State v. Peter Triestman, ? N.J. Super. ?, 2010 N.J. Super. LEXIS 188 (September 10, 2010) – Order denying dismissal of indictment reversed, case remanded.
“[D]efendant argues that the trial judge abused his discretion in failing to dismiss the indictment because the State failed to present evidence that defendant used ‘physical force’ in addition to the force required to establish ‘sexual contact”…. Defendant contends that there is no evidence that he used any force beyond the alleged touching of N.P.’s breast, and the indictment must be dismissed as a result. Defendant further argues that the phrase ‘use of physical force’ in N.J.S.A. 2C:14-2c(1) does not equate to ‘lack of consent,’ and if it did, anomalous results would occur in applying such an interpretation to cases involving the other subsections of N.J.S.A. 2C:14-2c…. We conclude that the judge did not abuse his discretion in denying defendant’s motion to dismiss the indictment based on his entirely correct interpretation and application of [State v. ]M.T.S.[, 129 N.J. 422 (1992)]. Indeed, M.T.S. is controlling here. The Supreme Court specifically stated that sexual contact is criminal when ‘physical force’ demonstrates that it is unauthorized and offensive, and any unauthorized sexual contact is a crime under the law of criminal sexual contact. M.T.S., supra, 129 N.J. at 443. Contrary to defendant’s argument here, the Court rejected the concept that ‘physical force’ in addition to the sexual contact is required for sexual contact to be criminal. Id. at 443-44…. Defendant also contends that N.J.S.A. 2C:14-3b, the statute governing the crime of fourth-degree criminal sexual contact, must be construed to harmonize with the statutes governing harassment, N.J.S.A. 2C:33-4, and simple assault, N.J.S.A. 2C:12-1. In his brief, defendant discusses and analyzes N.J.S.A. 2C:14-3b in the specific context of N.J.S.A. 2C:33-4b in an attempt to show that disharmony between the statutes would exist if N.J.S.A. 2C:14-3b is not found to require physical force in addition to sexual contact…. These crimes do not constitute a hierarchy…. We find that disharmony among these statutes is not caused by following M.T.S. when considering the evidence necessary to make out a prima facie case of criminal sexual contact. Even if that conclusion is in error, here some additional physical force can be inferred from defendant’s act of first placing his hand on the victim’s shoulder before he put his other hand on her breast and attempted to kiss her. He is not entitled to have the indictment dismissed on this ground.”