STATE OF NEW JERSEY v. M.K.P.,

 

(NOTE: The status of this decision is Published.)

                       RECORD IMPOUNDED

               NOT FOR PUBLICATION WITHOUT THE
              APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-2555-19

STATE OF NEW JERSEY,
                                     APPROVED FOR PUBLICATION
     Plaintiff-Respondent,
                                           February 14, 2022
v.
                                        APPELLATE DIVISION

M.K.P.,

     Defendant-Appellant.
_______________________

           Submitted February 1, 2022 – Decided February 14, 2022

           Before Judges Fisher, Currier and DeAlmeida.

           On appeal from the Superior Court of New Jersey, Law
           Division, Bergen County, Indictment No. 18-12-1242.

           Joseph E. Krakora, Public Defender, attorney for
           appellant (Margaret McLane, Assistant Deputy Public
           Defender, of counsel; Margaret McLane and John
           Boyle, J.D., on the briefs).

           Mark Musella, Bergen County Prosecutor, attorney for
           respondent (William P. Miller, Assistant Prosecutor, of
           counsel; Catherine A. Foddai, Legal Assistant, on the
           letter brief).

     The opinion of the court was delivered by

FISHER, P.J.A.D.
         N.J.S.A. 2C:24-8(a) imposes criminal liability on those who have

"assumed continuing responsibility for the care of a person 60 years of age or

older," making it a crime of the third-degree to "abandon[] the elderly person

. . . or unreasonably neglect[] to do or fail[] to permit to be done any act

necessary for the physical or mental health of the elderly person." In this appeal,

we consider – and reject – the State's argument that defendant's alleged assault

of her elderly mother constitutes a violation of this statute.

        The evidence the State presented at trial revealed that, in January 2017,

I.P. (Irene),1 facing eviction, moved from Florida to the Englewood home of

defendant, who is her daughter, and defendant's paramour, F.L. (Fred).

According to testimony, Irene and defendant had a "[t]ypical mother and

daughter" relationship, ranging from affectionate to tense. On August 5, 2018,

defendant and Fred went out to lunch with friends, leaving Irene home alone

until around 3:00 p.m. Defendant had consumed alcohol at lunch, continued to

drink after getting home and, according to testimony, was slightly intoxicated.

While Fred sat in the living room, he heard Irene and defendant arguing in a

nearby bedroom. The argument escalated into a "screaming" match and Fred

entered the bedroom to "quell the quarreling." On entering, Fred observed Irene


1
    We use fictitious names to protect the alleged victim's privacy.
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with her back to a wall shaking a back scratcher at defendant while defendant

gripped Irene's hands to avoid being struck. Because the pair "were going back

and forth with each other still," Fred used "a little bit of force" to physically pull

defendant out of the room. Defendant, however, reentered the room three more

times to reengage with Irene; each time, Fred physically removed her. Fred

testified he did not observe anything wrong with Irene's face, though he also

admitted he was suffering from a cataract and could only see "gray" and

generally a "person's form." Defendant remained on the couch with Fred that

evening, and Irene remained in the bedroom. Fred did not see that defendant had

sustained any injuries.

      The next morning, Fred was scheduled to bring Irene to a doctor's

appointment. When he saw Irene in the kitchen after she woke up, he was unable

to observe her face because she sat facing away from him and "was very quiet."

Things were "peaceful" between Irene and defendant but, as the morning wore

on, Irene became "obstinate" and refused to shower or get dressed for her

appointment. Irene later walked out of the apartment alone. Both defendant and

Fred believed Irene was outside waiting for them and, therefore, they did not go

look for her.




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      Around noon, a police officer was sent to a nearby residence where an

ambulance had been requested. On arriving, the officer observed Irene sitting in

the front yard with others standing beside her. Irene appeared "excited," and the

officer noted she had bruising on her left arm, right hand, and left cheekbone,

and redness and swelling on her forehead.

      Irene was taken to the hospital and her injuries were photographed, while

defendant was taken to police headquarters to be interviewed. The officer

conducting the interview did not observe any visible injuries on defendant other

than a small scratch on her right earlobe.

      Defendant was charged with one count of third-degree aggravated assault,

 N.J.S.A. 2C:12-1(b)(12), and one count of third-degree neglect of an elderly

person,  N.J.S.A. 2C:24-8(a). During a two-day trial, Irene testified that

defendant caused the bruising to her face and arms by hitting her "[v]ery hard"

as Irene attempted to defend herself. Irene stated that the hitting started that

morning "right when [they] were getting out of bed," and this prompted her to

"sneak[] out" of the house. Despite this fracas, Irene testified she wished she

still lived with defendant and that defendant "took very good care" of her, and

that generally they had "[v]ery good times" together.




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      The jury acquitted defendant of aggravated assault but convicted her of

the lesser-included offense of simple assault,  N.J.S.A. 2C:12-1(a)(1); the jury

also convicted defendant of neglect of an elder,  N.J.S.A. 2C:24-8(a). Defendant

was sentenced to concurrent three-year terms of probation conditioned on

serving 364 days in jail. Due to the COVID-19 pandemic, defendant was re-

sentenced on July 29, 2020, to time served and a two-year probationary term.

      In appealing, defendant argues, among other things, that the State's theory

of criminal culpability under  N.J.S.A. 2C:24-8(a) was "legally insufficient"

because the statute requires "neglect," and the State's theory was not that

defendant neglected Irene but that she assaulted her. As the State argued in

successfully opposing defendant's motion for a judgment of acquittal that the

assault was the neglect: "striking an elderly person by itself by its very nature is

neglect." The question presented to us is no different. We are asked to determine

whether assaulting an elderly person – of whom the defendant has assumed

responsibility – constitutes the type of neglect criminalized by  N.J.S.A. 2C:24-

8(a). In answering that question, we agree with defendant that an assault –

criminalized elsewhere in the criminal code – cannot constitute the neglect

required by  N.J.S.A. 2C:24-8(a).




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      To explain, we start with the language of the statute itself.  N.J.S.A. 2C:24-

8(a) makes it a third-degree offense for a person, in the relationship defendant

was in with Irene, to "abandon[]" or "unreasonably neglect[] to do or fail[] to

permit to be done any act necessary for the physical or mental health" of the

elderly person. The words describing the criminalized conduct – "abandon,"

"neglect," and "fail" – all connote an act of omission rather than an act of

commission. Indeed, "abandon" is further defined in the statute as "willful

desertion or forsaking" of the protected person, additional words connoting

inaction. Ibid.

      To accept the State's theory that a caretaker's assault of a protected person

constitutes neglect, abandonment, desertion, or a failure to act, we would have

to twist the Legislature's words beyond their plain meaning. Our role, however,

is to construe, not distort. As the Supreme Court has explained, a court's role is

not to "rewrite a plainly-written enactment of the Legislature []or presume that

the Legislature intended something other than that expressed by way of the plain

language." O'Connell v. State,  171 N.J. 484, 488 (2002). Statutes must instead

be interpreted to "discern and effectuate" the legislative intent. Murray v.

Plainfield Rescue Squad,  210 N.J. 581, 592 (2012). This requires consideration

of the statute's plain language, which is best understood when its words are given


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"their ordinary meaning and significance." DiProspero v. Penn,  183 N.J. 477,

492 (2005).

      In giving the verbs found in  N.J.S.A. 2C:24-8(a) their ordinary meaning

and significance, there is no doubt they do not encompass a caretaker's physical

assault of the elderly person. This is not to suggest that our criminal code permits

or condones what is alleged here. When the Legislature enacted  N.J.S.A. 2C:24-

8(a) it obviously understood that it did not need to criminalize a caretaker's

assault of an elderly or disabled person because it had already done so. See

 N.J.S.A. 2C:12-1.

      The State's theory was limited to its claim that defendant's alleged assault

of Irene constituted the violation of  N.J.S.A. 2C:24-8(a) charged in the

indictment when the prosecutor argued that "striking an elderly person by itself

by its very nature is neglect." We reject this and conclude that the assault alleged

here cannot constitute a violation of  N.J.S.A. 2C:24-8(a), and that the evidence

presented at trial lacked support for a charge that defendant "abandon[ed] . . . or

unreasonably neglect[ed] to do or fail[ed] to permit to be done any act necessary

for the physical or mental health of" Irene.

      The State, perhaps now recognizing the limits of  N.J.S.A. 2C:24-8(a),

attempts to recast the theory it presented to the jury. For the first time on appeal,


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the State argues that the assault was a mere "factual predicate" to its theory that

defendant's failure to take Irene for medical care the night of their argument

constituted a gross deviation from the standard of care. Beyond the fact that this

argument is not now cognizable because it was not raised in the trial court, State

v. Robinson,  200 N.J. 1, 20 (2009), and because the argument is not consistent

with the State's theory at trial and it would be unfair to defendant to now view

the evidence in this new incarnation, State v. Witt,  223 N.J. 409, 419 (2015),

there is simply no evidence in the record that Irene required medical attention

that night; in fact, there was no dispute that the plan was to take Irene to a

medical appointment the morning she walked out of the apartment.

         Defendant lastly argues that the simple assault conviction must be

reversed and that whether she committed a simple assault on Irene should be

retried because the trial judge failed to clarify for the jury that defendant's claim

of self-defense applied not only to the aggravated assault charge but also the

lesser-included simple assault charge. The State agrees with this contention, as

do we.

      For these reasons, we reverse the judgment of conviction and remand for

both a dismissal of the charge brought under  N.J.S.A. 2C:24-8(a) and a new trial

on the simple assault charge.


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Reversed and remanded.




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