State v. Alveario
| Decision Date | 31 October 1977 |
| Citation | 154 N.J.Super. 135,381 A.2d 38 |
| Parties | STATE of New Jersey, Plaintiff-Respondent, v. Gaetano ALVEARIO, Defendant-Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
Jack Feinberg, Atlantic City, for defendant-appellant (Goldenberg, Mackler & Feinberg, Atlantic City, attorneys).
Solomon Forman, First Asst. Prosecutor, for plaintiff-respondent (Richard J. Williams, Atlantic County Prosecutor, attorney; Peter L. Bruso, Asst. Prosecutor, on the brief).
Before Judges MATTHEWS, CRANE and ANTELL.
Defendant was convicted in the Municipal Court of Atlantic City of "soliciting for prostitution", N.J.S.A. 2A:170-5. After a trial de novo in the County Court the conviction was affirmed and a custodial sentence was imposed.
On this appeal defendant argues that the offense for which he was convicted is not supported by the proofs adduced. He does not dispute that from the evidence it could have been found beyond a reasonable doubt that defendant, who is a desk clerk in his hotel, rented rooms to unmarried couples, knowing they would be used for the purpose of prostitution. However, the provision of the Disorderly Persons Act under which the conviction was had, N.J.S.A. 2A:170-5, provides:
Any person who practices prostitution, or who, by word, act, sign or any device, invites or solicits unlawful sexual intercourse or any other unlawful, indecent, lewd or lascivious act, is a disorderly person.
The extent to which the facts of this case lie beyond the reach of the statute is seen from the complaint itself which charges that the defendant did * * * unlawfully and knowingly operate and maintain a building for the purpose of prostitution and did unlawfully permit prostitution to take place on his premise (sic), having full knowledge, and reside in said building contrary to 2A:170-5.
In its original form the statute, which was first enacted in 1930, provided:
Any person who shall invite or solicit, by word, act, sign or any device, unlawful sexual intercourse, or any other unlawful, indecent, lewd or lascivious act, shall be deemed and adjudged to be a disorderly person.
The statement which accompanied the bill recited:
The object of this bill is to curb nightwalkers and prostitutes in interfering with and soliciting pedestrians from doorways, houses, etc., the law being insufficient to curb such violations as it now exists.
There can be little doubt that this provision is addressed narrowly to behavior calculated to attract illicit custom by or on behalf of the prostitute. In light of the legislative history and the evil intended to be eradicated by N.J.S.A. 2A:170-5 we conclude that defendant's conduct does not fall within this particular prohibition. The statutory language, being penal in nature, is subject to the rule of strict construction and all doubts must be resolved in defendant's favor. State v. N. J., Juvenile, 125 N.J.Super....
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The STATE of New Jersey In the Interest of A. W. S., a juvenile
...(E&A 145). Penal statutes must be strictly construed and all doubts must be resolved in favor of the defendant. State v. Alvaerio, 154 N.J.Super. 135, 381 A.2d 38 (App.Div.1977). The court must adhere to the above cited rules of construction and finds that the interests protected by the pro......
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State v. Foglia
...and Statutory Construction (4 ed. 1974), § 59.03. "(A)ll doubts must be resolved in defendant's favor." State v. Alveario, 154 N.J.Super. 135, 137, 381 A.2d 38 (App.Div.1977). It has long been settled that " '(b)efore a man can be punished, his case must be plainly and unmistakably within t......
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