State of New Jersey v. Ibrahim J. Eldakroury , 439 N.J. Super. 304 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5802-12T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Appellant, February 10, 2015
APPELLATE DIVISION
v.
IBRAHIM J. ELDAKROURY,
Defendant-Respondent.
___________________________
Argued January 13, 2015 - Decided February 10, 2015
Before Judges Reisner, Haas and Higbee1.
On appeal from Superior Court of New Jersey, Law
Division, Union County, Indictment No. 12-09-
00698.
Kimberly L. Donnelly, Special Deputy Attorney
General/Acting Assistant Prosecutor, argued the
cause for appellant (Grace H. Park, Acting Union
County Prosecutor, attorney; Sara B. Liebman,
Special Deputy Attorney General/Acting Assistant
Prosecutor, of counsel and on the brief).
John D. Williams argued the cause for respondent
(Nicosia Fahey & Williams, attorneys; Mr.
Williams, of counsel; Vanessa L. Henderson, on
the brief).
1
Judge Higbee did not participate in oral argument. However,
with consent of counsel she has joined in this opinion.
R. 2:13-2(b).
The opinion of the court was delivered by
REISNER, P.J.A.D.
By leave granted, the State appeals from a June 17, 2013
order dismissing the indictment in this case, without prejudice,
due to blatant error in the legal instructions presented to the
grand jury. The central issue in this appeal concerns the
interpretation of N.J.S.A. 2C:34-7(a), which provides in
relevant part: "[N]o person shall operate a sexually oriented
business . . . within 1,000 feet of any area zoned for
residential use." Like the trial judge, we conclude that the
location of the business is a material element of the offense
and the State must prove that defendant acted knowingly with
respect to that element.2
2
We decline to address defendant's argument that N.J.S.A. 2C:34-
7(a) is unconstitutional. The trial judge's opinion does not
indicate that this issue was raised on the motion to dismiss the
indictment, nor did the trial court address the issue. Further,
defendant did not file a cross-motion for leave to appeal on
that issue, and the relief defendant seeks pursuant to that
issue is a dismissal of the indictment with prejudice, rather
than without prejudice. Without cross-appealing, a party may
argue points the trial court either rejected or did not address,
so long as those arguments are in support of the trial court's
order. See Lippman v. Ethicon, Inc., 432 N.J. Super. 378, 381
n.1 (App. Div. 2013), certif. granted, 217 N.J. 292 (2014);
Chimes v. Oritani Motor Hotel, Inc., 195 N.J. Super. 435, 443
(App. Div. 1984). However, as the Supreme Court of the United
States recently explained, where a defendant is seeking to
expand the substantive relief granted by the trial court, as
opposed to merely arguing an additional legal ground to sustain
the trial court's judgment, the defendant must file a cross-
(continued)
2 A-5802-12T4
Defendant was accused of operating a sexually oriented
business, known as Hott 22, within 1000 feet of a residential
zone. The prosecutor instructed the grand jury that the State
was required to prove that defendant knowingly operated a
sexually oriented business but did not have to prove that
defendant knew the business was within 1000 feet of a
residential zone. Defendant moved to dismiss the indictment.
Applying the dictates of N.J.S.A. 2C:2-2(a)3 and N.J.S.A. 2C:2-
2(c)(3)4, Judge Robert J. Mega concluded that the business's
prohibited location was a material element of the offense, and
the State must prove that defendant acted knowingly with respect
to that element.
Finding nothing in the statutory language or legislative
history of N.J.S.A. 2C:34-7(a) that would indicate the
(continued)
appeal. Jennings v. Stephens, ___ U.S. ___, ___, 135 S. Ct.
793, ___, 190 L. Ed. 2d 662, 668 (2015).
3
"Except as provided in [N.J.S.A. 2C:2-2(c)(3)], a person is not
guilty of an offense unless he acted purposely, knowingly,
recklessly or negligently, as the law may require, with respect
to each material element of the offense." N.J.S.A. 2C:2-2(a).
4
This section, together with N.J.S.A. 2C:2-2(b)(2), sets
"knowingly" as the default standard, where a statute does not
define the mens rea requirement for a particular crime. "A
statute defining a crime, unless clearly indicating a
legislative intent to impose strict liability, should be
construed as defining a crime with the culpability defined in
paragraph b.(2) of this section." N.J.S.A. 2C:2-2(c)(3).
Section (b)(2), in turn, defines "knowingly." N.J.S.A. 2C:2-
2(b)(2).
3 A-5802-12T4
Legislature's intent to create a crime of strict liability,
Judge Mega reasoned that the mens rea default standard
(knowingly) applied, and thus, the State must prove that
defendant knew he was operating a sexually oriented business and
knew the business was located within 1000 feet of a residential
zone. Judge Mega rejected the State's attempted analogy to the
"1000-foot" drug legislation, N.J.S.A. 2C:35-7 and N.J.S.A.
2C:35-7.1, because those statutes specifically provide for
strict liability with respect to the location of a school or
public facility.5 The judge further reasoned that, under the
rule of lenity, any ambiguity with respect to the mens rea
requirement must be resolved in defendant's favor. See State v.
McDonald, 211 N.J. 4, 18 (2012); State v. Gelman, 195 N.J. 475,
482 (2008).
The judge considered that, while an indictment is not to be
dismissed unless it is manifestly deficient or palpably
5
The school zone drug law provides: "It shall be no defense to a
prosecution for a violation of this section that the actor was
unaware that the prohibited conduct took place while on or
within 1,000 feet of any school property." N.J.S.A. 2C:35-7(d).
The public facility law provides: "It shall be no defense to a
prosecution for violation of this section that the actor was
unaware that the prohibited conduct took place while on or
within 500 feet of a public housing facility, a public park, or
a public building." N.J.S.A. 2C:35-7.1(b). Similar language is
found in the school zone assault-by-auto statute, N.J.S.A.
2C:12-1(c)(3)(c): "It shall be no defense . . . that the
defendant was unaware that the prohibited conduct took place
while on or within 1,000 feet of any school property or while
driving through a school crossing."
4 A-5802-12T4
defective, State v. Hogan, 144 N.J. 216, 228-29 (1996),
dismissal is proper where the instructions presented to the
grand jury are "blatantly wrong." State v. Triestman, 416 N.J.
Super. 195, 205 (App. Div. 2010); State v. Hogan, 336 N.J.
Super. 319, 344 (App. Div.), certif. denied, 167 N.J. 635
(2001). Applying those principles, he concluded that the
prosecutor's instruction to the grand jury, which relieved the
State of the burden of proving defendant's mens rea as to an
essential element of the offense, was blatantly wrong and
warranted dismissal of the indictment.
Our review of a trial judge's decision to dismiss an
indictment is guided by established legal principles. "[T]he
decision whether to dismiss an indictment lies within the
discretion of the trial court, and that exercise of
discretionary authority ordinarily will not be disturbed on
appeal unless it has been clearly abused." Hogan, supra, 144
N.J. at 229 (citing State v. McCrary, 97 N.J. 132, 144 (1984)).
However, our review of a trial judge's legal interpretations is
de novo. State v. Grate, ___ N.J. ___, ___ (2015) (slip op. at
13); State v. Drury, 190 N.J. 197, 209 (2007). A prosecutor
must charge the grand jury "as to the elements of specific
offenses." Triestman, supra, 416 N.J. Super. at 205. "[A]n
indictment will fail where a prosecutor's instructions to the
grand jury were misleading or an incorrect statement of law."
5 A-5802-12T4
Ibid. (citing State v. Ball, 268 N.J. Super. 72, 119-20, (App.
Div. 1993), aff'd, 141 N.J. 142 (1995), cert. denied sub nom.,
Mocco v. New Jersey, 516 U.S. 1075, 116 S. Ct. 779, 133 L. Ed.
2d 731 (1996)).
Applying those standards, we agree entirely with Judge
Mega's reasoning and his legal conclusions.6 The Legislature
clearly knows how to provide for strict liability with respect
to prohibited activity in protected areas, such as school or
residential zones. Unlike the statutes concerning illegal drug
activity or assault by auto in protected zones, the statute
concerning sexually oriented businesses, N.J.S.A. 2C:34-7(a),
does not include a strict liability provision. See N.J.S.A.
2C:35-7(d); N.J.S.A. 2C:35-7.1(b); N.J.S.A. 2C:12-1(c)(3)(c).
We decline to read into the statute language that the
Legislature "could have included . . . but did not." Jersey
Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 596
(2012).
Even if we found the statute hopelessly ambiguous, we would
be constrained to invoke the rule of lenity and infer that the
6
Purporting to invoke the law of the case doctrine, the State
argues that regardless of the merits of the underlying legal
issue, Judge Mega should have followed the contrary legal
conclusion reached by a different judge in the separate
prosecution of another defendant, Kevin Hickey. That argument
is without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(2).
6 A-5802-12T4
knowingly standard, rather than the strict liability standard,
applies. See N.J.S.A. 2C:2-2(c)(3); N.J.S.A. 2C:2-2(b)(2);
State v. Grate, supra, ___ N.J. at ___ (slip op. at 13-14)
(stating that the rule of lenity applies when interpreting a
penal statute, if its meaning cannot clearly be discerned from
its plain language and extrinsic sources). Further, because the
location of a sexually oriented business is a material element
of the offense under N.J.S.A. 2C:34-7(a), and the mens rea
requirement applies "to each material element," N.J.S.A. 2C:2-
2(a), the State was required to prove that defendant knew the
business was within 1000 feet of a residential zone.
We agree with Judge Mega that the State's instruction to
the jury was "blatantly wrong" and, in effect, relieved the
State from having to establish defendant's mens rea as to a
material element of the offense. See Triestman, supra, 416 N.J.
Super. at 205. Under those circumstances, the indictment could
not stand and was properly dismissed without prejudice. Nothing
in this opinion precludes the State from re-presenting the case
to the grand jury, with correct legal instructions.
Affirmed.
7 A-5802-12T4