                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-2523-13T2

STATE OF NEW JERSEY,
                                        APPROVED FOR PUBLICATION
     Plaintiff-Respondent,                 February 23, 2016

v.                                        APPELLATE DIVISION

L.S.,

     Defendant-Appellant.
_______________________________________________

         Argued January 4, 2016 – Decided February 23, 2016

         Before     Judges   Messano,    Simonelli,      and
                  1
         Carroll.

         On appeal from the Superior Court of New
         Jersey,   Law    Division,   Essex County,
         Municipal Appeal No. 2013-046.

         Patrick J. Spina argued the cause for
         appellant (Law Offices of Patrick J. Spina,
         P.C., attorneys; Mr. Spina, on the brief).

         Andrew R. Burroughs, Special Deputy Attorney
         General/Acting Assistant Prosecutor, argued
         the cause for respondent (Carolyn A. Murray,
         Acting Essex County Prosecutor, attorney;
         Mr. Burroughs, on the brief).

     The opinion of the court was delivered by

MESSANO, P.J.A.D.




1
  Judge Carroll did not participate in oral argument.          He joins
the opinion with counsel's consent. R. 2:13-2(b).
        Following a trial de novo in the Law Division, defendant

L.S.2    was    found    guilty    of   making    a     false     report    to    law

enforcement       authorities,      N.J.S.A.     2C:28-4(b)(1).            The    Law

Division judge imposed the same fines, penalties and costs of

court     imposed   by    the     municipal     court    judge.       Before      us,

defendant argues in a single point:

               THERE IS      INSUFFICIENT CREDIBLE EVIDENCE
               PRESENT IN   THE RECORD TO UPHOLD THE FINDINGS
               OF THE LAW    DIVISION WHICH FOUND [DEFENDANT]
               GUILTY OF    KNOWINGLY FILING A FALSE POLICE
               REPORT IN      VIOLATION OF N.J.S.A. 2C:28-
               [4(b)(1)].

                                        I.

        The record reveals that in November 2010, defendant was a

student    at    Seton   Hall     University.      Late    in   the   evening      of

November 16, she reported to South Orange Police that she was

sexually assaulted on campus by an unknown assailant.                      Defendant

told police that a "black" man had vaginally penetrated her with

his penis near the university parking garage.                      Defendant was

transported to the hospital where she was examined, and a Sexual

Assault Forensic Medical Report was prepared.

        In a subsequent conversation with the university's Dean of

Students on November 18, defendant admitted that she knew her


2
  Given the nature of the case and our disposition of defendant's
appeal, we choose to use initials to maintain her privacy.




                                        2                                   A-2523-13T2
assailant, and that he picked her up at school and drove off

campus    where    the    events    occurred.          Police     responded      to   the

university as a result of a phone call from the Dean's office,

and took defendant to headquarters to secure another statement.

    Mark Garrett of the South Orange Police Department, the

detective who initially spoke with defendant on campus on the

night    of    November    16,     2010,   spoke       to   her    again   at     police

headquarters      on   November     18.        After   being      read   her    Miranda3

rights, defendant told Garrett that she met her assailant on the

Internet.       She provided Garrett with his screen name and phone

number.       Defendant said that she physically met the man for the

first time on November 16, when he came to the campus, she

entered his car, and they drove to a street across from the

university where they parked.              Defendant stated that, while in

the car, the man indicated that he wanted to have sex, but

defendant refused.         At one point, she exited the car, but the

man persuaded her to re-enter.                 He then straddled her chest as

she sat in the passenger seat, removed his penis, pulled down

her shirt, and tried to force her to give him oral sex by

placing his penis near her mouth.                Defendant refused.            Defendant

told Garrett that the man did not ejaculate on her.


3
  Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d
694 (1966).



                                           3                                    A-2523-13T2
       Garrett traced the phone number defendant provided to W.P.,

and secured a statement from him.          W.P., who testified at the

municipal court trial, acknowledged meeting defendant through a

social networking site and thereafter texting her and speaking

to her on the telephone.          On the night in question, he met

defendant for the first time, picked her up on campus in his car

and parked across the street from the university.             W.P. claimed

that defendant immediately unzipped his pants, removed his penis

and masturbated him.         W.P. ejaculated on defendant's exposed

breasts, and she licked his penis.         W.P. testified the incident

was consensual.

       On November 24, 2010, after being authorized to do so by an

Essex     County      Assistant   Prosecutor,       Garrett    caused        a

complaint/summons to be issued against defendant charging her

with violating N.J.S.A. 2C:28-4(b)(1).             The complaint alleged

that defendant

            did . . . report to law enforcement
            authorities an offense, knowing that such
            offense did not occur, specifically by:
            reporting to South Orange Police Department
            that she was the victim of a sexual assault
            at Seton Hall University on November 16,
            2010.

When    asked   on   cross-examination   what   offense   "didn't   occur,"

Garrett answered, "[s]exual assault."           Garrett acknowledged that

he reached this determination by interviewing defendant and W.P.




                                    4                               A-2523-13T2
and    assessing     each       person's    credibility.           He    acknowledged

conducting      no   further      investigation,       nor   did    he    review     the

hospital report that revealed there was no evidence of semen on

defendant's body.

       After   defendant's        motion    for    acquittal    was      denied,     Dr.

Stuart Kirschner, a psychiatrist, testified as her only witness.

We need not review Kirschner's testimony in detail, since it is

largely irrelevant to our decision.                    It suffices to say that

Kirschner      opined     defendant        suffered      from      depression,       was

delusional and lacked the capacity to have knowingly filed a

false report.        See State v. Taylor, 387 N.J. Super. 55, 61 (Law

Div.   2006)    (recognizing        evidence      of   "diminished      capacity"     as

negating the knowing mental state required by N.J.S.A. 2C:28-

4(b)(1)).

       The    municipal     court    judge     found    defendant       guilty.       We

recite   at    length     the    judge's     specific     findings       of   fact   and

conclusions of law:

                   In this particular case there seem[s]
              to be a great focus on whether or not a
              sexual assault took place.     This [c]ourt[]
              was not[] and will not be called upon to
              determine if a sexual assault . . . took
              place.   [The] [s]imple question before this
              [c]ourt   is   whether  or   not   there's  a
              violation of [N.J.S.A.] 2C:28-4.

                   I find beyond a reasonable doubt that
              the defendant falsely reported the location
              of the incident.     She initially withheld



                                           5                                   A-2523-13T2
             information about the alleged assailant[,]
             who she declined to identify as a person
             known to her. . . . .

             [(Emphasis added).]

The judge found these "false details . . . were similar to the

nature of the details . . . reported" in State v. Daniels, 165

N.J. Super. 47 (App. Div. 1979).               The judge further stated:

                  [C]learly the location of the incident,
             as well as the identity of the person, which
             was known to [defendant] but she decided to
             withhold his identity as the perpetrator
             certainly   did    .   .   .    hamper   the
             investigation.  But again[,] I'm not called
             upon . . . to determine whether or not there
             was . . . or was not a sexual assault.
             Simply whether or not [defendant] provided
             false information in connection with this
             investigation.

                  [S]o I do find beyond a reasonable
             doubt that the defendant was fully cognizant
             of the events, identity and location of the
             incident.   That she intentionally withheld
             details, which amounted to a violation of
             [N.J.S.A.] 2C:28-4[(b)](1).

             [(Emphasis added).]

The judge imposed fines, mandatory financial penalties and court

costs at sentencing.

       Defendant    appealed     to    the     Law   Division.      Among     other

things, she contended that the municipal court judge only found

that   she   knowingly    falsely      reported      two   details,      i.e.,   the

location     of   the   crime    and     the    identity    of   her     assailant.

Defendant    specifically       argued    the     judge    failed   to    find   her



                                          6                                A-2523-13T2
report of sexual assault was false.                Given all the evidence at

trial, including differences between W.P's statement to police

and his testimony at trial, defendant contended that the State

failed to prove beyond a reasonable doubt that a sexual assault

had not occurred.

    In a written opinion, the Law Division judge echoed the

municipal    court   judge's     opinion    that     it   was     unnecessary     to

decide whether a sexual assault actually occurred.                     The judge

wrote, "[a]s there was no prosecution for the sexual assault

there is no legal determination as to whether defendant had been

sexually     assaulted."        The   judge    cited      the    specificity      of

defendant's    "description      of   the     on    campus      location   of    the

incident,"    as   well    as   the   "initial      detailed      description     of

[W.P.]."    The judge continued:

            In the face of unrebutted expert testimony
            correlative to the claim of sexual assault,
            the [municipal] court was still within its
            discretion to find that when the defendant
            reported that she was the victim of a crime
            on the campus of Seton Hall committed by a
            stranger, that, she was, as she later
            admitted, lying.   Her defense, that she may
            have been experiencing hallucinations would
            have been considered by the municipal court
            judge if the judge had the jurisdiction to
            rule whether the defendant had been sexually
            assaulted, and, [he] did not.

                 The record below supports the finding
            by the municipal court judge that the State
            did prove beyond a reasonable doubt that on
            November 16, 2010, [d]efendant[] falsely



                                       7                                   A-2523-13T2
            reported that she was the victim of a crime
            committed by a stranger on the campus of
            Seton Hall University.

            [(Emphasis added).]

      Before us, defendant reiterates that the State failed to

prove beyond a reasonable doubt that she reported to police an

offense that did not occur, and, therefore, the State failed to

prove one of the essential elements of N.J.S.A. 2C:28-4(b)(1).

The State argues that defendant admittedly lied to police about

two salient facts — the location of the crime and the identity

of   her    assailant.       It     contends          that    these   facts    "had     a

relationship to the crime and to normal police activity directed

toward     the   detection     of     any         offenders     implicated    and     any

investigation related thereto."                   Daniels, supra, 165 N.J. Super.

at   50.    As   a   result,    the      State       contends    defendant    violated

N.J.S.A. 2C:28-4(b)(1).

      We have considered these arguments in light of the record

and applicable legal standards.                   We reverse.

                                          II.

      "[A]ppellate     review       of    a       municipal     appeal   to   the     Law

Division is limited to 'the action of the Law Division and not

that of the municipal court.'"                     State v. Palma, 219 N.J. 584,

591-92 (2014) (quoting State v. Oliveri, 336 N.J. Super. 244,




                                              8                               A-2523-13T2
251 (App. Div. 2001)).4            We defer to the judge's fact finding,

and our "review is limited to 'whether the findings made could

reasonably    have    been   reached      on    sufficient    credible   evidence

present in the record.'"             State v. Kuropchak, 221 N.J. 368,

382-83   (2015)      (quoting    State     v.     Johnson,   42   N.J.   146,   162

(1964)).     We owe no deference, however, to the "trial court's

interpretation of the law . . . and the consequences that flow

from established facts[,]" which we review de novo.                      State v.

Hubbard,    222   N.J.    249,     263    (2015).     Questions    of    statutory

interpretation present purely legal issues.                  State v. Grate, 220

N.J. 317, 329 (2015).

    At the time of trial, the offenses defined by N.J.S.A.

2C:28-4,     "False      Reports     to     Law     Enforcement    Authorities,"

included:

            a. Falsely incriminating another. A person
            who knowingly gives or causes to be given
            false information to any law enforcement
            officer with purpose to implicate another
            commits a crime of the fourth degree.


4
  It was inappropriate for the Law Division judge to defer to the
"discretion" of the municipal court judge or otherwise "affirm"
the findings made by that judge.     On de novo appeal, the Law
Division judge must make her own independent findings of fact
based on the record before the municipal court. State v. Kashi,
360 N.J. Super. 538, 545 (App. Div. 2003), aff’d, 180 N.J. 45
(2004).    We accept for purposes of our review that the Law
Division judge implicitly made the same factual findings as did
the municipal court judge and specifically failed to find that a
sexual assault or some other offense did not occur.



                                           9                              A-2523-13T2
           b. Fictitious reports. A person commits a
           disorderly persons offense if he:

           (1) Reports or causes to be reported to law
           enforcement authorities an offense or other
           incident within their concern knowing that
           it did not occur; or

           (2)   Pretends to furnish      or causes to be
           furnished such authorities     with information
           relating to an offense or      incident when he
           knows he has no information     relating to such
           offense or incident.[5]

           [Ibid. (Emphasis added).]

The language tracks almost verbatim that of Model Penal Code

§ 241.5; see also Cannel, New Jersey Criminal Code Annotated,

comment 1 on N.J.S.A. 2C:28-4 (2015-16).          Several of our sister

states   have   adopted   similar   provisions.     Model   Penal   Code,

supra, cmt. 1.    Only a few states have adopted provisions nearly

identical to N.J.S.A. 2C:28-4(b)(1).        See, e.g., 18 Pa. Cons.

Stat. § 4906(b)(1); Mont. Code Ann. § 45-7-205(1)(b); N.H. Rev.

5
  The Legislature has since made violation of subsection (a) a
third-degree crime, "except the offense is a crime of the second
degree if the false information which the actor gave . . . would
implicate the person in a crime of the first or second degree."
See L. 2015, c. 175, § 1 (eff. Jan. 11, 2016). Offenses defined
in subsection (b) are now fourth-degree crimes.     The elements
of each crime in subsection (b), however, remained unchanged.
Ibid.    In explaining the rationale behind increasing the
penalties, the Legislature stated that "false police reports
abuse valuable public resources and endanger the entire
community by diverting the efforts of law enforcement away from
genuine criminal activity."     Assembly Law and Public Safety
Committee, Statement to Senate Bill No. 835 (1st reprint) (Mar.
16, 2015) (emphasis added).




                                    10                          A-2523-13T2
Stat. Ann. § 641:4(I); Utah Code Ann. § 76-8-506(2); Vt. Stat.

Ann. tit. 13, § 1754(b)(1).

       N.J.S.A.     2A:148-22.1        was    "the     most    similar      provision       of

prior law."         Cannel, supra, comment 2 on N.J.S.A. 2C:28-4; see

also    Commentary,      New    Jersey       Criminal       Code,     N.J.S.A.      2C:28-4

(1971)      (citing    N.J.S.A.       2A:148-22.1       as     the    current    "statute

dealing      with     such     false     reports").            N.J.S.A.      2A:148-22.1

provided that "[a]ny person who knowingly and willfully gives

false information or causes false information to be given to any

law enforcement officer or agency with respect to the commission

of any crime or purported crime is guilty of a misdemeanor."

       In    Daniels,    supra,        the    case     relied       upon    by   both     the

municipal court judge and the State before us, the defendant

gave police a fictitious name upon arrest and was convicted of

violating N.J.S.A. 2A:148-22.1 at trial.                      165 N.J. Super. at 49.

On appeal, he argued that the false name was immaterial to the

investigation of the underlying crime, a burglary, and did not

hamper police in any way.                    Id. at 49-50.            We rejected this

"narrow . . . view of the legislative purpose" of the statute,

concluding that "[a]ll that is essential is that the information

given    must     have   been    false        and    that     it    might    have     had    a

relationship to the crime and to normal police activity directed

toward      the   detection      of     any        offenders       implicated    and      any




                                              11                                    A-2523-13T2
investigation     related      thereto."        Id.   at    50.       Later      in    the

opinion,    however,   we     defined    the    crime      somewhat    differently:

"[W]e deem the making of false statements as sufficient alone to

support the statutory charge of giving false information to the

police if that information has a relationship to the crime and a

potential    of   misleading,        distracting      or     hindering       a     police

investigation of it."           Id. at 52 (emphasis added).                   See also

State v. Sotteriou, 132 N.J. Super. 403, 410 (App. Div. 1975)

(affirming the defendant's conviction under N.J.S.A. 2A:148-22.1

for "fabricat[ing] a story about criminal events which did not

happen"), certif. denied, 70 N.J. 144 (1976).

    Few     reported    cases        have     construed      the     provisions         of

N.J.S.A.    2C:28-4,     but     we     conclude      that     the     statute         "is

considerably more narrow than . . . N.J.S.[A.] 2A:148-22.1."

Cannel, supra, comment 2 on N.J.S.A. 2C:28-4.                      The most serious

offense    requires    that    the     "false    information,"        whatever         its

nature, be provided to law enforcement with a specific purpose,

i.e., "to implicate another." N.J.S.A. 2C:28-4(a).                      Examples of

conduct that violates subsection (a) may be found in the Court's

opinion in In re Kornreich, 149 N.J. 346, 364 (1997) (attorney

violated    ethics     rules     and    N.J.S.A.      2C:28-4(a)        by       falsely

implicating another person in motor vehicle violations), and our

opinion in State v. Hinton, 333 N.J. Super. 35 (App. Div.),




                                         12                                      A-2523-13T2
certif. denied, 165 N.J. 678 (2000).                 In Hinton, we concluded

that the defendant had violated N.J.S.A. 2C:28-4(a) by using the

name    of   a    co-worker    to    falsely       identify   himself     to    law

enforcement officers "with the intent to falsely implicate [the

co-worker]."       Id. at 39-40.          No reported case, however, has

construed the provisions of N.J.S.A. 2C:28-4(b).6

       In construing a statute, "[o]ur task . . . 'is to discern

and give effect' to the Legislature's intent."                   State v. Munafo,

222 N.J. 480, 488 (2015) (quoting State v. O'Driscoll, 215 N.J.

461, 474 (2013)).          We first examine the "plain language of the

statute."        Ibid.   (citing    State     v.   Frye,   217    N.J.   566,    575

(2014); DiProspero v. Penn, 183 N.J. 477, 492 (2005)).                         "When

that language 'clearly reveals the meaning of the statute, the

court's sole function is to enforce the statute in accordance

with those terms.'"         State v. Olivero, 221 N.J. 632, 639 (2015)

(quoting     McCann   v.   Clerk    of   Jersey    City,   167    N.J.   311,    320

(2001)).     When the language is ambiguous, however, a court may




6
  The Law Division's opinion in Taylor, supra, 387 N.J. Super. at
60-63, focused solely on the availability of expert "diminished
capacity" evidence to raise a reasonable doubt as to whether the
defendant possessed the requisite mental state, but otherwise
the opinion did not construe the statute or define the elements
of the offense.     Our research failed to reveal any reported
decision from other States that have adopted provisions similar
to 2C:28-4b(1).



                                         13                               A-2523-13T2
examine    extrinsic       evidence    to     determine     the      Legislature's

intent.    Ibid.

       Additionally, penal statutes must be "strictly construed."

Ibid. (citing State v. D.A., 191 N.J. 158, 164 (2007)).                          As a

result, "the rule of lenity is applied . . . if a statute is

ambiguous, and that ambiguity is not resolved by a review of

'all    sources    of   legislative    intent.'"          Id.   at    640    (quoting

D.A., supra, 191 N.J. at 165).               Under the rule of lenity, "any

reasonable doubt" as to the "ordinary meaning" of the statutory

language is resolved in favor of the defendant.                        Id. at 639

(quoting D.A., supra, 191 N.J. at 164).

       Unlike subsection (a), subsection (b) of N.J.S.A. 2C:28-4

only proscribes conveying certain types of false information to

law enforcement.         In subsection (b)(1), which is at issue in

this    case,     the   actor   may   not     "report"     to   law    enforcement

authorities "an offense or other incident within their concern"

with the knowledge "that it did not occur." N.J.S.A. 2C:28-4b(1)

(emphasis added).         The plain language requires that the State

prove    beyond    a    reasonable    doubt    that   a    defendant        knowingly

reported to law enforcement an "offense" that did not occur, or

an "incident within the[] concern" of law enforcement that did

not occur.      Professor Cannel describes the offense as "reporting

a crime which did not occur."                 Cannel, supra, comment 2 on




                                        14                                   A-2523-13T2
N.J.S.A. 2C:28-4b(1).          We differ only to the extent that the

plain language of the statute includes reports of "offense[s],"

not just crimes, as well as "other incident[s] within the[]

concern" of law enforcement, that did not occur.                  See N.J.S.A.

2C:28-4(b)(1).          We have no doubt, for example, that if an actor

reports     to    law    enforcement    a    traffic   accident    that   never

occurred, he will have violated the statute.

    In this case, neither the municipal court judge nor the Law

Division judge found as a fact that defendant reported to police

"an offense or other incident within their concern knowing that

did not occur."           Each judge specifically eschewed reaching a

decision as to whether a sexual assault or some other offense

had actually occurred, instead, limiting their factual findings

to two details of the incident — where it occurred and whether

defendant knew her assailant.           Although defendant admitted that

her original version of events was false in these and perhaps

other details, the evidence was insufficient to convict her of

violating    N.J.S.A.       2C:28-4(b)(1)     absent   a   finding,   beyond    a

reasonable doubt, that no sexual assault or other offense had

occurred.        Indeed, that is what defendant was charged with in

the complaint.

    We    therefore        reverse   defendant's   conviction     because    the

State failed to prove one of the essential elements of N.J.S.A.




                                        15                             A-2523-13T2
2C:28-4(b)(1) beyond a reasonable doubt.   The matter is remanded

to the Law Division for entry of an order entering a judgment of

acquittal and vacating the fines, penalties and costs imposed

upon defendant.




                               16                        A-2523-13T2
