STATE OF NEW JERSEY VS. JOSHUA NICHOLSON
A-0299-15T4
Defendant used his cell phone to film up the unsuspecting victim's skirt. The trial court denied defendant's motion to dismiss the indictment and ruled this "upskirting" incident was a third-degree invasion of privacy under N.J.S.A. 2C:14-9(b) (2004), now renumbered N.J.S.A. 2C:14-9(b)(1). Defendant claims the victim's intimate parts were not "exposed" as required by N.J.S.A. 2C:14-9(b) (2004) because the victim was wearing pantyhose. The Appellate Division holds that "exposed" means "open to view" and "visible" and that defendant violated N.J.S.A. 2C:14-9(b) (2004) because the victim's inner thighs and buttocks were open to view and visible through her sheer pantyhose. The Appellate Division also holds the meaning of "exposed" in N.J.S.A. 2C:14-9(b) (2004) was not altered by the Legislature's later enactment of a broader fourth-degree offense of filming "undergarment-clad intimate parts," N.J.S.A. 2C:14-9(b)(2), which need not be open to view or visible.
