                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-5802-12T4




STATE OF NEW JERSEY,                 APPROVED FOR PUBLICATION

     Plaintiff-Appellant,               February 10, 2015

                                        APPELLATE DIVISION
v.

IBRAHIM J. ELDAKROURY,

     Defendant-Respondent.
___________________________

     Argued January 13, 2015 - Decided February 10, 2015

     Before Judges Reisner, Haas and Higbee1.

     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).


1
  Judge Higbee did not participate in oral argument.         However,
with consent of counsel she has joined in this               opinion.
R. 2:13-2(b).
     The opinion of the court was delivered by

REISNER, P.J.A.D.

     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 element of the offense

and the State must prove that defendant acted knowingly with

respect to that element.2



2
  We decline to address defendant's argument that N.J.S.A. 2C:34-
7(a) is unconstitutional.    The trial judge's opinion does not
indicate that this issue was raised on the motion to dismiss the
indictment, nor did the trial court address the issue. Further,
defendant did not file a cross-motion for leave to appeal on
that issue, and the relief defendant seeks pursuant to that
issue is a dismissal of the indictment with prejudice, rather
than without prejudice. Without cross-appealing, a party may
argue points the trial court either rejected or did not address,
so long as those arguments are in support of the trial court's
order.   See Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 381
n.1 (App. Div. 2013), certif. granted, 217 N.J. 292 (2014);
Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443
(App. Div. 1984). However, as the Supreme Court of the United
States recently explained, where a defendant is seeking to
expand the substantive relief granted by the trial court, as
opposed to merely arguing an additional legal ground to sustain
the trial court's judgment, the defendant must file a cross-
                                                      (continued)

                                           2                              A-5802-12T4
      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)3 and N.J.S.A. 2C:2-

2(c)(3)4, Judge Robert J. Mega concluded that the business's

prohibited location was a 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

(continued)
appeal.   Jennings v. Stephens, ___ U.S. ___, ___, 135 S. Ct.
793, ___, 190 L. Ed. 2d 662, 668 (2015).
3
  "Except as provided in [N.J.S.A. 2C:2-2(c)(3)], a person is not
guilty of an offense unless he acted purposely, knowingly,
recklessly or negligently, as the law may require, with respect
to each material element of the offense." N.J.S.A. 2C:2-2(a).
4
   This section, together with N.J.S.A. 2C:2-2(b)(2), sets
"knowingly" as the default standard, where a statute does not
define the mens rea requirement for a particular crime.     "A
statute   defining  a  crime,  unless  clearly   indicating  a
legislative intent to impose strict liability, should be
construed as defining a crime with the culpability defined in
paragraph b.(2) of this section."       N.J.S.A. 2C:2-2(c)(3).
Section (b)(2), in turn, defines "knowingly."   N.J.S.A. 2C:2-
2(b)(2).


                                            3                                 A-5802-12T4
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.5         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 (2012); State v. Gelman, 195 N.J. 475,

482 (2008).

       The judge considered that, while an indictment is not to be

dismissed       unless    it     is     manifestly          deficient      or     palpably

5
  The school zone drug law provides: "It shall be no defense to a
prosecution for a violation of this section that the actor was
unaware that the prohibited conduct took place while on or
within 1,000 feet of any school property." N.J.S.A. 2C:35-7(d).
The public facility law provides: "It shall be no defense to a
prosecution for violation of this section that the actor was
unaware that the prohibited conduct took place while on or
within 500 feet of a public housing facility, a public park, or
a public building." N.J.S.A. 2C:35-7.1(b). Similar language is
found in the school zone assault-by-auto statute, N.J.S.A.
2C:12-1(c)(3)(c): "It shall be no defense . . . that the
defendant was unaware that the prohibited conduct took place
while on or within 1,000 feet of any school property or while
driving through a school crossing."


                                            4                                    A-5802-12T4
defective,       State     v.       Hogan,        144        N.J.    216,     228-29       (1996),

dismissal    is    proper          where    the       instructions         presented       to    the

grand jury are "blatantly wrong."                        State v. Triestman, 416 N.J.

Super.    195,    205    (App.       Div.     2010);         State    v.    Hogan,       336    N.J.

Super.    319,    344     (App.       Div.),          certif.       denied,      167     N.J.    635

(2001).       Applying         those       principles,          he    concluded          that    the

prosecutor's instruction to the grand jury, which relieved the

State of the burden of proving defendant's mens rea as to an

essential     element         of    the     offense,          was    blatantly         wrong     and

warranted dismissal of the indictment.

       Our   review      of     a    trial    judge's           decision      to    dismiss       an

indictment is guided by established legal principles.                                       "[T]he

decision     whether      to        dismiss    an       indictment          lies    within       the

discretion       of      the        trial     court,           and     that        exercise       of

discretionary         authority       ordinarily             will    not    be     disturbed      on

appeal unless it has been clearly abused."                                 Hogan, supra, 144

N.J. at 229 (citing State v. McCrary, 97 N.J. 132, 144 (1984)).

However, our review of a trial judge's legal interpretations is

de novo.     State v. Grate, ___ N.J. ___, ___ (2015) (slip op. at

13); State v. Drury, 190 N.J. 197, 209 (2007).                                     A prosecutor

must   charge     the    grand       jury     "as       to    the    elements       of    specific

offenses." Triestman, supra, 416 N.J. Super. at 205.                                            "[A]n

indictment will fail where a prosecutor's instructions to the

grand jury were misleading or an incorrect statement of law."

                                                  5                                      A-5802-12T4
Ibid. (citing State v. Ball, 268 N.J. Super. 72, 119-20, (App.

Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied sub nom.,

Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed.

2d 731 (1996)).

     Applying     those    standards,       we    agree    entirely    with     Judge

Mega's reasoning and his legal conclusions.6                    The Legislature

clearly knows how to provide for strict liability with respect

to prohibited activity in protected areas, such as school or

residential zones.        Unlike the statutes concerning illegal drug

activity or assault by auto in protected zones, the statute

concerning     sexually    oriented   businesses,          N.J.S.A.    2C:34-7(a),

does not include a strict liability provision.                        See N.J.S.A.

2C:35-7(d);     N.J.S.A.    2C:35-7.1(b);          N.J.S.A.   2C:12-1(c)(3)(c).

We   decline    to   read    into     the        statute    language     that    the

Legislature "could have included . . . but did not."                          Jersey

Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 596

(2012).

     Even if we found the statute hopelessly ambiguous, we would

be constrained to invoke the rule of lenity and infer that the


6
  Purporting to invoke the law of the case doctrine, the State
argues that regardless of the merits of the underlying legal
issue, Judge Mega should have followed the contrary legal
conclusion reached by a different judge in the separate
prosecution of another defendant, Kevin Hickey.  That argument
is without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).


                                        6                                A-5802-12T4
knowingly standard, rather than the strict liability standard,

applies.      See    N.J.S.A.   2C:2-2(c)(3);    N.J.S.A.    2C:2-2(b)(2);

State v. Grate, supra, ___ N.J. at ___ (slip op. at 13-14)

(stating that the rule of lenity applies when interpreting a

penal statute, if its meaning cannot clearly be discerned from

its plain language and extrinsic sources).         Further, because the

location of a sexually oriented business is a material element

of   the   offense   under   N.J.S.A.    2C:34-7(a),   and   the   mens   rea

requirement applies "to each material element," N.J.S.A. 2C:2-

2(a), the State was required to prove that defendant knew the

business was within 1000 feet of a residential zone.

      We agree with Judge Mega that the State's instruction to

the jury was "blatantly wrong" and, in effect, relieved the

State from having to establish defendant's mens rea as to a

material element of the offense.         See Triestman, supra, 416 N.J.

Super. at 205.       Under those circumstances, the indictment could

not stand and was properly dismissed without prejudice.              Nothing

in this opinion precludes the State from re-presenting the case

to the grand jury, with correct legal instructions.

      Affirmed.




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