STATE v. TRIESTMAN

e above-quoted passage should have referenced "Section 2C:14-2c(1) through (4)", not "Section 2C:14-2c through (4)." Second, the prosecutor never indicated that she was charging the jury on N.J.S.A. 2C:14-2c at all; she merely informed the jury that she was charging them on "sexual assault." Thus, although the jury knew it had been charged on offenses under N.J.S.A. 2C:14-2, it had no idea which portion of that charge contained the circumstances that would establish criminal sexual contact under N.J.S.A. 2C:14-3.

The misleading effect of this charge was compounded by the passage of more than two months before the prosecutor presented this case. In the interim, the grand jury had considered a variety of sexual and other crimes. The average grand juror could not possibly be expected to recall and apply the elements of any crime, including criminal sexual contact, after such a hiatus. At the very least, the prosecutor on December 12, 2008, should have provided the jury with a written charge on the elements of criminal sexual contact, including relevant definitions and the pertinent portions of N.J.S.A. 2C:14-2c. As a result, the instructions given were so misleading that the indictment cannot stand. Ball, supra, 268 N.J.Super. at 119-20, 632 A.2d 1222.

We are referring this issue to the Criminal Practice Committee for its consideration.

IV.

In his second point, defendant 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," which itself requires the application of sufficient force for an "intentional touching" to be "tactile," meaning "a light push, strike, tap or nudge." Defendant claims that "because `sexual contact' requires a light push, strike, nudge or tap against N.P.'s breast, additional force is required to satisfy th[e] element" of "physical force," because merely proving that sexual contact occurred is insufficient. Defendant avers that the use of physical force beyond that necessary to achieve a touching is "mandatory, and is not satisfied by equating `force' with the `absence of consent.'" 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Defendant cites an unpublished Appellate Division opinion for this proposition.

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. Defendant further argues that equating "physical force" with "lack of consent" and not requiring an additional physical force renders the word "coercion" meaningless as it appears in N.J.S.A. 2C:14-2c(1), because it would broaden the definition of coercion to include anything negating "freely given" consent. Finally, defendant argues that this interpretation would cause incongruence between the statutes governing criminal sexual contact and harassment. In this regard, defendant asserts that the legislature did not intend for "lack of consent" to be a component of criminal sexual contact. He argues that physical force is inherent in the original touching, and thus an additional amount of force is required to criminalize the sexual contact. Defendant also contends that we should require that the application of additional force result in "bodily injury" for the sexual contact to be criminal.

The ACDL-NJ largely endorses defendant's interpretations of N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:14-3b. The ACDL-NJ contends that defendant was wrongfully indicted because there was no allegation of physical force in addition to the mere touching of N.P.'s breast. The ACDL-NJ urges that the rule of M.T.S., supra, 129 N.J. 422, 609 A.2d 1266, should not be extended to criminal sexual contact. It contends that application of the rule in M.T.S. to a rebuffed sexual advance by a person's sexual partner would qualify as criminal sexual contact in the absence of a requirement for some additional physical force beyond mere touching. Finally, the ACDL-NJ argues that the State's position renders criminal sexual contact superfluous to the petty disorderly person offense of harassment. The ACDL-NJ therefore urges dismissal of the indictment.

The State responds that the judge properly denied defendant's motion to dismiss the indictment because the State presented evidence of physical force sufficient to satisfy the statutory requirements. The State submits that the statutory language of criminal sexual contact is clear and unambiguous, and there is no requirement that the State present evidence of physical force in addition to sexual contact, relying on M.T.S., supra, 129 N.J. 422, 609 A.2d 1266. Based on this case, the State concludes that any unauthorized sexual contact is a crime under N.J.S.A. 2C:14-3. The State also cites to M.T.S. to support its conclusion that the Supreme Court has adopted a broad definition of "physical force," and under that definition, defendant's conduct constituted criminal sexual contact. The State further references the model jury charge defining "physical force" to support its conclusion. Contrary to defendant, the State argues that no "disharmony" is caused by equating "physical force" with sexual contact without consent.

The judge denied defendant's challenge to the indictment. He reasoned that the Supreme Court's decision in M.T.S., the legislative history of the Penal Code, and analogous laws compelled a finding that any unauthorized sexual contact constitutes criminal sexual contact. Referencing the model charge on criminal sexual contact and its definition of physical force, the court concluded: "[I]t's clear that the simple act of touching the breast itself, the unwanted criminal sexual contact, no further additional force is necessary to meet the element of physical force in the crime of criminal sexual contact." N.J.S.A. 2C:14-3 provides in pertinent part as follows: "An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2c[](1) through (4). Criminal sexual contact is a crime of the fourth degree." N.J.S.A. 2C:14-3b. As to the first element, "sexual contact" is defined in pertinent part as "an intentional touching by the victim or actor, either directly or through the clothing, of the victim's . . . intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. . . ." N.J.S.A. 2C:14-ld. "Intimate parts" means the "sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." N.J.S.A. 2C:14-le. As to the second element, the State acknowledges that the pertinent statutory provision in this case is N.J.S.A. 2C:14-2c(1). It provides: "The actor uses physical force or coercion, but the victim does not sustain severe personal injury." The State concedes that defendant did not use coercion, and thus we are concerned only with whether there was prima facie evidence of physical force.

The Code of Criminal Justice does not define "physical force." M.T.S., supra, 129 N.J. at 429, 609 A.2d 1266. These words "do not evoke a single meaning that is obvious and plain," and courts are left to construe the words under New Jersey's established "avenues of construction." Id. at 430-31, 609 A.2d 1266.

The legislative history of N.J.S.A. 2C:14-3b begins in October 1971 when the New Jersey Criminal Law Revision Commission issued its final report in which it engaged in a "complete reexamination of [New Jersey criminal] law." N.J. Law Revision Comm'n, The New Jersey Penal Code Volume I: Report and Penal Code, at v (Oct. 1971) (hereinafter Final Report Volume I). The purpose of the Commission's suggested revisions to the New Jersey Criminal Code was "to modernize the criminal law of this State so as to embody principles representing the best in modern statutory law, to eliminate inconsistencies, ambiguities, outmoded and conflicting, overlapping and redundant provisions and to revise and codify the law in a logical, clear and concise manner." L. 1968, c. 281, § 4.

In drafting its proposed Criminal Code, the Commission used the Model Penal Code (MPC) as "the principle [sic] basis of [its] study." Final Report Volume I, supra, at x. Consistent with this, the Commission's proposed crime of sexual assault, the forerunner to the current crime of criminal sexual contact, was nearly identical in its language to MPC § 213.4, the MPC section governing sexual assault. As is relevant to this discussion, proposed Section 2C:14-4a criminalized certain sexual contact as sexual assault where:

A person who has sexual contact with another not his spouse, or causes such other to have sexual contact is guilty of sexual assault if:

a. he knows that the contact is offensive to the other person; or

. . . .

c. he knows that the other person is unaware that a sexual act is being committed[.]

[ Id. at 62.1

Sexual assault under either of these two sections was a disorderly person offense. Id. at 63. Finally, "sexual contact" was defined as "any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire." Ibid. The Commission explained that the term was "so defined as to require an actual touching." N.J. Law Revision Comm'n, The New Jersey Penal Code Volume II: Commentary, at 200 (Oct. 1971).

Proposed subsections 2C:14-4b and -4d through -4h are largely irrelevant to this case. Proposed subsection 2C:14-4b involved victims suffering from mental diseases or defects. Id. at 62. Proposed subsections 2C:14-4d, -4f, and -4g involved the victim's age. Ibid. Proposed subsection 2C:14-4e dealt with the person administering drugs to the victim without the victim's knowledge. Ibid. Proposed subsection 2C:14-4h involved the victim being in custody or otherwise detained in an institution. Ibid.

In addition to the Commission's final report, various governmental bodies issued six other reports addressing the topic of a new penal code. Public hearings on the proposed code were also held on June 20 and 27, 1972, and March 10, 1975. The Governor's Counsel compiled a file on the proposed code as well. Despite this wealth of information, none of it reveals any consideration of a crime of criminal sexual contact in the period between the Commission's proposal in 1971 and the developments of 1978.

On January 26, 1978, Senate Bill 738 was introduced in the State Senate; this was the first introduction of a bill proposing the new Criminal Code. S. 738, 198th Leg., 1st Sess. (N.J. 1978). This version of the bill did not include a crime of criminal sexual contact. Ibid. The bill generally maintained the Commission's proposed language for the crime of sexual assault; however, it added an additional condition under which sexual contact would be criminal and amended the Commission's definition of sexual contact. Ibid. The additional subsection criminalized sexual contact where "[u]nder the circumstances, [the actor] should have known that sexual contact would be offensive to the other person." Ibid. The new definition of sexual contact read: "Sexual contact is any touching of the human genitals, pubic region, or female breast of another person." Ibid.

The next verifiable action on Senate Bill 738 occurred on May 11, 1978, when additional amendments to the bill were introduced. S. 738, 198th Leg., 1st Sess. (N.J. 1978). On this date, the Senate for the first time proposed inclusion of the crime of "criminal sexual contact" in the new Criminal Code. Ibid. The proposed statute, located at N.J.S.A. 2C:14-3b, read: "An actor is guilty of criminal sexual contact if he commits an act of sexual contact with the victim under any of the circumstances set forth in section 2C:14-2b[](1)-(4). Criminal sexual contact is a crime of the fourth degree." Ibid. This version of N.J.S.A. 2C:14-3b is what would later be formally enacted. As a result, the only distinguishing feature between criminal sexual assault and criminal sexual contact is the presence or absence of penetration. Otherwise, they are identical.

N.J.S.A. 2C:14-2b, now N.J.S.A. 2C:14-2c, currently provides as follows:

c. An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any one of the following circumstances:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim is on probation or parole, or is detained in a hospital, prison or other institution and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

(3) The victim is at least 16 but less than 18 years old and: (a) The actor is related to the victim by blood or affinity to the third degree; or

(b) The actor has supervisory or disciplinary power of any nature or in any capacity over the victim; or

(c) The actor is a resource family parent, a guardian, or stands in loco parentis within the household;

(4) The victim is at least 13 but less than 16 years old and the actor is at least four years older than the victim.

On May 15, 1978, the Senate Judiciary Committee released a statement accompanying these amendments in which it gave an overview of the various chapters of the new Criminal Code. Senate Judiciary Committee Statement to S. 738 (May 15, 1978). Regarding Chapter 14, which governs sexual offenses, the Committee outlined four categories of sexual offenses: aggravated sexual assault; sexual assault; aggravated criminal sexual contact; and criminal sexual contact. Id., at 5. The Committee then stated:

The category that a particular fact situation falls among these four offenses is dependent on the following:

the actual sexual acts committed;

the amount of force and physical injury involved in the offense;

the age of [the] victim and sometimes the age of the accused . . .;

the mental state of [the] victim . . .; and

the relationship of the accused vis-à-vis the victim. . . .

It should also be noted with regard to these offenses that they are defined to cover both homosexual and heterosexual situations and that these definitions are intended to focus on the actions of the accused rather than on behavior of the victim.

[ Ibid. (emphasis added).]

Senate Bill 738 gained final approval on August 10, 1978. S. 738, 198th Leg., 1st Sess. (N.J. 1978). The new Criminal Code was enacted pursuant to L. 1978, c. 95, and it was effective September 1, 1979. N.J.S.A. 2C:98-4.

The final version of the Code as enacted in 1978 included the crime of criminal sexual contact as proposed in May 1978. The four circumstances that N.J.S.A. 2C:14-3b incorporated from Section 2C:14-2b were:

(1) The actor uses physical force or coercion, but the victim does not sustain severe personal injury;

(2) The victim is one whom the actor knew or should have known was physically helpless, or mentally incapacitated;

(3) The victim is on probation or parole, or is detained in a hospital, prison or other institution or is mentally defective and the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status;

(4) The victim is at least 16 but less than 18 years old and the actor is a member of the victim's household with supervisory or disciplinary power over the victim.

[ L. 1978, c. 95, § 2C:14-2b.]

The definition of "sexual contact" was also amended at this time. The definition as enacted in 1978 and effective as of September 1, 1979, stated:

"Sexual contact" means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. Sexual contact of the actor with himself must be in view of the victim whom the actor knows to be present[.]

[ L. 1978, c. 95, § 2C:14-Id.]

N.J.S.A. 2C:14-3 has been amended only twice since 1978: once in 1979, L. 1979, c. 178 § 27; and again in 1997, L. 1997, c. 194, § 2. In 1979, the statute was amended "to provide that an act of sexual contact where the victim is at least 13 but less than 16 years of age and the accused is at least 4 years older than the victim constitutes criminal sexual contact, a crime of the fourth degree." L. 1979, c. 178 § 27. At this time, subsection b of N.J.S.A. 2C:14-2, to which N.J.S.A. 2C:14-3b referred, became subsection c due to the insertion of a new subsection in N.J.S.A. 2C:14-2.

The 1997 amendment changed the number references to N.J.S.A. 2C:14-2c (as contained in N.J.S.A. 2C:14-3b) to reflect new numbering in N.J.S.A. 2C:14-2c. This was done because the Legislature eliminated the circumstance where "[t]he victim is one whom the actor knew or should have known was physically helpless, or mentally incapacitated." L. 1978, c. 95, § 2C:14-2b(2). With the elimination of that circumstance from N.J.S.A. 2C:14-2c and the concomitant renumbering of N.J.S.A. 2C:14-2c, the Legislature needed to amend N.J.S.A. 2C:14-3b for consistency in cross-referencing. Notably, the elimination of this circumstance also eliminated a circumstance under which sexual contact would be violative of the law. No other amendment to the text of N.J.S.A. 2C:14-3b was made at this time or has been made since.

The Supreme Court had occasion to consider this legislative history in M.T.S., supra, 129 N.J. 422, 609 A.2d 1266. There, the issue under N.J.S.A. 2C:14-2c(1) was "whether the element of `physical force' is met simply by an act of non-consensual penetration involving no more force than necessary to accomplish that result." Id. at 425, 609 A.2d 1266. The juvenile "engaged in consensual kissing and heavy petting with a fifteen-year-old girl and thereafter engaged in actual sexual penetration of the girl to which she had not consented." Ibid. There was no evidence of any extra force or threats to accomplish penetration. Ibid.

The Court observed, "an unconstrained reading of the statutory language indicates that both the act of `sexual penetration' and the use of `physical force or coercion' are separate and distinct elements of the offense." Id. at 429, 609 A.2d 1266. The trial court concluded that physical force was established by the penetration without consent; we believed the statute required some force beyond mere penetration. Id. at 430, 609 A.2d 1266. The parties offered two alternative understandings of the statute. Ibid. The Court commented that "[r]esort to common experience or understanding does not yield a conclusive meaning." Ibid.

With no obvious and plain meaning apparent, the Court sought

the underlying intent of the legislature, relying on legislative history and the contemporary context of the statute. Monmouth County v. Wissell, 68 N.J. 35, 41-42 [ 342 A.2d 199] (1975). With respect to a law, like the sexual assault statute, that "alters or amends the previous law or creates or abolishes types of actions, it is important, in discovering the legislative intent, to ascertain the old law, the mischief and the proposed remedy." Grobart v. Grobart, 5 N.J. 161, 166 [ 74 A.2d 294] (1950); accord Key Agency v. Continental Casualty Co., 31 N.J. 98 [ 155 A.2d 547] (1959) (noting that ambiguous statutory phrases should be interpreted in light of the occasion and necessity of the law, mischief felt, and remedy in view). We also remain mindful of the basic tenet of statutory construction that penal statutes are to be strictly construed in favor of the accused. Nevertheless, the construction must conform to the intent of the Legislature. See State v. Des Marets, 92 N.J. 62, 68-70 [ 455 A.2d 1074] (1983); State v. Brown, 22 N.J. 405 [ 126 A.2d 161] (1956). [ Id. at 431, 609 A.2d 1266.]

The Court then engaged in a lengthy and thorough analysis of the history of the adoption of New Jersey's current law on sexual offenses, starting with English common law, calls for its reform, and the enactment of the current statutory framework. Id. at 431-47, 609 A.2d 1266.

After commenting that "the Legislature placed primary emphasis on the assaultive nature of the crime," id. at 442, 609 A. 2d 1266, the Court observed:

The Legislature's concept of sexual assault and the role of force was significantly colored by its understanding of the law of assault and battery. As a general matter, the criminal battery is defined as "the unlawful application of force to the person of another." 2 Wayne LaFave Austin Scott, Criminal Law, § 7.15 at 301 (1986). The application of force is criminal when it results in either (a) physical injury or (b) an offensive touching. Id. at 301-02. Any "unauthorized touching of another [is] a battery." Perna v. Pirozzi 92 N.J. 446 , 462 [ 457 A.2d 431] (1983). Thus, by eliminating all references to the victim's state of mind and conduct, and by broadening the definition of penetration to cover not only sexual intercourse between a man and a woman but a range of acts that invade another's body or compel intimate contact, the Legislature emphasized the affinity between sexual assault and other forms of assault and battery.

The intent of the Legislature to redefine rape consistent with the law of assault and battery is further evidenced by the legislative treatment of other sexual crimes less serious than and derivative of traditional rape. The Code redefined the offense of criminal sexual contact to emphasize the involuntary and personally-offensive nature of the touching. N.J.S.A. 2C:14-1(d). Sexual contact is criminal under the same circumstances that render an act of sexual penetration a sexual assault, namely, when "physical force" or "coercion" demonstrates that it is unauthorized and offensive. N.J.S.A. 2C:14-3(b). Thus, just as any unauthorized touching is a crime under traditional laws of assault and battery, so is any

unauthorized sexual contact a crime under the reformed law of criminal sexual contact, and so is any unauthorized sexual penetration a crime under the reformed law of sexual assault.

[ Id. at 442-43, 609 A.2d 1266.]

The Court then reasoned that interpreting the crime of sexual assault "to require physical force in addition to that entailed in an act of involuntary or unwanted sexual penetration would be fundamentally inconsistent with the legislative purpose to eliminate any consideration of whether the victim resisted or expressed non-consent." Id. at 443, 609 A.2d 1266. The Court rejected a requirement that "the element of force need be extrinsic to the sexual act" because it "would not only reintroduce a resistance requirement into the sexual assault law, but also would immunize many acts of criminal sexual contact short of penetration." Id. at 444, 609 A.2d 1266. The Court stated,

The characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful. An actor is guilty of criminal sexual contact if he or she commits an act of sexual contact with another using "physical force" or "coercion." N.J.S.A. 2C:14-3(b). That the Legislature would have wanted to decriminalize unauthorized sexual intrusions on the bodily integrity of a victim by requiring a showing of force in addition to that entailed in the sexual contact itself is hardly possible.

[ Ibid.]

The Court recognized that "the standard defining the role of force in sexual penetration must prevent the possibility that the establishment of the crime will turn on the alleged victim's state of mind or responsive behavior." Ibid. This led the Court to conclude that:

any act of sexual penetration engaged in by the defendant without the affirmative and freely-given permission of the victim to the specific act of penetration constitutes the offense of sexual assault. Therefore, physical force in excess of that inherent in the act of sexual penetration is not required for such penetration to be unlawful. The definition of "physical force" is satisfied under N.J.S.A. 2C:14-2c(1) if the defendant applies any amount of force against another person in the absence of what a reasonable person would believe to be affirmative and freely-given permission to the act of sexual penetration.

[ Ibid.]

The Court observed that "under assault and battery doctrine, any amount of force that results in either physical injury or offensive touching is sufficient to establish a battery." Id. at 445, 609 A.2d 1266. The Court, therefore, concluded as follows:

That understanding of the crime of sexual assault fully comports with the public policy sought to be effectuated by Legislature. In redefining rape law as sexual assault, the Legislature adopted the concept of sexual assault as a crime against the bodily integrity of the victim. Although it is possible to imagine a set of rules in which persons must demonstrate affirmatively that sexual contact is unwanted or not permitted, such a regime would be inconsistent with modern principles of personal autonomy. The Legislature recast the law of rape as sexual assault to bring that area of law in line with the expectation of privacy and bodily control that long has characterized most of our private and public law. See Hennessey v. Coastal Eagle. Paint [ Point] Oil Co., 129 N.J. 81, 94-96 [ 609 A.2d 11] (1992) (recognizing importance of constitutional and common-law protection of personal privacy); id. at 106 [ 609 A.2d 11] (Pollock, J., concurring) (emphasizing that common-law right of privacy protects individual self-determination and autonomy). In interpreting "physical force" to include any touching that occurs without permission we seek to respect that goal.

[ Id. at 445-46, 609 A.2d 1266.]

The Court determined that any other interpretation of the law "would directly undermine the goals sought to be achieved by its reform." Id. at 447, 609 A.2d 1266.

The Supreme Court again addressed "physical force" in State v. Thomas, 166 N.J. 560, 767 A.2d 459 (2001). The defendant pled guilty to second-degree sexual assault. Id. at 563, 767 A.2d 459. We held that "physical force" as used in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, requires an "independent act of force or threat of force against the victim that is additional to the constituent elements of the crime." State v. Thomas, 322 N.J.Super. 512, 516, 731 A.2d 532 (App.Div. 1999), aff'd, 166 N.J. 560, 767 A.2d 459 (2001), superseded on other grounds by statute, L. 2001, c. 129 (codified at N.J.S.A. 2C:43-7.2), as recognized in State v. Parolin, 171 N.J. 223, 232, 793 A.2d 638 (2002). We also concluded that "physical force" in NERA meant "force used to overcome a lack of consent, and which is a separate force . . . independent from the `simple' act of the sexual touching, or just the very act of penetration as in the case of M.T.S." Thomas, supra, 322 N.J.Super. at 520, 731 A.2d 532.

The Supreme Court considered whether NERA applied to second-degree sexual assault. Thomas, supra, 166 N.J. at 563, 767 A.2d 459. To resolve that issue, the Court needed to "interpret the meaning of the term `physical force' as used in NERA." Ibid. The Court first noted that it is permissible to interpret an imprecise term differently in two different sections of a statute where those sections have different purposes. Id. at 568, 767 A.2d 459. The Court then stated that because M.T.S. focused on defining an element of a charged offense and NERA was enacted to enhance the severity of punishments for certain offenses, it believed the Legislature intended to ascribe a different meaning to "physical force" as used in NERA than provided in M.T.S. Id. at 568-69, 767 A.2d 459. The Court affirmed our decision, holding that where the elements of the sexual offense charged do not contain a NERA factor, the State must prove an additional independent act of force or violence or a separate threat of immediate physical force to satisfy the NERA factor. Id. at 574, 767 A.2d 459.

Although the only distinguishing fact between sexual assault and criminal sexual contact is the fact of penetration, defendant and the ACDL-NJ argue that "physical force" pursuant to N.J.S.A. 2C:14-2c(1) should not be governed by the dicta of M.T.S. respecting its incorporation by reference in N.J.S.A. 2C:14-3b. Instead, they urge that the State must prove defendant used some physical force beyond the mere sexual contact. They relied on one of our unpublished decisions imposing such an additional requirement based on language in Thomas, supra, 322 N.J.Super. at 515, 731 A.2d 532, where we noted that M.T.S. was "inapposite" to the facts presented because "[ M.T.S.] involved an act of sexual penetration . . . and the Court, in construing the phrase `physical force' . . . concluded that, under the circumstances, just the very force of penetration . . . was sufficient to satisfy the physical force element of second degree sexual assault."

The context in which we found M.T.S. inapposite was a dispute over whether a sexual assault upon a minor in violation of N.J.S.A. 2C:14-2b constituted a "violent crime" under NERA. Id. at 514, 731 A.2d 532. As noted above, we concluded that some physical force in additional to the sexual contact was required to trigger application of NERA. Id. at 519, 731 A.2d 532 (construing N.J.S.A. 2C:43-7.2d, which provides that "`[v]iolent crime' also includes any aggravated sexual assault or sexual assault in which the actor uses, or threatens the immediate use of, physical force"). Thus, we are here satisfied that the unpublished decision on which defendant and the ACDL-NJ rely is not persuasive and Thomas does not stand for the proposition for which it has been cited.

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 M.T.S. 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, 609 A.2d 1266. 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, 609 A.2d 1266. Perhaps most salient is the Supreme Court's reasoning that an interpretation of the statute requiring "physical force" extrinsic from and independently additional to the sexual act would "immunize many acts of criminal sexual contact short of penetration," and that "[t]he characteristics that make a sexual contact unlawful are the same as those that make a sexual penetration unlawful." Id. at 444, 609 A.2d 1266. Its opinion in Thomas does not trump M.T.S.

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. At oral argument on January 27, 2010, defense counsel again expounded on this issue, essentially arguing that a hierarchy exists among the three above-cited statutes. At the bottom of the hierarchy is the petty disorderly person offense of harassment and its prohibition on offensive touching. Next comes the disorderly person offense of simple assault and its penalization for causing bodily injury. Last is fourth-degree criminal sexual contact and its criminalization of sexual contact under certain circumstances.

In pertinent part, N.J.S.A. 2C:33-4b reads: "[A] person commits a petty disorderly person offense if, with purpose to harass another, he . . . [s]ubjects another to striking, kicking, shoving, or other offensive touching, or threatens to do so[.]" Also in pertinent part, N.J.S.A. 2C:12-1a reads: "A person is guilty of assault if he: (1) Attempts to cause or purposely, knowingly or recklessly causes bodily injury to another[.]"

These crimes do not constitute a hierarchy. We have found that simple assault is not an offense included within sexual assault or criminal sexual contact. State v. Queen, 221 N.J.Super. 601, 606, 535 A.2d 539 (App.Div.), certif. denied, 110 N.J. 506, 541 A.2d 1367 (1988). We found that the bodily-injury element of simple assault is missing from the proof required to establish sexual assault or criminal sexual contact. Ibid. A similar result would likely be reached with harassment, because the purpose to harass element is not present in sexual assault and criminal sexual contact. 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.

Reversed and remanded for further proceedings consistent with this opinion.