STATE OF NEW JERSEY v. NISEES INGRAM

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0812-07T40812-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

NISEES INGRAM a/k/a NAFEES INGRAM,

NEFEES INGRAM, NIFEES A. INGRAM,

RAYMOND INGRAM,

Defendant-Appellant.

__________________________________________________________

 

Submitted December 10, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 05-05-1094, 05-11-2650, 06-04-1217, 06-05-1586.

Yvonne Smith Segars, Public Defender, attorney for appellant (Michele C. Buckley, Designated Counsel, 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

Defendant Nafees Ingram was indicted by the Essex County grand jury and charged with first-degree attempted murder of Amera B. (hereafter referred to as Amera), N.J.S.A. 2C:5-1 and 2C:11-3 (count one); second-degree aggravated assault of Amera, N.J.S.A. 2C:12-1(b)(1)(count two); third-degree endangering the welfare of twelve-year-old A.B., N.J.S.A. 2C:24-4(a) (count three); third-degree endangering the welfare of fifteen-year-old K.H., N.J.S.A. 2C:24-4(a) (count four); third-degree unlawful possession of a handgun, N.J.S.A. 2C:39-5(b) (count five); and second-degree possession of a handgun for an unlawful purpose, N.J.S.A. 2C:39-4(a) (count six). Following a jury trial, defendant was found guilty of simple assault, N.J.S.A. 2C:12-1(a)(2), negligently causing bodily injury with a deadly weapon, as a lesser-included offense of count two; both counts of endangering the welfare of a child; and unlawful possession of a handgun. He was acquitted on the remaining counts.

Defendant thereafter entered guilty pleas to certain counts of three other indictments pursuant to a plea bargain with the State. On the indictment that is the subject of this appeal, defendant was sentenced to a six month custodial term on the simple assault conviction, and five years on each of the remaining three counts. All sentences were imposed concurrently with each other and with the sentence imposed on one of the other indictments to which defendant had pled guilty. In total, defendant was sentenced to seven years imprisonment, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.

On appeal, defendant argues the following:

POINT I

THE TRIAL COURT ERRED IN REFUSING TO DISMISS COUNTS THREE AND FOUR CHARGING [DEFENDANT] WITH ENDANGERING THE WELFARE OF A CHILD . . . WHERE THE STATE FAILED TO ESTABLISH THAT [DEFENDANT] ABUSED OR NEGLECTED THE TWO TEENAGERS IN THE APARTMENT AT THE TIME OF THE INCIDENT.

POINT II

THE TRIAL COURT'S FAILURE TO DEFINE THE TERM "ABUSED" AND "NEGLECTED" IN ITS JURY INSTRUCTIONS ON COUNTS THREE AND FOUR CONSTITUTED REVERSIBLE ERROR.

POINT III

THE TRIAL COURT ERRED IN PRECLUDING DEFENSE COUNSEL FROM QUESTIONING [A] WITNESS AS TO HER USE OF DRUGS ON THE DAY OF THE INCIDENT, WHERE [THE] WITNESS HAD SEVERAL CONVICTIONS AND AN OPEN CHARGE FOR POSSESSION OF CDS.

POINT IV

THE TRIAL COURT ERRED IN CHARGING THE JURY ON FLIGHT WHEN THERE WAS NO EVIDENCE PRESENTED UPON WHICH AN INFERENCE OF FLIGHT COULD BE PREDICATED.

POINT V

THE TRIAL COURT ERRED IN DENYING THE DEFENSE DISCOVERY AS TO [A] WITNESS'S PENDING CHARGE FOR POSSESSION OF CDS, AS WELL AS HER "RAP SHEET" OR "CCH" INDICATING HER PRIOR CONVICTIONS.

POINT VI

THE PREJUDICIAL EFFECT OF OTHER CRIMES EVIDENCE ADMITTED THROUGH THE TESTIMONY OF A WITNESS OUTWEIGHED ANY PROBATIVE VALUE.

POINT VII

AT SENTENCING, THE COURT OVER VALUED AGGRAVATING FACTORS RESULTING IN AN EXCESSIVE SENTENCE.

POINT VIII

THE CUMULATIVE EFFECT OF THE ERRORS AT DEFENDANT'S TRIAL DEPRIVED HIM OF THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL.

We have considered these arguments in light of the record and applicable legal standards. We reverse defendant's convictions for simple assault and two counts of endangering the welfare of a child, and remand the matter for a new trial. In all other respects, we affirm.

I.

On the evening of January 8, 2006, Amera was shot in the bedroom of her apartment. She had been dating defendant for approximately five months and they had been seeing each other every day. Amera had custody of two of her seven children, including twelve year old A.B., who lived with Amera. Amera acknowledged on direct examination that she had been convicted of two counts of possession of CDS with intent to distribute in a school zone and had spent three years and fifteen months in State prison. At the time of the trial, Amera was also facing pending charges for possession of CDS.

On the night in question, Amera, defendant, A.B., and her fifteen-year-old male friend, K.H., were in the apartment. Defendant and Amera were in her bedroom watching television. Although it was dark in the room, she saw defendant close by with a gun. She had never seen the gun before, and asked him to stop "playing with [it]." As she looked away, the gun "just went off." Amera "never s[aw] [defendant] pointing [the gun] at [her]" and did not immediately realize she had been shot. She saw defendant put on his pants and leave the room.

Amera did not recall anything else until she woke up in the hospital where she spent the next two weeks. She had a "halo" on her head, a tracheotomy tube in her throat, and a feeding tube in her stomach. Upon her release, Amera was transferred to Kessler Institute in West Orange where she spent two months in rehabilitation. As a result of the shooting, she lost the use her right arm.

The State's next witness was A.B. who ran to her mother's bedroom when she heard a shot and saw her on the floor. Defendant shut the door to the room in A.B.'s face. Although confused regarding the exact sequence of events immediately thereafter, A.B. heard defendant say her mother had shot herself, and she saw him get a plastic bag from the kitchen. A.B. ran to a neighbor's house to call 9-1-1 because there was no phone in the apartment. A.B. claimed to have seen defendant with a gun in his waistband earlier in the evening.

K.H. was being detained in the youth correctional center for a violation of probation when he testified as the State's next witness. He had numerous prior adjudications of delinquency, including charges of burglary, conspiracy, possession of CDS, and possession of CDS with the intent to distribute. K.H. was at Amera's apartment talking to A.B. in the living room when he heard a gunshot from the bedroom. He saw defendant run out of the bedroom claiming Amera had "shot herself in the face" and telling K.H. to "call the ambulance." K.H. left to call 9-1-1, was unsuccessful, and returned to find Amera on the floor bleeding. On cross-examination, K.H. testified that he had seen Amera with a gun on prior occasions.

Dr. Ann Mosenthal, a trauma surgeon and director of the Surgical Intensive Care Unit at New Jersey Medical School and University Hospital in Newark, testified that a bullet entered Amera's right jaw and exited under her left ear. Mosenthal described the treatment Amera received for her gunshot wound. The State's final witness was detective Bernadette Holmes of the Newark police department. She recovered a live round of 9 mm. ammunition on Amera's bed and a spent cartridge behind the bed, neither of which revealed any fingerprints. No weapon was recovered.

Although the judge recognized defendant intended to move for a judgment of acquittal as to some of the charges, defense counsel agreed to "do the motions after [defendant] testifie[d]." Defendant admitted keeping a gun in Amera's house under her bed, and acknowledged he had no permit for the weapon. On the night of the shooting, he claimed Amera kept asking him to see the gun, so he gave it to her and she was "playing with it." She had asked for the gun on prior occasions and he had given it to her before.

Defendant continued to watch television in the bedroom with Amera just a few feet away when he heard a shot and saw Amera lying on the floor bleeding heavily. He told A.B. and K.H. to call the police because Amera had shot herself, and then he placed her on the bed. Defendant dressed and, fearing Amera would expire, left the apartment because he could not bear "seeing somebody [he] love[d] die right before [his] eyes." Defendant claimed he left the gun behind in the apartment.

Defendant rested after testifying and moved for a judgment of acquittal as to all charges, save the illegal possession of a weapon. We discuss in detail below the argument defendant made with respect to the two counts charging him with endangering the welfare of a child. These motions were denied, and, after summations, jury instructions, and deliberations, the jury returned the verdicts we referenced above.

II.

In Point III, defendant argues that the judge mistakenly exercised his discretion by denying him the opportunity to cross-examine Amera regarding her drug use on the day of the shooting, and further refused to permit defendant from testifying about it himself. He argues that any testimony regarding Amera's ingestion of drugs on the day of the shooting was relevant, given that he and Amera were the only witnesses to the actual event and their testimony was in direct conflict. We agree that these errors denied defendant a fair trial and require reversal of his convictions for simple assault and endangering.

We begin by noting that our standard of review requires us to give substantial deference to the trial judge's evidentiary rulings. State v. Morton, 155 N.J. 383, 453 (1998). We generally will not disturb those rulings absent "a clear error of judgment" resulting "in a manifest denial of justice." Id. at 454; State v. Cook, 179 N.J. 533, 569 (2004).

The issue first arose during pre-trial hearings when the judge was considering the admissibility of Amera's prior drug convictions, and the narcotics charge that was pending. Defense counsel was requesting a "rap sheet" of Amera's prior arrests, and discovery in the pending case. The prosecutor objected, but acknowledged, "[a]s far as [Amera's] drug use or anything like that goes, I suppose some of it is . . . fodder for cross-examination." She then explained,

Just so the record is clear, the medical reports don't indicate any kind of toxicology screen [] was done at the time [of Amera's admission to the hospital]. There's no proof . . . that she was using drugs at the time that this incident occurred. My understanding is that would only come if the defendant were to take the stand. Perhaps there might be something over there in his testimony that would indicate that.

I don't think her drug use is [] something . . . which is viable cross-examination material.

Defense counsel cited our decision in State v. Johnson, 216 N.J. Super. 588 (App. Div. 1987), certif. denied, 107 N.J. 647 (1987), and, indicating that he wanted to research the issue, the judge reserved decision.

The matter apparently went unresolved. Although the prosecutor asked Amera about her prior convictions and pending charge on direct, she asked no questions regarding any drug use on the day of the shooting. Amera was cross-examined about her pending drug arrest which occurred in December 2006, some three months before the trial. She could not remember when she was arrested, and when defense counsel asked what type of drug she possessed that day, the prosecutor objected. The following ensued at sidebar:

Judge: Why is the type of drug relevant?

Defense counsel: Because my client tells me she is a drug user and using drugs. I'm going to bring that out. I have a right to ask her that.

Prosecutor: Judge, I absolutely object to that.

Defense counsel: That she had drugs on that date?

. . . .

Judge: Now as far as if she used drugs on January 8, 2005 (sic), why is that not relevant?

Prosecutor: . . . Whether or not she was using drugs on that particular day, it doesn't go to anything.

Judge: He was there all day. They were in and out of the bedroom. I think the jury has a right to know . . . what . . . may have occurred prior to the shooting.

Prosecutor: [I]f these are questions . . . on direct, that's one thing, but asking these questions on cross-examination of this witness, there is nothing to indicate . . . that she was high on anything at the time, no toxicology screening, nothing in the medical records. These questions are being asked with nothing to back it up besides the defendant's testimony.

Defense counsel: There is no toxicology screen for whatever reason. Her blood work, she wasn't able to give any history as to alcohol use, past medical history, she was unable to talk . . . .

Prosecutor: She is going to be bringing out things in cross-examination to impugn her reputation, which there is nothing to back it up besides what the defendant testified to.

She is throwing it out in front of the jury without anything to back it up, and I don't think she can do that.

Without specifically ruling on that aspect of the proposed questioning, the judge permitted defense counsel to ask Amera about her pending charges in a limited way. When testimony resumed in front of the jury, defense counsel asked if Amera "use[d] any drugs" on the day of the shooting. Although there was an objection, Amera answered, "I don't do drugs." The judge belatedly sustained the prosecutor's objection, but gave no instruction to the jury.

The issue again arose when defendant testified on direct. He was asked, "On January 8th was [Amera] using drugs?" He answered, "Yes." The judge sustained the prosecutor's objection. At sidebar, the following ensued:

Defense counsel: [T]his goes directly to [] [Amera's] -- the taking of drugs goes directly to her credibility. I am not asking about drugs out of a vacuum. She's got convictions for it. She's got a pending charge and he is testifying [as to] what he saw.

Prosecutor: [N]umber one, it's not . . . relevant to this case whether she was taking drugs at that time or not. I don't know how it goes to her credibility as a witness if she was taking drugs on that particular day . . . . [Y]ou can't piggy back drug use on something like a prior [judgment of conviction].

. . . .

Defense counsel: [I]t explains her behavior.

Prosecutor: [T]here's nothing in the medical records or anything like that indicating they had any kind of illegal drug in her system at the time. If that had come out, I would have to concede[] it's a proper form of cross-examination.

(Emphasis added.)

Noting that defense counsel had not asked the doctor about the issue, and that "there [wa]s no other evidence with regard to that," the judge sustained the objection. Upon the prosecutor's request, the judge then instructed the jury to "disregard the response to that last question[.]"

"Evidence of . . . sensory or mental defects has unquestionable relevance in attacking a witness' credibility." Johnson, supra, 216 N.J. Super. at 603. "[A] defendant is entitled to fully test the State's proofs by challenging a witness's perceptions and his ability to make observations." State v. Zenquis, 251 N.J. Super. 358, 367 (App. Div. 1991), aff'd, 131 N.J. 84 (1993). In this regard, "[t]he substantially contemporaneous use of illegal and potentially dangerous drugs, insofar as it may relate to a witness' ability to perceive and recall, is highly relevant to credibility." State v. Ciuffini, 164 N.J. Super. 145, 154 (App. Div. 1978); see Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 611 (2008) (noting "[t]he object of such evidence is to show that the witness's ability to perceive the facts to which [s]he testified was impaired").

In State v. Wormley, 305 N.J. Super. 57, 63 (App. Div. 1997), certif. denied, 154 N.J. 607 (1998), we reversed the defendant's conviction for first-degree robbery because of the trial judge's "limitation [of cross-examination regarding the victim's] drug use[.]" After conducting a N.J.R.E. 104 hearing at which the victim admitted his prior drug convictions and his continued routine use of drugs, but denied using any drugs for one week before the robbery, the judge precluded any cross-examination concerning the matter. Id. at 65. We noted, "Most assuredly, evidence of a witness' sensory or mental defects has 'unquestionable' relevancy in attacking that witness' credibility. Proof, then, that such a defect or abnormality existed at the time a witness claims to have made certain observations, is a significant impeachment tool." Id. at 67 (citations omitted). We took note of the victim's "questionable" "observations and conduct after the alleged robbery[,]" and the ability of the defendant "to cast some question upon [the victim's] credibility through these peculiarities in his testimony and his prior convictions." Id. at 67-68. In concluding the error required reversal, we noted "cross-examination of [the victim's] drug use may well have tipped the scales." Id. at 68.

As the above demonstrates, we have no doubt that defendant should have been permitted to freely cross-examine Amera regarding any drug use by her on the day of the shooting. This evidence was highly relevant given the divergent accounts of the only two witnesses to the shooting itself. Amera supplied no details as to how the shooting actually occurred, except that defendant had the gun in his hand when it went off. Defendant, to the contrary, testified that Amera asked him to see the gun, that he removed the clip from the weapon, and believed it was not loaded. He also claimed that Amera was "playing" with the weapon when it went off. Whether Amera had ingested drugs that day, and whether she was still feeling any effects, was highly relevant to her ability to perceive the events and her general credibility as a witness. To the extent the judge limited defendant's cross-examination of her, he mistakenly exercised his discretion.

If that was all, however, we might conclude the error was harmless. Despite the prosecutor's successful objection to defense counsel's question, Amera answered anyway, and denied using any drugs. By refusing to permit defendant to testify about his own observations of Amera's alleged drug use on the day of the shooting, the judge committed error that was "clearly capable of bringing about an unjust result." R. 2:10-2.

We are somewhat hampered in our analysis because defense counsel never made an express proffer as to what knowledge defendant had regarding Amera's drug use on the day of the shooting. See State v. Spencer, 319 N.J. Super. 284, 305 (App. Div. 1999) (where in the context of cross-examination, we noted a potentially inflammatory question "must be based upon facts in evidence or based upon a proffer . . . indicating [the] ability to prove the facts contained in the question"). However, piecing the various references in the transcript together, it is clear that defendant intended to testify as "to what he saw" regarding Amera's use of drugs on the day of the shooting. There was no surprise to the State. The prosecutor noted the possibility of defendant testifying about the issue during the pre-trial proceedings, conceding there "might be something . . . in [defendant's] testimony that would indicate that." Moreover, the judge's rationale for excluding defendant's testimony -- that the doctor was not asked about Amera's blood test results and "there [wa]s no other evidence with regard to" her use of drugs -- missed the point. In the context of cross-examination, we have noted, "It does not matter that the likelihood of defendant's contention 'might be slim.'" Wormley, supra, 305 N.J. Super. at 66 (quoting State v. Crudup, 176 N.J. Super. 215, 221 (App. Div. 1980)). It was for the jurors to decide whether defendant was testifying truthfully, the lack of any corroborative evidence being a factor for them to consider, not a basis to exclude defendant's own eyewitness testimony.

In short, we view the judge's decision to prohibit defendant from testifying about Amera's alleged drug use on the day of the shooting as having significantly impacted his ability to present his defense. We do not believe, however, that if permitted, the testimony would have affected the verdict as to defendant's conviction for the unlawful possession of the handgun. As to that count, defendant admitted 1) that the gun was his; 2) that he brought it to Amera's apartment a day earlier; and 3) that he did not have a permit for the gun. Prohibiting defendant from testifying about Amera's alleged drug use was irrelevant to this charge, and we therefore reverse the convictions for simple assault and endangering only, on these grounds, and remand the matter for a new trial should the State decide to proceed. We also reverse defendant's convictions for endangering the welfare of A.B. and K.H based upon additional reasons that follow.

III.

After resting, defense counsel moved to dismiss counts three and four, noting there was "no testimony that [defendant] ha[d] any relationship with either one of the children." She argued that defendant committed no specific act that made A.B. or K.H. "abused, neglected or harmed[,]" noting the statute contemplated defendant knowingly doing "something specific . . . to one or more minors," "with a conscious result of harming, abusing or neglecting the children." The State had only proven that the children were "in a room next to where a shooting occur[ed][.]"

The prosecutor conceded it was not the State's contention that defendant "had a legal duty to these children." However, she argued that defendant left the scene knowing A.B. and K.H. were under the age of sixteen, left a gun in the bedroom, and left them "with an incapacitated adult [and] nobody to care for them."

The judge concluded:

[N]ormally this motion would have been before the Court prior to my having heard any testimony from defendant, so I believe I have to look at it in that light as if I had not heard th[at] testimony . . . .

[Defendant] knew . . . that both A.B. and K.H. were children . . . under [sixteen] . . . . [H]e should have known that because . . . this was a couple, boyfriend and girlfriend . . . for a period of three or four months. He was constantly there, so he would know that they were under sixteen and the defendant knowingly caused harm that could make the child abused or neglected.

. . . [T]here's a responsibility on an adult that a gun should not be left in areas. How many times did we read that children find guns and cause injury or worse, by virtue of the gun being -- the weapon being left in places that children get to, and that the conduct . . . and again I'm not counting any of the testimony that I did hear from [defendant], that a person is shot. Whether you say the gun went off, just went off or it was purposeful, but that they would exit such a scene full of blood as [is] depicted by that which is in evidence, and that that could not be construed as being harmful and neglectful of children when one is an adult.

He denied defendant's motion.

The judge charged the jury utilizing the model charge for endangering the welfare of a child. At the conclusion of the instructions, at side bar, defense counsel objected, contending that the judge had failed to define "abused or neglected" under the statute. The judge then instructed the jury that, "The State ha[s] indicated that [] the children . . . were left alone and they were abused or neglected in so far as they were exposed to the scene."

In Point I defendant argues that the State failed to prove an essential element of endangering the welfare of a child, specifically that he "abused or neglected" A.B. and/or K.H., and therefore his motion for acquittal should have been granted. In Point II, defendant contends that the judge's charge as to the endangering counts was erroneous because it never defined "abused or neglected" for the jury. We agree that the charge was deficient and that reversal is required. However, we conclude the evidence adduced was sufficient to deny defendant's motion for acquittal. We consider that point first.

A.

We note that the judge correctly stated his obligation to evaluate defendant's motion for acquittal without reference to defendant's testimony. See State v. Samuels, 189 N.J. 236, 245 (2007) (noting that "[i]n reviewing such motions, a court 'may not consider any evidence adduced by the defense in determining if the State had met its burden as to all elements of the crime charged'")(quoting Pressler, Current N.J. Court Rules, comment 1 on R. 3:18 (2006)). We conduct our review de novo, applying the same standard used by the trial judge, State v. Bunch, 180 N.J. 534, 548-49 (2004), namely:

[W]hether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.

[State v. Reyes, 50 N.J. 454, 459 (1967).]

The judge seemed to conclude that by leaving the children at "a scene full of blood," defendant could be guilty of endangering their welfare. While we concede this presents a close question, we conclude that by applying the Reyes standard, the judge properly denied defendant's motion for acquittal.

N.J.S.A. 2C:24-4(a) provides in pertinent part:

Any person . . . who causes [a] child harm that would make the child an abused or neglected child as defined in [N.J.S.A.] 9:6-1, [N.J.S.A.] 9:6-3 and [N.J.S.A.] 9:6-8.21[] is guilty of a crime . . . .

If the defendant is someone who has "a legal duty for . . . or who has assumed responsibility for the care of a child," endangering is a crime of the second degree, otherwise, it is a crime of the third degree. Ibid. A "child" is a person under the age of sixteen years. N.J.S.A. 2C:24-4(b)(1).

We have previously held that "'[t]he intent [of N.J.S.A. 2C:24-4(a)] is to incorporate the crime now defined in N.J.S.[A.] 9:6-3 without substantial change except for the penalty provisions.'" State v. Demarest, 252 N.J. Super. 323, 328 (App. Div. 1991) (quoting Final Report of the New Jersey Criminal Law Revision Commission, Vol. II, at 259 (1971)). "The method chosen by the Commission to accomplish this objective was to incorporate by reference the definitions of 'abused[,]' 'abandonment[,]' 'cruelty' and 'neglect' contained in N.J.S.A. 9:6-1, which also are incorporated in N.J.S.A. 9:6-3." Demarest, supra, 252 N.J. Super. at 328. The Legislature's intent was "to incorporate the offense previously proscribed . . . but to impose more severe penalties." Id. at 332. As we more recently reiterated,

[T]he Title 2C offense of endangering the welfare of children and the Title 9 offense of cruelty and neglect of children are the same offenses. The only difference is the degree of the offense and the penalty. Each offense criminalizes the same harm or risk of harm to the child. Each offense requires the same proof of "knowing culpability."

[State v. N.A., 355 N.J. Super. 143, 153 (App. Div. 2002)(quoting Demarest, supra, 252 N.J. Super at 333), certif. denied, 175 N.J. 434 (2003).]

However, in State v. N.I., 349 N.J. Super. 299 (App. Div. 2002), we noted the problems created by the imprecise definitions contained in Title 9. There, the defendant fled from a store detective after shoplifting, leaving his five-year-old daughter behind when she tripped and fell in the parking lot. Id. at 303-04. The State's contention was that defendant had "abandoned" his daughter. Id. at 306. In charging the jury, the judge specifically recited the definition of "abandonment" contained in N.J.S.A. 9:6-1. Id. at 307.

On appeal, the defendant challenged both the sufficiency of the evidence and the adequacy of the judge's charge. Id. at 305. We noted that while N.J.S.A. 9:6-1 defined abandonment of a child to include "willfully forsaking" the child, there was no definition of that phrase in the statute. Ibid. We observed:

Regrettably, in the two decades since the Code was adopted, the Legislature has never acted on the Criminal Law Revision Commission's suggestion for a "reconsideration of this entire field of law . . . ." The imprecision of the Title 9 definitions incorporated into N.J.S.A. 2C:24-4(a), which caused the Commission to be "not happy" and to recommend adoption of the statute only "[w]ith hesitancy," has come home to roost in this case. It would, of course, be best if N.J.S.A. 2C:24-4(a) was self-contained with its own appropriate and precise definitions. However, we leave that task to the Legislature, if it deems it appropriate to act.

[Id. at 316.]

See also, Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:24-4 (2008) (noting the Title 9 statutes "do not provide a clear definition of the sort of harm forbidden").

We concluded that the evidence could not sustain a conviction under the "willfully forsaking" portion of the definition of abandonment. Id. at 318. But, we also concluded that the evidence was sufficient to support a conviction under that portion of the statute that defined abandonment as "failing to care for and keep the control and custody of the child so that the child shall be exposed to physical or moral risk without proper and sufficient protection[.]" Ibid.; N.J.S.A. 9:6-1. So too here, we consider whether the State's proofs were sufficient to find defendant committed the crime of endangering the welfare of A.B. and/or K.H. by applying all the available definitions incorporated into N.J.S.A. 2C:24-4(a) from Title 9.

Because N.J.S.A. 9:6-3 "merely makes criminal those acts defined in N.J.S.A. 9:6-1," Cannel, supra, comment 3 on N.J.S.A. 2C:24-4; Demarest, supra, 252 N.J. Super. at 329 n.3, it provides no guidance as to the definition of an "abused or neglected child." N.J.S.A. 2C:24-4(a). N.J.S.A. 9:6-1 does list prohibited "acts." By definition, however, only someone who has "the custody or control of the child" can be guilty of "abandonment" or "neglect" under N.J.S.A. 9:6-1. See State v. Martinez, 387 N.J. Super. 129, 142 (App. Div.) (holding that in the absence of proof of "care, custody or control" of the children involved, a conviction for child neglect can not stand), certif. denied, 188 N.J. 579 (2006). Similar problems arise in utilizing N.J.S.A. 9:6-8.21(c) for definitional guidance because it defines an "abused or neglected child" as one "whose parent or guardian" engages in any of the enumerated prohibited acts. See Cannel, supra, comment 4 on N.J.S.A. 2C:24-4, (noting the statute "is cast totally in terms of [the] actions of parents or guardians"). It is conceded by the State that defendant was not such a person.

Considering only N.J.S.A. 9:6-1's definition of abuse, it is easy to comprehend that some of these prohibited "acts" apply equally to parents or guardians, as well as to other actors who bear no such relationship to the child, e.g., "the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child," subsection (e) of "abuse." However, it is equally clear that some of the enumerated acts, e.g., "disposing of the custody of a child contrary to law," subsection (a), only apply to a parent or guardian, and not to another actor who has no supervisory relationship to the child. See Cannel, supra, comment 4 on N.J.S.A. 2C:24-4 (noting that "[a]s long as prosecutions concerning non-guardians remain limited to sexual abuse, these issues may never need [to] be reached").

The State argues that there was sufficient evidence upon which to find defendant guilty of endangering by application of four particular subsections contained in N.J.S.A. 9:6-1's definitions of "abuse" and "cruelty." First, the State contends defendant could be found guilty of child abuse under subsection (e) because he "carried a gun in his waistband" in the presence of A.B., thus "performing [an] indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child."

We are not persuaded by this argument. N.J.S.A. 2C:24-4(a) specifically criminalizes "sexual conduct which would impair or debauch the morals of [a] child." See State v. Hackett, 166 N.J. 66, 78-80 (2001) (collecting cases under predecessor statute, N.J.S.A. 2A:96-3, and discussing the requirement of some sexual activity by defendant that would impair or debauch the morals of an average child in the community). The State has not directed our attention to any case under Title 9 interpreting subsection (e) to be applicable to a non-sexual situation, nor has our research revealed any.

The State further argues that defendant committed child cruelty under N.J.S.A. 9:6-1 by: "(b) inflicting . . . unnecessary suffering or pain, either mental or physical" upon A.B. and K.H.; "(d) [committing] a[] willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, wa[s] caused or permitted to be inflicted" upon them; or "(e) [by] exposing [them] to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child."

Accepting the State's proofs, as the jury was entitled to do, we agree that defendant's actions in leaving his seriously-wounded partner in the apartment, knowing there was no phone to summon help, and knowing the two children were there and would be exposed to the bloody scene, were sufficient for the jury to find beyond a reasonable doubt that he knowingly "endangered their welfare." This was particularly true with respect to A.B., who witnessed her mother in extremis, and was left with the responsibility of trying to summon help for her. As to K.H., the evidence was sufficient to permit a similar inference, because he was a frequent guest in Amera's home, knew the family well, and was also left to fend for himself by unsuccessfully attempting to summon medical assistance. We conclude that under subsections (b), (d), or (e) of N.J.S.A. 9:6-1's definition of child cruelty, the evidence was sufficient to find defendant guilty beyond a reasonable doubt, and hence, guilty of endangering the welfare of the children.

B.

We reverse defendant's conviction of these two charges, however, because the judge's instructions were insufficient and failed to adequately explain to the jury its obligation to find that defendant had endangered the children's welfare by making them "abused or neglected" as defined by N.J.S.A. 9:6-1.

The judge followed the model charge for endangering. However, in a footnote, the model charge instructs trial judges to "[c]harge the appropriate definition of abused or neglected child as provided in N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21." The judge did not do so. When defense counsel objected, the judge simply told the jury that "[t]he State has indicated that was because the children . . . were left alone and they were abused or neglected in so far as they were exposed to the scene."

It is axiomatic that "correct jury instructions are at the heart of the proper execution of the jury function in a criminal trial[.]" State v. Alexander, 136 N.J. 563, 571 (1994). "A court's obligation properly to instruct and to guide a jury includes the duty to clarify statutory language that prescribes the elements of a crime when clarification is essential to ensure that the jury will fully understand and actually find those elements in determining the defendant's guilt." Ibid. "Courts commonly clarify statutory language to give more precise meaning to statutory terms to effect the legislative intent and to make sure that juries carry out that intent in determining criminal culpability." Id. at 571-72.

Given our extensive discussion of the problems inherent in the Criminal Code's adoption by reference of the definitions of "abused and neglected" contained in Title 9, it is clear that the judge's instructions in this case were insufficient. The judge needed to do more than merely tell the jury what the State alleged was the basis for the conviction. It was appropriate for the judge to have required the prosecutor to identify, as the State has done on appeal, the specific subsections of Title 9's definitions upon which a conviction could rest. He was then required as necessary to instruct the jurors that they needed to find that the proofs were sufficient to satisfy one or more of the statutory definitions contained in N.J.S.A. 9:6-1 beyond a reasonable doubt. N.I., supra, 349 N.J. Super. at 318-19.

"The criminal law cannot be administered justly or efficiently if the jury is allowed to speculate as to what conduct the law intended to proscribe by a specified crime." State v. Butler, 27 N.J. 560, 595 (1958). We conclude that in this case, the inadequate jury instructions permitted such speculation by the jury because it was never appraised of the statutory definitions contained in N.J.S.A. 9:6-1. We therefore reverse defendant's convictions for endangering the welfare of A.B. and K.H., and remand the matter for a new trial if the State so chooses.

IV.

We conclude the balance of defendant's arguments regarding trial errors lack sufficient merit to warrant extensive discussion in this opinion. R. 2:11-3(e)(2). We address them briefly to provide guidance in the event the matter is retried.

In Point IV, defendant argues that the flight charge was inadequate because the court "failed to instruct the jury that they were first to find that there was a departure, and then to find a motive for the departure that would turn the departure into flight." We disagree.

"New Jersey courts have long recognized that flight, in certain circumstances, is relevant and probative in a criminal trial to prove consciousness of guilt." State v. Andrial, 150 N.J. Super. 198, 200-01 (Law Div. 1977) (citing State v. Wilson, 57 N.J. 39, 49 (1970)), aff'd o.b., 203 N.J. Super. 1 (App. Div.), certif. denied, 102 N.J. 370 (1985). "A jury may infer that a defendant fled from the scene of a crime by finding that he departed with an intent to avoid apprehension for that crime." Wilson, supra, 57 N.J. at 49; see also State v. Jones, 94 N.J. Super. 137, 140 (App. Div. 1967) (evidence of flight "raises an inference that defendant fled with a consciousness of guilt").

Here, there was no factual dispute that defendant departed the scene of the shooting. He admitted he had, though he had an explanation for his actions. The judge's charge essentially tracked the model charge in all salient respects, referencing defendant's explanation, and instructing the jury that it was necessary to determine whether defendant's departure was indicative of a consciousness of guilt before considering the evidence to be probative. We find no error.

In Point V, defendant argues that the judge committed prejudicial error in denying access to Amera's "rap sheet" indicating her prior convictions and pending CDS charge. We concede that such information is routinely provided by the State because defendant is entitled to challenge a witnesses credibility based both upon prior criminal convictions, N.J.R.E. 609; State v. Hamilton, 193 N.J. 255, 256 (2008), and pending criminal charges. See State v. Furey, 128 N.J. Super. 12, 23-24 (App. Div.) (such evidence is relevant to establish bias), certif. denied, 65 N.J. 578 (1974). As we have noted, the "expectation of favorable treatment in connection with [the witness'] indictment in exchange for his testimony as a State's witness against defendant b[ears] directly on the weight to be given such testimony." Id. at 24.

However, in this case, defendant was not denied any of the information he sought. Amera admitted the existence of both her prior criminal convictions, and her pending drug charges, on direct examination. She was cross-examined about both. There was no prejudicial error. If the case is retried, current information about Amera's criminal history should be made available to defendant.

In Point VI, defendant argues that A.B.'s testimony that she saw defendant with a gun in his waistband earlier on the day of the shooting constituted "other crimes" evidence that should have been barred under N.J.R.E. 404(b). Conduct which is the subject matter of the action being tried, however, is not subject to 404(b)'s exclusion. State v. Long, 173 N.J. 138, 161 (2002). Here, defendant was indicted for possession of the gun, and the evidence was relevant as to the other crimes charged. The argument is without merit.

V.

As noted above, after the jury's verdict in this case, defendant pled guilty to certain charges in three other indictments and was sentenced in a single proceeding. He argues in Point VII that the judge "over valued aggravating factors resulting in an excessive sentence." The argument is without merit.

We provide some additional background before proceeding with our analysis. Defendant pled guilty to thirteen additional counts contained in three separate indictments. Among the charges were two counts of second-degree eluding, N.J.S.A. 2C:29-9(b), five counts of second-degree aggravated assault causing serious bodily injury, N.J.S.A. 2C:12-1(b)(1), and third-degree possession of a sawed-off shotgun, N.J.S.A. 2C:39-3(b). Pursuant to the plea bargain, the State agreed to limit the sentence to seven years in prison, with all charges to run concurrently, and concurrent to the charges defendant was found guilty of by the jury. An 85% period of parole ineligibility on the aggravated assault counts was mandated by NERA. The judge's sentence comported with the plea agreement.

Our review of a judge's sentence is limited. "[T]rial judges are given wide discretion so long as the sentence imposed is within the statutory framework." State v. Dalziel, 182 N.J. 494, 500 (2005). The judge should provide the reasons for his sentence, weighing the appropriate aggravating and mitigating factors. State v. Kruse, 105 N.J. 354, 363 (1987). If all this is done, a sentence determination will only be overturned if it represents a "clear error of judgment that [] shocks the judicial conscience." State v. Roth, 95 N.J. 334, 364 (1984).

The judge found aggravating factors (3), (6) and (9). N.J.S.A. 2C:44-1(a). He found no mitigating factors. N.J.S.A. 2C:44-1(b). Defendant, who was twenty-one years old at the time of sentence, had no prior adult convictions, but, as the judge noted, had eight juvenile petitions filed against him resulting in five adjudications. He had one disorderly persons conviction. The judge's finding of the three aggravating factors was amply supported by the evidence. Dalziel, supra, 182 N.J. at 505; State v. O'Donnell, 117 N.J. 210, 216 (1989).

Defendant argues that the judge should have considered his decision to enter guilty pleas to the three other indictments as a "mitigating factor" because they "greatly reduced the burden of the State[.]" See State v. Balfour, 135 N.J. 30, 38-39 (1994) (noting "a guilty plea can have a lenient influence on the trial court's sentencing disposition, partly because it reflects a defendant's acceptance of responsibility for his or her criminal conduct and partly because it assists in the efficient disposition of cases"). However, by pleading guilty, defendant did not "cooperate with law enforcement authorities[.]" N.J.S.A. 2C:44-1(b)(12). Moreover, in our opinion, this "agreement itself in some measure define[d] the mitigating effect of the plea on the court's discretionary decision[.]" Balfour, supra, 135 N.J. at 39.

Although we have reversed defendant's convictions for simple assault, and endangering the welfare of the children, we find no basis to disturb the judge's sentence of five years imprisonment imposed on the conviction for unlawful possession of the handgun. Based upon the above discussion, this sentence was well within the judge's discretion and does not shock our conscience.

VI.

In sum, on Indictment No. 06-04-1217, we reverse defendant's convictions for simple assault and endangering the welfare of a child. We remand the matter to the trial court for further proceedings on those counts. In all other respects, we affirm defendant's convictions and the sentences imposed on that indictment and the other three indictments on appeal.

Although not specifically raised by defendant, we note that the sentence imposed on count three of Indictment No. 05-05-1094, charging defendant with fourth-degree possession of an imitation firearm, N.J.S.A. 2C:39-4(e), was three years imprisonment. This exceeds the permissible maximum term for a fourth-degree offense under N.J.S.A. 2C:43-6. We remand the matter to the trial court for re-sentencing on that count, and the entry of an amended judgment of conviction.

Affirmed in part; reversed in part and remanded. We do not retain jurisdiction.

 

Defendant's first name appears differently in the four indictments under appeal. Since the majority of the points raised on appeal implicate Indictment No. 06-04-1217, we refer to defendant by the name that appears in that indictment.

We are unaware of any prior testimony given by the defendant and none of the transcripts provided reveal that he had testified in any pre-trial proceeding.

The proof that defendant left a gun in the bedroom was not elicited in the State's case, but rather was a fact defendant testified to in his case. As we noted, the gun was never found.

"Abuse of a child shall consist in any of the following acts: (a) disposing of the custody of a child contrary to law; (b) employing or permitting a child to be employed in any vocation or employment injurious to its health or dangerous to its life or limb, or contrary to the laws of this State; (c) employing or permitting a child to be employed in any occupation, employment or vocation dangerous to the morals of such child; (d) the habitual use by the parent or by a person having the custody and control of a child, in the hearing of such child, of profane, indecent or obscene language; (e) the performing of any indecent, immoral or unlawful act or deed, in the presence of a child, that may tend to debauch or endanger or degrade the morals of the child; (f) permitting or allowing any other person to perform any indecent, immoral or unlawful act in the presence of the child that may tend to debauch or endanger the morals of such child; (g) using excessive physical restraint on the child under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; or (h) in an institution as defined in [N.J.S.A.] 9:6-8.21[], willfully isolating the child from ordinary social contact under circumstances which indicate emotional or social deprivation.

Abandonment of a child shall consist in any of the following acts by anyone having the custody or control of the child: (a) willfully forsaking a child; (b) failing to care for and keep the control and custody of a child so that the child shall be exposed to physical or moral risk without proper and sufficient protection; (c) failing to care for and keep the control and custody of a child so that the child shall be liable to be supported and maintained at the expense of the public, or by child caring societies or private persons not legally chargeable with its or their care, custody and control.

Cruelty to a child shall consist in any of the following acts: (a) inflicting unnecessarily severe corporal punishment upon a child; (b) inflicting upon a child unnecessary suffering or pain, either mental or physical; (c) habitually tormenting, vexing or afflicting a child; (d) any willful act of omission or commission whereby unnecessary pain and suffering, whether mental or physical, is caused or permitted to be inflicted on a child; (e) or exposing a child to unnecessary hardship, fatigue or mental or physical strains that may tend to injure the health or physical or moral well-being of such child.

Neglect of a child shall consist in any of the following acts, by anyone having the custody or control of the child: (a) willfully failing to provide proper and sufficient food, clothing, maintenance, regular school education as required by law, medical attendance or surgical treatment, and a clean and proper home, or (b) failure to do or permit to be done any act necessary for the child's physical or moral well-being. Neglect also means the continued inappropriate placement of a child in an institution, as defined in [N.J.S.A.] 9:6-8.21[], with the knowledge that the placement has resulted and may continue to result in harm to the child's mental or physical well-being." N.J.S.A. 9:6-1 (emphasis added).

N.J.S.A. 9:6-8.21(c) provides that an "'Abused or neglected child' means a child less than 18 years of age whose parent or guardian . . ." commits certain acts. (emphasis added). The State concedes defendant does not fit within the definition of "parent or guardian" as defined in N.J.S.A. 9:6-8.21(a).

We reject the State's arguments that two other provisions, one under N.J.S.A. 9:6-1's definition of "neglect," the other, N.J.S.A. 9:8-21(c)(4)(b), apply because defendant was not in the necessary supervisory relationship to the two children.

In light of our decision, we need not consider defendant's claim of cumulative error raised in Point VIII.

(continued)

(continued)

37

A-0812-07T4

RECORD IMPOUNDED

June 15, 2009