STATE OF NEW JERSEY VS. JOSHUA NICHOLSON (13-12-0773, SOMERSET COUNTY AND STATEWIDE), 169 A.3d 990

In October 2013 defendant Joshua Nicholson used his cell phone to record two videos by placing the phone under a stranger’s skirt in a supermarket; a loss-prevention officer observed and recorded his conduct and the phone’s flash illuminating under the victim’s skirt.
Defendant admitted taking the videos for his sexual gratification and was indicted on two counts of third-degree invasion of privacy under N.J.S.A. 2C:14-9(b) (2004).
The trial court viewed the videos and found the victim’s inner thighs and buttocks were visible through sheer pantyhose (groin covered by an opaque gusset) and denied defendant’s motions to dismiss and for reconsideration.
Defendant conditionally pleaded guilty reserving his right to appeal the denial of the motion to dismiss and was sentenced to probation, a fine, psychological evaluation/treatment, and no contact with the victim.
Defendant argued (1) the victim’s intimate parts were not “exposed” because she wore pantyhose, (2) subsequent legislative action (and a 2016 amendment) shows the 2004 statute did not cover his conduct, and (3) the prosecutor abused discretion by denying PTI.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Meaning of "exposed" in N.J.S.A. 2C:14-9(b) (2004)	State: "Exposed" means open to view/visible; videos show inner thighs and buttocks visible through sheer pantyhose.	Nicholson: Intimate parts were not exposed because the victim was clothed (pantyhose).	Court: "Exposed" = open to view/visible; conviction sustained because inner thighs and buttocks were visible through sheer pantyhose.
Effect of later legislative activity (failed 216th Leg. bills and 2016 amendment)	State: 2016 amendment expanded, but did not alter the original meaning; it added a separate offense for undergarment-clad intimate parts not visible.	Nicholson: Subsequent bills/2016 enactment show the 2004 statute did not cover upskirting of clothed persons.	Court: Unsuccessful bills irrelevant; 2016 amendment broadened coverage but did not change the original third-degree offense—visible intimate parts remained punishable.
Prosecutor's denial of PTI	State: Prosecutor considered all factors (age, family, employment, lack of record) and appropriately weighed nature of offense, victim impact, and defendant's sexual deviance/recidivism.	Nicholson: Prosecutor abused discretion and failed to consider favorable factors.	Court: No patent and gross abuse of discretion; denial of PTI upheld.

State v. Feliciano, 224 N.J. 351 (indictment dismissal standard — prima facie evidence to grand jury)
State v. Revie, 220 N.J. 126 (de novo review of statutory construction)
State v. Gray, 206 N.J. Super. 517 (recording intimate parts can violate privacy statute)
Commonwealth v. Robertson, 5 N.E.3d 522 (Mass. SJC decision interpreting a statute requiring "nude or partially nude" subjects)
State v. Negran, 178 N.J. 73 (standard of review and deference for PTI/ prosecutorial decisions)