STATE OF NEW JERSEY v. J.B.

Annotate this Case

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5616-03T45616-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.B.,

Defendant-Appellant.

_________________________________

 

Submitted: November 9, 2005 - Decided June 26, 2006

Before Judges Kestin, Hoens and Seltzer.

On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Passaic County, 01-06-0590.

Yvonne Smith Segars, Public Defender, attorney for appellant (William Welaj, Designated Counsel, of counsel and on the brief).

James F. Avigliano, Passaic County Prosecutor, attorney for respondent (Christopher W. Hsieh, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals from a judgment of conviction on two counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; one count of aggravated criminal sexual contact (third-degree), N.J.S.A. 2C:14-3a; two counts of third-degree aggravated assault, N.J.S.A. 2C:12-1b(7); one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b; and two counts of cruelty and neglect of a child (fourth-degree), N.J.S.A. 9:6-3. The jury acquitted defendant on one count charging sexual assault (second-degree).

For reasons expressed in a written opinion, the trial judge denied defendant's motion to set aside the verdict. He sentenced defendant to concurrent prison terms on each of the convictions, aggregating nine years with three years of parole ineligibility. The two second-degree crimes each drew prison sentences of nine years with three years of parole ineligibility; the three third-degree crimes into which one of the fourth-degree convictions was merged each drew prison sentences of four years; and the remaining two fourth-degree convictions each drew prison sentences of eighteen months.

On appeal, defendant raises the following issues:

POINT I THE TRIAL COURT'S CHARGE TO THE JURY REGARDING COUNT II INVOLVING ENDANGERING THE WELFARE OF A CHILD PURSUANT TO N.J.S.A. 2C:24-4a WAS FATALLY DEFECTIVE BY FAILING TO DEFINE AN ESSENTIAL ELEMENT OF THE OFFENSE. (NOT RAISED BELOW)

POINT II THE TRIAL COURT'S CHARGE TO THE JURY REGARDING COUNT III WAS FATALLY DEFECTIVE BY NOT RESTRICTING THE OFFENSE TO THE ALLEGATIONS OF PHYSICAL ABUSE COMMITTED BY THE DEFENDANT BUT BY ALSO INCORPORATING THE ALLEGATIONS OF SEXUAL ABUSE EMBODIED IN COUNT II AS WELL. (NOT RAISED BELOW)

POINT III THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY. (NOT RAISED BELOW)

POINT IV THE JURY'S VERDICT FINDING THE DEFENDANT GUILTY OF COUNT III INVOLVING SECOND DEGREE ENDANGERING THE WELFARE OF A CHILD BASED UPON PHYSICAL ABUSE WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT V THE TRIAL COURT ERRED IN INSTRUCTING THE JURY REGARDING AGGRAVATED ASSAULT EMBODIED IN COUNTS VII AND IX BASED UPON AN ACTUAL INFLICTION OF SIGNIFICANT BODILY INJURY, DENYING TO THE DEFENDANT HIS RIGHT TO A FAIR TRIAL. (NOT RAISED BELOW)

POINT VI THE TRIAL COURT ERRED IN FAILING TO MERGE COUNTS VII AND IX CHARGING CRUELTY AND NEGLECT OF A CHILD INTO COUNTS VI AND VIII CHARGING AGGRAVATED ASSAULT. (NOT RAISED BELOW)

POINT VII THE NINE YEAR TERMS WITH THE THREE YEAR PAROLE DISQUALIFIERS IMPOSED AT SENTENCING ON COUNTS II AND III ARE UNCONSTITUTIONAL SINCE THEY EXCEED THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.

POINT VIII THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.

As to issues not raised before the trial court, defendant must show plain error, that is, a real possibility that the error was "of such a nature as to have been capable of producing an unjust result or a result that would otherwise not have been reached." Pressler, Current N.J. Court Rules, comment on R. 1:7-5 (2006). See R. 2:10-2; State v. Macon, 57 N.J. 325, 335-41 (1971).

Our analysis of the record in the light of the arguments advanced by the parties and prevailing legal norms discloses that defendant has not satisfied plain error standards in respect of most of the newly raised issues, and that the arguments regarding merger of certain convictions are without sufficient merit to warrant our intervention. We are satisfied, however, that the convictions for two of the crimes charged must be reversed; and we also remand for reconsideration of the sentences in the light of recent developments in case law.

The victim in the matter is defendant's daughter. She was nineteen years of age at the time of trial, in June 2003. The indictment charged instances of sexual conduct and non-sexual harmful acts from September 1995 to September 1999, and instances of assaultive conduct and abuse and neglect in June 2000 and March 2001. There is no need to detail the sordid factual allegations in order to dispose of the issues on appeal.

We begin by addressing the issues not previously raised. Those challenges to the convictions involve the trial court's instructions to the jury on the two counts of endangering the welfare of a child and on the two counts alleging aggravated assault, as well as assertions of prosecutorial excess. As to the sentences, a question regarding merger of certain convictions is also raised even though not introduced to the trial court.

The endangering charge in the second count of the indictment was based on alleged acts of sexual abuse. The endangering charge in the third count was based on alleged acts of physical abuse other than sexual acts. Defendant argues, as to the second count, that the trial court, in delivering its instructions to the jury, erred in omitting to summarize the specific allegations of sexual conduct; and, as to the third count, that the court erred in including a reference to sexual conduct in the recitation of possible bases for conviction, instead of limiting the description to non-sexual acts of physical abuse.

We discern no capacity for an unjust result in respect of the charge on the second count. There was no question in this case that the conduct alleged as the basis for that endangering charge was sexual in nature. Thus, this case is distinguishable from State v. Hackett, 166 N.J. 66 (2001), in which the jury had been called upon to determine whether more ambiguous conduct was sexual in character. Given the record developed in this matter, the jury could have had no misunderstanding of the considerations it was called upon to make in respect of the second count charge. Thus, plain error standards have not been met.

As to the third count, it would have been better, in the light of how the State chose to formulate the endangering charges against defendant and how the case was tried, for the trial court to have limited the jury's consideration on the third count to the non-sexual acts of physical abuse alleged rather than including, as well, "any act of sexual abuse against the child" as a basis for that endangering charge. Nevertheless, from the record taken as a whole, we discern that the jury had been informed throughout the trial that the sexual acts and the non-sexual acts of physical abuse were distinct, and that they constituted separate bases for the two endangering charges. Accordingly, we conclude there was no capacity for the jury to have been misled by the overly broad instruction or to reach a decision on the charge in the third count that it would not have reached if it had been more narrowly instructed.

The charges in the sixth and eighth counts of the indictment, tracking the language of N.J.S.A. 2C:12-1b(7), were that defendant "commit[ted] an act or acts of aggravated assault" upon the victim "by attempting to cause significant bodily injury . . . or caused significant bodily injury." At the argument on the post-trial motions, the State conceded that there had been "no actual [in]fliction of a significant bodily injury." The trial court had nevertheless instructed the jury as to both actual infliction of significant bodily injury and attempt to inflict such an injury. Defendant, citing State v. Green, 318 N.J. Super. 361 (App. Div. 1999), aff'd o.b., 163 N.J. 140 (2000), argues that, in the absence of evidence to support actual infliction, the trial court's instructions constituted reversible error. We agree. Given the absence of any evidence supporting actual infliction, the potential for jury confusion in this connection is too real to be disregarded. "[I]ncorrect instructions of law are poor candidates for rehabilitation under the harmless error theory." State v. Weeks, 107 N.J. 396, 410 (1987); see also State v. G.V., 162 N.J. 252, 262-63 (2000). The convictions for aggravated assault must be reversed and the matter remanded as to them.

We discern no merit in defendant's argument, also made without having lodged objection at trial, that the prosecutor's summation exceeded the bounds of propriety. Once defendant placed his character and reputation in issue, and introduced a number of supporting witnesses, the State's references to the believability of those proofs and their bearing on the charges before the jury were appropriate. In the light of the record developed, nothing the prosecutor said in summation went beyond the bounds of acceptably "vigorous and forceful" advocacy, State v. Harris, 141 N.J. 525, 559 (1995), or had the capacity to deny defendant a fair trial.

We also reject as lacking in merit, defendant's argument that the guilty verdict on the third count, endangering the welfare of a child by physical abuse, was against the weight of the evidence. There was ample evidence in the record to support the jury's verdict in this connection.

As to the sentencing issues, we discern no merit in defendant's argument that the convictions for cruelty and neglect of a child should have been merged into the convictions for aggravated assault. The State's general interest in protecting all citizens from the assaultive behavior of others, bespoken by N.J.S.A. 2C:12-1b(7), and its specific interest in promoting parental responsibility, evinced in N.J.S.A. 9:6-3, serve distinct policies and goals, calling for separate criminal responsibility as to each even where the prohibited acts emanate from the conduct of a single defendant on the same occasions. See State v. D.R., 109 N.J. 348, 377-78 (1988); State v. Miller, 108 N.J. 112, 116-122 (1987).

Given the length of the sentences imposed and the aggravating factors identified in formulating them, the sentences must, however, be reconsidered in the light of the Supreme Court's decisions in State v. Natale, 184 N.J. 458 (2005), and State v. Abdullah, 184 N.J. 497 (2005). We remand for that purpose, as well.

The convictions on counts 2, 3, 4, 5, 7 and 9 of the indictment are affirmed, The convictions on counts 6 and 8 are reversed. The matter is remanded for further proceedings on counts 6 and 8 and for reconsideration of the sentences on the affirmed convictions.

 

(continued)

(continued)

9

A-5616-03T4

RECORD IMPOUNDED

June 26, 2006

 


Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.