The three-judge appellate panel concluded with the following in relevant part: We are thus satisfied that Martinez and Bilek were correctly decided and we see no reason to part company with the thoughtful analysis in those cases. Nor has the Legislature seen fit to overturn those decisions by expanding the term dwelling to include outdoor areas such as a backyard or driveway. In DiProspero, our Supreme Court recognized that “the Legislature is presumed to be aware of judicial construction of its enactments.” Relatedly, “the Legislature knows how to incorporate into a new statute a standard articulated in a prior judicial opinion.” Under applicable canons of statutory construction, when the Legislature uses words in a statute that previously have been the subject of judicial construction, the Legislature will be deemed to have used those words in the sense that has been ascribed to them.”
We next apply the Bonano/Martinez/Bilek interpretation of “dwelling” to the facts adduced at trial. The trial evidence, including defendant’s version of events as related in his trial testimony, clearly shows that he did not shoot the arrow at Paulsen while either of them was on or in a porch, front door, or entryway. Rather, as we have noted, defendant on appeal claims that Paulsen was shot on the driveway, close to the shed. In these circumstances, we do not believe the confrontation between them occurred within or appurtenant to defendant’s dwelling for purposes of N.J.S.A. 2C:3-4(b)(2)(b)(i). Given that conclusion, we need not address whether defendant was the “initial aggressor” for purposes of applying N.J.S.A. 2C:3-4(b)(2)(b)(i) (the “actor is not obliged to retreat from his or her dwelling, unless he or she was the initial aggressor”). Accordingly, the trial court did not err, much less commit plain error, by failing to instruct the jury on this inapposite use-of-force principle sua sponte.
Our courts’ tendency to attribute a great deal of knowledge about our courts’ precedent to the Legislature is most-often used to avoid the reversal of a conviction. The reality is that our Legislature routinely passes laws that end up being repealed for violating the constitution or re-interpreted to avoid a constitutional violation.
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