The New Jersey Appellate Division affirmed an “upskirting” conviction

Defendant challenges the trial court’s denial of his motion to dismiss his indictment and of his motion for reconsideration. He claims the victim’s intimate parts were not “exposed” under N.J.S.A. 2C:14-9(b) (2004) because the victim was wearing pantyhose. We hold 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. Defendant also argues N.J.S.A. 2C:14-9(b) (2004) did not apply because the Legislature in 2016 enacted a fourth-degree offense of filming “undergarment-clad intimate parts,” N.J.S.A. 2C:14-9(b)(2). We hold the broader 2016 enactment did not alter the meaning of the 2004 statute. Finally, we reject defendant’s challenge to the denial of his application for admission into pre-trial intervention (PTI). Accordingly, we affirm.

The story

The grand jury heard the following testimony. On October 18, 2013, a surveillance camera showed defendant looking around nervously while walking in the aisles of a supermarket, which attracted the attention of a loss prevention officer. The officer observed defendant take out his cell phone and place it under the female victim’s skirt. The officer then observed the cell phone’s flash illuminate under the victim’s skirt. Once defendant and the victim separated, defendant followed her into a different aisle and again pulled out his cell phone and placed it under the victim’s skirt. The officer again saw the flash illuminate. As defendant was leaving the store, the officer confronted him and the police were called.

The trial court went to the video

In its opinion, the trial court found the video footage revealed the victim’s body under her skirt, including her inner thighs, buttocks, and groin. It did not appear the victim was
wearing underwear covering her buttocks, but she was wearing pantyhose of varying degrees of sheerness. Specifically, the portion of pantyhose on her inner thighs was “extremely sheer,” the portion on her buttocks was “slightly darker, but still sheer,” and the groin was covered by “an opaque gusset.”  

The trial court found “the video shows a clear visual of the inner thighs and buttocks” which were “clearly depicted” due to the “sheerness of the pantyhose.” The court concluded “there was exposure of the inner thighs and buttocks as the pantyhose was essentially see through in its sheerness.” Therefore, the court ruled that “Defendant has recorded, without license or privilege to do so, [the] ‘image of another person whose intimate parts are exposed, without consent and under circumstance in which a reasonable person would not expect to be observed’ [in violation of law].