The opinion
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5063-14T3
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
March 22, 2016
v.
APPELLATE DIVISION
S.B.,
Defendant-Respondent.
_______________________________
Submitted February 1, 2016 - Decided March 22, 2016
Before Judges Lihotz, Nugent and Higbee.
On appeal from Superior Court of New Jersey,
Law Division, Somerset County, Indictment
No. 14-09-0629.
Geoffrey D. Soriano, Somerset County
Prosecutor, attorney for appellant (Kimberly
Savino French, Assistant Prosecutor, of
counsel and on the brief).
Alison Perrone, attorney for respondent.
The opinion of the court was delivered by
LIHOTZ, P.J.A.D.
The State appeals from a June 25, 2015 Law Division order
dismissing Indictment No. 14-09-0629, which charged defendant
S.B. with prohibited participation in a "youth serving
organization" in violation of N.J.S.A. 2C:7-23(a).1 It is
undisputed that as a result of a prior sexual assault
conviction, defendant must comply with the requirements of the
Community Notification Law, N.J.S.A. 2C:7-1 to -23, also known
as Megan's Law.2 Defendant acknowledges he is subject to the
requirements contained in N.J.S.A. 2C:7-23, which provide:
a. Except as otherwise provided in
subsection e. of this section, it shall be
unlawful for an excluded sex offender[3] 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.
1
Notably, the effective date of N.J.S.A. 2C:7-22, -23 was
October 19, 2009. L. 2009, c. 139, § 1-2. This casts doubt on
the portion of the indictment charging conduct from August 9 to
October 18, 2009.
2
Megan's Law requires "prescribed categories of sex
offenders [to] register with law enforcement agencies through a
central registry maintained by the Superintendent of State
Police." In re Registrant N.B., 222 N.J. 87, 89 (2015) (citing
N.J.S.A. 2C:7-2(a)(1), 4(d)).
The record shows defendant was fully compliant with the
registration requirements under Megan's Law as a sex offender,
N.J.S.A. 2C:7-2.
3
Defendant acknowledges he is an "excluded sex offender,"
which is defined as "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 [N.J.S.A.
2C:7-2], which involves a victim under 18 years of age."
N.J.S.A. 2C:7-22.
2 A-5063-14T3
c. A person who knowingly hires, engages
or appoints an excluded sex offender to
serve in a youth serving organization in
violation of subsection a. of this section
is guilty of a crime of the fourth degree.
d. The provisions of this act shall not
apply to participation by an excluded sex
offender under 18 years of age in a youth
serving organization which provides
rehabilitative or other services to juvenile
sex offenders.
e. It shall not be a violation of
subsection a. of this section for an
excluded sex offender to serve in a youth
serving organization if the excluded sex
offender is under Parole Board supervision
and the Parole Board has given express
written permission for the excluded sex
offender to hold a position or otherwise
participate in that particular youth serving
organization.
The sole question for our determination is whether a youth
ministry associated with a church, where defendant is a
congregant volunteer, is a "youth serving organization," 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. For the
reasons set forth in this opinion, we conclude it is not and
affirm.
3 A-5063-14T3
The facts alleged as sustaining the charge are not
disputed. Defendant was a congregant of the Eternal Life
Christian Center, a non-profit religious institution registered
under Section 501(c)(3) of the Internal Revenue Code. As
required by Megan's Law, defendant notified the pastors and
elders of his prior sexual assault convictions.
Defendant participated in church activities placing him in
contact with parishioners under the age of eighteen. As a
volunteer, defendant served as a youth leader, counselor,
mentor, and chaperone for children from ages twelve to seventeen
for the No Limits Youth Ministry. More specifically, defendant
supervised and mentored children at various scheduled events of
the No Limits Youth Ministry, such as outings, movie nights,
concerts, youth group meetings, and day camp.
Defendant moved to dismiss the indictment, arguing the No
Limits Youth Ministry was not a youth serving organization.
Judge Julie Marino agreed and dismissed the indictment for the
reasons stated in a written opinion accompanying the order.
On appeal, the State argues:
THE TRIAL COURT IMPROPERLY DISMISSED
INDICTMENT NO. 14-09-00629-I AS THE NO
LIMITS YOUTH MINISTRY IS A YOUTH SERVING
ORGANIZATION AS SET FORTH IN N.J.S.A.
2C:7-22.
4 A-5063-14T3
A question regarding the interpretation of a statute is a
legal one. State v. Revie, 220 N.J. 126, 132 (2014). "As such,
we review the dispute de novo, unconstrained by deference to the
decisions of the trial court . . . ." State v. Grate, 220 N.J.
317, 329 (2015).
When we interpret a statute, "[t]he overriding goal is to
determine as best we can the intent of the Legislature, and to
give effect to that intent." State v. Robinson, 217 N.J. 594,
604 (2014) (quoting State v. Hudson, 209 N.J. 513, 529 (2012)).
First, we consider the plain language of the statute.
In the construction of the laws and statutes
of this state, both civil and criminal,
words and phrases shall be read and
construed with their context, and shall,
unless inconsistent with the manifest intent
of the [L]egislature or unless another or
different meaning is expressly indicated, be
given their generally accepted meaning,
according to the approved usage of the
language.
[N.J.S.A. 1:1-1.]
We apply common sense in divining the meaning of the
Legislature's chosen language, drawing inferences based on the
statute's structure and composition. State v. Hupka, 203 N.J.
222, 232 (2010); State v. Gandhi, 201 N.J. 161, 180 (2010)
(quoting State v. Thomas, 166 N.J. 560, 567 (2001))
("Ordinarily, when a statute's language appears clear, 'we need
5 A-5063-14T3
delve no deeper than the act's literal terms to divine the
Legislature's intent.'").
Second, "[i]f a plain-language reading of the statute
'leads to a clear and unambiguous result, then our interpretive
process is over.'" Hupka, supra, 203 N.J. at 232 (quoting
Richardson v. Bd. of Trs., Police & Firemen's Ret. Sys., 192
N.J. 189, 195-96 (2007)). On the other hand, if we find an
ambiguity in the statutory language, we then turn to extrinsic
evidence. Ibid. When such evidence is needed, we look to a
variety of sources, "such as the statute's purpose, legislative
history, and statutory context to ascertain the legislature's
intent." Thomas, supra, 166 N.J. at 567 (quoting Aponte-Correa
v. Allstate Ins. Co., 162 N.J. 318, 323 (2000)). See also State
v. Crawley, 187 N.J. 440, 453 (resorting to legislative history
and related statutes as extrinsic aids to interpret statute),
cert. denied, 549 U.S. 1078, 127 S. Ct. 740, 166 L. Ed. 2d 563
(2006).
Third, where "the Legislature has clearly defined a term,
the courts are bound by that definition." Febbi v. Bd. of
Review, 35 N.J. 601, 606 (1961). We consider "not only the
particular statute in question, but also the entire legislative
scheme of which it is a part." Kimmelman v. Henkels & McCoy,
Inc., 108 N.J. 123, 129 (1987).
6 A-5063-14T3
Further,
[w]here 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:1-2(a) and
the "special purposes" of the provision at
issue. N.J.S.A. 2C:1-2(a), (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:1-2(a)(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).
[State v. J.B.W., 434 N.J. Super. 550, 554
(App. Div. 2014).]
This court examined a similar question in State v. J.B.W.
We examined whether a registered offender violated the statute
when participating in a high school marching band pit crew,
whose members "work[ed] in cooperation with a public school and
its staff to promote a school program." Id. at 553. We
concluded the pit crew was a youth serving organization, as the
"the definition reaches all organizations except schools" and
the statute does not suggest "an exemption for 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." Id.
at 555, 557. We observed:
If the Legislature intended to exclude from
the reach of this crime associations that
7 A-5063-14T3
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.
[Id. at 555-56.]
Therefore, an organization for youth, affiliated with, but
distinct from a school, met the statutory definition of youth
serving organization. Id. at 555.
Undergoing a similar analysis of the facts in this matter,
Judge Marino found the No Limits Youth Ministry was not
independent from the church, but merely a subset of the church.
Unlike the pit crew in J.B.W., the No Limits Youth Ministry does
not have a board of directors or by-laws. Nor does it have
registration or dues requirements for membership. Leaders for
the ministry encompass volunteer congregants of the church, the
pastor and church elders. Further, the church's structure
identifies the youth department "as a branch of the activities
of the assembly"; there is no entity or association distinct and
separate from the church. Finally, defendant complied with his
notice obligations, by informing the church's pastor of his
status.
8 A-5063-14T3
To reach the outcome suggested by the State that the broad
definition of a youth serving organization under N.J.S.A. 2C:7-
22 encompasses the No Limits Youth Ministry requires this court
to redraft the plain, unambiguous language of the statute. The
statutory definition lists various types of activities sought to
be included within the definition, but makes no reference to
churches or religious organizations.4 Further, the facts as
found by Judge Marino, supported by the evidence of record, show
the No Limits Youth Ministry is not an independent organization,
but inescapably a function of the church, administered by the
church's pastor and elders.
Consequently, we must reject the State's statutory
interpretation that the church's youth ministry is included
within the statutory definition of youth serving organization.
"[A] court may not rewrite a statute or add language that the
Legislature omitted." State v. Munafo, 222 N.J. 480, 488
(2015). See also Cashin v. Bello, 223 N.J. 328, 335 (2015)
(quoting O'Connell v. State, 171 N.J. 484, 488 (2002)) ("A court
'may neither rewrite a plainly-written enactment of the
4
The State's reliance on the comment youth serving
organizations "reach[] all organizations except schools,"
J.B.W., supra, 434 N.J. Super. at 555, as referencing inclusion
of religious organizations and churches ignores the context of
the statement as well as the fact religious organizations were
not considered by the court.
9 A-5063-14T3
Legislature nor presume that the Legislature intended something
other than that expressed by way of the plain language.'"). It
is axiomatic "that the wisdom, good sense, policy and prudence
(or otherwise) of a statute are matters within the province of
the Legislature and not of the Court." In re Expungement
Petition of J.S., 223 N.J. 54, 78 (2015) (quoting State v.
Gerald, 113 N.J. 40, 84-85 (1988)).
This result would not change were we to conclude the
definition of a youth serving organization is sufficiently
ambiguous to warrant reliance on extrinsic aids. The
Legislature sought to specifically reference religious
organizations in other Megan's Law requirements, but omits such
a reference in N.J.S.A. 2C:7-22. For example, N.J.S.A. 2C:7-8,
which mandates notification for various sex offenders, provides:
c. The regulations shall provide for three
levels of notification depending upon the
risk of re-offense by the offender as
follows:
(1) If risk of re-offense is low
. . . .
(2) If risk of re-offense is moderate,
organizations in the community including
schools, religious and youth organizations
shall be notified in accordance with the
Attorney General's guidelines . . . .
[N.J.S.A. 2C:7-8(c) (emphasis added).]
10 A-5063-14T3
The distinction made in these two provisions of Megan's
Law's statutory scheme and within N.J.S.A. 2C:7-8(c) itself
reflect the Legislature's intentional demarcation, separating
religious ministries from youth serving organizations. "[The
Legislature] is presumed to [be] 'thoroughly conversant with its
own [prior] legislation and the judicial construction of its
statutes.'" State v. Goodwin, 224 N.J. 102, 113 (2016)
(alterations in original) (quoting J.S., supra, 223 N.J. at 75).
Therefore, the omission of religious organizations and churches
from the definition of a youth serving organization was
intentional and not inadvertent. GE Solid State v. Dir., Div.
of Taxation, 132 N.J. 298, 308 (1993) ("Under the established
canons of statutory construction, where the Legislature has
carefully employed a term in one place and excluded it in
another, it should not be implied where excluded.").
Importantly, N.J.S.A. 2C:7-8 was enacted on October 31,
1994, L. 1994, c. 128, § 3, well-before N.J.S.A. 2C:7-22 and -23
were made effective on October 19, 2009, L. 2009, c. 139, § 1-2.
The timing of the enactments reinforces the deliberate exclusion
of religious organizations when defining youth serving
organizations. See State v. Drury, 190 N.J. 197, 214-15 (2007)
(finding the Legislature's failure to add language used in
previous provisions to subsequent enactments was intentional).
11 A-5063-14T3
Understanding a court's specific obligation to "balance its
fundamental duty not to substitute its views for those expressed
by the Legislature in the language the Legislature selected in
enacting a statute," State v. Friedman, 209 N.J. 102, 118
(2012), we guard against a suggestion to render an opinion on
whether the law as written represents sound social policy, as
that role is reserved to our elected representatives.5 If the
Legislature determines the omission was inadvertent and desires
to include religious institutions in the definition of a youth
serving organization, it must act to amend N.J.S.A. 2C:7-22.
J.S., supra, 223 N.J. at 59, 78. See also DiNapoli v. Bd. of
Educ. of Twp. of Verona, 434 N.J. Super. 233, 238 (App. Div.)
5
Notably, N.J.S.A. 2C:7-23 precludes a registrant from
participating in youth serving organizations without regard to
his or her perceived risk of re-offense. Also, other community
notification provisions of Megan's Law exist to alert religious
organizations of an individual's sex offender status. See
N.J.S.A. 2C:7-8(c) (establishing "three levels of notification
depending on the risk of re-offense by the offender"). We
observe Megan's Law does not require religious organizations be
notified where an offender is perceived to have a low risk of
re-offense. N.J.S.A. 2C:7-8(c)(1) (requiring notification only
to law enforcement agencies where risk of re-offense is low).
However, as to offenders posing a moderate or high rise of re-
offense, religious and youth organizations would receive
notification. N.J.S.A. 2C:7-8(c)(2), (3). We must assume the
Legislature considered notification requirements for persons at
moderate or high risk for re-offense sufficient to effectuate
the statutory purpose "to protect the community from the dangers
of recidivism by sexual offenders." State ex rel. J.P.F., 368
N.J. Super. 24, 35 (App. Div.), certif. denied, 180 N.J. 453
(2004).
12 A-5063-14T3
("Courts should be extremely reluctant to add terms to a
statute, lest they usurp the Legislature's authority."), certif.
denied, 217 N.J. 589 (2014).
Defendant also notes the youth ministry in his church is
defined as part of the church's functions, a fact found by the
judge to be supported by the church's by-laws, which provide the
youth department is a "part of the church," falling "under the
general supervision of the Senior Pastor and Executive Board and
shall be conducted as a branch of the activities of the
assembly." Accordingly, defendant's volunteer activities were
for and part of the church, an organization not mentioned within
N.J.S.A. 2C:7-22.6
We are mindful of a grand jury's independence and our
"expressed . . . reluctance to intervene in the indictment
6
We observe the Legislature's exclusion of churches and
religious organizations from the statutory definition may have
been intended to avoid any suggestion the statute violated the
Free Exercise Clause of the Constitution, which states "Congress
shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof[.]" U.S. Const. amend. I.
See also N.J. Const. art. I, ¶ 3 ("No person shall be deprived
of the inestimable privilege of worshipping Almighty God in a
manner agreeable to the dictates of his own conscience; nor
under any pretense whatever be compelled to attend any place of
worship contrary to his faith and judgment[.]").
Understanding the Legislature is presumed to act in a
constitutional manner, State v. Fortin, 198 N.J. 619, 631
(2009), the omission, in part, may have been designed to avoid a
possible unconstitutional infringement upon an individual's
right to freely attend religious services or activities.
13 A-5063-14T3
process." State v. Hogan, 144 N.J. 216, 228 (1996).
Nevertheless, "[t]he absence of any evidence to support the
charge[] would render the indictment 'palpably defective' and
subject to dismissal." State v. Saavedra, 222 N.J. 39, 56
(2015) (quoting State v. Morrison, 188 N.J. 2, 12 (2006)). Our
review, in light of the record and applicable law, reveals no
basis to disturb Judge Marino's conclusion. The indictment must
be dismissed because the State failed to present prima facie
evidence establishing the elements of the crime charged.
Morrison, supra, 188 N.J. at 12-13.
Affirmed.
14 A-5063-14T3