On April 2, 2025, a three-judge appellate panel decided the Camden County case of State v. Nathaniel Russell. The principal issues concerned interpretations of the terroristic threats statute, N.J.S.A. 2C:12-3.
Presiding Judge Mawla wrote for the Court in relevant part: On August 19, 2021, the victim was serving as a municipal court judge in Atlantic City and presided over a virtual proceeding involving defendant. He gave an opening statement, identified himself as the judge, explained the proceedings, assigned defendant a public defender, and adjourned the case.
On August 23, 2021, the victim received three phone messages from defendant on his law office line. Defendant identified himself as “Nate Russell.” The victim recognized defendant’s voice from court, describing it as “a very distinctive voice . . . that was very overly aggressive.” He described the phone messages as “very nasty, aggressive, and threatening” in tone, with defendant seeming to know where he lived and worked. The victim saved the recordings, and out of concern for himself and his family, called the police.
The messages contained profane language and threats, including: “I will break your f***ing jaw mother f***er”; “play games with me p*ssy and get your f***ing neck broke”; “when I catch you in Northfield I will beat your a**”; and “I will break your f***ing jaw . . . p*ssy a** n*****.” Defendant’s threats included repeated vulgarity and sexually explicit language, telling the victim to “suck his d*ck,” and “give me a call, p*ssy. I’m not f***ing playing no games . . . I’ll come to your motherf***ing office in Northfield, how is that. Either way, motherf***er, I’m going to see you.”
The following day, defendant left two additional voicemail messages on the victim’s law office line. Referring to the August 19 hearing, defendant continued to threaten the victim by mentioning both Northfield and the victim’s hometown, using vulgar and sexually explicit language, stating, “you better motherf***ing move out of your motherf***ing hometown,” and “I will have my foot in your motherf***ing a**.”
Defendant also called the Egg Harbor Municipal Court to reach the victim. He identified himself by name, became “irate”, and then yelled and cursed when the court administrator would not let him speak to the victim. Defendant also left two callback numbers, which were later confirmed as his. After receiving three such calls, the court administrator filed a judiciary incident report out of concern for the victim’s safety.
The facts here present the same difficulty as the Court encountered in Fair. There is no doubt in our minds defendant acted purposely to terrorize the victim. There is no doubt the victim testified about the effects defendant’s statements had on him. However, the jury was not provided with the appropriate standard to measure whether those threats met the constitutional bar of constituting criminal conduct. The jury was not instructed to consider whether a reasonable municipal court judge in the victim’s position with his sort of legal experience–which included approximately five years as a municipal court judge, seven years as a municipal prosecutor, and approximately twenty years in private practice, all positions requiring him to interact with the public–would fear for their safety, having interacted with defendant.
The Fair decision constituted a new rule of constitutional dimensions. The question for us is how to apply it. Our Supreme Court has stated we have four options, including pipeline retroactivity, which means rendering the rule “applicable in all future cases, the case in which the rule is announced, and any cases still on direct appeal.” State v. G.E.P. (2020) (quoting State v. Knight (1996)). We consider “(1) the purpose of the rule and whether it would be furthered by a retroactive application, (2) the degree of reliance placed on the old rule by those who administered it, and (3) the effect a retroactive application would have on the administration of justice.” State v. Henderson (2011).
The three-part analysis does not lend itself to clear answers. It is necessary to look at individual cases in which the analysis was applied to gain the necessary insight.
The Appellate Division continued in relevant part: Fair announced a new rule because it interpreted the constitutionality of a statute affecting a criminal prosecution and a defendant’s right to a fair trial. In this respect, Fair impels pipeline retroactivity because doing so would satisfy the first and second prongs of Knight. Indeed, applying Fair to cases under appeal would ensure the ability to timely review and correct a criminal conviction before it is final, and it also ensures the administration of justice by preventing wrongful convictions from being upheld while also allowing the State the ability to prosecute these cases under the proper legal rubric.
We hold Fair has pipeline retroactivity because doing so benefits the defense, the State, and our justice system. This outweighs the State’s reliance in this and other prosecutions on the old rule. We are not under the impression that there are many cases in the proverbial pipeline to begin with. Regardless, they would benefit from the applicability of Fair. For these reasons, we reverse defendant’s terroristic threats convictions in counts one and two, and remand for further proceedings consistent with this opinion.
The terroristic threats statute enhances the offense from a third- to a second-degree offense when the violation “occurs during a declared period of national, State or county emergency.” N.J.S.A. 2C:12-3(a). The statute states: “The actor shall be strictly liable upon proof that the crime occurred, in fact, during a declared period of national, State or county emergency.” Ibid.
Defendant asserts his due process rights were violated because the second-degree enhancement as applied to him had no reasonable relationship to a legitimate State purpose. The State charged defendant with making the threats during the COVID-19 pandemic, pursuant to which Governor Philip D. Murphy had declared a state of emergency. However, defendant argues there was no nexus between his threats and the pandemic-related state of emergency because his threats neither referenced the pandemic, nor exploited the conditions of the state of emergency. Although defendant did not raise this argument before the trial judge, because it is both a question of law and a constitutional argument, our review is de novo.
“A state statute does not violate substantive due process if the statute reasonably relates to a legitimate legislative purpose and is not arbitrary or discriminatory. If a statute is supported by a conceivable rational basis, it will withstand a substantive due process attack.” Greenberg v. Kimmelman (1985) (internal citations omitted). When there is a constitutional challenge to a statute on substantive due process grounds, we weigh the following factors: “(1) the nature of the right asserted; (2) the extent to which the statute intrudes upon that right; and (3) the public need for the intrusion.” State v. O’Hagen (2007) (citing Sojourner A. v. N.J. Dep’t of Hum. Servs. (2003)).
Constitutional due process requires that criminal statutes give people “fair notice and adequate warning of the law’s reach.” Town Tobacconist v. Kimmelman (1983). Put another way, criminal statutes “must ‘give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that they may act accordingly.'” State v. Lisa (App. Div. 2007) (quoting State v. Clarksburg Inn (App. Div. 2005)).
This due process analysis presumes that people have access to and read our criminal code. With the constant increase in new criminal laws, a fairer presumption would be to apply the “reasonable attorney” standard as opposed to a “reasonable person” standard.
The Appellate Division concluded with the following in relevant part: A statute is presumed to be valid. State v. Lenihan (2014). The Supreme Court has explained that “any act of the Legislature will not be ruled void unless its repugnancy to the Constitution is clear beyond a reasonable doubt. The Legislature has considerable latitude in addressing criminal conduct. It can either prepare a detailed catalogue of proscribed activities or, within constitutional limits, address the problem more generally.” Our review necessarily involves significant deference to legislative judgement regarding both the propriety of the governmental involvement in the area covered by the legislation, and the reasonableness of the means chosen to achieve the legislative goals.
The New Jersey Anti-Terrorism Act, N.J.S.A. 2C:38-1 to -5, “was signed into law less than a year after the September 11, 2001 terrorist attacks, to remedy shortcomings in the law at that time and better protect citizens of New Jersey.” The Act amended the terroristic threats statute to upgrade such offenses to a second-degree offense when they occur during a state of emergency. L. 2002, c. 26, § 11.
A statute can be vague as applied if the law does not with “sufficient clarity” prohibit “the conduct against which it is sought to be enforced.” If a statute is vague as applied to the conduct at issue, it will not be enforced even though the law might be validly imposed against others not similarly situated. Penal laws ‘are subjected to sharper scrutiny and given more exacting and critical assessment under the vagueness doctrine than civil enactments.'”
A statute that is challenged as applied, however, need not be proven vague in all conceivable contexts, but must be shown to be unclear in the context of the case. The level of judicial scrutiny and degree of required clarity will depend on the purpose of the statute, the context in which the law is challenged, the conduct that is subject to its strictures, the nature of the punishment that is authorized, and, finally, the potential impact of the statute upon activities and interests that are constitutionally protected.
Pursuant to these principles, defendant’s convictions under N.J.S.A. 2C:12-3(a) cannot stand as second-degree convictions because there was no nexus between his alleged terroristic threats and the COVID-19 state of emergency. The threats defendant directed at the victim did not result from or have anything to do with the pandemic or pandemic-related restrictions, and his underlying municipal court case. We can easily envision a scenario where the State prosecutes a defendant for making terroristic threats against someone like the victim here by threatening to spread the COVID-19 virus by biting, spitting, coughing, or otherwise deliberately spreading the virus in some form either purposely or in reckless disregard of the risk of causing such terror or inconvenience. That did not occur here. Instead, defendant was prosecuted for making threats during a state of emergency, which had nothing to do with the legislative purpose of the degree-of-offense enhancement enacted by the Anti-Terrorism Act.
Going forward, we hold that when the State seeks to prosecute a defendant under N.J.S.A. 2C:12-3(a) for making terroristic threats during a declared period of national, State, or county emergency, there must be some rational relationship between the terroristic threats and the underlying emergency. Otherwise, the conviction will be vulnerable to an as-applied challenge for vagueness on substantive due process grounds.
Given the purposes and title of the Anti-Terrorism Act, the Court could have required a rational relationship to terrorism. Instead, the Court also considered the plain language of the Act and focused on a relationship to a state of emergency.
