                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-0299-15T4

STATE OF NEW JERSEY,

     Plaintiff-Respondent,                APPROVED FOR PUBLICATION

v.                                               August 31, 2017

                                                APPELLATE DIVISION
JOSHUA NICHOLSON,

     Defendant-Appellant.

___________________________________

         Argued December 20, 2016 – Decided August 31, 2017

         Before Judges Ostrer, Leone, and Vernoia.

         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).

     The opinion of the court was delivered by

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




                                         2                                    A-0299-15T4
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

Miranda1 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


1
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                           3                               A-0299-15T4
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

2
  Defendant's counsel stated the brief first video provided "a
video depiction of the woman's private areas.  You can see her
inner thigh and I think you can even see part of her buttocks
that are covered in pantyhose." He added that the second video
was longer and "more clear."     No one has argued the videos
should be treated differently.




                                      4                           A-0299-15T4
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




                                         5                                    A-0299-15T4
            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



                                        6                           A-0299-15T4
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




3
  Federal courts have reached a similar conclusion under the
federal rules. "Unless there is a stipulated record, or unless
immunity issues are implicated, a pretrial motion to dismiss an
indictment is not a permissible vehicle for addressing the
sufficiency of the government's [trial] evidence."        United
States v. DeLaurentis, 230 F.3d 659, 660-61 (3d Cir. 2000).
Here, the parties did not clearly ask the trial court to address
the sufficiency of the trial evidence, but they asked the court
to reconsider a motion to dismiss the indictment based on
evidence which apparently would be introduced only at trial.
Arguably, the parties created a stipulated record.




                                            7                                  A-0299-15T4
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 court's reasonable interpretation of the video.               See

State v. S.S., ___ N.J. ___, (2017) (slip op. at 24-25).

                                    III.

       Defendant argues that, as the videos revealed the victim

was wearing pantyhose under her skirt, her intimate parts were

not "exposed" as required by N.J.S.A. 2C:14-9(b) (2004).                  We

first address the meaning of that statute as enacted in 2004.

       N.J.S.A. 2C:14-9(b) (2004) provided:

              An actor commits a crime of the third degree
              if, knowing that he is not licensed or
              privileged to do so, he photographs, films,
              videotapes, records, or otherwise reproduces
              in any manner, the image of another person
              whose intimate parts are exposed or who is
              engaged in an act of sexual penetration or

4
  Similarly, we do not endorse the State's partial presentation
to the grand jury, or the parties' agreement that the trial
court would determine the validity of the indictment based on
evidence never considered by the grand jury.




                                     8                            A-0299-15T4
           sexual   contact,  without  that   person's
           consent and under circumstances in which a
           reasonable person would not expect to be
           observed.

"Intimate parts" were and are defined as "sexual organs, genital

area, anal area, inner thigh, groin, buttock or breast of a

person."   N.J.S.A. 2C:14-1(e).

    However, the statute does not define "exposed" and neither

this court nor our Supreme Court has interpreted its meaning as

used in N.J.S.A. 2C:14-9(b) (2004).    As the interpretation of a

statute is an issue of law, "[a]ppellate courts review a trial

court's construction of a statute de novo."    State v. Revie, 220

N.J. 126, 132 (2014).   We must hew to that standard of review.

    "When construing a statute, our primary goal is to discern

the meaning and intent of the Legislature.     In most instances,

the best indicator of that intent is the plain language chosen

by the Legislature."    State v. Gandhi, 201 N.J. 161, 176 (2010)

(citation omitted); accord State v. Hudson, 209 N.J. 513, 529

(2012).

           The inquiry thus begins with the language of
           the statute, and the words chosen by the
           Legislature   should   be    accorded   their
           ordinary and accustomed meaning.      If the
           language leads to a clearly understood
           result, the judicial inquiry ends without
           any need to resort to extrinsic sources.

           [Hudson, supra, 209 N.J. at 529.]




                                  9                        A-0299-15T4
"When such [extrinsic] evidence is needed, we look to a variety

of   sources.       Central    among   them    is   a    statute's    legislative

history."       Richardson v. Bd. of Trs., Police & Firemen's Ret.

Sys., 192 N.J. 189 (2007).

                                        A.

      We    begin    with     the    plain    language       of   the     statute.

Ordinarily, words in a statue must "be given their generally

accepted     meaning,   according       to    the    approved     usage   of    the

language."      N.J.S.A. 1:1-1.        "In determining the common meaning

of words, it is appropriate to look to dictionary definitions."

Macysyn v. Hensler, 329 N.J. Super. 476, 485 (App. Div. 2000).

      Giving "exposed" its generally accepted meaning, the plain

language of N.J.S.A. 2C:14-9(b) (2004) encompasses defendant's

conduct here.       "Exposed" has long been defined as "open to view"

or   "not   shielded    or    protected."        E.g.,    Webster's     Ninth   New

Collegiate      Dictionary     438     (1990);      accord    Merriam-Webster's

Collegiate Dictionary 441 (11th ed. 2014).                   The most pertinent

definition of "expose" is "to cause to be visible or open to

view."      Webster's Ninth New Collegiate Dictionary, supra, at

438; Merriam-Webster's Collegiate Dictionary, supra, at 441; see

Webster's II New College Dictionary 403 (3d ed. 2005) ("To make

visible").




                                        10                                A-0299-15T4
      When defendant stuck a camera under the victim's skirt, the

victim's inner thighs and buttocks were no longer shielded or

protected, but were open to view and visible through her sheer

pantyhose.           The victim's inner thighs were particularly visible,

as   her    pantyhose       were   "extremely    sheer"     there.       Defendant's

filming         of    the   victim's   visible      inner    thighs      was    itself

sufficient to violate N.J.S.A. 2C:14-9(b) (2004).                       See State v.

Gray, 206 N.J. Super. 517, 521-22 (App. Div. 1985), certif.

denied, 103 N.J. 463 (1986).5

                                         B.

      This reading of the statute is supported by its legislative

history.         In the 2002-2003 term, legislators introduced four

bills      in    the    General    Assembly   and    one    bill   in    the    Senate

prohibiting "video voyeurism" and "penalizing those who rely on

tiny cameras and other [advanced] technological tools for sexual

spying."         E.g., Statement to Assemb. Bill No. 3426, 210th Leg.,

at 2 (Mar. 6, 2003); Statement to S. Bill No. 2366, 210th Leg.,

at 2 (Mar. 10, 2003); accord Statement to Assemb. Bill No. 3286,

210th Leg., at 2 (Feb. 4, 2003); Statement to Assemb. Bill No.

3302, 210th Leg., at 4 (Feb. 4, 2003).                 The Senate bill and one

Assembly bill prohibited only photographing or filming "a person


5
  By contrast, the victim's groin was not open to view, visible,
or exposed because it was covered by an opaque gusset.



                                         11                                    A-0299-15T4
in a state of undress" while "in a place where that person would

have a reasonable expectation of privacy."                    Assemb. Bill No.

3426, 210th Leg., at 2 (Mar. 6, 2003); S. Bill No. 2366, 210th

Leg., at 2 (Mar. 10, 2003).            The sponsor's statements indicated

"[t]he   current   law    is   not   well    tailored    to   cope   with   video

voyeurs who conceal devices utilizing advanced technology and

disseminate images of undressed individuals on the Internet and

elsewhere."    Statement to Assemb. Bill No. 3426, supra, at 2;

Statement to S. Bill No. 2366, supra, at 2.

    The other Assembly bills instead used the "intimate parts

are exposed" language.         Assemb. Bill No. 3302, 210th Leg., at 2

(Feb. 4, 2003); Assemb. Bill No. 3286, 210th Leg., at 2 (Feb. 4,

2003);   Assemb.   Bill   No.    57,    210th    Leg.,   at   2   (prefiled   for

2002).    One Assembly bill also penalized a person who used a

concealed camera to film "another person, under circumstances in

which a reasonable person would not expect to be observed, under

or through the clothing worn by that other person."                     Assemb.

Bill No. 3286, supra, at 2.

    The Assembly Judiciary Committee adopted a substitute bill

which used the "intimate parts are exposed" language.                   Assemb.

Comm. Substitute for Assemb. Bill Nos. 3302, 3286, 3426, & 57,

210th Leg., at 2-3 (May 8, 2003).               The Committee explained the

substitute bill penalized an individual who "observes another




                                        12                              A-0299-15T4
person with the knowledge that person may expose intimate parts

. . . or videotape[s] or otherwise record[s] that person or

disclose[s] such images of the same."                   Assemb. Judiciary Comm.

Statement    to    Assemb.     Comm.    Substitute      for     Assemb.    Bill    Nos.

3302, 3286, 3426, & 57, 210th Leg., at 1 (May 8, 2003).

    The Senate Judiciary Committee replaced the Senate's "state

of undress" bill with a Senate Committee Substitute for Senate

Bill No. 2366 using the "intimate parts are exposed" language.

S. Comm. Substitute for S. Bill No. 2366, 210th Leg., at 1-2

(Nov. 24, 2003).          The Committee explained its "amendments make

this bill identical to [the] Assembly Committee Substitute" and

reiterated that the substitute bill penalized an individual who

"observes    another      person     with    knowledge    that     the    person   may

expose   intimate    parts     .   .   .    or   who   videotapes    or     otherwise

records the image of that person or discloses such images."                          S.

Judiciary Comm. Statement to S. Comm. Substitute for S. Bill No.

2366,    210th    Leg.,   at   2-3     (Nov.     24,   2003).     The     Legislature

enacted the Senate substitute bill without change.                        L. 2003, c.

206, § 1.

    This legislative history shows the legislators' concerns

included the situation before us - video voyeurism using small

cameras to film or photograph under and through the clothing of

a victim which may expose intimate parts.                       It also shows the




                                            13                               A-0299-15T4
Legislature rejected the requirement that the victim be "in a

'state of undress'" in favor of penalizing any photographing or

filming     where    "the        intimate    parts    are     exposed."          Compare

Statement     to    S.    Bill    No.   2366,     supra,    at   3,    with     S.   Comm.

Substitute for S. Bill No. 2366, supra, at 1-2.                               Thus, the

legislative history supports the plain language reading that the

statute applies if the victim's intimate parts are exposed –

open to view and visible – even if not undressed.

                                             C.

        Defendant compares this case to Commonwealth v. Robertson,

5 N.E.3d 522 (Mass. 2014), but that case involved much different

and     narrower    statutory       language.        The    Massachusetts        statute

read:       "Whoever        willfully         photographs,            videotapes        or

electronically surveils another person who is nude or partially

nude, with the intent to secretly conduct or hide such activity

.   .   .   shall    be    punished     by    imprisonment[.]"            Id.    at    526

(emphasis added) (quoting Mass. Gen. Laws ch. 272, § 105(b)

(2008)).      Accordingly, it was an element of the Massachusetts

statute that "the subject was . . . nude or partially nude."

Ibid.

        Robertson involved the upskirting of a woman on a Boston

trolley.     Robertson argued the "clothed female passenger . . .

was not 'nude or partially nude.'"                    Ibid.      The Massachusetts




                                             14                                  A-0299-15T4
court agreed.        Id. at 528.        The Massachusetts court noted the

dictionary     definition       of     "nude"     is   "'naked';       'devoid     of

clothing'; 'unclothed.'"             Id. at 528 n.13 (citation omitted).

Specifically, the court ruled that a woman "who is wearing a

skirt, dress, or the like covering these parts of her body is

not a person who is 'partially nude,' no matter what is or is

not underneath the skirt by way of underwear or other clothing."

Ibid.     As a result, the court found the Massachusetts statute

"does not apply to photographing . . . persons who are fully

clothed    and,   in      particular,      does    not      reach   the    type    of

upskirting    that     the    defendant    is   charged      with   attempting     to

accomplish."      Id. at 529.            The court acknowledged a woman's

"expectation of privacy in not having a stranger secretly take

photographs up her skirt . . . is eminently reasonable," but

ruled the Massachusetts statute did not address that situation.

Ibid.

    Robertson        is      plainly      distinguishable.           Indeed,       it

illustrates    the     much    greater    breadth      of   N.J.S.A.      2C:14-9(b)

(2004).    Our Legislature did not require the victim be nude or

partially nude.         Instead, N.J.S.A. 2C:14-9(b) (2004) required

only that the victim's intimate parts be "exposed," that is,

open to view and visible.




                                          15                                A-0299-15T4
      Here,     the    victim's        inner     thighs     and     buttocks      were

"exposed," even though she was not "nude or partially nude,"

because they were open to view and visible through her "see

through"      pantyhose.        Accordingly,       defendant's       conduct      fell

within N.J.S.A. 2C:14-9(b) (2004).

                                         IV.

      We next consider defendant's arguments that his conduct in

2013 did not fall within N.J.S.A. 2C:14-9(b) (2004) because of

subsequent legislative action, namely a failed attempt to amend

it in the 216th Legislature and an amendment later enacted by

the   217th    Legislature.        However,       neither       legislative     effort

undermines the interpretation of N.J.S.A. 2C:14-9(b) (2004) or

its application to defendant's offense.                   "No offense committed

. . . shall be discharged, released or affected by the repeal or

alteration     of   the    statute"     after    the   offense      was   committed.

N.J.S.A. 1:1-15; accord State ex rel. C.F., 444 N.J. Super. 179,

188 (App. Div. 2016).

                                            A.

      Defendant       first    cites    a    failed    attempt      in    the    216th

Legislature to amend N.J.S.A. 2C:14-9(b) (2004) in response to

Robertson.      In 2014, a senator introduced a bill which sought to

add   a   third-degree        offense    penalizing       the     photographing      or

filming of "the image of another person's intimate parts under




                                            16                                A-0299-15T4
or   around         the    person's       clothing"          and   to    provide     that     the

definition          of    "intimate       parts"        applied      "whether       clothed   of

unclothed."          S. Bill. No. 1847, 216th Leg., at 3-4 (Mar. 24,

2014).      The senator's statement accompanying the bill stated:

"This     bill      clarifies        that   it     is    a   crime      under   this   State's

invasion       of    privacy        law   to   secretly        photograph       underneath      a

person's clothing.                 Referred to as 'upskirting,' this practice

occurs when perpetrators use their cell phones to take pictures

and record video under the skirts and dresses of unsuspecting

victims[.]"          Statement to S. Bill No. 1847, 216th Leg., at 5

(Mar. 24, 2014) (emphasis added).                       The senator stated:

                    In response to a court decision ruling
               that upskirting was not illegal, a state law
               was   recently   enacted   in  Massachusetts
               criminalizing the practice.      It is the
               sponsor's intent to similarly protect women
               in this State from the vile and degrading
               practice of upskirting by making it clear
               that it constitutes an invasion of privacy
               under criminal and civil law.

               [Id. at 6 (emphasis added).]

      A    member         of   the    Assembly          introduced       a   different       bill

seeking        to        add   a     fourth-degree            offense        penalizing       the

photographing or filming of intimate parts "whether naked or

clothed."           Assemb. Bill No. 3864, 216th Leg., at 2 (Oct. 27,

2014).     The member stated that the bill would "establish[] the

crime     of     'upskirting,'"             that      "[p]rosecuting          the    crime     of




                                                 17                                    A-0299-15T4
upskirting        .   .    .     has    prove[n]      challenging         in    other   states"

because the victim was "typically clothed," and that the bill

would add the fourth-degree offense "to prevent such challenges

in New Jersey."            Statement to Assemb. Bill No. 3864, 216th Leg.,

at 4-5 (Oct. 27, 2014).

         Neither bill altered the language of N.J.S.A. 2C:14-9(b)

(2004)      or    indicated            the    2004     statute      did        not   cover     the

photographing or filming of visible intimate parts.                                     Rather,

each sought to add a provision covering the filming of "clothed"

intimate parts without requiring them to be visible.                                 Ibid.

         In any event, neither bill was approved by committee, let

alone by either house.                  Rather, the Assembly passed a different

substitute bill, which died in the Senate after Senate Committee

approval of an identical Senate version.                              See Assemb. Comm.

Substitute for Assemb. Bill Nos. 3864, 3938, & 2992, 216th Leg.,

at   2    (June       4,   2015);          Assemb.    Judiciary     Comm.        Statement     to

Assemb. Comm. Substitute for Assemb. Bill Nos. 3864, 3938, &

2992,     216th       Leg.,      at    1     (June    4,   2015);    S.    Judiciary         Comm.

Statement to S. Comm. Substitute for S. Bill. No. 1847, 216th

Leg., at 1 (Dec. 17, 2015).

         Defendant argues the unsuccessful bills somehow changed the

plain      meaning         and     intent       of     N.J.S.A.      2C:14-9(b)         (2004).

However, "unsuccessful attempts to amend a statute are of little




                                                 18                                     A-0299-15T4
use in determining the intent of the Legislature when enacting

the original law."               Perez v. Rent-A-Ctr., Inc., 186 N.J. 188,

217    (2006).        "[S]ubsequent         legislative        history      .   .     .    is   a

particularly dangerous ground on which to rest an interpretation

of a prior statute when it concerns . . . a proposal that does

not become law."            Pension Benefit Guar. Corp. v. LTV Corp., 496

U.S. 633, 650, 110 S. Ct. 2668, 2678, 110 L. Ed. 2d 579, 597

(1990).

       We   reject        defendant's      claim   that       the   unsuccessful           bills

show    N.J.S.A.          2C:14-9(b)      (2004)        did   not    already         prohibit

upskirting         where    the    victim's       intimate      parts    were        visible.

"Although      the    failure      to     adopt    an    amendment      can,     at       times,

indicate       a     conscious      decision       to     reject      the       amendment's

provisions, such inaction conversely may signal that the law as

written already achieves the sought-after objective."                               Am. Civil

Liberties Union of N.J. v. Hendricks, 445 N.J. Super. 452, 470

(App. Div.) (citation omitted) (citing 2A Norman J. Singer &

J.D. Shambie Singer, Sutherland Statutory Construction § 48:18,

at    633-37       (7th    ed.    2014)    [hereinafter        Sutherland]),          certif.

granted, 228 N.J. 440 (2016); see Pension Benefit Guar. Corp.,

supra, 496 U.S. at 650, 110 S. Ct. at 2678, 110 L. Ed. 2d at

597.




                                             19                                       A-0299-15T4
                                        B.

     Defendant    also    cites    an   amendment      passed     by    the   217th

Legislature.     In 2016, the Legislature enacted a bill identical

to the substitute bills of the prior session.                 Assemb. Bill No.

156 (First Reprint), 217th Leg. (2016), enacted as L. 2016, c.

2.    The   amendment     renumbered     N.J.S.A.      2C:14-9(b)       (2004)   as

subsection (b)(1), with no change in language of that third-

degree   offense.        The   amendment       also   added   a   fourth-degree

offense as subsection (b)(2):

            An actor commits a crime of the fourth
            degree if, knowing that he is not licensed
            or privileged to do so, he photographs,
            films, videotapes, records, or otherwise
            reproduces in any manner, the image of the
            undergarment-clad intimate parts of another
            person, without that person's consent and
            under circumstances in which a reasonable
            person   would  not   expect   to  have   his
            undergarment-clad intimate parts observed.

            [L. 2016, c. 2, § 1 (emphasis added).]

     Thus, the 2016 amendment extended the coverage of N.J.S.A.

2C:14-9(b) by making it a fourth-degree offense to photograph or

film "undergarment-clad intimate parts" without requiring they

be   visible.       N.J.S.A.      2C:14-9(b)(2)       (2016);     see    Merriam-

Webster's Collegiate Dictionary, supra, at 227 (defining "clad"

as "being covered or clothed").              The statements accompanying the

bills and issued by the committees stated N.J.S.A. 2C:14-9(b)

(2004) already made it a third-degree offense to photograph or



                                        20                                A-0299-15T4
film   where    "intimate       parts    are       exposed,"     and      that    the   bill

"expand[ed]      the     crime     of    invasion         of   privacy       to    include

'upskirting':         photographing          or    filming      the       image    of     the

undergarment-clad intimate parts of another."                         Assemb. Bill No.

156, 217th Leg., at 2 (prefiled for 2016); Assemb. Judiciary

Comm. Statement to Assemb. Bill No. 156, 217th Leg., at 1 (Feb.

8, 2016); S. Law & Public Safety Comm. Statement to Assemb. Bill

No. 156 (First Reprint), 217th Leg., at 1 (Mar. 3, 2016).                               Thus,

the statements made clear the bills "expand[ed]" N.J.S.A. 2C:14-

9(b) (2004) to prohibit photographing or filming intimate parts

even if they were not visible because they were concealed by

undergarments.         Assemb.     Judiciary         Comm.     Statement      to   Assemb.

Bill   No.     156,    supra,     at    1;    S.    Law    &   Public      Safety       Comm.

Statement to Assemb. Bill No. 156, supra, at 1.

       Although the 2016 amendment left unchanged the language of

N.J.S.A. 2C:14-9(b) (2004)'s third-degree offense for filming

visible   intimate       parts,    defendant         argues     it    showed      the   2004

statute did not cover his behavior.                       We reject his argument.

The plain meaning of the unchanged third-degree offense remains

unambiguous,      and     its     meaning          and    legislative        history       is

unaltered.       The    amendment       expanded         the   statute      by    adding    a

provision       penalizing        the        photographing           or     filming        of

"undergarment-clad intimate parts" which are not visible.                                That




                                             21                                    A-0299-15T4
expansion in no way invalidates its existing penalization of

photographing or filming visible intimate parts.                                              See N.J.S.A.

2C:14-9(b)(1), (2).

       To       the    extent          the       added        provision           also         encompasses

photographing or filming intimate parts visible through sheer

undergarments, "'[t]he mere fact that two statutes overlap in

prohibiting           the    same      act       does       not    mean      that        the    later      law

automatically repeals the earlier one pro tanto'" or precludes

prosecution.                State      v.    Gledhill,            67    N.J.        565,       573     (1975)

(citation omitted).                 "It is well settled that specific conduct

may violate more than one statute."                                    State ex rel. M.C., 303

N.J.    Super.        624,       629   (App.         Div.     1997).          A     legislature          "may

choose      a    belt-and-suspenders                   approach         to    promote          its    policy

objectives"           by     amending            a    statute          to    add     an        overlapping

provision.        See McEvoy v. IEI Barge Servs., Inc., 622 F.3d 671,

677 (7th Cir. 2010).                   "[S]ometimes, . . . legislatures adopt an

amendment        only       because         it       better       expresses         an     idea      already

embodied by the original bill[.]"                                 Sutherland, supra, § 48:18,

at     635-37.              In      any      event,          "'the          views        of     subsequent

[Legislatures] cannot override the unmistakable intent of the

enacting one.'"                  Exxon Corp. v. Hunt, 97 N.J. 526, 539 n.8

(1984) (citation omitted), aff’d in part, rev'd in part on other

grounds, 475 U.S. 355, 106 S. Ct. 1103, 89 L. Ed. 2d 364 (1986).




                                                       22                                            A-0299-15T4
       Furthermore, the 2016 amendment's grading of the offenses

is   consistent     with      the       continued        applicability      of    N.J.S.A.

2C:14-9(b) (2004) to defendant's conduct.                      Under the amendment,

if     an   upskirting        defendant            photographs       or     films     only

undergarments that cover and conceal an intimate part, he can be

charged     with   the   fourth-degree             offense   under    N.J.S.A.      2C:14-

9(b)(2), but he can be charged with a third-degree offense under

N.J.S.A. 2C:14-9(b)(1) if the intimate part is visible through

an   undergarment,       as   it    is    a    more      intrusive    and   humiliating

experience for the victim.6

       Defendant cites the rule of lenity.                    "That doctrine 'holds

that   when   interpreting          a    criminal        statute,    ambiguities       that

cannot be resolved by either the statute's text or extrinsic

aids must be resolved in favor of the defendant.'"                               State v.

Rangel, 213 N.J. 500, 515 (2013) (citation omitted).                             "'It does

not invariably follow, that every time someone can create an

argument about the meaning of a penal sanction, the statute is

impermissibly      vague,      or       that       the    lowest     penalty      arguably

applicable must be imposed.'"                  State v. Olivero, 221 N.J. 632,

639-40 (2015) (citation omitted).                    "Instead, the rule of lenity


6
  A defendant may also be chargeable with the third-degree
offense of attempt to commit a violation of N.J.S.A. 2C:14-
9(b)(1) if his offense satisfies the requirements of N.J.S.A.
2C:5-1.



                                              23                                  A-0299-15T4
is applied only if a statute is ambiguous, and that ambiguity is

not   resolved     by   a    review       of   'all   sources   of    legislative

intent.'"       State v. Regis, 208 N.J. 439, 452 (2011) (citation

omitted).       Here, the statute's text and all extrinsic aids show

defendant's      conduct     fell    within     N.J.S.A.   2C:14-9(b)     (2004).

Therefore, the trial court did not err in denying the motion to

dismiss the indictment.

                                          V.

      Defendant next challenges the trial court's order upholding

the prosecutor's denial of his application for PTI.                    Our "scope

of review is severely limited."                State v. Negran, 178 N.J. 73,

82    (2003).      "Reviewing       courts     must    accord   the    prosecutor

'"extreme deference."'"          State v. Waters, 439 N.J. Super. 215,

225 (App. Div. 2015) (quoting State v. Nwobu, 139 N.J. 236, 246

(1995)).        "In order to overturn a prosecutor's rejection, a

defendant   must     'clearly       and   convincingly     establish    that   the

prosecutor's decision constitutes a patent and gross abuse of

discretion.'"       Id. at 226 (quoting State v. Watkins, 193 N.J.

507, 520 (2008)).           We apply the same standard as the trial

court, and review its decision de novo.               Ibid.

      Defendant claims the prosecutor did not consider factors

favorable to him.           In fact, the prosecutor specifically noted

defendant's age, his marriage, his two children, his employment,




                                          24                             A-0299-15T4
his lack of criminal history, and that he sought psychological

treatment after PTI denial.

       The prosecutor determined defendant was not an appropriate

candidate       for   PTI    after     considering              "all     of    the       factors,"

particularly "[t]he nature of the offense," "[t]he facts of the

case,"      "[t]he    desire     of    the    .        .    .   victim    [not]          to    forego

prosecution," and "[t]he needs and interests of society," and

that     "the     crime     is   of    such        a       nature   that       the       value       of

supervisory treatment would be outweighed by the public need for

prosecution."         N.J.S.A. 2C:43-12(e)(1), (2), (4), (7), (14).

       In    particular,         the   prosecutor               focused       on     defendant's

"deviant        sexual    arousal      and/or          interest"         and       his    repeated

filming of the victim despite his knowledge of "the 'disgusting'

nature of his conduct."                The prosecutor noted that defendant

previously engaged in the same conduct and that "the present

offense constitutes part of a continuing pattern of 'antisocial

behavior,'" citing defendant's psychological evaluation.                                            The

prosecutor        found     "such      behavior            requires       more       structured,

rigorous supervision that only traditional probation can offer"

and that such treatment would be more effective than PTI.                                           See

N.J.S.A. 2C:43-12(e)(5).

       Thus, we reject defendant's claim that the only basis for

the prosecutor's decision was the victim's opposition to PTI.




                                              25                                              A-0299-15T4
Moreover,     the   victim's   opposition   to    PTI   "is    an   appropriate

factor   to    consider   under    Guideline      3    and    N.J.S.A.     2C:43-

12(e)(4)."      State v. Imbriani, 291 N.J. Super. 171, 180 (App.

Div. 1996).     The prosecutor properly considered the devastating

effect   of    defendant's     conduct    on     the    victim,     who    became

withdrawn and frightened and who opposed PTI to deter defendant

from victimizing anyone else.        Accordingly, the trial court did

not err in finding no patent or gross abuse of discretion in the

prosecutor's denial of PTI.

    Affirmed.




                                     26                                   A-0299-15T4
