through her sheer pantyhose. The court held that such an interpretation of the statute was consistent with legislative intent to criminalize recording a person’s intimate parts under or through their clothing.

The court further rejected defendant’s argument that the legislature’s adoption of a broader criminal statute rendered the charged statute inapplicable. The court ruled that the legislature’s efforts did not undermine the interpretation of defendant’s charged offense, since the purpose of the new statute was to criminalize filming of a person’s intimate parts even if they were covered with undergarments or other clothing. The court held that the new statute did not change or repeal the criminality of defendant’s conduct in filming a victim’s visible intimate parts.

Finally, the court rejected defendant’s challenge to the denial of his PTI application, finding that the prosecutor specifically noted defendant’s age, family, employment, lack of criminal history, and efforts to seek psychological treatment. The court rejected defendant’s assertion that the prosecutor’s only basis for denying PTI was the victim’s objection, noting that the prosecutor cited defendant’s repeated conduct in this matter as requiring more structured and rigorous supervision than could be offered under PTI.

Accordingly, the court affirmed defendant’s conviction.