STATE OF NEW JERSEY v. D.E.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.E.,

Defendant-Appellant.

___________________________________________________

December 9, 2014

Submitted December 2, 2014 Decided

Before Judges Fisher and Nugent.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Union County, Indictment No. 13-09-0780.

Caruso Smith Picini, P.C., attorneys for appellant (Timothy R. Smith, of counsel; Steven J. Kaflowitz, on the brief).

Grace H.Park, ActingUnion CountyProsecutor, attorneyfor respondent(Sara B. Liebman, Special DeputyAttorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, a computer teacher at an elementary school, has been charged with various offenses, including, by way of a superseding indictment, four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant unsuccessfully moved for dismissal of the four second-degree endangering counts, arguing that evidence relating to whether he was a person "having a legal duty for the care of a child or who has assumed responsibility for the care of a child," ibid., was insufficient. He claims the evidence put before the grand jury of his alleged duty for the care of the alleged child victims was inadequate because it was limited to his position as their teacher; there was no evidence of the type of circumstances discussed in State v. McInerney, 428 N.J. Super. 432, 443-44 (App. Div. 2012), certif. denied, 214 N.J. 175 (2013). We granted leave to appeal.

Because we view the application of the legal duty referred to in N.J.S.A. 2C:24-4(a) as fact-sensitive particularly in light of the Supreme Court's interpretation, which requires that the State prove the defendant "assumed a general and ongoing responsibility for the care of the child" and a consideration of the "nature and extent of supervisory responsibility," State v. Galloway, 133 N.J. 631, 660-61 (1993) we presently defer to the trial judge's discretion in ruling on the motion to dismiss in part the indictment, State v. McCrary, 97 N.J. 132, 144 (1984). In so holding, we express and intimate no view as to whether the second-degree endangering charges should survive a defense motion at the close of the evidence if that evidence is limited solely to the fact that defendant was the alleged victims' teacher.

Affirmed.