The Appellate Division continued in relevant part: Even though a statute may be open to a construction which would render it unconstitutional or permit its unconstitutional application, it is the duty of this Court to so construe the statute as to render it constitutional if it is reasonably susceptible to such interpretation. It is one thing for trial and appellate courts to determine the amorphous boundaries of a home’s curtilage when deciding motions to suppress evidence. It is another thing to import that complex and subjective legal construct into the penal code as an element of an affirmative defense that must be explained to a jury.
The Legislature presumably was aware of the concerns raised in Bonano when it enacted N.J.S.A. 2C:3-4(b)(2)(b)(i) in 1978 and N.J.S.A. 2C:3-4(c) in 1987. Notably, the Legislature did not employ the term curtilage in the penal code. Rather, the Legislature enacted a formulation in N.J.S.A. 2C:3-4 aligned with the more narrowly-crafted holding in Bonano. See id. at 294-95 (“The Legislature knows how to incorporate into a new statute a standard articulated in a prior judicial opinion.”).
We add that N.J.S.A. 2C:1-1(e) expressly provides that, “the provisions of the penal code not inconsistent with those of prior laws shall be construed as a continuation of such laws.” Applying that principle of statutory construction, we interpret the geographic scope of the term dwelling in N.J.S.A. 2C:3-4(b)(2)(b)(i) to have the same meaning as was used in the common law duty-to-retreat principles and predecessor use-of-force statute, N.J.S.A. 2A:113-6, that were interpreted in Bonano.
The panel’s restrictive view of where and when deadly force can be used in self-defense within one’s dwelling is inconsistent with the views of the leading commentator. Cannel’s “Title 2C New Jersey Criminal Code Annotated” is the most popular treatise among criminal practitioners. The example that Cannel gives as being consistent with New Jersey’s castle doctrine involves a child being caught spray-painting a porch by a homeowner. When the homeowner confronts the child, the child attempts to kick the homeowner in the shin. Under the circumstances, Cannel opines that the use of deadly force by the homeowner is justified to prevent bodily injury.
