NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0689-24
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
DAYANA ABREAU, a/k/a DAYANA ABREU,
Defendant-Appellant. _________________________
Argued June 5, 2025 – Decided June 19, 2025
Before Judges Mawla, Natali, and Vinci.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Hunterdon County, Complaint No. S-2024-0163-1021.
Damiano M. Fracasso argued the cause for appellant.
Joseph Paravecchia, First Assistant Prosecutor, argued the cause for respondent (Renée M. Robeson, Hunterdon County Prosecutor, attorney; Joseph Paravecchia, of counsel and on the brief).
PER CURIAM By leave granted, defendant Dayana Abreau appeals from a September 25,
2024 order denying her motion to dismiss a complaint-summons charging her
with third-degree animal cruelty, N.J.S.A. 4:22-17(c)(3), and third-degree
animal fighting, N.J.S.A. 4:22-24(a)(2).1 After careful review of the record and
governing legal principles, we affirm.
In the charging document, Raritan Township Police Department Detective
William McEnroe alleged:
On [May 11, 2024], this agency responded to 30 Hardscrabble Hill Road for a noise complaint. The investigation revealed an illegal cock[]fighting operation. Def[endant] was observed on scene via body camera review compared against driver's license photograph and was driving NJ registration Y[****]X registered to her. Additionally, def[endant] appeared in [a] geo fence present at the crime scene during the known period of time that the animal fighting was taking place.
Defendant filed a motion to dismiss "the State's complaint in its entirety . . . with
prejudice." She maintained both N.J.S.A. 4:22-17(c)(3) and 4:22-24(a)(2) were
unconstitutionally vague.
1 The complaint-summons incorrectly lists one of the "[o]riginal [c]harge[s]" as N.J.S.A. 4:22-24(b) instead of N.J.S.A. 4:22-24(a)(2). It is clear, however, based upon the narrative in the complaint-summons, defendant was charged under N.J.S.A. 4:22-24(a)(2). A-0689-24 2 With respect to N.J.S.A. 4:22-24(a)(2), defendant argued it did "not
prohibit any specific conduct," and "arguably criminalize[d] any act of being
'present and witness[ing]' anything . . . , 'pay[ing] admission' to anything . . . ,
or 'encourag[ing] or assist[ing]' someone in doing anything." (All but fourth
alteration in original). She further contended the statute did "not prohibit
'animal fighting' (an element of the offense not specifically defined anywhere in
this [l]egislation or in N.J.S.A. 2C:1-1, et seq.)[,] nor [did] it define what
constitutes 'a cock[]fighting operation' or how or why a 'cock[]fighting
operation' . . . constitutes 'animal fighting . . . .'" Additionally, defendant
asserted the statute was unconstitutional because "it [did] not contain any
specific mens rea or level of scienter."
As to N.J.S.A. 4:22-17(c)(3), defendant maintained "the fact that N.J.S.A.
4:22-17(c)(3) contains three . . . levels of scienter for the same exact conduct
render[ed] it unconstitutionally void for vagueness." She also argued the statute
was invalid or unconstitutional under N.J.S.A. 2C:2-1 because it "prohibit[ed]
conduct through 'indirect means.'" Finally, defendant contended "the terms
'[t]orment, torture, maim, hang, poison, unnecessarily or cruelly beat, cruelly
abuse, or needlessly mutilate a living animal or creature' [were] blatantly void
for vagueness and/or overbreadth."
A-0689-24 3 After considering the parties' written submissions and oral arguments, the
court denied defendant's motion and explained its reasoning in a written
decision. With respect to defendant's argument concerning the undefined terms
in N.J.S.A. 4:22-17(c), the court found the dictionary "provide[d] definitions of
the ordinary meaning of all terms sufficient, that when applied to the language
of the statute, would give a reader of ordinary intelligence a clear idea of what
conduct is prohibited." The court found "defendant should have known
participating in cock[]fighting would result in the serious injury of the roosters,"
and give rise to liability under N.J.S.A. 4:22-17(c)(3). The court further rejected
defendant's argument concerning the three levels of culpability referenced in the
statute, noting "[s]imply because there are three different levels of scienter, does
not mean that the statute is confusing for the public."
As to defendant's arguments concerning the constitutionality of N.J.S.A.
4:22-24, the court first found defendant's contention that the statute
"criminalizes every act of 'being present and witness[ing]'" to be without merit.
(Alteration in original). Specifically, the court concluded the statute's use of the
word "therein," which "means to be present and witness the baiting or otherwise
facilitating the fighting of a living animal or creature," rendered it sufficiently
clear.
A-0689-24 4 It further found defendant's argument that the statute lacked a scienter
requirement "not only without merit, but also wholly incorrect." Relying upon
State v. Demarest, 252 N.J. Super. 323, 327 (App. Div. 1991), for the
proposition that "N.J.S.A. 2C:2-2[(c)](3) and . . . N.J.S.A. 2C:2-2[(b)](2)
establish 'knowingly' as the required state of mind if an offense is defined
without a specified culpability requirement," the court concluded the statute was
sufficiently clear, enabling defendant to understand what conduct was
prohibited.
On appeal, defendant contends both N.J.S.A. 4:22-24(a)(2) and N.J.S.A.
4:22-17(c)(3) are impermissibly vague and overbroad, and the court's decision
should be reversed because it "rewrote the statutes on an ex post facto basis and
used a dictionary of its own choosing to save . . . both of the statutes from being
declared unconstitutional." Relying upon the Supreme Court's decision in
United States v. Stevens, 559 U.S. 460, 464 (2010), where the Court concluded
the federal Depiction of Animal Cruelty statute was unconstitutionally
overbroad, defendant maintains in revising that statute after the Court's decision,
"Congress did not rely on ephemeral internet dictionary definitions of words to
criminalize conduct (as opposed to leaving the reader guessing and adding words
that aren't there or even part of the legislation) and it makes appropriate
A-0689-24 5 exceptions to narrowly tailor the statute to constitutionally permissible
parameters."
With respect to N.J.S.A. 4:22-17(c)(3), defendant argues it criminalizes
lawful activities "such as fishing, using a mousetrap, using flypaper or a
flyswatter, spraying insecticide, stepping on a cockroach, declawing a cat,
cropping a dog's ears or tail, horseracing[,] cooking a live lobster or crab in
boiling water, steaming clams or mussels[,] or fumigating termites." Further,
defendant contends because the statute does not differentiate between a living
animal and a living creature, "[a]pplication of th[e] statute as written can lead to
arbitrary and [capricious] prosecutions instigated by disgruntled family
members, co-workers, neighbors, customers, business proprietors, voters,
lottery ticket purchasers[,] and other members of society who experience
'anguish' over anything at all."
As to N.J.S.A. 4:22-24(a)(2), defendant asserts the State improperly
inserted "the word 'or' after the semicolon between [subsections (a)(1) and
(a)(2)]" in its brief before the court. She maintains "[t]he State added the word
'or' where it did [as] a tacit admission that, without it being there, the statute is
unconstitutionally vague and overbroad to say the least." As written, defendant
argues N.J.S.A. 4:22-24(a)(2) "criminalizes being 'present and witness[ing]' or
A-0689-24 6 'pay[ing] admission to' or 'encourag[ing]' or 'assist[ing]' in anything." (All but
third alteration in original).
"Generally, an appellate court uses an abuse-of-discretion standard to
review a ruling on a motion to dismiss a criminal charge." State v. Rosado, 475
N.J. Super. 266, 273 (App. Div. 2023) (citing State v. Twiggs, 233 N.J. 513, 532
(2018)). "A trial judge's legal interpretations, however, are subject to de novo
review." State v. Keogh, 481 N.J. Super. 67, 77 (App. Div. 2025) (citing State
v. Grate, 220 N.J. 317, 329 (2015)). Further, we "conduct a de novo review
when a decision on a motion to dismiss a[ complaint] 'was based on the court's
interpretation of the statutes pursuant to which [the] defendant was charged. '"
Ibid. (second alteration in original) (quoting State v. Bernardi, 456 N.J. Super.
176, 186 (App. Div. 2018)).
The Prevention of Cruelty to Animals Act (Act), N.J.S.A. 4:22-11.11 to -
61, "includes two distinct statutory schemes, differentiating criminal
prosecutions from civil actions." In re P.H., 436 N.J. Super. 427, 438 (App. Div.
2014). As used in the Act, "'[a]nimal' or 'creature' includes the whole brute
creation." N.J.S.A. 4:22-15. One of the Act's criminal provisions, N.J.S.A.
4:22-17(c), provides, in relevant part:
A-0689-24 7 c. It shall be unlawful to purposely, knowingly, or recklessly:
(1) Torment, torture, maim, hang, poison, unnecessarily or cruelly beat, cruelly abuse, or needlessly mutilate a living animal or creature;
(2) Cause bodily injury to a living animal or creature by failing to provide the living animal or creature with necessary care, whether as the owner or as a person otherwise charged with the care of the living animal or creature;
(3) Cause or procure an act described in paragraph (1) or (2) of this subsection to be done, by any direct or indirect means, including but not limited to through the use of another living animal or creature . . . .
N.J.S.A. 4:22-24(a)(1) and (2) provide:
a. A person who shall:
(1) Keep, use, be connected with or interested in the management of, or receive money for the admission of a person to, a place kept or used for the purpose of fighting or baiting a living animal or creature;
(2) Be present and witness, pay admission to, encourage or assist therein;
....
Shall be guilty of a crime of the third degree.
A-0689-24 8 Our courts presume statutes are constitutionally valid. State v. Buckner,
223 N.J. 1, 14 (2015). A statute will not be declared unconstitutional "unless its
repugnancy to the Constitution is clear beyond a reasonable doubt." State v.
Smith, 251 N.J. 244, 263 (2022) (quoting State v. Lenihan, 219 N.J. 251, 266
(2014)). The party challenging the validity of the statute bears this "heavy
burden" of proof. Buckner, 223 N.J. at 14 (quoting State v. Trump Hotels &
Casino Resorts, Inc., 160 N.J. 505, 526 (1999)).
"A statute 'is void if it is so vague that persons of common intelligence
must necessarily guess at its meaning and differ as to its application.'" Lenihan,
219 N.J. at 267 (quoting Hamilton Amusement Ctr. v. Verniero, 156 N.J. 254,
279-80 (1998)). The constitutional flaw with a vague statute is that it may deny
due process by failing to provide fair notice of the prohibited conduct. Ibid.
Statutes can also be unconstitutionally vague if they authorize or allow arbitrary
and selective enforcement. Hill v. Colorado, 530 U.S. 703, 732 (2000). An
offense must be defined "with sufficient definiteness that ordinary people can
understand what conduct is prohibited and in a manner that does not encourage
arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352,
357 (1983) (citing Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,
494 (1982)).
A-0689-24 9 A statute can be challenged as being either facially vague or vague as
applied. Lenihan, 219 N.J. at 267. "A law is facially vague if it is vague in all
applications." Ibid. (citing State v. Maldonado, 137 N.J. 536, 563 (1994)).
Accordingly, a facial challenge is particularly difficult to present and establish.
United States v. Salerno, 481 U.S. 739, 745 (1987).
"A statute that 'is challenged as vague as applied must lack sufficient
clarity respecting the conduct against which it is sought to be enforced.'"
Lenihan, 219 N.J. at 267 (quoting Visiting Homemaker Serv. of Hudson Cnty.
v. Bd. of Chosen Freeholders of Cnty. of Hudson, 380 N.J. Super. 596, 612
(App. Div. 2005)). If the statute "is not vague as applied to a particular party, it
may be enforced even though it might be too vague as applied to others." Ibid.
(quoting State v. Cameron, 100 N.J. 586, 593 (1985)).
In determining whether a statute is vague, "a common[-]sense approach is
appropriate in construing the enactment." Chez Sez VIII, Inc. v. Poritz, 297 N.J.
Super. 331, 351 (App. Div. 1997) (citing SDJ, Inc. v. City of Houston, 837 F.2d
1286, 1278 (5th Cir. 1988)). The language of the statute "should be given its
ordinary meaning absent specific intent to the contrary." Mortimer v. Bd. of
Rev., 99 N.J. 393, 398 (1985) (citing Levin v. Twp. of Parsippany-Troy Hills,
82 N.J. 174, 182 (1980)). "When examining statutory language for vagueness,
A-0689-24 10 the test is whether a person of average intelligence comprehends the meaning of
the words." Heyert v. Taddese, 431 N.J. Super. 388, 424 (App. Div. 2013)
(citing State v. Afanador, 134 N.J. 162, 171 (1993)). Statutory language should
also be considered in the context of the whole act and accorded a common sense
meaning that advances the legislative purpose. Voges v. Borough of Tinton
Falls, 268 N.J. Super. 279, 285 (App. Div. 1993).
"If the text of a statute is not clear on its face, courts may look to extrinsic
aids to interpret it, including but not limited to the enactment's legislative history
and the policies underlying it." Breitman v. Atlantis Yacht Club, 477 N.J. Super.
115, 121 (App. Div. 2023) (citing State v. Harper, 229 N.J. 228, 237 (2017)).
"Such extrinsic aids may also include definitions of the same words that appear
in other statutes or legal authorities, or dictionaries." Ibid. (citing Malanga v.
Twp. of W. Orange, 253 N.J. 291, 315-16 (2023)).
Overbroad statutes, by contrast, "suffer from a different flaw. They invite
'excessive governmental intrusion into protected areas' by 'extend[ing] too far.'"
State v. Carter, 247 N.J. 488, 518 (alteration in original) (quoting Karins v.
Atlantic City, 152 N.J. 532, 544 (1998)). A law may be held facially overbroad
"[i]f the challenger demonstrates that the statute 'prohibits a substantial amount
of protected speech' relative to its 'plainly legitimate sweep.'" State v.
A-0689-24 11 Higginbotham, 257 N.J. 260, 277-78 (2024) (alteration in original) (quoting
United States v. Hansen, 599 U.S. 762, 770 (2023)).
Based upon our review of the record and the aforementioned legal
principles, we conclude the court appropriately denied defendant's motion to
dismiss the complaint-summons because neither N.J.S.A. 4:22-17(c)(3) nor
N.J.S.A. 4:22-24(a)(2) is void for vagueness or overbreadth, and we affirm
substantially for the reasons expressed in the court's thorough September 25,
2024 written decision. We add the following comments to amplify our decision.
With respect to N.J.S.A. 4:22-17(c)(3), here, defendant was charged with
"purposely, knowingly, or recklessly" tormenting and cruelly abusing a living
animal or creature through indirect means by "being present at a cock[]fighting
operation . . . where roosters were tormented and cruelly abused." Although
N.J.S.A. 4:22-17(c) does not define certain words such as "[t]orment, torture,
maim, hang, poison, unnecessarily or cruelly beat, cruelly abuse, or needlessly
mutilate," there is no reasonable basis for defendant to contend that a person of
average intelligence would not understand what those terms mean. Indeed,
"[c]ertain words can be understood by 'a person of average intelligence' and
'would not send the average citizen scrambling for a dictionary.'" State v. N.I.,
349 N.J. Super. 299, 308-09 (App. Div. 2002) (quoting Afanador, 134 N.J. at
A-0689-24 12 171). As such, "[w]ords 'used by ordinary citizens in everyday conversation'
need not be defined." Id. at 309 (quoting Afanador, 134 N.J. at 175). N.J.S.A.
4:22-17(c)(3) is clearly not void for vagueness on account of these undefined
terms.
Further, defendant's arguments the statute criminalizes everyday lawful
activities and can lead to arbitrary and capricious enforcement because it does
not differentiate between living animals and creatures are similarly without
merit. First, the statute does not criminalize everyday lawful activities as
N.J.S.A. 4:22-16 provides a number of exceptions limiting the statute's reach
and belying any claim of overbreadth. See N.J.S.A. 4:22-16 (explaining nothing
in the Act "shall be construed to prohibit or interfere with" lawful acts, such as
scientific experiments conducted under the authority of the Department of
Health or the United States Department of Agriculture; "[t]he killing or
disposing of an animal or creature by virtue of the order of a constituted
authority of the State"; or lawful hunting activities). Second, N.J.S.A. 4:22-15
does define what a living animal or creature is for purposes of the Act .
We are similarly unpersuaded by defendant's argument N.J.S.A. 4:22-
17(c)(3) is void for vagueness because it contains three levels of scienter. It is
not unusual for the Legislature to define a crime by including multiple levels of
A-0689-24 13 culpability. See, e.g., N.J.S.A. 2C:35-5(a) ("[I]t shall be unlawful for any person
knowingly or purposely . . . [t]o manufacture, distribute or dispense, or to
possess . . . a controlled dangerous substance or controlled substance analog")
(emphasis added); N.J.S.A. 2C:12-1(a)(1) (explaining a person commits simple
assault if they "[a]ttempt[] to cause or purposely, knowingly[,] or recklessly
causes bodily injury to another") (emphasis added). Simply because the
Legislature chose to define N.J.S.A. 4:22-17(c)(3) by including three levels of
scienter does not, as the court here properly concluded, "mean that the statute is
confusing for the public." Nor does it "lack sufficient clarity respecting the
conduct against which it is sought to be enforced." Lenihan, 219 N.J. at 267
(quoting Visiting Homemaker Serv. of Hudson Cnty., 380 N.J. Super. at 612).
With respect to N.J.S.A. 4:22-24(a)(2), defendant was charged with being
present and witness to, paying admission to, and encouraging or assisting animal
fighting, "specifically by . . . being present for a cock[]fighting operation." As
noted, N.J.S.A. 4:22-24(a) provides, in relevant part:
(1) Keep, use, be connected with or interested in the management of, or receive money for the admission of a person to, a place kept or used for the purpose of fighting or baiting a living animal or creature;
A-0689-24 14 (2) Be present and witness, pay admission to, encourage or assist therein;
The Legislature's use of the word "therein" in subsection (a)(2) clearly
indicates an individual shall be guilty of a third-degree offense when they are
present and witness, pay admission to, and encourage or assist "a place kept or
used for the purpose of fighting or baiting a living animal or creature." See
Webster's II New College Dictionary 1172 (3d ed. 2005) (defining "therein" as
"[i]n that circumstance or respect"). Thus, N.J.S.A. 4:22-24(a)(2) is not void
for vagueness because a person of average intelligence would understand it
prohibits being present and witnessing, paying admission to, and encouraging
or assisting animal fighting or baiting. Accordingly, defendant's contention the
statute is unconstitutionally overbroad because it "criminalizes being 'present
and witness[ing]' or 'pay[ing] admission to' or 'encourag[ing]' in anything," is
unavailing. (All but third alteration in original).
As to defendant's argument the statute is void for vagueness because it "is
a strict liability offense," it is well-established that unless strict liability is
clearly intended, a statute setting forth a crime without specifying the mens rea
requirement should be construed as requiring a "knowing" state of mind. See
A-0689-24 15 N.J.S.A. 2C:2-2(c)(3) ("A statute defining a crime, unless clearly indicating a
legislative intent to impose strict liability, should be construed as defining a
crime with the culpability defined in paragraph b.(2) of this section. This
provision applies to offenses defined both within and outside of this [C]ode.");
see, e.g., State v. Rovito, 99 N.J. 581, 586 (1985) (noting with respect to an
offense that has no "specified requirement of culpability," "knowingly" is the
standard of culpability that is applied under the gap-filler provision of the Code).
Because the required mental state for N.J.S.A. 4:22-24(a)(2) is "knowingly," the
statute is not void for vagueness on account of its lack of a specific standard of
culpability.
Defendant's remaining arguments are similarly unpersuasive. With
respect to her reliance on Stevens, that case is distinguishable as it involved a
challenge to the federal Depiction of Animal Cruelty statute. 559 U.S. at 464.
The federal statute did not criminalize underlying acts of animal abuse, but
rather, "establishe[d] a criminal penalty of up to five years in prison for anyone
who knowingly 'create[d], [sold], or possesse[d] a depiction of animal cruelty,'
if done 'for commercial gain' in interstate or foreign commerce." Id. at 464-65.
The Stevens Court concluded the federal statute was unconstitutionally
overbroad, in part, because "the presumptively impermissible applications of
A-0689-24 16 [the federal statute] (properly construed) far outnumber[ed] any permissible
ones." Id. at 481.
Here, unlike the federal statute at issue in Stevens, N.J.S.A. 4:22-17 and
N.J.S.A. 4:22-24 criminalize acts of animal cruelty and fighting, not depictions
sold for commercial gain. Additionally, as noted, both statutes are suitably
limited such that they do not present the same potential for overbroad
application as the federal statute in Stevens.
As to defendant's contention the court erroneously "used a dictionary of
its own choosing to save . . . both of the statutes from being declared
unconstitutional," we similarly find that argument to be without merit. It is well-
established in dealing with issues of statutory interpretation courts may address
any ambiguities by consulting extrinsic aids, including dictionaries. See
Breitman, 477 N.J. Super. at 121.
Finally, we are compelled to address an issue defendant's counsel raised
at oral argument. Specifically, defendant's counsel argued the animal fighting
charge under N.J.S.A. 4:22-24(a)(2) should be dismissed because the complaint-
summons does not allege facts necessary to establish all of the crime's elements.
That is, the complaint-summons only alleges defendant violated the statute by
"being present for a cock[]fighting operation," rather than alleging she was
A-0689-24 17 present and witness to, paid admission to, and encouraged or assisted the
cockfighting operation. See N.J.S.A. 4:22-24(a)(2).
We granted defendant's application for leave to appeal solely to address
her contention N.J.S.A. 4:22-17(c)(3) and 4:22-24(a)(2) are unconstitutionally
overbroad and vague, either facially or as applied. It does not appear defendant
raised the aforementioned argument before the court or in her motion for leave
to appeal. It is therefore not properly before us. See State v. Lawless, 214 N.J.
594, 605 n.2 (2013). Second, defendant's contention concerning the sufficiency
of the factual allegations contained in the complaint-summons does not relate to
her facial and as applied challenges.
Defendant may file with the court a motion to dismiss the complaint-
summons based upon these grounds, we note, however, "R[ule] 3:3-4 provides
extraordinarily broad authority to amend a [complaint-]summons or [complaint-
]warrant." State v. Egles, 308 N.J. Super. 124, 130 (App. Div. 1998); see also
R. 3:3-4(a) ("No person arrested under a warrant or appearing in response to a
summons shall be discharged from custody or dismissed because of any
technical insufficiency or irregularity in the warrant or summons, but the
warrant or summons may be amended to remedy any such technical defect.").
A-0689-24 18 To the extent we have not addressed specifically any of defendant's
remaining arguments, it is because we have concluded that they are without
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2).
Affirmed.
A-0689-24 19