State v. Gelman

• Decision Date: 08 July 2008
• Docket Number: A-42 September Term 2007.
• Citation: 195 N.J. 475,950 A.2d 879
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Janet GELMAN, now known as Caitlin Ryerson, Defendant-Appellant.
• Court: New Jersey Supreme Court

950 A.2d 879

195 N.J. 475

STATE of New Jersey, Plaintiff-Respondent, v. Janet GELMAN, now known as Caitlin Ryerson, Defendant-Appellant.

A-42 September Term 2007.

Supreme Court of New Jersey.

Argued March 25, 2008.

Decided July 8, 2008.

Janet Gelman n/k/a Caitlin Ryerson argued the cause pro se.

Paula C. Jordao, Assistant Prosecutor, argued the cause for respondent (Robert A. Bianchi, Morris County Prosecutor, attorney).

Justice ALBIN delivered the opinion of the Court.

A person found guilty of "engag[ing] in prostitution," N.J.S.A. 2C:34-1(b)(1), is punishable as a disorderly person, "except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree," N.J.S.A. 2C:34-1(c)(4) (emphasis added). With that law in mind, a Morris County grand jury returned an indictment charging defendant Janet Gelman with fourth-degree engaging in prostitution based, in part, on defendant's prior petty disorderly persons conviction for prostitution under a differently-worded predecessor statute, L. 1978, c. 95 § 2C:34-1 (current version at N.J.S.A. 2C:34-1). In this appeal, we must decide whether that petty disorderly persons conviction was a legally cognizable predicate offense under the current statute, thus justifying the upgraded charge of fourth-degree prostitution.

We now hold that the current N.J.S.A. 2C:34-1 — even after consideration of its legislative history — is insolubly ambiguous concerning whether a defendant can be charged with the fourth-degree crime of prostitution based on a prior petty disorderly persons conviction under the predecessor statute. We therefore are compelled to apply the doctrine of lenity and dismiss the indictment.

I.

A.

The indictment against defendant was based on the testimony of Dover Township Police Sergeant Edward O'Rourke, the sole witness to testify before the Morris County grand jury. In March 2004, Sergeant O'Rourke was assigned to an undercover operation conducted by the Morris County Prosecutor's Office targeting businesses and individuals suspected of involvement in prostitution activities. On March 18, 2004, Sergeant O'Rourke made a telephone call to the Pink Garter escort agency, which advertised its services in The Star Ledger. During a conversation with defendant, he arranged to meet with a woman named "Cindy" the following night at the Hilton Garden Inn in Rockaway Township. He was told that the cost for the "date" would be $150 per hour.

Sergeant O'Rourke thought that defendant acted overly suspicious, requesting that he provide various forms of identification (i.e., driver's license and credit card numbers), and he feared that she might have guessed that he was part of a police investigation. Accordingly, within five minutes of scheduling the appointment, he called the agency back and left a voice mail message canceling the "date."

The next evening, Sergeant O'Rourke went to the room in the Hilton Garden Inn that had been booked for undercover assignations with escorts. A back-up team was located in an adjacent room. To Sergeant O'Rourke's surprise, at 7 p.m., defendant knocked on his hotel door. After he let her in, defendant asked for his driver's license and credit card and checked the room, it appeared, for surveillance equipment. O'Rourke showed her a driver's license and related that he had recently separated from his wife and was living at the Hilton. When she expressed her suspicions about his story, he became "indignant" and told her that he no longer needed her services and that she could leave.

She decided to stay, and as the two sat on the bed, she began to give O'Rourke a back rub. She also told him to turn up the volume of the television, which he suspected was for the purpose of drowning out any recording device. Defendant told O'Rourke that she needed the $150 in advance for the date. O'Rourke then gave her $150 in cash and asked her "how much extra it would be for anal intercourse." With that, defendant became visibly upset, threw the money on the floor, and said, "`I don't like the questions that you're asking me.'" She then stormed out of the room and was arrested in the hallway.

Sergeant O'Rourke informed the grand jury that defendant's "criminal history report" indicated that she had been convicted of prostitution on December 27, 1989 in Parsippany-Troy Hills. Based on Sergeant O'Rourke's testimony and the prior conviction, the grand jury indicted defendant for fourth-degree engaging in prostitution.

B.

The trial court dismissed the indictment, finding that defendant's 1989 petty disorderly persons conviction for soliciting in a public place under the predecessor prostitution statute, L. 1978, c. 95, § 2C:34-1, did not constitute a predicate offense for upgrading the disorderly persons offense of prostitution to a fourth-degree crime under the current prostitution statute, N.J.S.A. 2C:34-1(c)(4).¹ In reaching that conclusion, the court analyzed the grading provision of N.J.S.A. 2C:34-1(c)(4), which provides that "enagag[ing] in prostitution," N.J.S.A. 2C:34-1(b)(1), is "a disorderly persons offense ... except that a second or subsequent conviction for such an offense constitutes a crime of the fourth degree," N.J.S.A. 2C:34-1(c)(4) (emphasis added). Finding that the words "such an offense" clearly referred back to the term "disorderly persons offense," the court determined that defendant's prior petty disorderly persons offense was not a predicate conviction under the statute and therefore defendant could not be charged with a fourth-degree crime.

Alternatively, even in light of the statute's legislative history, the court held that the statutory language was, at best, ambiguous, yielding two possible interpretations, one favoring the State and the other favoring defendant. Because, in resolving a statutory ambiguity, penal statutes are strictly construed against the State, the court based its dismissal of the indictment on that alternate ground as well.

After the trial court denied the State's motion for reconsideration, the Appellate Division granted the State's motion for leave to appeal.

C.

In an unpublished opinion, the Appellate Division reversed the trial court and reinstated the indictment. The panel "discern[ed] no ambiguity" in the meaning of the applicable provisions of the current prostitution statute, N.J.S.A. 2C:34-1(b)(1) and (c)(4). The panel held that in both 1989 and 2004 defendant was charged with the same prohibited act — "offering to engage in sexual activity in exchange for money."² Because defendant was convicted of committing an act of prostitution in 1989, the panel maintained that a conviction of the 2004 charge would constitute "a second or subsequent conviction for such an offense," thus justifying the elevation of what would ordinarily be a disorderly persons offense to an indictable fourth-degree crime. The Appellate Division denied defendant's motion for reconsideration.

We granted defendant's motion for leave to appeal, 192 N.J. 474, 932 A.2d 26 (2007), limited to the issues of "(1) whether a conviction under former N.J.S.A. 2C:34-1(a)(2) constitutes `such an offense' for purposes of enhanced grading under N.J.S.A. 2C:34-1(c)(4); and (2) whether a prior uncounseled conviction of a petty disorderly persons offense can be used to elevate a disorderly persons offense to an indictable offense under a conversion-of-charge statute." Ultimately, we must dismiss defendant's indictment because we cannot conclude that defendant's 1989 petty disorderly persons conviction is "such an offense" for enhanced grading purposes under N.J.S.A. 2C:34-1(c)(4). Therefore, we need not address the issue concerning the use of a prior uncounseled conviction in this case.

II.

A.

Our task is to interpret N.J.S.A. 2C:34-1(c)(4) to determine whether defendant was properly charged with the fourth-degree crime of engaging in prostitution. The primary goal in construing any statute is to divine the Legislature's intent. DiProspero v. Penn, 183 N.J. 477, 492, 874 A.2d 1039 (2005). As always, we begin by examining the actual words of the statute, giving them their ordinary and commonsense meaning. Ibid. If the meaning of those words on their face is clear enough to yield the answer, we look no further. Ibid. Only if the statutory language is susceptible to "more than one plausible interpretation" do we turn to such extrinsic aids as legislative history for help in deciphering what the Legislature intended. Id. at 492-93, 874 A.2d 1039.

Moreover, we are guided by the doctrine of lenity, which 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. United States v. Bass, 404 U.S. 336, 348, 92 S.Ct. 515, 523, 30 L.Ed.2d 488, 497 (1971) ("[W]here there is ambiguity in a criminal statute, doubts are resolved in favor of the defendant."); State v. Reiner, 180 N.J. 307, 318, 850 A.2d 1252 (2004) ("When the text of a statute and extrinsic aids do not enlighten us satisfactorily concerning the Legislature's intent, our obligation is to construe the statute strictly, against the State and in favor of the defendant."); see also State v. Froland, 193 N.J. 186, 194, 936 A.2d 947 (2007). The doctrine of lenity is founded on the long-standing and fundamental principle that a person facing a criminal charge is entitled to "`fair warning ... of what the law intends to do if a certain line is passed.'" Bass, supra, 404 U.S. at 347-48, 92 S.Ct. at 522, 30 L.Ed.2d at 496 (quoting McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816, 818 (1931)). That principle "`embodies the instinctive distaste against men [and women] languishing in prison unless the lawmaker has clearly said they should.'" Bass, supra, 404 U.S. at 348, 92 S.Ct. at 523, 30 L.Ed.2d at 497 (quoting H. Friendly, Mr. Justice Frankfurter and the Reading of Statutes, in Benchmarks 196, 209 (1967)).

B.

At issue...