(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Argued January 16, 2007 -- Decided June 4 , 2007
LONG, J., writing for a unanimous Court.
In this appeal, the Supreme Court must determine whether a threat by a person against a witness who saw him commit a crime, made to avoid official action against him, is an attempt to silence a witness while “believing that an official proceeding or investigation is pending or about to instituted,” as that language is used in N.J.S.A. 2C:28-5(a).
Defendant, D.A., was charged with committing five crimes: sexual assault, criminal sexual contact, endangering the welfare of a child, child abuse, and witness tampering. The issue in this appeal relates to the tampering charge.
The basic facts are not disputed. D.A. lived with his family in the same motel as his thirteen-year-old victim, Tracie (a false name used to protect her privacy). Tracie’s best friend, Jessica (also a false name), often stayed in Tracie’s room. Jessica witnessed D.A.’s regular sexual advances toward Tracie, including many French-kissing incidents. One day, when Tracie was not in the room, D.A. told Jessica that “if she said anything to anybody,” he would “take full custody” of Tracie, and Jessica would never see her again. Jessica believed D.A. made a threat to keep her silent, but she did not think he could carry it out. At the time, Jessica did not intend to report what she saw to authorities, although she told her mother.
At trial, D.A. moved for a judgment of acquittal on the witness tampering charge. D.A. argued that from the evidence presented, the jury could not conclude that he believed an official proceeding or investigation was about to begin when he threatened Jessica; and thus he could not be found guilty of witness tampering. The trial court denied the motion. After the trial court dismissed the child abuse count for other reasons, the jury found D.A. guilty of the four remaining charges. After merging certain counts, the court sentenced D.A. to five years in prison for witness tampering and to a consecutive nine-year jail term for sexual assault.
D.A. appealed. The Appellate Division rejected D.A.’s claims, concluding that it was as much of a crime to try to prevent a witness from reporting information to authorities that could trigger an investigation, as it was to try to prevent that witness from talking to authorities who already had information that would justify starting an investigation.
The Supreme Court granted D.A.’s petition for certification solely on the tampering issue.
188 N.J. 220 (2006).
HELD: The offense of tampering in violation of N.J.S.A. 2C:28-5(a) is committed only
when a person acts believing that an investigation or proceeding is underway or
is about to begin. Because there was no evidence that D.A. held such
a belief, his conviction of tampering must be reversed.
1. On a motion for judgment of acquittal, the test is whether, viewing
all of the State’s evidence and reasonable inferences in the State’s favor, a
jury could find beyond a reasonable doubt that the defendant committed the crime
charged. Whether the court properly denied D.A.’s motion depends on the meaning of
the language used in the statute. (p. 5)
2. When interpreting a statute, the goal is to give effect to the
Legislature’s intent. The first place to look is the language. If that is
not clear and there is more than one plausible interpretation, a court may
look to other evidence to clarify the meaning. If the meaning is still
unclear, the doctrine of strict construction applies to interpret a criminal statute. That
doctrine provides that any reasonable doubt is resolved against the State. (pp. 5-7)
3. N.J.S.A. 2C:28-5 provides, in part, that a person commits the crime of
tampering with a witness if, “believing that an official proceeding or investigation is
pending or about to be instituted,” he or she attempts to prevent someone
from giving information to authorities. The statute suggests a situation where a person
believes that some sort of official action has occurred or is about to
begin. The State argues that every person who commits a crime and attempts
to silence a witness does so because he believes that an official proceeding
could be brought against him. D.A. argues that the statute is intended to
address intentional interference with an official action that a person believes already exists
or is about to occur, and that the statute does not make it
a crime to avoid a possible future action by trying to silence a
witness. Both readings are possible, so the Court looks beyond the words of
the statute for insight into its meaning. (pp. 8-10)
4. In the Code of Criminal Justice, the witness tampering offense is grouped
with offenses such as perjury, false swearing, and making unsworn false statements to
authorities. The common element in those crimes is wrongful interference with ongoing proceedings.
Because the tampering statue was based on the Model Penal Code, the Court
also looks to the MPC commentary, which explains that the prosecution must establish
that the defendant held the “specified belief” that a proceeding or investigation was
underway or was about to begin when he acted. (pp. 10-12)
5. Another statute, N.J.S.A. 2C:29-3(b), makes it a crime for a person to
hinder his own apprehension or prosecution, such as by preventing a witness, by
intimidation or deception, from providing information which might help authorities discover him or
file a criminal charge against him. The hindering statute focuses on avoiding discovery
or official action by attempting to prevent a witness from reporting a crime
to police. It does not refer to whether the person believes official action
exists or is about to start. On the other hand, the tampering statute
focuses on wrongful interference with an official action that the person believes has
begun or is about to begin. (pp. 12-15)
6. In sum, the offense of tampering under N.J.S.A. 2C:28-5(a) is committed only
when the person believes that a proceeding or investigation is pending or about
to begin. How that requirement plays out in each case will depend on
the facts. Because “belief” is a state of mind, it will be unusual
to have direct proof, like a statement by defendant that he believed official
action was pending at the time of a tampering offense. Usually, circumstantial proof
will be necessary, such as evidence that defendant was aware of facts that
would lead a reasonable person to believe that an official action was pending
or about to begin. (pp. 16-17)
7. In this case, D.A.’s conduct, intimidating Jessica to keep her from reporting
him to police, violated the hindering statute. However, it did not violate the
tampering statute -- the crime he was convicted of committing -- because there
was no evidence before the jury to suggest that D.A. was aware of
any facts that would lead him to believe that an official proceeding was
pending or about to begin. Thus, D.A.’s conviction for tampering must be reversed.
(pp. 17-18)
The judgment of the Appellate Division is REVERSED, and the matter is REMANDED
to the Law Division for appropriate amendment of the judgment of conviction.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO and HOENS join in
JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
A-
23 September Term 2006
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.A.,
Defendant-Appellant.
Argued January 16, 2007 – Decided June 4, 2007
On certification to the Superior Court, Appellate Division.
Amira Rahman Scurato, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney; Ms. Scurato and Steven M. Gilson, Designated Counsel,
on the briefs).
Daniel I. Bornstein, Deputy Attorney General, argued the cause for respondent (Stuart Rabner,
Attorney General of New Jersey, attorney).
JUSTICE LONG delivered the opinion of the Court.
This case centers on the meaning of the language in the witness tampering
statute, N.J.S.A. 2C:28-5(a), that criminalizes a defendant’s knowing attempts to silence a witness
while “believing that an official proceeding or investigation is pending or about to
be instituted.” In particular, we are asked whether a threat by a defendant
against a person who has observed him in a crime, with the purpose
to forestall official action, will satisfy the above-cited language.
On a motion for a judgment of acquittal, the trial judge answered that
question in the affirmative. Thereafter, defendant was convicted of tampering and the Appellate
Division affirmed. We now reverse. Because there can be no tampering, within the
meaning of N.J.S.A. 2C:28-5(a), unless the defendant acted, believing that an official proceeding
or investigation was pending or about to be instituted, and because there was
no evidence that this defendant held such a belief, his conviction cannot stand.
Defendant, D.A., was charged by an Atlantic County Grand Jury with five separate offenses: (1) second-degree sexual assault, N.J.S.A. 2C:14-2(c); (2) fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b); (3) third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); (4) fourth-degree child abuse, N.J.S.A. 9:6-3; and (5) third-degree witness tampering, N.J.S.A. 2C:28-5(a). At trial, defendant moved for a judgment of acquittal on the tampering charge on the ground that his conduct did not violate the statute because, at the time he acted, he did not believe “an official proceeding was about to be instituted.”
The basic facts surrounding the tampering charge are not in dispute. Defendant lived with his family in the same motel as his victim, Tracie, See footnote 1 who was thirteen years old. Tracie’s closest friend, Jessica, often stayed over at Tracie’s and observed defendant’s regular sexual advances toward Tracie, including multiple instances of French-kissing.
One day, when defendant and Jessica were in Tracie’s room alone, defendant told Jessica that “if she [said] anything to anybody, [he would] take full custody of Tracie and [Jessica would] never see her again.” Jessica understood defendant to be making a threat to keep her silent, but did not believe he could carry it out. Also, at the time of the threat, there was no evidence to indicate to defendant that Jessica had any intention of reporting what she saw to the authorities. She did, however, tell her mother about defendant’s conduct when she returned home. Defendant’s threat to Jessica is the focal point of this appeal.
The trial judge denied defendant’s motion for judgment of acquittal on the tampering charge. The judge dismissed the child abuse count, and a jury found defendant guilty of the four remaining charges. After appropriate mergers, defendant was sentenced to a custodial term of five years for witness tampering and to a consecutive term of nine years with four and one-half years of parole ineligibility on the second-degree sexual assault count.
Defendant appealed, challenging among other things, denial of the motion to dismiss the tampering count. The Appellate Division rejected that claim, concluding “[i]t is no less an offense to seek to prevent a witness from conveying to authorities information that would trigger an investigation than to seek to prevent that witness from communicating with authorities who have received information from other sources that would justify the commencement of an investigation.”
We granted certification solely on the tampering issue, 188 N.J. 220 (2006).
Defendant argues that from the evidence presented, the jury could not conclude that he “believ[ed] that an official proceeding or investigation [was] pending or about to be instituted” when he threatened Jessica; that without such a conclusion, the statutory elements could not be satisfied; and that even if ambiguous, the doctrine of lenity requires that the statute be read in his favor.
The State counters that the tampering statute clearly encompasses defendant’s conduct; that to hold otherwise would allow defendant’s actions to go unpunished; and that the doctrine of lenity cannot be permitted to thwart the obvious intent underlying a law.
On a motion for judgment of acquittal, the governing test is: whether the evidence viewed in its entirety, and giving the State the benefit of all of its favorable testimony and all of the favorable inferences which can reasonably be drawn therefrom, is such that a jury could properly find beyond a reasonable doubt that the defendant was guilty of the crime charged. State v. Reyes, 50 N.J. 454, 458-59 (1967). See R. 3:18-1; see also Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788, 61 L. Ed. 2d 560, 573 (1979) (explaining that “the critical inquiry on review of the sufficiency of the evidence to support a criminal conviction . . . [is] whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt”). The propriety of the denial of the motion for judgment of acquittal in this case depends on the meaning to be ascribed to the tampering statute.
In interpreting a statute, the overriding goal is to give effect to the Legislature’s intent. DiProspero v. Penn, 183 N.J. 477, 492 (2005). “[T]he best indicator of that intent is the statutory language,” thus it is the first place to look. Ibid. (citation omitted). If the plain language leads to a clear and unambiguous result, then the interpretive process should end, without resort to extrinsic sources. Ibid. (citations omitted).
We only turn to extrinsic evidence in limited circumstances, such as when “there is ambiguity in the statutory language that leads to more than one plausible interpretation.” Ibid. In addition, we “may also resort to extrinsic evidence if a plain reading of the statute leads to an absurd result or if the overall statutory scheme is at odds with the plain language.” Ibid.
An added canon is that penal statutes are to be strictly construed. State v. Valentin, 105 N.J. 14, 17 (1987) (citations omitted). The strict construction doctrine, and its corollary, the doctrine of lenity, “means that words are given their ordinary meaning and that any reasonable doubt . . . is decided in favor of anyone subjected to a criminal statute.” 3 Sutherland Statutory Construction § 59.3 (6th ed. 2001); see also State v. Alexander, 136 N.J. 563, 573 (1994) (noting that ambiguity in criminal statute “cannot inure to the benefit of the State”).
Simply because a statute can be interpreted in more than one way does not automatically implicate the strict construction doctrine. For example, it “does not prevent a court from reading the statute in relation to the mischief and evil sought to be suppressed or prevent a court from giving effect to the terms of the statute in accordance with their fair and natural acceptation.” State v. Meinken, 10 N.J. 348, 352 (1952). A court may look to extrinsic evidence to clarify an ambiguity and divine legislative intent in the context of a penal statute. See Valentin, supra, 105 N.J. at 19 (looking beyond plain language to find legislative intent in context of N.J.S.A. 2C:29-3(b)(4)); see also State v. Sein, 124 N.J. 209, 214-18 (1991) (investigating legislative history and Code commentaries to determine whether snatching purse constitutes robbery under N.J.S.A. 2C:15-1(a)(1)).
Only if that search is fruitless, and the ambiguity remains, does the strict construction doctrine apply. See Sutherland, Statutory Construction, § 59.3 (“But the possibility of articulating a narrower construction does not by itself make the rule of lenity applicable. In essence, the rule of lenity should only be applied if after reviewing all sources of legislative intent the statute still remains ambiguous.”). Those are the legal principles that inform our analysis.
In 1978, the Legislature enacted the new Code of Criminal Justice based on the Final Report of the Criminal Law Revision Commission. Senate Judiciary Committee, Statement to Senate Bill No. 738, at 1 (May 15, 1978). That revision was intended to replace the “hopelessly antiquated” statutes previously found in Title 2A, defining crimes and disorderly persons offenses. New Jersey Criminal Law Revision Commission, The Final Report; Volume I: Report and Penal Code, § 738, at vi (1971). To guarantee that law enforcement resources would be used as effectively as possible, the Code sought to introduce precision into the statutory descriptions of offenses so that “persons appropriately subject to a criminal sanction will not escape because of a poorly defined crime.” Id. at vii-viii. It was against that backdrop that N.J.S.A. 2C:28-5 was incorporated into the Code.
In its present form, See footnote 2 N.J.S.A. 2C:28-5 provides that:
Tampering with witnesses and informants; retaliation against them
a. Tampering. A person commits an offense if, believing that an official proceeding
or investigation is pending or about to be instituted, he knowingly attempts to
induce or otherwise cause a witness or informant to:
Testify or inform falsely;
(2) Withhold any testimony, information, document or thing;
(3) Elude legal process summoning him to testify or supply evidence; or
(4) Absent himself from any proceeding or investigation to which he has been
legally summoned.
The offense is a crime of the second degree if the actor employs
force or threat of force. Otherwise it is a crime of the third
degree. Privileged communications may not be used as evidence in any prosecution for
violations of paragraph (2), (3) or (4).
b. Retaliation against witness or informant. A
person commits a crime of the fourth degree if he harms another by
an unlawful act with purpose to retaliate for or on account of the
service of another as a witness or informant.
c. Witness or informant taking bribe. A person commits a crime of the
third degree if he solicits, accepts or agrees to accept any benefit in
consideration of his doing any of the things specified in subsection a.(1) through
(4) of this section.
[N.J.S.A. 2C:28-5 (emphasis added).]
Facially, the statute contemplates a situation in which a defendant believes that some
sort of official action has occurred or is contemplated. That is the bone
of contention between the parties.
See footnote 3
The State argues that every defendant who commits
a crime and attempts to silence a witness does so because he believes
that an official proceeding could otherwise be brought against him, and thus that
action is sufficient to satisfy the statute.
Defendant counters that the evil the statute addresses is quite different -- intentional
interference with an official action that defendant believes is ongoing or is about
to occur. According to defendant, the tampering statute does not criminalize mere avoidance
of a possible future action by securing a person’s silence.
Both readings of the statute are plausible. Indeed, the Act prohibits causing an
“informant” to withhold “information,” words that align with the State’s view. Also interdicted
are causing a “witness” to “testify” falsely, to withhold “testimony,” to evade “legal
process,” and to absent oneself from a “proceeding” to which he or she
has been “summoned” -- words that together support defendant’s view that the real
focus of the Act is interference with what defendant believes is an already
existing or soon-to-be existing official action. We therefore look beyond the words of
the Act for insight into its meaning.
First, we note its placement in the Code. N.J.S.A. 2C:28-5 is included under
Chapter 28, which is titled “Perjury and other Falsification in Official Matters.” (emphasis
added). The kinds of offenses with which it is grouped also shed light
insofar as they are of a piece. They include, among others, Perjury, N.J.S.A.
2C:28-1, False Swearing, N.J.S.A. 2C:28-2, and Unsworn Falsification to Authorities, N.J.S.A. 2C:28-3. The
unifying element of those crimes is the wrongful interference with ongoing proceedings of
the justice system.
Because N.J.S.A. 2C:28-5 was modeled after section 241.6 of the Model Penal Code
(MPC) (Tampering with Witnesses and Informants; Retaliation Against Them), we look, as well,
to the commentary to that MPC section, which declares that it was included
to “deter conduct that affects the integrity of the criminal justice system.” Model
Penal Code and Commentaries: Part II, § 241.6 (1980). The MPC further provides that
the tampering offense targets “attempts” to induce a “witness” or “informant” to subvert
the administration of justice but only if the defendant acts “believing that an
official proceeding or investigation is pending or about to be instituted.” Ibid. That
requirement is entwined with the ultimate harm of obstructing justice, yet is phrased
in such a way as to eliminate the need for a proceeding or
investigation actually to be pending or contemplated by the authorities. Thus,
the statute focuses on the individual actor’s culpability and not on external factors
that may be irrelevant to the actor’s aim of subverting the administration of
justice. . . . The prosecution must establish that the defendant held the
specified belief but need not prove that a proceeding or investigation was in
fact pending or about to be instituted. In assessing such belief, the word
“about” as it appears in this subsection should be construed more in the
sense of probability than of temporal relation.
[Ibid.]
Defendant argues that the requirement that he “hold a specified belief” that a
proceeding or investigation was in fact pending or about to be instituted is
dispositive of the meaning of the statute and points to the Model Charge
on N.J.S.A. 2C:28-5 as supportive of that view:
[T]he defendant must have believed that an official proceeding or investigation was pending
or about to be instituted. This requires that the defendant considered to be
true the fact that an official proceeding or investigation was pending; in other
words, that the defendant, in (his/her) mind, believed that an official proceeding or
investigation was pending.
[Model Jury Charges (Criminal), § 2C:28-5 Tampering with Witnesses [and Informants] (1982).]
The State counters that the “probability” language in the commentary undergirds its position
and that any other interpretation would allow witness interference to occur with impunity.
In fact, the hindering statute, N.J.S.A. 2C:29-3, operates to proscribe the exact conduct
at issue here. As initially enacted, that statute only prohibited hindering the apprehension,
investigation, prosecution, or conviction of another. In 1981, subsection (b) was added providing
in relevant part that:
b. A person commits an offense if, with purpose to hinder his own
detention, apprehension, investigation, prosecution, conviction or punishment for an offense or violation of
Title 39 of the New Jersey Statutes or a violation of chapter 33A
of Title 17 of the Revised Statutes, he:
(1) Suppresses, by way of concealment or destruction, any evidence of the crime
or tampers with a document or other source of information, regardless of its
admissibility in evidence, which might aid in his discovery or apprehension or in
the lodging of a charge against him; or
(2) Prevents or obstructs by means of force or intimidation anyone from performing
an act which might aid in his discovery or apprehension or in the
lodging of a charge against him; or
(3) Prevents or obstructs by means of force, intimidation or deception any witness
or informant from providing testimony or information, regardless of its admissibility, which might
aid in his discovery or apprehension or in the lodging of a charge
against him; or
(4) Gives false information to a law enforcement officer or a civil State
investigator assigned to the Office of the Insurance Fraud Prosecutor established by section
32 of P.L.1998, c.21.
The offense is a crime of the third degree if the conduct which
the actor knows has been charged or is liable to be charged against
him would constitute a crime of the second degree or greater. The offense
is a crime of the fourth degree if such conduct would constitute a
crime of the third degree. Otherwise it is a disorderly persons offense.
[L. 1981, c. 290, §29 (codified at N.J.S.A. 2C:29-3(b)) (emphasis added).]
Although N.J.S.A. 2C:29-3 was broadly modeled after MPC § 242.3 (Hindering Apprehension or Prosecution),
the MPC does not proscribe a defendant’s attempts to hinder his or her
own apprehension or prosecution but remains limited to third-party hindering. Thus, under the
MPC, tampering is the only statute interdicting attempts to secure a witness’s silence.
That is not so in New Jersey. When the Legislature amended N.J.S.A. 2C:29-3
in 1981 to prohibit an individual from hindering his own apprehension, it created
a specific law governing that conduct. Indeed, the press release issued at the
bill’s passage explains that the amendment “[e]stablishes a new crime for any person
who attempts to hinder his own apprehension, prosecution or conviction by concealing evidence,
intimidating witnesses, or by giving false information to a police officer.” Press Release,
Acting Governor Joseph P. Merlino, Senate Bill No. 1537 (Sept. 24, 1981) (emphasis
added).
Thus, though both the tampering statute, N.J.S.A. 2C:28-5, and the hindering statute, N.J.S.A.
2C:29-3, broadly proscribe the suppression of evidence, there is a fundamental difference between
them. N.J.S.A. 2C:29-3 prohibits such suppression at any point prior to a defendant
forming a belief that an official action has been or is about to
be instituted. Unlike N.J.S.A. 2C:28-5, N.J.S.A. 2C:29-3 is phrased in terms of avoiding
discovery, apprehension, or the lodging of a charge. For that reason, it is
also associated in the Code with escape, eluding, resisting, flight, and physical interference,
all of which constitute efforts by a defendant to stay out of the
official cross-hairs of law enforcement, without necessarily believing that official action exists or
is contemplated. On the contrary, N.J.S.A. 2C:28-5 addresses action taken after one is
already the focus of, or believes he may be the focus of, an
official proceeding.
That distinction is important. The conduct that hindering addresses is the wrongful avoidance
of an official action by attempting to prevent a witness from reporting a
crime to the police; the conduct that is the focus of tampering is
the wrongful interference with an official action that defendant believes has begun or
is about to begin.
The grading of those offenses reflects that tampering is considered a greater societal
threat than hindering. Indeed, all tampering offenses are at least third-degree offenses unless
committed with force, in which case they are second-degree offenses. N.J.S.A. 2C:28-5. Hindering
ranges from a disorderly persons offense to a third-degree offense, depending on the
degree of the offense the defendant seeks to avoid. N.J.S.A. 2C:29-3. That grading
reveals that a higher level of culpability attaches to interference with what defendant
believes are the already grinding wheels of the criminal justice system than to
a defendant’s effort to avoid becoming a target of law enforcement in the
first instance. In sum, we read the requirement in N.J.S.A. 2C:28-5(a) to mean
exactly what it says: that the proscribed offense is committed only when a
defendant acts believing an official proceeding has been or is about to be
instituted. How that requirement will play out in an individual case will depend
upon the facts. Because belief is a state of mind, it will not,
as a regular matter be subject to direct proof. Wilson v. Amerada Hess
Corp.,
168 N.J. 236, 254 (2001). Although there could be a case in
which a defendant actually expresses his belief in the pendency of official action
at the time of a tampering offense, it seems to us that such
a scenario would be unusual. Therefore, the proofs in a tampering case will
ordinarily be circumstantial. What will be necessary to establish the requisite state of
mind is evidence that defendant was aware of facts that would lead a
reasonable person to believe that an official action was pending or about to
be instituted. For example, if a defendant in a tampering case has been
arrested or has been served with a complaint or an indictment, he will
satisfy the requirement of a belief that an official proceeding is pending because
a reasonable person would hold that belief based on the facts. The same
is true if a defendant encourages a witness, who he knows has been
called to testify, to do so falsely, N.J.S.A. 2C:28-5(a)(1), or if he causes
that witness to elude the legal process of which he is aware, N.J.S.A.
2C:28-5(a)(3), or absents himself from a proceeding or investigation to which he has
been summoned, N.J.S.A. 2C:28-5(a)(4).
On the other end of the spectrum are cases in which the defendant
threatens a person at the very scene of his own misconduct to avoid
official involvement altogether. That conduct violates the hindering statute. N.J.S.A. 2C:29-3. The State’s
contrary interpretation -- that any effort to silence a witness, at any time,
is tampering -- writes out of the statute the critical language (believing that
an official proceeding or investigation is pending) and obliterates the legislatively-mandated distinction between
tampering and hindering.
We turn now to the present case. It is undisputed that defendant threatened Jessica after she observed his criminal act. Defendant told Jessica that, if she reported to anyone what she had seen he would take custody of Tracie, and Jessica would never see her again. That conduct by defendant plainly violated the provisions of the hindering statute insofar as it constituted intimidation of Jessica to keep her from reporting him. N.J.S.A. 2C:29-3(b)(3). However, it did not violate the tampering statute -- the crime with which defendant was charged and of which he was convicted -- because there was no evidence adduced before the jury to suggest that defendant was aware of any facts that would lead him to believe that an official proceeding was pending or about to be instituted. Therefore defendant’s conviction for tampering must be reversed and the sentence imposed on that count must be vacated.
The judgment of the Appellate Division is reversed, and the matter remanded to the Law Division for appropriate amendment of the judgment of conviction.
CHIEF JUSTICE ZAZZALI and JUSTICES LaVECCHIA, ALBIN, WALLACE, RIVERA-SOTO, and HOENS join in JUSTICE LONG’s opinion.
SUPREME COURT OF NEW JERSEY
NO. A-23 SEPTEMBER TERM 2006
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.A.,
Defendant-Appellant.
DECIDED June 4, 2007
Chief Justice Zazzali PRESIDING
OPINION BY Justice Long
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
CHECKLIST
Footnote: 1
In order to protect privacy concerns, the minors involved in this case are
referred to by
pseudonyms.
Footnote: 2
The statute has only undergone minor changes. In 1981, subsection (a) was
amended to make the offense “a crime of the second degree if the
actor employs force.” L. 1981, c. 290, § 27 (emphasis added). The provision was
again amended in 1991 to add the “threat of force” as a second-degree
trigger. L. 1991, c. 33, § 1..
Footnote: 3
Defendant also argues that he did not act “knowingly” because he was
not “practically certain” that a proceeding was pending or about to be instituted.
However, “knowingly” modifies the attempt and not the belief, thus rendering that argument
unavailing.