State of New Jersey v. J.B.W.

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0527-13T4
STATE OF NEW JERSEY, APPROVED FOR PUBLICATION
Plaintiff-Respondent, February 24, 2014
APPELLATE DIVISION
v.
J.B.W.,
Defendant-Appellant.
______________________________
Argued January 29, 2014 – Decided February 24, 2014
Before Judges Grall, Waugh1 and Accurso.
On appeal from Superior Court of New Jersey,
Law Division, Ocean County, Indictment No.
13-04-1052.
Brian P. Keenan, Assistant Deputy Public
Defender, argued the cause for appellant
(Joseph E. Krakora, Public Defender,
attorney; Mr. Keenan, of counsel and on the
brief).
Samuel Marzarella, Assistant Prosecutor,
argued the cause for respondent (Joseph D.
Coronato, Ocean County Prosecutor, attorney;
Mr. Marzarella, of counsel and on the brief;
Shiraz Deen, on the brief).
1
Judge Waugh did not participate in oral argument. However,
the parties consented to his participation in the decision.
R. 2:13-2(b).
The opinion of the court was delivered by
GRALL, P.J.A.D.
We granted defendant J.B.W. leave to appeal an order
denying his motion to dismiss a one-count indictment. As a
consequence of a juvenile adjudication requiring registration
pursuant to N.J.S.A. 2C:7-2, he is required to register as a sex
offender, and he complied with that obligation. His offense
involved a victim under the age of eighteen. The grand jurors
for Ocean County charged defendant with a crime of the third
degree — participating in a "youth serving organization" despite
being an "an excluded sex offender," N.J.S.A. 2C:7-23a,
specifically that he held a position in "[X] High School
Marching Band 'Pit Crew.'"
The Pit Crew is a committee of a larger association
organized for "charitable and educational purposes." By its
constitution, the association's purpose is promoting interest in
the school's band programs. Its members pay annual dues fixed
by its board of directors, and its membership "consists of
parents and/or [sic] guardians, and interested persons of
members of the . . . band programs." J.B.W. is a friend of a
parent of a member of the band.
The association's constitution provides for it to work "in
cooperation with the Board of Education, the administration, the
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faculty, the band director, unit advisors and students" of the
high school. By its constitution, the association's board of
directors includes the "band director and assistant band
director" and the "faculty band advisor(s)." The association's
bylaws describe the Pit Crew's duties as working with the band's
director, assistant band director and staff "to acquire,
assemble, store and transport" band equipment.
The question presented in the trial court and on this
appeal, is whether the term "youth serving organization," as
defined in N.J.S.A. 2C:7-22, excludes organizations that work in
cooperation with a public school and its staff to promote a
school program. The trial court concluded that this group was
not excluded and, for that reason, denied the motion to dismiss
the indictment. This court, however, must consider the
interpretation of a statute de novo and without affording any
deference to the trial court. State v. Buckley, 216 N.J. 249,
260-61 (2013); In re Liquidation of Integrity Ins. Co., 193 N.J.
86, 94 (2007). We also conclude that the statute applies to
such organizations, and we set forth our reasons in the
remainder of this opinion.
A court's primary goal in interpreting a statute is
determining the Legislature's intent. Higgins v. Pascack Valley
Hosp., 158 N.J. 404, 418 (1999). That inquiry begins with the
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language of the statute, which generally controls when the
meaning is clear. Ibid. When the statutory language is
susceptible of different meanings, courts "seek to effectuate
the fundamental purpose for which the legislation was enacted"
and may look to legislative history to identify the intended
goals. Klumb v. Bd. of Educ. of Manalapan–Englishtown Reg'l
High Sch. Dist., 199 N.J. 14, 24-25 (2009) (internal quotations
omitted); Daidone v. Buterick Bulkheading, 191 N.J. 557, 565-66
(2007). Where a criminal statute defining a crime is at issue,
language "susceptible of differing constructions," must be
interpreted "to further" the "general purposes" stated in
N.J.S.A. 2C:1-2a and the "special purposes" of the provision at
issue. N.J.S.A. 2C:2-1a, c. Most important here is the Code's
purpose of giving "fair warning of the nature of the conduct
proscribed," N.J.S.A. 2C:2-1a(4). Fair notice of prohibited
conduct is the fundamental principle underlying the rule of
construction calling for resolution of ambiguities in criminal
statutes against the State. State v. Gelman, 195 N.J. 475, 482
(2008).
The crime at issue here is defined in two sections of the
Code, one setting forth the elements and the other defining the
critical terms, respectively N.J.S.A. 2C:7-23 and N.J.S.A. 2C:7-
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22. The prohibited conduct is defined in plain and unambiguous
language. In pertinent part, N.J.S.A. 2C:7-23 provides:
a. Except as otherwise provided in
subsection e. of this section, [which is not
implicated in this case,] it shall be
unlawful for an excluded sex offender to
hold a position or otherwise participate, in
a paid or unpaid capacity, in a youth
serving organization.
b. A person who violates subsection a.
of this section is guilty of a crime of the
third degree.
. . . .
There is no question that the language set forth above warns a
person who is "an excluded sex offender" that he or she commits
a crime of the third degree by holding any position or in any
way participating in "a youth serving organization."
The definition of the term "excluded sex offender" is
equally plain and unambiguous. N.J.S.A. 2C:7-22 provides:
"'Excluded sex offender' means a person who has been convicted,
adjudicated delinquent or found not guilty by reason of insanity
for the commission of a sex offense, as defined in subsection b.
of section 2 of P.L.1994, c. 133 [N.J.S.A. 2C:7-2], which
involves a victim under 18 years of age." As previously noted,
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N.J.S.A. 2C:7-2 is the statute that identifies the crimes that
require a person convicted to register as a sex offender.2
The question here is whether the association to which
defendant belongs falls within the statutory definition of the
term "youth serving organization." That term is defined to
"mean[] a sports team, league, athletic association or any other
corporation, association or organization, excluding public and
nonpublic schools, which provides recreational, educational,
cultural, social, charitable or other activities or services to
persons under 18 years of age." N.J.S.A. 2C:7-22 (emphasis
added). Defendant argues that the language excluding "public
and nonpublic schools" excludes his organization.
The plain meaning of the statutory definition does not
permit the reading of the statute defendant urges, which is that
the language emphasized excludes his association as a school.
But the definition reaches all organizations except schools, and
the Pit Crew is a committee of an association that is distinct
from the school. Granted, the association and its Pit Crew are
affiliated with the high school in the sense that its members
work with school employees, but that does not make the committee
2
N.J.S.A. 2C:7-2 has been amended by L. 2013, c. 214. The
amendment has no relevance here.
6 A-0527-13T4
a school. Pit Crew members hold positions and participate in
the association, not the school.
If the Legislature intended to exclude from the reach of
this crime associations that have connections with or assist a
school similar to the arrangement enjoyed by this association,
then it could have done that. For example, the Legislature
could have stated that it was excluding public and nonpublic
schools and organizations participating with or assisting public
or nonpublic schools. But the Legislature did not so provide.
To the extent defendant attempts to bring himself within
the exclusion on the ground that the band program is a school
program, the definition does not permit that interpretation
either. It plainly covers organizations that provide
"activities or services to persons under 18 years of age."
Thus, while the association, through its Pit Crew, does not
provide the band activity, it does provide "services to persons
under 18 years of age" who are members of the band. In fact, in
the brief submitted on defendant's behalf, the responsibilities
of the Pit Crew are described as "helping 'the band members [by]
loading their equipment and unloading their equipment at
football games or band[] competitions.'" (quoting the grand jury
transcript with alterations).
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We have no question that the statutory definition provides
fair warning to any "excluded sex offender" who participates in
this association. Defendant, who as a member of the Pit Crew
committee, was responsible for helping band members by
transporting the band's equipment to events, falls within its
plain terms. He provided a service for members of the high
school band through participation in the Pit Crew committee.
Even if we were to conclude that the exclusion of schools
is sufficiently ambiguous to warrant reliance on legislative
history, the legislative history does not cast doubt on the
statute's plain meaning. The legislative statements on which
defendant relies simply state: "The bill does not apply to
employees and volunteers of public and nonpublic schools, as
criminal background checks and employment restrictions of these
persons are governed under separate law. (N.J.S. 18A:6-4.13 et
seq., N.J.S. 18A:6-7.1 et seq.)." Introduction to S. 532 at 3;
accord Assembly Law and Public Safety Committee Statement to
S. 532 at 1; Senate Law and Public Safety Committee Statement
and Veterans' Affairs Committee Statement to S. 532 at 1 (Feb.
14, 2008).
Like the statutory language, the statements refer to
persons who are "volunteers of public and nonpublic schools."
Neither the statements nor the statute suggests an exemption for
8 A-0527-13T4
persons who volunteer to help in a school activity by virtue of
a position they hold in an organization that is not in fact a
school.3 In contrast, an individual who volunteered to provide
the same service informally — for example through the band
director, the principal, or school board rather than as a member
of an organization — is in a different position than defendant.
Defendant argues that if he is not considered a volunteer
for the school, then the school would be prohibited from
requiring volunteers of his association and others like it to
undergo a background check. Even if that is so, it is beside
the point. This is a policy argument better addressed by the
Legislature than a court. In re Adoption of N.J.A.C. 5:96, 215
N.J. 578, 619 (2013).
True, our courts will construe a statute to avoid an absurd
result even when it appears to be dictated by a literal
interpretation of the statutory language. See N.J.S.A. 1:1-1;
3
It is not clear why the Legislature excluded volunteers for
public and nonpublic schools from this law adopted in 2009. L.
2009, c. 139. When this law was enacted, N.J.S.A. 18A:6-4.13
to -4.17 addressed background checks for employees of nonpublic
schools, and N.J.S.A. 18A:6-7.1 to -7.2, simply permitted
background checks for volunteers at facilities under the
supervision of the Department of Education or a board of
education caring for or involved in the education of children
under the age of 18. See N.J.S.A. 18A:6-7.1 as amended by L.
2007, c. 82, § 1; L. 2010, c. 122, § 3; L. 2011, c. 72, § 9.
The State has presented an alternative argument based on
statutes related to education, which we do not find persuasive
and have no reason to address.
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Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392-93 (2001).
But there is nothing patently absurd about the Legislature's
obvious intention. The intention is to rely on schools and the
laws governing their hiring and acceptance of volunteers to
exclude those who are unfit and to rely on the deterrent impact
of criminal sanctions to exclude those who provide services for
minors as holders of positions in an organization that is not a
school.
Affirmed.
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