STATE OF NEW JERSEY v. M.K.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4185-03T44185-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

M.K.C.,

Defendant-Appellant.

 
__________________________________

Submitted: March 6, 2006 - Decided March 28, 2006

Before Judges Cuff, Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-03-0617.

Yvonne Smith Segars, Public Defender, attorney for appellant (Jack Gerber, Designated Counsel, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant was charged with second degree endangering the welfare of his children contrary to N.J.S.A. 2C:24-4a. He was sentenced to an eight-year term of imprisonment. The appropriate assessments and penalties were also imposed. On appeal, he argues that the judge should have charged the jury on the fourth degree endangering charge codified at N.J.S.A. 9:6-3. He contends that the omission to charge the lesser offense denied his rights to due process and equal protection. We disagree and affirm.

In August 2001, Raymond Dressler, the construction code official and zoning officer for Montvale, noticed an accumulation of debris, including furniture, building materials and toys and an "overabundance of accumulated garbage and refuse" scattered around the yard surrounding defendant's home. Defendant's large stone house fronted on West Grand Avenue; the side yard was on Terry Court. West Grand Avenue is the main thoroughfare in Montvale.

As a result of his observations, Dressler met with defendant and his wife on several occasions and walked around the property, showing them various ordinance violations. Dressler also sent them letters detailing the violations. Despite some attempts to clean up the property, more debris and refuse appeared on the property.

In October 2002, Dressler applied for an administrative search warrant, which would allow him to search defendant's home for building and zoning violations. On October 16, 2002, the judge issued Dressler a warrant. On the morning of October 18, 2002, Dressler saw defendant on the front lawn of his house. After seeing defendant, Dressler drove a few blocks to Borough Hall to get police assistance, which was standard operating procedure. Patrolman Piot responded to assist Dressler.

At around 11:00 a.m., Dressler returned to defendant's home. As Dressler drove west on West Grand, defendant and his wife drove past him, going east on West Grand. Defendant was driving and his wife was in the front passenger seat. Dressler, who was driving an SUV at about twenty to twenty-five miles an hour, could see into defendant's car because it was a compact car "that sits lower on the road." He observed only some tools, jackets and clothing in the back seat. He saw no children in the car. After driving past defendant's car, Dressler drove to defendant's house, pulled onto Terry Court and parked his car alongside Piot, who was waiting for Dressler. After a brief conversation, Piot returned to patrol duty but Dressler remained on Terry Court to await defendant's return.

Defendant and his wife returned home at around 2:00 p.m., pulling into the driveway and stopping in the front of the house. From his vantage point on Terry Court, Dressler was able to see them. Defendant and his wife were the only people that exited the car. Once Dressler saw them get out of the car, he called Piot. After exiting the car, defendant's wife walked up the front stairs of the house and defendant walked around the front of the yard, then down the side of the yard and back to the front yard.

Piot arrived at defendant's house about three minutes after Dressler's call and pulled his patrol car into the driveway. Dressler, who was parked across the street, moved his car to the side of the house and met Piot and defendant in the driveway. Dressler handed defendant the search warrant and explained that it gave him and Piot the right to enter the house and search the premises for zoning and construction code violations. After reading the warrant, defendant asked for more time to examine the document, but Dressler explained that they wanted to search the house immediately. Defendant told Dressler and Piot that he would have to go around the back and open the front door for them because the front door lock was broken.

While defendant went around the back of the house, Dressler and Piot walked up to the front door, which was wide open. As they waited for defendant to come to the front door, they heard defendant say, "get the children out of the house, the cops are here and they're going to search it." At that point, Dressler followed Piot into the house and they proceeded up the stairs. Household items, clothes, debris and refuse were scattered on the staircase. When they reached the top of the stairs, defendant and his wife were standing in the hallway. Defendant's wife was noticeably upset, questioning Dressler's and Piot's presence in the house and saying she wanted to call her lawyer. She then notified Dressler and Piot that her children were asleep in the room next to them and she did not want them disturbed. The door to the room was closed and Dressler noticed three different locking devices on the outside of the door.

Dressler and Piot eventually entered the room and observed a bedroom with two small children, a five-year-old girl and a three-year-old boy, a couch with a blanket, two small beds, some toys and a child's toilet on the floor. Dressler was struck by the smell of urine in the room. The children were disheveled and sitting around a small table eating cereal and using small coffee creamers as milk. Their "[h]air was matted. They were dirty. Everything in the place smelled." The children did not appear to be frightened of their parents, but they also "weren't particularly let's say social."

Piot asked defendant and his wife about the children in the room, "who they were, what they were doing, and why there were three locks on the door." Defendant's wife answered that they were their children, they were in the room having breakfast and the locks on the door were there to keep the children in. She explained that their bedroom was on the third floor and they did not want the children getting out of their second floor bedroom when she and her husband could not hear them.

Piot questioned both defendant and his wife about leaving the children home alone. At first, defendant's wife said that she was at home with the children. After Dressler told Piot that he had seen them driving earlier in the day without the children, defendant's wife stated they went shopping and left the children alone in the house for a very short period of time.

Dressler continued his inspection of the twenty-six room house. He could not get into nineteen of the rooms because "[t]hey were so full of contents." During the course of his inspection, Dressler took pictures of the interior of the house, which were admitted in evidence. One of the pictures depicted a bathroom near the foyer underneath the stairs in which the toilet lid was open and the toilet was clogged and filled with feces. In addition, Dressler observed that while there was only one bedroom on the third floor of the house where defendants slept, the second floor had eight bedrooms, including the children's room.

Dressler also took a picture of the locks on the door to the children's room. The picture depicted a brass door knob that could be locked with a key, a black slide gate lock that locks from left to right and a deadbolt lock on the top. Other pictures depicted the five-year-old girl in two different outfits. Dressler explained that "she seemed to be soiled and . . . in need of change," so defendant's wife changed her while Dressler and Piot were there. A picture was also taken of the back seat of defendants' car, which contained no car seats and so many items in the back seat that nobody would "put children in the back of that car." After completing his inspection, Dressler notified both defendants and Piot that the structure was unsafe and uninhabitable.

At about 2:45 p.m., the Montvale Police Department contacted the Division of Youth and Family Services (DYFS) about the children. Linda Tatekawa, a DYFS caseworker, arrived at defendants' house at approximately 4:00 p.m. When she arrived, Dressler and Piot were in the front yard; the two children were playing in front of the house. The children were dressed in sweat suits, no socks, and the small boy was not wearing a jacket. It was cold, so Tatekawa asked defendant's wife to get the small boy a jacket.

As Tatekawa walked into the house, the first thing she noticed was the number of items on the front porch. These items, which included garbage bags, car seats and toys, obstructed the entrance of the home. When she entered the home with Dressler, Piot and both defendants, they went into the kitchen. In the kitchen, there was a table covered with clothes, the ceiling was falling and there was a bucket of water that appeared to have been sitting there for a while. The general refrigerator had barely anything in it. There was no milk. Three freezers were loaded with food and meats, but the meats were freezer burned.

Heading towards the children's bedroom, Tatekawa observed a lot of items blocking the pathway, which was a concern because in times of emergency or fire the children were not easily accessible. When they entered the children's bedroom, the children were just sitting around the table, not playing, and Tatekawa noticed the three door locks on the bedroom door and a strong smell of urine throughout the room. The sofa was saturated with urine. She received no response when she asked why the room reeked of urine.

Tatekawa spoke with the children privately. While the three-year-old boy was not able to reply to Tatekawa's questions, the five-year-old girl told her they were locked in their bedroom and sometimes their mother let them out and sometimes she didn't. The room contained two beds with clean linens; however, there were no clothes, no dressers, no curtains, no telephone or baby monitor, no intercom system or any other means of two-way communication in the room. When Tatekawa confronted defendant about locking the children in the bedroom, he admitted to leaving the children locked in the bedroom, but only at night because the three-year-old boy tended to wander about the house. Defendants explained that they had adopted the children from Lithuania about a year earlier. While the girl had been examined by a doctor since arriving in the United States, the little boy had not been examined since leaving Lithuania.

Based on these observations, Tatekawa escorted the children and defendant's wife to police headquarters. Piot, defendant and Dressler followed in another vehicle. At police headquarters, defendants were placed under arrest and Tatekawa served defendants with an emergency removal letter and took custody of the children. At around 8:00 p.m., Tatekawa took the children to the emergency room in Teaneck to have the children examined and learned that the little boy was not wearing a diaper, underwear or socks. The little girl was also not wearing underwear or socks. The physician's assistant, who evaluated the children in the emergency room that evening, spent twenty minutes with the children. When she first saw them they were "unkempt, slightly disheveled, their clothes were dirty." She found that the little boy had an ear infection and a slight fever. She prescribed a shampoo for head lice and wrote another prescription for the ear infection.

Defendant's wife, M.C., testified at trial. She was born in Ireland and came to the United States with her husband in 1990. Since moving to this country, both she and her husband maintained jobs and never required government assistance. She worked as a nurse and defendant worked as a maintenance man and had his own cleaning business. By October 18, 2002, defendants had acquired "quite a bit of property", which included two houses in Pearl River, New York, one house in Englewood and another house in Montvale.

According to M.C., the entire family went to Pearl River on October 18 to pack up items at one of their houses, which was about to be sold. On their return, the children ran into the house. She followed, got some cereal as a snack for the children, and the three of them went upstairs to the children's bedroom. As the children were playing, she heard defendant say "get the kids out, the police are here." She closed the door, but did not lock it, to keep the children from being exposed to the police. A few minutes later, Piot walked up to the second floor and into the children's bedroom.

M.C. testified that the room smelled like urine because she was potty training her son at the time and sometimes he missed the potty and went on the rug. She explained that the children's clothing was kept in a small room which had been converted to a closet. She also asserted that only one tile was missing in the kitchen ceiling. In addition, there was a stainless steel refrigerator in the house where they kept milk and other food, which the caseworker never checked. She explained that she changed both children's clothes while Piot and Dressler were in the house because she did not have a chance to do so while they were in Pearl River. She also explained that the locks on the children's door were a remnant of the former use of the house as a senior citizen facility. She asserted that the children were not locked in the room. Additionally, the orange tinge and matted look of the children's hair was attributable to Halloween make-up applied to their hair.

On appeal, defendant raises the following arguments:

POINT 1 THE DEFENDANT WAS DENIED HIS DUE PROCESS AND EQUAL PROTECTION RIGHTS TO A FAIR TRIAL BY NOT HAVING THE JURY CHARGED ON FOURTH DEGREE ENDANGERING THE WELFARE OF A CHILD UNDER N.J.S.A. 9:6-3.

POINT 2 THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL FOR COUNSEL'S FAILURE TO RECOGNIZE THE DUE PROCESS AND EQUAL PROTECTION DIMENSIONS OF CHARGING THE TITLE 9 OFFENSE EQUALLY AND INDEPENDENTLY FROM N.J.S.A. 2C:24-4A. (Not raised below).

POINT 3 THE SENTENCE WAS EXCESSIVE AND UNDULY PUNITIVE.

Initially, we observe that the issue of the need to charge the jury on the Title 2C offense and the Title 9 offense was not framed in the trial court in the manner that it is presented on appeal. At trial, defendant insisted that the Title 9 offense should be presented to the jury as a lesser-included offense. The trial judge denied this request and rightly so. State v. D.A.V., 176 N.J. 338, 339 (2003); State v. N.A., 355 N.J. Super. 143, 153 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003). Therefore, we consider the argument presented on appeal in accordance with the plain error rule. R. 2:10-2; State v. Macon, 57 N.J. 325, 333 (1971). Thus, this court must determine whether any error had the clear capacity to produce an unjust result. Ibid.

N.J.S.A. 2C:24-4a, second degree endangering the welfare of child, and N.J.S.A. 9:6-3, fourth degree cruelty and neglect of children, criminalize the same harm or risk of harm to a child. D.A.V., supra, 176 N.J. at 339. N.J.S.A. 9:6-3 is part of the general provisions governing the welfare of abused and neglected children. It states, in pertinent part:

Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.

[N.J.S.A. 9:6-3.]

N.J.S.A. 2C:24-4a provides:

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or who causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S.9:6-3 and P.L.1974, c.119, 1 (C.9:6-8.21) is guilty of a crime of the second degree. (emphasis added)

These identical statutes require the same proof of "'knowing' culpability." State v. Demarest, 252 N.J. Super. 323, 333 (App. Div. 1991). The only difference between them is the degree of the offense and the penalty imposed -- when prosecuted pursuant to N.J.S.A. 2C:24-4a, a defendant is exposed to a five to ten-year state prison term; when prosecuted pursuant to N.J.S.A. 9:6-3, a defendant is exposed only to an eighteen-month prison term. D.A.V., supra, 176 N.J. at 338. The instruction to the jury on each offense would be the same. N.A., supra, 355 N.J. Super. at 153.

In State v. T.C., 347 N.J. Super. 219, 229-31 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003),this court held that there is no constitutional infirmity in the fact that N.J.S.A. 2C:24-4a is substantively identical to N.J.S.A. 9:6-3. Moreover, the prosecutor is afforded discretion to seek a conviction under the more serious provision. Ibid.; State v. D.V., 348 N.J. Super. 107, 113-16 (App. Div. 2002), aff'd o.b., 176 N.J. 338 (2003). In making their determinations, both courts relied on United States v. Batchelder, 442 U.S. 114, 123-24, 99 S. Ct. 2198, 2204, 60 L. Ed. 2d 755, 764 (1979), in which the Supreme Court stated, "when an act violates more than one criminal statute, the Government may prosecute under either so long as it does not discriminate against any class of defendants." In addition, both courts found that while "the primary concern of Title 9 is the protection of children rather than the culpability of adults," T.C., supra, 347 N.J. Super. at 231, the purpose of the Title 2C provision is to permit prosecution for the offense carrying the greater penalty when circumstances permit. Ibid.; D.V., supra, 348 N.J. Super. at 114-15.

In D.V., supra, this court recognized that there is some limitation on prosecutorial discretion in this context and that the court will interfere when the prosecutor's conduct is "arbitrary, capricious or otherwise constitutes a patent or gross abuse of discretion." 348 N.J. Super. at 116. On certification, the Supreme Court affirmed this court's holding and Justice Albin, in his concurring opinion, urged the Attorney General to "promulgate guidelines to assist prosecutors in choosing whether to prosecute a defendant under N.J.S.A. 2C:24-4a or N.J.S.A. 9:6-3." D.A.V., supra, 176 N.J. at 342. He emphasized that such guidelines must "guide the discretion of prosecutors so that rational distinctions are made in applying the appropriate statute." Ibid. In the absence of such guidelines, Justice Albin concluded that "similarly situated defendants" will inevitably be charged disparately and suffer disparate sentences under those identical statutes. Id. at 339.

Here, given the holdings in D.V. and T.C., the trial court did not err in refusing to charge the Title 9 offense. Although defendant contends both N.J.S.A. 2C:24-4a and N.J.S.A. 9:6-3 should have been charged as independent offenses, defendant failed to demonstrate that the State abused its discretion in only indicting defendant under the second degree offense. While Justice Albin's recommendation is sound, current New Jersey law grants prosecutors discretion to seek a conviction under the more serious provision. T.C., supra, 347 N.J. Super. at 229-31. The peril posed to the children by their parents' act of leaving them alone in a room in a house with the multiple construction code violations found here is manifest. The peril was of life-threatening dimension and fully justifies the prosecutorial decision to charge the more serious offense.

Defendant also argues that trial counsel was ineffective because he failed to recognize the constitutional ramifications of the prosecutorial decision to charge the more serious offense. In light of our disposition of the merits of this issue, defendant cannot satisfy the first prong of the two prong Strickland/Fritz test. That is, he cannot demonstrate that trial counsel's performance was deficient. Strickland v. Washington, supra, 466 U.S. at 687, 104 S. Ct. at 2064, 80 L. Ed. 2d at 693; Fritz, supra, 105 N.J. at 58.

Defendant also contends that the eight-year term of imprisonment is excessive and unduly punitive. We do not address the merits of this contention because a remand is required to reconsider the term in light of recent case law developments.

In State v. Natale, 184 N.J. 458 (2005) (Natale II), the Court stated that, under our Code of Criminal Justice, "before any judicial factfinding, the maximum sentence that can be imposed based on a jury verdict or guilty plea is the presumptive term," and therefore "the 'statutory maximum' for Blakely [v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004)] and [United States v.] Booker[, 543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005)] purposes is the presumptive sentence." Natale II, supra, 184 N.J. at 484. Accordingly, the Court "eliminat[ed] the presumptive terms" creating the "'statutory maximum' authorized by the jury verdict or the facts admitted by a defendant at his guilty plea [as] the top of the sentencing range for the crime charged." Id. at 487.

The holding in Natale II is entitled to "pipeline retroactivity," and thus applicable to defendants who had cases on direct appeal at the time of the decision. Id. at 494. A new sentencing hearing is to be held in each affected case based on the record at the prior sentencing. Id. 495-96. At the hearing, the trial court must:

determine whether the absence of the presumptive term in the weighing process requires the imposition of a different sentence. The court should not make new findings concerning the quantity or quality of aggravating and mitigating factors previously found. Those determinations remain untouched by this decision. Because the new hearing will be based on the original sentencing record, any defendant challenging his sentence on Blakely grounds will not be subject to a sentence greater than the one already imposed.

[Ibid.]

Here, after finding aggravating factors (3), (6) and (9) and no mitigating factors applicable, the trial court imposed an eight-year term on defendant's second degree endangering conviction. The sentence clearly exceeds the former seven-year presumptive term for a second degree offense under N.J.S.A. 2C44-1f(1)(c).

It should be noted that the State contends the judge properly imposed an eight-year sentence for endangering the welfare of a child because all three of the applicable aggravating factors fell within the "recidivism exception" recognized by the Court in State v. Abdullah, 184 N.J. 497, 506 n.2 (2005). In Abdullah, the Supreme Court suggested "that aggravating factors (3), (6) and (9) related to [a] defendant's prior convictions" might be "the basis for increasing defendant's sentence above" what had been the presumptive term. Abdullah, supra, 184 N.J. at 506, n.2.

Here, the trial judge identified aggravating factors (3), (6) and (9), N.J.S.A. 2C:44-1a(3), (6) and (9), as the relevant aggravating factors, but failed to specify what evidence in the record, if any, supported his findings. While we can infer that the judge's findings were based on defendant's prior conviction in another state for endangering the welfare of an elderly person, the judge did not state his reasons for finding these aggravating factors applicable. Therefore, we are constrained to remand for reconsideration of the sentence.

Affirmed in part; remanded for reconsideration of sentence.

 

M.C. was also charged with and convicted of endangering the welfare of her children. Her appeal, A-4519-03T4, was listed back-to-back with this appeal and is also decided this date in a separate opinion.

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).

State v. Fritz, 105 N.J. 42, 58 (1987).

But see State v. Nesbitt, 185 N.J. 504, 519 (2006) (term of imprisonment in excess of presumptive term remanded for consideration notwithstanding citation of aggravating factors (3), (6) and (9)).

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A-4185-03T4

RECORD IMPOUNDED

March 28, 2006