STATE OF NEW JERSEY v. Paul Olsvary

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4502-04T54502-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

PAUL OLSVARY,

Defendant-Appellant.

________________________________

 

Submitted November 28, 2005 - Decided

Before Judges Cuff and Lintner.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 04-05-1818.

Benedict and Altman, attorneys for appellant (Joseph J. Benedict and Philip Nettl, on the brief).

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Sara A. Friedman, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Following a two-day trial, a jury convicted defendant, Paul Olsvary, on two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The judge sentenced defendant to two concurrent five-year terms with two and one-half years of parole ineligibility, to be served at Avenel, pursuant to the Sexual Offender Act. N.J.S.A. 2C:47-1. Defendant appeals and we affirm.

On October 4, 2003, between four and five p.m., two girls, T.A., age fifteen, and S.J., age fourteen, were walking along Osborne Terrace in Newark when they approached a white pick-up truck parked along the curb facing in the same direction that they were walking. Defendant was sitting in the driver's seat with the passenger side window rolled down. According to T.A., defendant waved his hand toward them as if to say, "Come here." As she got closer, T.A. observed that defendant had no pants on, his hand was on his exposed penis, in "like a movement." S.J. also testified that defendant's passenger window was down, his pants were off, and he was holding his exposed penis. However, S.J. did not mention that defendant waved at them, just that as she walked by she looked toward the pick-up and saw defendant.

As the girls passed in front of defendant's truck, S.J. saw a police car. She jumped into the street and waved it down. Meanwhile, defendant began to pull away from the curb. As the police car neared, the girls pointed to defendant's pick-up, which was turning onto Hawthorne Avenue. After initiating a U-turn, the police pulled defendant over on Hawthorne Avenue. Three officers exited the patrol car and approached defendant's driver's and passenger's doors. They observed defendant in the driver's seat with his pants halfway down and his penis exposed. Following the stop, the girls, who were described as "a little hysterical" by Patrolman Douglas Marshall, were brought over to the vehicle where they identified defendant as the person who "flashed" them. Marshall and the girls all identified defendant in court. Defendant did not testify.

On appeal, defendant raises the following points:

I. The Defendant's conviction should be vacated, because the prosecutor misstated the law of Endangering the Welfare of a Child, and the trial court never issued a curative instruction. (partially raised below)

A. The prosecutor materially misstated the law in her summation.

B. The Defendant objected, but the trial court never corrected the prosecutor's misstatement.

C. The trial court's error likely caused an erroneous verdict.

II. Defendant's Trial Counsel provided ineffective assistance by requesting that the trial court instruct the jury that Disorderly Persons Lewdness can form the basis for the "sexual conduct" element of Endangering the Welfare of Children. (not raised below).

A. Defense Counsel was deficient in requesting the jury be told that sexual conduct is the same as lewdness.

B. Defense Counsel's mistake caused the jury to be erroneously instructed.

C. There is a good chance the jury would have reached a different verdict with a different instruction.

We first address defendant's contention that reversible error resulted from the prosecutor's misstatement of the law and the judge's failure to give a curative instruction. Immediately prior to the challenged statement, the prosecutor cautioned the jury "the judge is going to instruct you on the law. What I say is not binding but the judge will tell you." She then stated:

Now let me show you how this state proved that the defendant knowingly engaged in sexual conduct. The defendant got in his truck, he lives in South Amboy, came into the County of Essex, parked his car on the side of the road, exposed his penis, took it out of his pants and had it exposed, waved his hands when the girls came into his view, waved his hands . . . . The state submits that that's knowingly engaging in sexual conduct.

Now, the sexual conduct, sexual conduct is defined as conduct which would tend to corrupt morals, mar or spoil children under the age of 15 [sic].

Defense counsel promptly objected. At side bar, the judge indicated that the prosecutor "got it half right." Continuing her closing remarks, the prosecutor then said:

Sexual conduct is conduct that would tend to mar or spoil or -- or the morals of children under the age of 16.

Now, the state submits that the defendant knew it when he took out his penis and lured and waved in the direction of the girls that he was engaging in sexual conduct for his gratification. Why take your penis out and wave two girls over to your truck . . . the state would submit that defendant lured those girls over to see his penis for his gratification.

Now, the third element is that the conduct that the defendant engaged in would impair or debauch the morals of the children. Now, would his conduct have the tendency to impair or debauch the moral of these girls?

The prosecutor then argued the factual proofs, describing how the two victims reacted to defendant's conduct, asserting that their reactions established that defendant's conduct tended to impair or debauch the morals of the two victims.

Immediately thereafter, the judge began his jury instructions. He advised the jury that it "must accept and apply the law for the case as I give it to you in this charge." He further explained, "Any statements by the attorneys as to what the law may be, must be disregarded if they are in conflict with my instruction here." The judge gave the following instructions on the elements of endangerment:

The statute upon which this charge is based reads in pertinent part as follows: Any person who engages in sexual conduct which would impair or debauch the morals of a child is guilty of a crime.

To find the defendant guilty of this crime, the state must prove beyond a reasonable doubt the following elements. Number one, that as to count one [S.J.], and [T.A.] were children. That's number one. Two, that the defendant knowingly engaged in sexual conduct with [S.J.] and [T.A.] . . . three, the defendant knew that such conduct would impair or debauch the morals of [S.J.] or [T.A.]

The first element that the state has to prove beyond a reasonable doubt is that [S.J.] and [T.A.] were children. A child means any person under the age of 16 years at the time of the offense . . . .

Number two, the second element the state must prove beyond a reasonable doubt is that the defendant knowingly engaged in sexual conduct. Here the state alleges the sexual conduct committed by the defendant consisted of exposing his genitals to [S.J.] and [T.A.] for his sexual gratification. Okay. Also again as lewdness, and I will define that further in a few minutes.

After instructing the jury on knowingly, the judge continued:

Okay. The third element the state must prove beyond a reasonable doubt is that the defendant engaged in sexual conduct knowing, there is the word knowing again, that it would impair or debauch the morals of the child.

The sexual conduct which would impair or debauch the morals of a child is conduct which tends to corrupt, mar, or spoil the morals of a child under 16 years of age. The state does not have to show that the sexual conduct actually did impair or debauch the morals of [S.J.] or [T.A.] In analyzing the proofs to determine whether the evidence demonstrates that the defendant's conduct would tend to impair or debauch the morals of the child, evaluate the proofs in the context of objectively reasonable contemporary standards. I've already defined knowingly for you.

Conceding that the judge properly instructed the jury on the elements of third-degree endangerment, defendant argues on appeal that the prosecutor's statement was similar to the offending instruction given by the trial court in State v. Hackett, 166 N.J. 66, 85 (2001), i.e., "[t]he law provides that sexual conduct would impair or debauch the morals of the child." (Alteration in original). He maintains that the judge's failure to correct the misstatements caused an erroneous verdict. We agree that the prosecutor incorrectly defined sexual conduct as conduct which would corrupt morals, mar, or spoil children. We also agree that she repeated the same incorrect definition after defendant objected. We are, however, satisfied that any error arising from the prosecutor's misstatements and the judge's failure to give an immediate curative instruction is harmless beyond a reasonable doubt and could not have influenced the verdict. State v. Alston, 70 N.J. 95, 98 (1976).

The prosecutor preceded the challenged definition by saying that her statement of the law was not binding. Immediately following the challenged definition, the prosecutor separated the second and third element of endangerment, arguing that defendant engaged in sexual conduct by exposing his penis to the two victims and that his conduct had the tendency to impair or debauch the child victims. The judge also instructed the jury that it was obligated to disregard any conflicting statement of the law made by the attorneys and correctly charged the jury on the three elements of the third-degree endangering, using the Model Jury Instructions in conformance with Hackett, supra, 166 N.J. at 86. Finally, T.A.'s testimony that they were waved over by defendant sufficiently established that this was not a "stolen glimpse of nudity" as argued by defendant, but instead conduct designed to attract the attention of his youthful victims. Id. at 81. Accordingly, we are satisfied that the verdict was not erroneous and there was sufficient credible evidence to support defendant's conviction.

Defendant next contends that he received ineffective assistance of counsel when defense counsel requested that the judge advise the jury that exposure for sexual gratification is the same as lewdness. He asserts that although the element of sexual conduct of exposing oneself for sexual gratification in third-degree endangerment is interchangeable with the exposure defined in fourth-degree lewdness, N.J.S.A. 2C:14-4b(1), an offense not applicable here because of the victims' ages, it is not an element of the disorderly offense. At the charge conference, the judge indicated that he would, in compliance with defendant's request, state that the State's allegations of sexual conduct consisting of defendant exposing his genitals to S.J. and T.A. for sexual gratification is also known as lewdness. In his instructions, however, after repeating the State's allegation concerning defendant's sexual conduct of exposing himself to the victims for sexual gratification the judge said "[a]lso again as lewdness, and I will define that further in a few minutes." When the judge actually charged the lesser-included disorderly offense of lewdness, he stated the following:

A person commits a disorderly persons offense if he does any flagrantly lewd and offensive act which he knows or reasonably expects is likely to be observed by non consenting person who would be affronted or alarmed.

In order to establish the guilt of the defendant the burden is upon the state to prove beyond a reasonable doubt each of the following elements. That on October 4, 2003, on Osborne Terrace in the City of Newark the defendant committed an act which was flagrantly lewd and offensive.

Lewd means sexually indecent behavior. A lewd act shall include but not limited to the exposing of the genitals for the purpose of arousing or gratifying the sexual desire of a defendant or any other person.

Offensive means an act that is grossly vulgar and causing resentment, one which offends common modesty and decency and delicacy . . . which the defendant knows or reasonably expects is likely to be observed by non consenting persons who would be affronted or alarmed.

Here, contrary to defendant's contentions, the judge never advised the jury that sexual conduct arising from the exposure of genitalia for sexual gratification was the same as lewdness. He merely related that the facts alleged, with respect to the offense of lewdness, would be defined later. More importantly, he properly instructed the jury on the disorderly offense of lewdness, N.J.S.A. 2C:14-4a. See Hackett, supra, 166 N.J. at 76. Under these circumstances, there is no basis to conclude that defendant's counsel's request, even if it was deficient, made any difference to the outcome in this case. See State v. Fritz, 105 N.J. 42, 58 (1987).

 
Affirmed.

(continued)

(continued)

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A-4502-04T5

RECORD IMPOUNDED

December 14, 2005