STATE OF NEW JERSEY VS. JOSHUA NICHOLSON (13-12-0773, SOMERSET COUNTY AND STATEWIDE) ( 2017 )


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  •                   NOT FOR PUBLICATION WITHOUT THE
                     APPROVAL OF THE APPELLATE DIVISION
    
                                          SUPERIOR COURT OF NEW JERSEY
                                          APPELLATE DIVISION
                                          DOCKET NO. A-0299-15T4
    
    STATE OF NEW JERSEY,
    
         Plaintiff-Respondent,                APPROVED FOR PUBLICATION
    
    v.                                               August 31, 2017
    
                                                    APPELLATE DIVISION
    JOSHUA NICHOLSON,
    
         Defendant-Appellant.
    
    ___________________________________
    
             Argued December 20, 2016 – Decided August 31, 2017
    
             Before Judges Ostrer, Leone, and Vernoia.
    
             On appeal from Superior Court of New Jersey,
             Law Division, Somerset County, Indictment
             No. 13-12-0773.
    
             Michael J. Rogers argued the cause for
             appellant    (McDonald   &    Rogers,   LLC,
             attorneys; Mr. Rogers, of counsel and on the
             briefs).
    
             Steven A. Yomtov, Deputy Attorney General,
             argued the cause for respondent (Christopher
             S. Porrino, Attorney General, attorney;
             Garima Joshi, Deputy Attorney General, and
             Mr. Yomtov, of counsel and on the brief).
    
         The opinion of the court was delivered by
    
    LEONE, J.A.D.
    
         Defendant   Joshua   Nicholson   appeals     his   August     12,   2015
    
    judgment of conviction.      He engaged in "upskirting," that is,
    "taking pictures of women up their skirts."                      Nancy Danforth
    
    Zeronda, Note, Street Shootings: Covert Photography and Public
    
    Privacy, 63 Vand. L. Rev. 1131, 1133–34 (2010).                  He pled guilty
    
    to third-degree invasion of privacy under N.J.S.A. 2C:14-9(b)
    
    (2004), now renumbered N.J.S.A. 2C:14-9(b)(1).
    
        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.         Finally, we reject defendant's challenge to the
    
    denial     of   his     application      for      admission     into         pre-trial
    
    intervention (PTI).       Accordingly, we affirm.
    
                                             I.
    
        The grand jury heard the following testimony.                       On October
    
    18, 2013, a surveillance camera showed defendant looking around
    
    
    
    
                                             2                                    A-0299-15T4
    nervously while walking in the aisles of a supermarket, which
    
    attracted   the    attention      of   a   loss     prevention   officer.        The
    
    officer observed defendant take out his cell phone and place it
    
    under the female victim's skirt.                 The officer then observed the
    
    cell phone's flash illuminate under the victim's skirt.                          Once
    
    defendant and the victim separated, defendant followed her into
    
    a different aisle and again pulled out his cell phone and placed
    
    it under the victim's skirt.               The officer again saw the flash
    
    illuminate.       As defendant was leaving the store, the officer
    
    confronted him and the police were called.
    
          The victim did not know defendant and was unaware he had
    
    placed   his   cell    phone     under     her    skirt.     After     waiving   his
    
    Miranda1 rights, defendant admitted taking two videos under the
    
    victim's skirt without her consent.                He also admitted he went to
    
    the supermarket for the purpose of recording such a video so he
    
    could watch it for his sexual gratification at a later time.
    
          The grand jury charged defendant with two counts of third-
    
    degree invasion of privacy.              N.J.S.A. 2C:14-9(b) (2004). After
    
    being indicted, defendant applied for admittance into PTI, which
    
    was   rejected        by   the     prosecutor.             Defendant     submitted
    
    supplemental      materials,       but      the     prosecutor    again     denied
    
    
    1
      Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
     (1966).
    
    
    
                                               3                               A-0299-15T4
    defendant    admittance    into    PTI.   Defendant   appealed,   and   the
    
    trial court found the prosecution did not abuse its discretion
    
    in denying PTI.
    
           Defendant filed a motion to dismiss the indictment.              The
    
    trial court denied it, finding the State presented a prima facie
    
    case    to   the   grand   jury.      Defendant   filed   a   motion    for
    
    reconsideration.      At the request of both parties, the court
    
    viewed the videos from defendant's phone.
    
           In its opinion, the trial court found the video footage
    
    revealed the victim's body under her skirt, including her inner
    
    thighs, buttocks, and groin.          It did not appear the victim was
    
    wearing underwear covering her buttocks, but she was wearing
    
    pantyhose of varying degrees of sheerness.            Specifically, the
    
    portion of pantyhose on her inner thighs was "extremely sheer,"
    
    the portion on her buttocks was "slightly darker, but still
    
    sheer," and the groin was covered by "an opaque gusset."2
    
           The trial court found "the video shows a clear visual of
    
    the inner thighs and buttocks" which were "clearly depicted" due
    
    to the "sheerness of the pantyhose."        The court concluded "there
    
    2
      Defendant's counsel stated the brief first video provided "a
    video depiction of the woman's private areas.  You can see her
    inner thigh and I think you can even see part of her buttocks
    that are covered in pantyhose." He added that the second video
    was longer and "more clear."     No one has argued the videos
    should be treated differently.
    
    
    
    
                                          4                           A-0299-15T4
    was exposure of the inner thighs and buttocks as the pantyhose
    
    was essentially see through in its sheerness."                      Therefore, the
    
    court ruled that "Defendant has recorded, without license or
    
    privilege    to   do   so,     [the]    'image       of   another     person     whose
    
    intimate     parts     are     exposed,      without       consent      and      under
    
    circumstance in which a reasonable person would not expect to be
    
    observed' in violation of N.J.S.A. 2C:14-9(b)."                       Accordingly,
    
    the court denied defendant's motion for reconsideration.
    
        Defendant        conditionally      pled     guilty     to   both    counts      of
    
    third-degree invasion of privacy, "specifically reserv[ing] the
    
    right   to   appeal    the     denial   of     his    motion     to   dismiss       the
    
    indictment and motion for reconsideration based upon legal and
    
    factual insufficiency."         In accordance with the plea agreement,
    
    defendant was sentenced to two years' non-custodial probation
    
    and a $1000 fine.            Defendant was also ordered to complete a
    
    psychological evaluation, follow any recommended treatment, and
    
    have no contact with the victim.
    
        On appeal, defendant argues:
    
                 POINT 1 – DEFENDANT DID NOT VIOLATE THE
                 INVASION OF PRIVACY STATUTE BECAUSE THE
                 VICTIM'S INTIMATE PARTS WERE NOT EXPOSED
                 WHEN DEFENDANT VIDEOTAPED HER WITH HIS CELL
                 PHONE BECAUSE SHE WAS CLOTHED WITH LINGERIE
                 UNDER HER SKIRT.
    
                 POINT 2 – THE       NEW JERSEY LEGISLATURE               HAS
                 REVEALED ITS         INTERPRETATION THAT                 THE
    
    
    
    
                                             5                                    A-0299-15T4
                RELEVANT SECTION OF THE INVASION OF PRIVACY
                STATUTE DOES NOT COVER DEFENDANT'S BEHAVIOR.
    
                POINT 3 – THE PROSECUTOR'S REJECTION OF
                DEFENDANT FOR ADMISSION INTO PTI WAS A
                PATENT AND GROSS ABUSE OF DISCRETION.
    
                                           II.
    
           We begin by considering the nature of our review.                   "An
    
    indictment is presumed valid and should only be dismissed if it
    
    is    'manifestly    deficient    or   palpably   defective.'"     State   v.
    
    Feliciano, 
    224 N.J. 351
    , 380 (2016) (citation omitted).                     "A
    
    motion to dismiss is addressed to the discretion of the trial
    
    court, and that discretion should not be exercised except for
    
    'the clearest and plainest ground.'"           Ibid. (citation omitted).
    
           "At the grand jury stage, the State is not required to
    
    present enough evidence to sustain a conviction.            As long as the
    
    State presents 'some evidence establishing each element of the
    
    crime to make out a prima facie case,' a trial court should not
    
    dismiss an indictment."          Ibid. (citations omitted).       "[A] court
    
    examining a grand jury record should determine whether, 'viewing
    
    the    evidence     and   the   rational     inferences   drawn   from   that
    
    evidence in the light most favorable to the State, a grand jury
    
    could reasonably believe that a crime occurred and that the
    
    defendant committed it.'"         Id. at 380-81 (citation omitted).
    
           Defendant's notice of appeal contested "the trial judge's
    
    pretrial determinations that he violated the invasion of privacy
    
    
    
                                            6                           A-0299-15T4
    statute after an evidentiary hearing."                     Defendant is referring
    
    to   the   trial       court's    hearing    and    denial    of    his     motion   for
    
    reconsideration          after     viewing        the     upskirting        videos     he
    
    submitted.        At that hearing, the parties agreed the court should
    
    view the upskirting videos taken by defendant, even though the
    
    grand jury was not shown the videos or provided with testimony
    
    as   to    what    was    recorded    in    the    videos.         This     effectively
    
    resulted    in     a   summary-judgment-type            proceeding,    in    which   the
    
    court reviewed anticipated trial evidence to determine whether
    
    it would be sufficient to satisfy the statute.                            However, the
    
    Rules of Court authorize summary judgment procedures only in
    
    civil cases.           R. 4:46.      The rules do not authorize summary
    
    judgment    in     criminal      cases.     See    State     v.   Parker,     198    N.J.
    
    Super. 272, 278 (App. Div. 1984), certif. denied, 
    99 N.J. 239
    
    (1985); State v. Bass, 
    191 N.J. Super. 347
    , 351 (Law Div. 1983).3
    
    
    
    
    3
      Federal courts have reached a similar conclusion under the
    federal rules. "Unless there is a stipulated record, or unless
    immunity issues are implicated, a pretrial motion to dismiss an
    indictment is not a permissible vehicle for addressing the
    sufficiency of the government's [trial] evidence."        United
    States v. DeLaurentis, 
    230 F.3d 659
    , 660-61 (3d Cir. 2000).
    Here, the parties did not clearly ask the trial court to address
    the sufficiency of the trial evidence, but they asked the court
    to reconsider a motion to dismiss the indictment based on
    evidence which apparently would be introduced only at trial.
    Arguably, the parties created a stipulated record.
    
    
    
    
                                                7                                  A-0299-15T4
    Absent authorization in the rules, we do not endorse such a
    
    procedure.4
    
           However, that procedure was used here at the request and
    
    with    the    consent   of   the   parties,    and   neither   party   has
    
    challenged that procedure on appeal.           Thus, in reviewing whether
    
    the evidence was sufficient to satisfy the statute, we, like the
    
    trial court, consider the videos submitted by defendant with his
    
    motion for reconsideration.         Moreover, we defer to and accept
    
    the trial court's reasonable interpretation of the video.               See
    
    State v. S.S., ___ N.J. ___, (2017) (slip op. at 24-25).
    
                                        III.
    
           Defendant argues that, as the videos revealed the victim
    
    was wearing pantyhose under her skirt, her intimate parts were
    
    not "exposed" as required by N.J.S.A. 2C:14-9(b) (2004).                  We
    
    first address the meaning of that statute as enacted in 2004.
    
           N.J.S.A. 2C:14-9(b) (2004) provided:
    
                  An actor commits a crime of the third degree
                  if, knowing that he is not licensed or
                  privileged to do so, he photographs, films,
                  videotapes, records, or otherwise reproduces
                  in any manner, the image of another person
                  whose intimate parts are exposed or who is
                  engaged in an act of sexual penetration or
    
    4
      Similarly, we do not endorse the State's partial presentation
    to the grand jury, or the parties' agreement that the trial
    court would determine the validity of the indictment based on
    evidence never considered by the grand jury.
    
    
    
    
                                         8                            A-0299-15T4
               sexual   contact,  without  that   person's
               consent and under circumstances in which a
               reasonable person would not expect to be
               observed.
    
    "Intimate parts" were and are defined as "sexual organs, genital
    
    area, anal area, inner thigh, groin, buttock or breast of a
    
    person."   N.J.S.A. 2C:14-1(e).
    
        However, the statute does not define "exposed" and neither
    
    this court nor our Supreme Court has interpreted its meaning as
    
    used in N.J.S.A. 2C:14-9(b) (2004).    As the interpretation of a
    
    statute is an issue of law, "[a]ppellate courts review a trial
    
    court's construction of a statute de novo."    State v. Revie, 
    220 N.J. 126
    , 132 (2014).   We must hew to that standard of review.
    
        "When construing a statute, our primary goal is to discern
    
    the meaning and intent of the Legislature.     In most instances,
    
    the best indicator of that intent is the plain language chosen
    
    by the Legislature."    State v. Gandhi, 
    201 N.J. 161
    , 176 (2010)
    
    (citation omitted); accord State v. Hudson, 
    209 N.J. 513
    , 529
    
    (2012).
    
               The inquiry thus begins with the language of
               the statute, and the words chosen by the
               Legislature   should   be    accorded   their
               ordinary and accustomed meaning.      If the
               language leads to a clearly understood
               result, the judicial inquiry ends without
               any need to resort to extrinsic sources.
    
               [Hudson, supra, 209 N.J. at 529.]
    
    
    
    
                                      9                        A-0299-15T4
    "When such [extrinsic] evidence is needed, we look to a variety
    
    of   sources.       Central    among   them    is   a    statute's    legislative
    
    history."       Richardson v. Bd. of Trs., Police & Firemen's Ret.
    
    Sys., 
    192 N.J. 189
     (2007).
    
                                            A.
    
          We    begin    with     the    plain    language       of   the     statute.
    
    Ordinarily, words in a statue must "be given their generally
    
    accepted     meaning,   according       to    the    approved     usage   of    the
    
    language."      N.J.S.A. 1:1-1.        "In determining the common meaning
    
    of words, it is appropriate to look to dictionary definitions."
    
    Macysyn v. Hensler, 
    329 N.J. Super. 476
    , 485 (App. Div. 2000).
    
          Giving "exposed" its generally accepted meaning, the plain
    
    language of N.J.S.A. 2C:14-9(b) (2004) encompasses defendant's
    
    conduct here.       "Exposed" has long been defined as "open to view"
    
    or   "not   shielded    or    protected."        E.g.,    Webster's     Ninth   New
    
    Collegiate      Dictionary     438     (1990);      accord    Merriam-Webster's
    
    Collegiate Dictionary 441 (11th ed. 2014).                   The most pertinent
    
    definition of "expose" is "to cause to be visible or open to
    
    view."      Webster's Ninth New Collegiate Dictionary, supra, at
    
    438; Merriam-Webster's Collegiate Dictionary, supra, at 441; see
    
    Webster's II New College Dictionary 403 (3d ed. 2005) ("To make
    
    visible").
    
    
    
    
                                            10                                A-0299-15T4
          When defendant stuck a camera under the victim's skirt, the
    
    victim's inner thighs and buttocks were no longer shielded or
    
    protected, but were open to view and visible through her sheer
    
    pantyhose.           The victim's inner thighs were particularly visible,
    
    as   her    pantyhose       were   "extremely    sheer"     there.       Defendant's
    
    filming         of    the   victim's   visible      inner    thighs      was    itself
    
    sufficient to violate N.J.S.A. 2C:14-9(b) (2004).                       See State v.
    
    Gray, 
    206 N.J. Super. 517
    , 521-22 (App. Div. 1985), certif.
    
    denied, 
    103 N.J. 463
     (1986).5
    
                                             B.
    
          This reading of the statute is supported by its legislative
    
    history.         In the 2002-2003 term, legislators introduced four
    
    bills      in    the    General    Assembly   and    one    bill   in    the    Senate
    
    prohibiting "video voyeurism" and "penalizing those who rely on
    
    tiny cameras and other [advanced] technological tools for sexual
    
    spying."         E.g., Statement to Assemb. Bill No. 3426, 210th Leg.,
    
    at 2 (Mar. 6, 2003); Statement to S. Bill No. 2366, 210th Leg.,
    
    at 2 (Mar. 10, 2003); accord Statement to Assemb. Bill No. 3286,
    
    210th Leg., at 2 (Feb. 4, 2003); Statement to Assemb. Bill No.
    
    3302, 210th Leg., at 4 (Feb. 4, 2003).                 The Senate bill and one
    
    Assembly bill prohibited only photographing or filming "a person
    
    
    5
      By contrast, the victim's groin was not open to view, visible,
    or exposed because it was covered by an opaque gusset.
    
    
    
                                             11                                    A-0299-15T4
    in a state of undress" while "in a place where that person would
    
    have a reasonable expectation of privacy."                    Assemb. Bill No.
    
    3426, 210th Leg., at 2 (Mar. 6, 2003); S. Bill No. 2366, 210th
    
    Leg., at 2 (Mar. 10, 2003).            The sponsor's statements indicated
    
    "[t]he   current   law    is   not   well    tailored    to   cope   with   video
    
    voyeurs who conceal devices utilizing advanced technology and
    
    disseminate images of undressed individuals on the Internet and
    
    elsewhere."    Statement to Assemb. Bill No. 3426, supra, at 2;
    
    Statement to S. Bill No. 2366, supra, at 2.
    
        The other Assembly bills instead used the "intimate parts
    
    are exposed" language.         Assemb. Bill No. 3302, 210th Leg., at 2
    
    (Feb. 4, 2003); Assemb. Bill No. 3286, 210th Leg., at 2 (Feb. 4,
    
    2003);   Assemb.   Bill   No.    57,    210th    Leg.,   at   2   (prefiled   for
    
    2002).    One Assembly bill also penalized a person who used a
    
    concealed camera to film "another person, under circumstances in
    
    which a reasonable person would not expect to be observed, under
    
    or through the clothing worn by that other person."                     Assemb.
    
    Bill No. 3286, supra, at 2.
    
        The Assembly Judiciary Committee adopted a substitute bill
    
    which used the "intimate parts are exposed" language.                   Assemb.
    
    Comm. Substitute for Assemb. Bill Nos. 3302, 3286, 3426, & 57,
    
    210th Leg., at 2-3 (May 8, 2003).               The Committee explained the
    
    substitute bill penalized an individual who "observes another
    
    
    
    
                                            12                              A-0299-15T4
    person with the knowledge that person may expose intimate parts
    
    . . . or videotape[s] or otherwise record[s] that person or
    
    disclose[s] such images of the same."                   Assemb. Judiciary Comm.
    
    Statement    to    Assemb.     Comm.    Substitute      for     Assemb.    Bill    Nos.
    
    3302, 3286, 3426, & 57, 210th Leg., at 1 (May 8, 2003).
    
        The Senate Judiciary Committee replaced the Senate's "state
    
    of undress" bill with a Senate Committee Substitute for Senate
    
    Bill No. 2366 using the "intimate parts are exposed" language.
    
    S. Comm. Substitute for S. Bill No. 2366, 210th Leg., at 1-2
    
    (Nov. 24, 2003).          The Committee explained its "amendments make
    
    this bill identical to [the] Assembly Committee Substitute" and
    
    reiterated that the substitute bill penalized an individual who
    
    "observes    another      person     with    knowledge    that     the    person   may
    
    expose   intimate    parts     .   .   .    or   who   videotapes    or     otherwise
    
    records the image of that person or discloses such images."                          S.
    
    Judiciary Comm. Statement to S. Comm. Substitute for S. Bill No.
    
    2366,    210th    Leg.,   at   2-3     (Nov.     24,   2003).     The     Legislature
    
    enacted the Senate substitute bill without change.                        L. 2003, c.
    
    206, § 1.
    
        This legislative history shows the legislators' concerns
    
    included the situation before us - video voyeurism using small
    
    cameras to film or photograph under and through the clothing of
    
    a victim which may expose intimate parts.                       It also shows the
    
    
    
    
                                                13                               A-0299-15T4
    Legislature rejected the requirement that the victim be "in a
    
    'state of undress'" in favor of penalizing any photographing or
    
    filming     where    "the        intimate    parts    are     exposed."          Compare
    
    Statement     to    S.    Bill    No.   2366,     supra,    at   3,    with     S.   Comm.
    
    Substitute for S. Bill No. 2366, supra, at 1-2.                               Thus, the
    
    legislative history supports the plain language reading that the
    
    statute applies if the victim's intimate parts are exposed –
    
    open to view and visible – even if not undressed.
    
                                                 C.
    
            Defendant compares this case to Commonwealth v. Robertson,
    
    
    5 N.E.3d 522
     (Mass. 2014), but that case involved much different
    
    and     narrower    statutory       language.        The    Massachusetts        statute
    
    read:       "Whoever        willfully         photographs,            videotapes        or
    
    electronically surveils another person who is nude or partially
    
    nude, with the intent to secretly conduct or hide such activity
    
    .   .   .   shall    be    punished     by    imprisonment[.]"            Id.    at    526
    
    (emphasis added) (quoting Mass. Gen. Laws ch. 272, § 105(b)
    
    (2008)).      Accordingly, it was an element of the Massachusetts
    
    statute that "the subject was . . . nude or partially nude."
    
    Ibid.
    
            Robertson involved the upskirting of a woman on a Boston
    
    trolley.     Robertson argued the "clothed female passenger . . .
    
    was not 'nude or partially nude.'"                    Ibid.      The Massachusetts
    
    
    
    
                                                 14                                  A-0299-15T4
    court agreed.        Id. at 528.        The Massachusetts court noted the
    
    dictionary     definition       of     "nude"     is   "'naked';       'devoid     of
    
    clothing'; 'unclothed.'"             Id. at 528 n.13 (citation omitted).
    
    Specifically, the court ruled that a woman "who is wearing a
    
    skirt, dress, or the like covering these parts of her body is
    
    not a person who is 'partially nude,' no matter what is or is
    
    not underneath the skirt by way of underwear or other clothing."
    
    Ibid.     As a result, the court found the Massachusetts statute
    
    "does not apply to photographing . . . persons who are fully
    
    clothed    and,   in      particular,      does    not      reach   the    type    of
    
    upskirting    that     the    defendant    is   charged      with   attempting     to
    
    accomplish."      Id. at 529.            The court acknowledged a woman's
    
    "expectation of privacy in not having a stranger secretly take
    
    photographs up her skirt . . . is eminently reasonable," but
    
    ruled the Massachusetts statute did not address that situation.
    
    Ibid.
    
        Robertson        is      plainly      distinguishable.           Indeed,       it
    
    illustrates    the     much    greater    breadth      of   N.J.S.A.      2C:14-9(b)
    
    (2004).    Our Legislature did not require the victim be nude or
    
    partially nude.         Instead, N.J.S.A. 2C:14-9(b) (2004) required
    
    only that the victim's intimate parts be "exposed," that is,
    
    open to view and visible.
    
    
    
    
                                              15                                A-0299-15T4
          Here,     the    victim's        inner     thighs     and     buttocks      were
    
    "exposed," even though she was not "nude or partially nude,"
    
    because they were open to view and visible through her "see
    
    through"      pantyhose.        Accordingly,       defendant's       conduct      fell
    
    within N.J.S.A. 2C:14-9(b) (2004).
    
                                             IV.
    
          We next consider defendant's arguments that his conduct in
    
    2013 did not fall within N.J.S.A. 2C:14-9(b) (2004) because of
    
    subsequent legislative action, namely a failed attempt to amend
    
    it in the 216th Legislature and an amendment later enacted by
    
    the   217th    Legislature.        However,       neither       legislative     effort
    
    undermines the interpretation of N.J.S.A. 2C:14-9(b) (2004) or
    
    its application to defendant's offense.                   "No offense committed
    
    . . . shall be discharged, released or affected by the repeal or
    
    alteration     of   the    statute"     after    the   offense      was   committed.
    
    N.J.S.A. 1:1-15; accord State ex rel. C.F., 
    444 N.J. Super. 179
    ,
    
    188 (App. Div. 2016).
    
                                                A.
    
          Defendant       first    cites    a    failed    attempt      in    the    216th
    
    Legislature to amend N.J.S.A. 2C:14-9(b) (2004) in response to
    
    Robertson.      In 2014, a senator introduced a bill which sought to
    
    add   a   third-degree        offense    penalizing       the     photographing      or
    
    filming of "the image of another person's intimate parts under
    
    
    
    
                                                16                                A-0299-15T4
    or   around         the    person's       clothing"          and   to    provide     that     the
    
    definition          of    "intimate       parts"        applied      "whether       clothed   of
    
    unclothed."          S. Bill. No. 1847, 216th Leg., at 3-4 (Mar. 24,
    
    2014).      The senator's statement accompanying the bill stated:
    
    "This     bill      clarifies        that   it     is    a   crime      under   this   State's
    
    invasion       of    privacy        law   to   secretly        photograph       underneath      a
    
    person's clothing.                 Referred to as 'upskirting,' this practice
    
    occurs when perpetrators use their cell phones to take pictures
    
    and record video under the skirts and dresses of unsuspecting
    
    victims[.]"          Statement to S. Bill No. 1847, 216th Leg., at 5
    
    (Mar. 24, 2014) (emphasis added).                       The senator stated:
    
                        In response to a court decision ruling
                   that upskirting was not illegal, a state law
                   was   recently   enacted   in  Massachusetts
                   criminalizing the practice.      It is the
                   sponsor's intent to similarly protect women
                   in this State from the vile and degrading
                   practice of upskirting by making it clear
                   that it constitutes an invasion of privacy
                   under criminal and civil law.
    
                   [Id. at 6 (emphasis added).]
    
          A    member         of   the    Assembly          introduced       a   different       bill
    
    seeking        to        add   a     fourth-degree            offense        penalizing       the
    
    photographing or filming of intimate parts "whether naked or
    
    clothed."           Assemb. Bill No. 3864, 216th Leg., at 2 (Oct. 27,
    
    2014).     The member stated that the bill would "establish[] the
    
    crime     of     'upskirting,'"             that      "[p]rosecuting          the    crime     of
    
    
    
    
                                                     17                                    A-0299-15T4
    upskirting        .   .    .     has    prove[n]      challenging         in    other   states"
    
    because the victim was "typically clothed," and that the bill
    
    would add the fourth-degree offense "to prevent such challenges
    
    in New Jersey."            Statement to Assemb. Bill No. 3864, 216th Leg.,
    
    at 4-5 (Oct. 27, 2014).
    
             Neither bill altered the language of N.J.S.A. 2C:14-9(b)
    
    (2004)      or    indicated            the    2004     statute      did        not   cover     the
    
    photographing or filming of visible intimate parts.                                     Rather,
    
    each sought to add a provision covering the filming of "clothed"
    
    intimate parts without requiring them to be visible.                                 Ibid.
    
             In any event, neither bill was approved by committee, let
    
    alone by either house.                  Rather, the Assembly passed a different
    
    substitute bill, which died in the Senate after Senate Committee
    
    approval of an identical Senate version.                              See Assemb. Comm.
    
    Substitute for Assemb. Bill Nos. 3864, 3938, & 2992, 216th Leg.,
    
    at   2    (June       4,   2015);          Assemb.    Judiciary     Comm.        Statement     to
    
    Assemb. Comm. Substitute for Assemb. Bill Nos. 3864, 3938, &
    
    2992,     216th       Leg.,      at    1     (June    4,   2015);    S.    Judiciary         Comm.
    
    Statement to S. Comm. Substitute for S. Bill. No. 1847, 216th
    
    Leg., at 1 (Dec. 17, 2015).
    
             Defendant argues the unsuccessful bills somehow changed the
    
    plain      meaning         and     intent       of     N.J.S.A.      2C:14-9(b)         (2004).
    
    However, "unsuccessful attempts to amend a statute are of little
    
    
    
    
                                                     18                                     A-0299-15T4
    use in determining the intent of the Legislature when enacting
    
    the original law."               Perez v. Rent-A-Ctr., Inc., 
    186 N.J. 188
    ,
    
    217    (2006).        "[S]ubsequent         legislative        history      .   .     .    is   a
    
    particularly dangerous ground on which to rest an interpretation
    
    of a prior statute when it concerns . . . a proposal that does
    
    not become law."            Pension Benefit Guar. Corp. v. LTV Corp., 
    496 U.S. 633
    , 650, 
    110 S. Ct. 2668
    , 2678, 
    110 L. Ed. 2d 579
    , 597
    
    (1990).
    
           We   reject        defendant's      claim   that       the   unsuccessful           bills
    
    show    N.J.S.A.          2C:14-9(b)      (2004)        did   not    already         prohibit
    
    upskirting         where    the    victim's       intimate      parts    were        visible.
    
    "Although      the    failure      to     adopt    an    amendment      can,     at       times,
    
    indicate       a     conscious      decision       to     reject      the       amendment's
    
    provisions, such inaction conversely may signal that the law as
    
    written already achieves the sought-after objective."                               Am. Civil
    
    Liberties Union of N.J. v. Hendricks, 
    445 N.J. Super. 452
    , 470
    
    (App. Div.) (citation omitted) (citing 2A Norman J. Singer &
    
    J.D. Shambie Singer, Sutherland Statutory Construction § 48:18,
    
    at    633-37       (7th    ed.    2014)    [hereinafter        Sutherland]),          certif.
    
    granted, 
    228 N.J. 440
     (2016); see Pension Benefit Guar. Corp.,
    
    supra, 496 U.S. at 650, 110 S. Ct. at 2678, 110 L. Ed. 2d at
    
    597.
    
    
    
    
                                                 19                                       A-0299-15T4
                                            B.
    
         Defendant    also    cites    an   amendment      passed     by    the   217th
    
    Legislature.     In 2016, the Legislature enacted a bill identical
    
    to the substitute bills of the prior session.                 Assemb. Bill No.
    
    156 (First Reprint), 217th Leg. (2016), enacted as L. 2016, c.
    
    2.    The   amendment     renumbered     N.J.S.A.      2C:14-9(b)       (2004)   as
    
    subsection (b)(1), with no change in language of that third-
    
    degree   offense.        The   amendment       also   added   a   fourth-degree
    
    offense as subsection (b)(2):
    
                An actor commits a crime of the fourth
                degree if, knowing that he is not licensed
                or privileged to do so, he photographs,
                films, videotapes, records, or otherwise
                reproduces in any manner, the image of the
                undergarment-clad intimate parts of another
                person, without that person's consent and
                under circumstances in which a reasonable
                person   would  not   expect   to  have   his
                undergarment-clad intimate parts observed.
    
                [L. 2016, c. 2, § 1 (emphasis added).]
    
         Thus, the 2016 amendment extended the coverage of N.J.S.A.
    
    2C:14-9(b) by making it a fourth-degree offense to photograph or
    
    film "undergarment-clad intimate parts" without requiring they
    
    be   visible.       N.J.S.A.      2C:14-9(b)(2)       (2016);     see    Merriam-
    
    Webster's Collegiate Dictionary, supra, at 227 (defining "clad"
    
    as "being covered or clothed").              The statements accompanying the
    
    bills and issued by the committees stated N.J.S.A. 2C:14-9(b)
    
    (2004) already made it a third-degree offense to photograph or
    
    
    
                                            20                                A-0299-15T4
    film   where    "intimate       parts    are       exposed,"     and      that    the   bill
    
    "expand[ed]      the     crime     of    invasion         of   privacy       to    include
    
    'upskirting':         photographing          or    filming      the       image    of     the
    
    undergarment-clad intimate parts of another."                         Assemb. Bill No.
    
    156, 217th Leg., at 2 (prefiled for 2016); Assemb. Judiciary
    
    Comm. Statement to Assemb. Bill No. 156, 217th Leg., at 1 (Feb.
    
    8, 2016); S. Law & Public Safety Comm. Statement to Assemb. Bill
    
    No. 156 (First Reprint), 217th Leg., at 1 (Mar. 3, 2016).                               Thus,
    
    the statements made clear the bills "expand[ed]" N.J.S.A. 2C:14-
    
    9(b) (2004) to prohibit photographing or filming intimate parts
    
    even if they were not visible because they were concealed by
    
    undergarments.         Assemb.     Judiciary         Comm.     Statement      to   Assemb.
    
    Bill   No.     156,    supra,     at    1;    S.    Law    &   Public      Safety       Comm.
    
    Statement to Assemb. Bill No. 156, supra, at 1.
    
           Although the 2016 amendment left unchanged the language of
    
    N.J.S.A. 2C:14-9(b) (2004)'s third-degree offense for filming
    
    visible   intimate       parts,    defendant         argues     it    showed      the   2004
    
    statute did not cover his behavior.                       We reject his argument.
    
    The plain meaning of the unchanged third-degree offense remains
    
    unambiguous,      and     its     meaning          and    legislative        history       is
    
    unaltered.       The    amendment       expanded         the   statute      by    adding    a
    
    provision       penalizing        the        photographing           or     filming        of
    
    "undergarment-clad intimate parts" which are not visible.                                That
    
    
    
    
                                                 21                                    A-0299-15T4
    expansion in no way invalidates its existing penalization of
    
    photographing or filming visible intimate parts.                                              See N.J.S.A.
    
    2C:14-9(b)(1), (2).
    
           To       the    extent          the       added        provision           also         encompasses
    
    photographing or filming intimate parts visible through sheer
    
    undergarments, "'[t]he mere fact that two statutes overlap in
    
    prohibiting           the    same      act       does       not    mean      that        the    later      law
    
    automatically repeals the earlier one pro tanto'" or precludes
    
    prosecution.                State      v.    Gledhill,            
    67 N.J. 565
    ,       573     (1975)
    
    (citation omitted).                 "It is well settled that specific conduct
    
    may violate more than one statute."                                    State ex rel. M.C., 303
    
    N.J.    Super.        624,       629   (App.         Div.     1997).          A     legislature          "may
    
    choose      a    belt-and-suspenders                   approach         to    promote          its    policy
    
    objectives"           by     amending            a    statute          to    add     an        overlapping
    
    provision.        See McEvoy v. IEI Barge Servs., Inc., 
    622 F.3d 671
    ,
    
    677 (7th Cir. 2010).                   "[S]ometimes, . . . legislatures adopt an
    
    amendment        only       because         it       better       expresses         an     idea      already
    
    embodied by the original bill[.]"                                 Sutherland, supra, § 48:18,
    
    at     635-37.              In      any      event,          "'the          views        of     subsequent
    
    [Legislatures] cannot override the unmistakable intent of the
    
    enacting one.'"                  Exxon Corp. v. Hunt, 
    97 N.J. 526
    , 539 n.8
    
    (1984) (citation omitted), aff’d in part, rev'd in part on other
    
    grounds, 
    475 U.S. 355
    , 
    106 S. Ct. 1103
    , 
    89 L. Ed. 2d 364
     (1986).
    
    
    
    
                                                           22                                            A-0299-15T4
           Furthermore, the 2016 amendment's grading of the offenses
    
    is   consistent     with      the       continued        applicability      of    N.J.S.A.
    
    2C:14-9(b) (2004) to defendant's conduct.                      Under the amendment,
    
    if     an   upskirting        defendant            photographs       or     films     only
    
    undergarments that cover and conceal an intimate part, he can be
    
    charged     with   the   fourth-degree             offense   under    N.J.S.A.      2C:14-
    
    9(b)(2), but he can be charged with a third-degree offense under
    
    N.J.S.A. 2C:14-9(b)(1) if the intimate part is visible through
    
    an   undergarment,       as   it    is    a    more      intrusive    and   humiliating
    
    experience for the victim.6
    
           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.'"                               State v.
    
    Rangel, 
    213 N.J. 500
    , 515 (2013) (citation omitted).                             "'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.'"                  State v. Olivero, 
    221 N.J. 632
    ,
    
    639-40 (2015) (citation omitted).                    "Instead, the rule of lenity
    
    
    6
      A defendant may also be chargeable with the third-degree
    offense of attempt to commit a violation of N.J.S.A. 2C:14-
    9(b)(1) if his offense satisfies the requirements of N.J.S.A.
    2C:5-1.
    
    
    
                                                  23                                  A-0299-15T4
    is applied only if a statute is ambiguous, and that ambiguity is
    
    not   resolved     by   a    review       of   'all   sources   of    legislative
    
    intent.'"       State v. Regis, 
    208 N.J. 439
    , 452 (2011) (citation
    
    omitted).       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.
    
                                              V.
    
          Defendant next challenges the trial court's order upholding
    
    the prosecutor's denial of his application for PTI.                    Our "scope
    
    of review is severely limited."                State v. Negran, 
    178 N.J. 73
    ,
    
    82    (2003).      "Reviewing       courts     must    accord   the    prosecutor
    
    '"extreme deference."'"          State v. Waters, 
    439 N.J. Super. 215
    ,
    
    225 (App. Div. 2015) (quoting State v. Nwobu, 
    139 N.J. 236
    , 246
    
    (1995)).        "In order to overturn a prosecutor's rejection, a
    
    defendant   must     'clearly       and   convincingly     establish    that   the
    
    prosecutor's decision constitutes a patent and gross abuse of
    
    discretion.'"       Id. at 226 (quoting State v. Watkins, 
    193 N.J. 507
    , 520 (2008)).           We apply the same standard as the trial
    
    court, and review its decision de novo.               Ibid.
    
          Defendant claims the prosecutor did not consider factors
    
    favorable to him.           In fact, the prosecutor specifically noted
    
    defendant's age, his marriage, his two children, his employment,
    
    
    
    
                                              24                             A-0299-15T4
    his lack of criminal history, and that he sought psychological
    
    treatment after PTI denial.
    
           The prosecutor determined defendant was not an appropriate
    
    candidate       for   PTI    after     considering              "all     of    the       factors,"
    
    particularly "[t]he nature of the offense," "[t]he facts of the
    
    case,"      "[t]he    desire     of    the    .        .    .   victim    [not]          to    forego
    
    prosecution," and "[t]he needs and interests of society," and
    
    that     "the     crime     is   of    such        a       nature   that       the       value       of
    
    supervisory treatment would be outweighed by the public need for
    
    prosecution."         N.J.S.A. 2C:43-12(e)(1), (2), (4), (7), (14).
    
           In    particular,         the   prosecutor               focused       on     defendant's
    
    "deviant        sexual    arousal      and/or          interest"         and       his    repeated
    
    filming of the victim despite his knowledge of "the 'disgusting'
    
    nature of his conduct."                The prosecutor noted that defendant
    
    previously engaged in the same conduct and that "the present
    
    offense constitutes part of a continuing pattern of 'antisocial
    
    behavior,'" citing defendant's psychological evaluation.                                            The
    
    prosecutor        found     "such      behavior            requires       more       structured,
    
    rigorous supervision that only traditional probation can offer"
    
    and that such treatment would be more effective than PTI.                                           See
    
    N.J.S.A. 2C:43-12(e)(5).
    
           Thus, we reject defendant's claim that the only basis for
    
    the prosecutor's decision was the victim's opposition to PTI.
    
    
    
    
                                                  25                                              A-0299-15T4
    Moreover,     the   victim's   opposition   to    PTI   "is    an   appropriate
    
    factor   to    consider   under    Guideline      3    and    N.J.S.A.     2C:43-
    
    12(e)(4)."      State v. Imbriani, 
    291 N.J. Super. 171
    , 180 (App.
    
    Div. 1996).     The prosecutor properly considered the devastating
    
    effect   of    defendant's     conduct    on     the    victim,     who    became
    
    withdrawn and frightened and who opposed PTI to deter defendant
    
    from victimizing anyone else.        Accordingly, the trial court did
    
    not err in finding no patent or gross abuse of discretion in the
    
    prosecutor's denial of PTI.
    
        Affirmed.
    
    
    
    
                                         26                                   A-0299-15T4