Upskirting And Invasion Of Privacy

On August 31, 2017, a three judge Appellate panel decided the case of State v. Joshua Nicholson. The panel included former Monmouth County Criminal Presiding Judge Francis Vernoia. A principle issue in the case was whether taking a picture of a woman up her skirt (“upskirting”), constitutes an invasion of privacy pursuant to N.J.S.A 2C:14-9b.

In relevant part, the Court held: 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.

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. 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. Instead, the rule of lenity is applied only if a statute is ambiguous, and that ambiguity is not resolved by a review of all sources of legislative intent. 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.

This case involved a negotiated guilty plea as opposed to a conviction after a jury trial. Therefore, the defendant must have entered a rare “conditional plea.” A “conditional plea” is a plea in which the prosecutor and Court agree to let the defendant pursue issues on appeal that would otherwise be waived with a typical guilty plea. The only issues that are automatically preserved with a typical guilty plea are the denial of a motion to suppress physical evidence, a rejection from PTI participation, and (arguably) a rejection from Drug Court participation.