STATE OF NEW JERSEY v. PHOENIX FEELEY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0115-10T3

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PHOENIX FEELEY,

Defendant-Appellant.

______________________________________________

September 14, 2011

Submitted September 6, 2011 - Decided

Before Judges Payne and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Municipal Appeal No. 09-058.

Littleton, Joyce, Ughetta, Park & Kelly, LLP, attorneys for appellant (Joseph Lipari, of counsel and on the brief).

Lindabury, McCormick, Estabrook & Cooper, P.C., attorneys for respondent (Joseph J. Colao, Jr., of counsel and on the brief; Blake C. Width, on the brief).

PER CURIAM

After trial in the Spring Lake municipal court, defendant Phoenix Feeley was found guilty of two counts of violating Spring Lake Borough Ordinance 269-3, and one count of obstruction, N.J.S.A. 2C:29-1(a).1 Following a de novo trial in the Law Division, defendant was convicted of only the two ordinance violations and the remaining charges were dismissed.

Before us, defendant raises the following point:

POINT I

THE VOGT DECISION, FOLLOWED BY THE LOWER COURT, MUST BE INVALIDATED AND MS. FEELEY'S CONVICTION MUST BE REVERSED AS ANY JUSTIFICATION FOR ALLOWING MEN TO REMAIN SHIRTLESS ON A BEACH WHILE SUBJECTING WOMEN TO PROSECUTION FOR THE SAME CONDUCT CANNOT BE CHARACTERIZED AS EXCEEDINGLY PERSUASIVE

We have considered this argument in light of the record and applicable legal standards. We affirm.

The facts are essentially uncontested. On June 28, 2008, defendant removed the top of her bathing suit while sitting on the public beach in Spring Lake. Police officer Robert Zoino approached and asked that she put her top back on. When defendant refused, Zoino arrested her and brought her to police headquarters.

After being processed and supplied with a tee shirt by the police, defendant was released. However, shortly thereafter, Zoino and another officer responded to a call of a topless woman at a street intersection near police headquarters. Defendant was again arrested and issued additional summonses. Police officer Michael Rutka found the tee shirt supplied to defendant hanging from the entrance door of the police department.

Before the municipal court judge, and again on appeal to the Law Division, defendant did not challenge these proofs.2 Instead, she argued, among other things, that application of the public nudity ordinance under the facts presented violated defendant's rights to equal protection under the fourteenth Amendment to the United States Constitution. Specifically, defendant contended that men were permitted to appear topless on the public beach, but women were not. Both the municipal court judge, and the Law Division judge, rejected the argument.

In a thorough written opinion, the Law Division judge cited extensively to our decision in State v. Vogt, 341 N.J. Super. 407 (App. Div. 2001). Noting that "defendant . . . [may have] present[ed] compelling policy arguments in her brief," the judge nonetheless concluded he was "bound by the holding of the appellate court because both the factual circumstances and the regulations in question in Vogt and in this case [we]re indistinguishable." He found defendant guilty of two ordinance violations, imposed an aggregate fine of $750, and this appeal followed.

Defendant argues that we should depart from continued reliance upon our decision in Vogt because it "unjustifiably sanctions arrest and prosecution based on gender." The argument lacks sufficient merit to warrant extended discussion in this opinion. R. 2:11-3(e)(2).

The ordinance in this case provided in pertinent part:

[I]t shall be unlawful for any person to appear or travel on any street, avenue or road, beach, waterway, alleyway, driveway or any area of private property open to public view in the Borough or appear in any other such place in the Borough in a state of nudity; in an indecent or lewd dress or garment; or make any indecent exposure of his or her person; or urinate in any of the above described places except in public restrooms.

[Borough of Spring Lake, N.J., Code 269-3.]

As the Law Division judge noted, the language of the challenged ordinance in Vogt was substantially the same as that cited above, and the facts in that case are indistinguishable from those presented here.

In Vogt, supra, 341 N.J. Super. at 416-17, we concluded that "there [wa]s no constitutional right for a woman to appear topless on a public beach," and "[r]estrictions on the exposure of the female breast are supported by the important governmental interest in safeguarding the public's moral sensibilities, and th[e] ordinance [wa]s substantially related to that interest." Id. at 417. We further noted that distinctions based upon gender must satisfy an "'intermediate' level of scrutiny," i.e., "the distinction must be justified by an important governmental interest that is substantially accomplished by the challenged discriminatory means." Id. at 417-18 (citations omitted). "The burden of justifying the classification is on the state, which must show that the claimed justification is 'exceedingly persuasive.'" Id. at 418 (quoting United States v. Virginia, 518 U.S. 515, 533, 116 S. Ct. 2264, 2275, 135 L. Ed. 2d 735, 751 (1996)). We determined that "the ordinance satisfie[d] both the federal and state tests for equal protection." Id. at 417.

Defendant has presented no principled reason for us to depart from our holding in Vogt. We therefore affirm.

1 Defendant was initially charged with violating ordinance 269-3, "Public Nudity," and Spring Lake Borough Ordinance 114-12, "Dressing and undressing in public." At trial, the latter was amended to charge another violation of ordinance 269-3. Additionally, defendant was charged with obstruction, N.J.S.A. 2C:29-1(a), and two counts of disorderly conduct, N.J.S.A. 2C:33-2(a). The municipal court judge acquitted defendant of disorderly conduct.

2 We need not consider the successful arguments defendant raised on appeal before the Law Division regarding the guilty verdicts reached by the municipal court judge as to violations of N.J.S.A. 2C:29-1(a).