STATE OF NEW JERSEY v. MICHAEL DEROSA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5245-03T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

MICHAEL J. DEROSA,

Defendant-Appellant.

_______________________________________________

 

Argued October 18, 2006 - Decided November 14, 2006

Before Judges Cuff and Baxter.

On appeal from the Superior Court of

New Jersey, Law Division, Mercer

County, I-02-11-1500.

Matthew W. Reisig argued the cause for

appellant (Mr. Reisig, attorney; James P.

Brady and Danielle A. Maschuci, on the brief).

Dorothy Hersh, Assistant Prosecutor,

argued the cause for respondent

(Joseph L. Bocchini, Jr., Mercer County

Prosecutor, attorney; Ms. Hersh, on

the brief).

PER CURIAM

Defendant Michael J. DeRosa appeals from his conviction following a trial by jury on charges of third degree endangering the welfare of a disabled person, in violation of N.J.S.A. 2C:24-8 (count three) and third degree criminal restraint, in violation of N.J.S.A. 2C:13-2(a) (count four). A verdict of not guilty was returned on third degree endangering an injured victim (N.J.S.A. 2C:12-1.2). The court imposed sentence as follows: a concurrent term of four years probation on each count, subject to a concurrent 180 days to be served in the Mercer County Correction Center; 250 hours of community service on each count, for a total of 500 hours; mandatory fines and penalties; and a discretionary fine of $1,000.00.

On appeal, defendant argues:

I. DR. SILVERSTEIN'S EXPERT TESTIMONY VIOLATED N.J.R.E. 803(c)(4) AS IT WAS PREMISED, IN PART, ON INADMISSIBLE DOUBLE HEARSAY FROM THE ALLEGED VICTIM'S MOTHER REGARDING THE HISTORY OF THE ALLEGED VICTIM'S INJURY (NOT RAISED BELOW).

II. THE INSTRUCTIONS TO THE JURY WERE IN ERROR AS SAME DID NOT CHARGE SCIENTER AS AN ELEMENT OF THE OFFENSE OF ENDANGERING THE WELFARE OF A DISABLED PERSON - N.J.S.A. 2C:24-8a (NOT RAISED BELOW).

III. THE INSTRUCTIONS TO THE JURY WITH RESPECT TO CRIMINAL RESTRAINT WERE IN ERROR AS SAME DID NOT MAKE CLEAR THAT THE REQUIRED MENTAL STATE OF KNOWLEDGE APPLIED TO ALL ELEMENTS OF THE OFFENSE. FURTHER, THE INSTRUCTION WAS ERRONEOUS AS IT NEVER DEFINED "SERIOUS BODILY INJURY" (NOT RAISED BELOW).

The hearsay argument in Point I is without merit, and defendant withdrew at oral argument the claims advanced in Point III. As to Point II, the court's failure to instruct the jury that it must find that the offense was committed knowingly was plain error which had the "clear capacity to bring about an unjust result." State v. Macon, 57 N.J. 325, 337 (1971). Accordingly, we reverse the defendant's conviction on count three.

I

On September 29, 2002, defendant Michael J. DeRosa was employed as a "teacher-parent" at Eden House, a group home for autistic adults located in Robbinsville. That night, DeRosa and teacher-parent Amy Fusick were the only staff members assigned to supervise the six adult residents. Fusick testified that at approximately 10:00 p.m. she went to the staff bedroom to work on an assignment for one of her college courses, leaving defendant with the responsibility for supervision of the residents. She testified that one resident, Brian, was especially restless that night, insisting that he be given repeated permission to go to the bathroom. The audio monitor in the staff bedroom and in Brian's bedroom enabled Fusick to hear defendant repeatedly directing Brian to go back to bed. By approximately 11:00 p.m., she heard no other conversation from Brian's bedroom, and when she passed Brian's door an hour later she noticed that it was shut.

She went to sleep at midnight and upon awakening at 7:00 a.m., she noticed that Brian's door was slightly ajar. When she went into Brian's room to check on him, she found him awake and restrained to his bed by leather wrist restraints that were attached to the headboard. His arms were above his head, and he had fallen to the floor. His torso was extended, with his head resting on the heater. According to Fusick, Brian was lying on the floor and not moving, essentially hanging from his arms. When Fusick started to talk to Brian, he tried to move but the combination of the restraints and the position in which he was lying, made it impossible.

Once the restraints were removed, Brian's hands were "almost the size of his head" and there were indentations on his wrists where the restraints had been. Brian himself was unable to describe what had happened to him. Fusick explained that Brian was "not very verbal. A lot of echolalia. If you ask him a question, a lot of times, he'll just be repeating the last word."

Defendant refused Fusick's requests to take Brian to the emergency room. Fusick left Eden Acres for a few hours to attend classes at Rutgers, and upon her return, she learned that Brian had still not been taken to a physician or to the hospital. Not until Fusick had returned from Rutgers at 3:00 p.m. did she tell a fellow staff member, John Levesque, that she had found Brian in restraints on the floor. While waiting for an assistant director to arrive, Fusick and defendant were sitting in a van with Brian, at which time defendant said spontaneously "don't think this has anything to do with me tying him up."

Brian was admitted to the hospital where he remained for ten days. Once he returned to Eden House, his grip strength was impaired and five months of physical therapy were required in order to improve Brian's strength in his shoulders and arms. Brian's mother testified to her observations of her son's condition at the time of his admission to the hospital. Levesque also testified as to his observations of Brian's appearance on the morning of September 30, 2002, essentially corroborating Fusick's testimony.

Eden House Assistant Director David Rousell testified that he conducted an examination and called the police. After receiving that call, Washington Township Police Department Detective Christopher Nitti took a statement from the defendant, in which defendant claimed that during the night of September 29, 2002, Brian had fallen out of bed. Notably, defendant denied having used restraints on Brian.

Two physicians also testified. Dr. Lukose Vadakara noted the severe bruising he observed on Brian's chest and shoulders at the time of Brian's admission to the hospital. He also described a pronounced limitation in Brian's range of motion of his arms and shoulders at the time of admission. The other physician, Dr. Michael Silverstein, testifying as an expert in orthopedics and orthopedic surgery, opined that Brian had sustained a "stretch injury" to the brachial plexus, the nerves leading into the arms. He explained that to a reasonable degree of medical certainty, the injury was consistent with hanging from the bed frame with hands suspended over one's head.

The defense called one character witness, and then rested.

II

The defendant argues that the judge's failure to instruct the jury, in his charge on count three, that the jury must find that defendant committed the offense knowingly, was plain error requiring reversal. In that count, the jury found the defendant guilty of endangering the welfare of a disabled person in violation of N.J.S.A. 2C:24-8a. The pertinent part of that statute provides:

a. A person having a legal duty to care for or who has assumed continuing responsibility for the care of a . . . disabled adult, who abandons the . . . disabled adult or unreasonably neglects to do or fails to permit to be done any act necessary for the physical or mental health of the . . . disabled adult, is guilty of a crime of the third degree. For purposes of this section "abandon" means the willful desertion or forsaking of a[] . . . disabled adult.

A basic element of culpability is scienter. Specifically, the Criminal Code provides that "a person is not guilty of an offense unless he acted purposely, knowingly, recklessly or negligently, as the law may require, with respect to each material element of the offense." N.J.S.A. 2C:2-2a. Whenever a particular statute defining an offense does not specify a particular culpability requirement, N.J.S.A. 2C:2-2c(3) becomes operative. That statute provides that unless the statute in question clearly indicates a legislative intent to impose strict liability, the mental state of "knowingly" will be deemed, by default, to apply.

N.J.S.A. 2C:24-8a does not specify any mental state; thus, N.J.S.A. 2C:2-2c requires the State to prove that when the defendant acted or failed to act, he was "aware that his conduct [was] practically certain to cause such a result; [namely, endangering the welfare of a disabled person]." State v. Overton, 357 N.J. Super. 387, 393 (App. Div. 2003), certif. denied, 177 N.J. 219 (2003). The judge's charge to the jury on count three did not include such an instruction; yet, no objection was raised at trial. Therefore, we must decide whether this error was plain error "clearly capable of producing an unjust result" as the defendant contends, or instead as the State contends, it was "harmless." Macon, supra, 57 N.J. at 337-38.

We begin our analysis by recognizing that an error in a jury charge is a poor candidate for rehabilitation under the harmless error rule. State v. Vick, 117 N.J. 288, 292 (1989). A reviewing court is discouraged from treating errors in a jury charge as harmless. Ibid. This is especially so where, as here, the error in the jury charge pertains to an element of the offense, as opposed to some other aspect of the charge. State v. Grunow, 102 N.J. 133, 148 (1986). An error in the court's explanation of one of the elements of the offense is presumed to be reversible error. Ibid.

The State concedes that because there is no indication that the Legislature intended to impose strict liability for the crime of endangering the welfare of a disabled person, the State was required to prove that the defendant acted knowingly with respect to the elements of this offense. The State further concedes that the jury should have been so charged. The State recognizes, pursuant to State v. Clausell, 121 N.J. 298, 316-19 (1990), that the failure to define the nature of the mental culpability constituting an element of the offense is ordinarily reversible error. Notwithstanding that decision, the State urges us to find the error below harmless.

The State argues that the jury's not guilty verdict on count two, and its guilty verdict on count four, when combined with an analysis of a note the jury sent to the court, compel the conclusion that the jury must have understood that "knowingly" was the required mental state.

The State argues these three jury actions, when viewed in the aggregate, inescapably demonstrate three factors: (1) the jury believed the defendant knowingly restrained Brian; (2) the jury believed defendant, as a result, knowingly exposed Brian to the risk of serious bodily injury; but (3) on count four, the jury did not believe that when the defendant left Brian alone in his bedroom that this was sufficient to constitute "leav[ing] the scene," as required by N.J.S.A. 2C:12-1.2 ("endangering an injured victim"). The State argues "[b]ased on these three apparent factors . . . that the failure to charge a culpability requirement with respect to endangering [the welfare of] a disabled person did not cause the jury to arrive at a result it otherwise might not have reached."

The State correctly notes that in order for the jury to have found defendant guilty of endangering the welfare of a disabled person under count three, the jury had to have found that Brian was a disabled person, that the defendant knowingly had the responsibility of caring for him, and that defendant knowingly either abandoned Brian, or unreasonably neglected to do that which was necessary for Brian's mental or physical heath. N.J.S.A. 2C:24-8.

It is clear from a full reading of the entire record that there could be no serious dispute about the first two requirements that Brian was a disabled person and that defendant had the responsibility of caring for him. The State asserts that if the jury concluded that defendant either abandoned Brian or unreasonably neglected to do that which was necessary for Brian's mental or physical health that the jury would have been unable to so conclude unless it also found that he did so knowingly.

The State further argues that the jury's guilty verdict with respect to criminal restraint demonstrated that the jury believed defendant knowingly restrained Brian and knowingly exposed him to the risk of serious bodily injury and that accordingly, "it would also be reasonable to conclude that the jury believed defendant acted knowingly when he neglected to do or failed to permit to be done that which was necessary for Brian's well-being." The State poses the following question: "How can defendant have knowingly restrained Brian and knowingly exposed him to a risk of injury, but find that the defendant did not act knowingly when he failed to do what was necessary to avoid that injury?"

We decline to accept the argument that the State urges. To do so would require us to engage in a considerable amount of speculation about the thought processes underlying a jury's verdict that is discouraged by the Court's decision in Grunow, supra, 102 N.J. at 148. Moreover, our common experience in dealing with jury questions tells us that it is unwise to attempt to draw conclusions about the impact of what is contained in such a note on the jury's ultimate verdict on an unrelated count of the indictment.

The second reason we are constrained to reject the State's argument about the third count is based upon our analysis of the court's instruction to the jury in connection with count four. There, the court properly and clearly informed the jury that the State was required to prove the mental state of "knowingly" beyond a reasonable doubt. The fact that the court did not provide any required mental state in its instructions on count three could well have led the jury to incorrectly conclude that count three was a strict liability crime in which no mental state was required.

Clausell instructs that an error in a jury charge pertaining to an element of the offense is presumed to be reversible error. We have not been provided with any meritorious argument which overcomes that presumption; therefore, we must reverse the guilty verdict on endangering the welfare of a disabled person under count three.

III

In Point I, the defendant argues that Dr. Silverstein's expert testimony was improperly admitted as it was based, in part, on inadmissible hearsay. In support of this argument, he points to Silverstein's answers to three questions, during which Silverstein explained that he had obtained a history from Brian's mother:

Q: And what was his condition at that time?

A: Well, the first thing I did was, presented with a number of medical documents, and I obtained history from the patient's mother, and I examined him. [Emphasis added]

. . .

Q: And what course of treatment, if any, did you do for Brian at that point?

A: Well, after making a clinical diagnosis, which was based on the examination and the history, I sent him for diagnostic studies. . . . [Emphasis added]

. . .

Q: And what was your understanding of how this happened?

A: The history that was presented to me was that he had been restrained with his hands above his head and his body fell off the bed which was he was suspended, and his hands - he was suspended with his hands over his head. [Emphasis added].

Under the Rules of Evidence, hearsay statements made in good faith for the purpose of receiving medical diagnosis or treatment are admissible. N.J.R.E. 803(c)(4). The rule states:

Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to the diagnosis or treatment [are not barred by the hearsay rule].

Defendant contends that Dr. Silverstein's expert testimony violated this rule in three respects:

1. There was no evidence that the victim's history which related to his alleged injury was relevant for treatment or diagnostic purposes;

2. The recitation of the victim's history by his mother was not made in good faith, and

3. Any testimony relating to the mother's statements regarding the history of the victim's injuries is highly prejudicial because the mother did not have first-hand knowledge of the injuries.

We need not address the validity of defendant's contentions with respect to N.J.R.E. 803(c)(4) because we are persuaded that this testimony was properly admissible under N.J.R.E. 703 which permits an expert witness to rely on hearsay testimony that might be otherwise inadmissible, so long as the evidence at issue is "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. . . ."

Because Dr. Silverstein's references to the history provided by Brian's mother were offered in the context of a description of the material Silverstein had considered in reaching his determination of what caused the injury, we conclude that the testimony regarding the history of the injury should be analyzed under N.J.R.E. 703 rather than under N.J.R.E. 803(c)(4). We so conclude because the testimony in question does not concern itself with diagnosis or treatment, which would trigger N.J.R.E. 803(c)(4), but rather it concerns an opinion about the cause of injury. By its very terms, N.J.R.E. 703 makes it clear that facts or data an expert uses to arrive at an opinion are not barred by the hearsay rules if they are of the sort regularly used by an expert in that field in reaching an opinion. Although we note that Silverstein was not specifically asked if physicians typically rely on persons other than the patient for a history when the patient himself is non-verbal, we discern from the tenor of his remarks that there was nothing unusual about what he did in this case.

Even if the testimony regarding the history Dr. Silverstein obtained by Brian's mother is deemed to be error, we conclude it was harmless. Macon, supra, 57 N.J. at 337-38. We come to this conclusion for several reasons. First, the information alleged to have been reported to Dr. Silverstein by Brian's mother had been testified to earlier and in detail by Fusick, and later by Rousell. Moreover, defendant did not dispute the cause of Brian's injuries; he simply insisted that it was Fusick who had caused them.

Thus, there is no dispute about how the injury occurred; the only issue was whether Fusick or defendant caused it. Therefore, if Brian's mother's account of the incident included a statement that her son was injured by the restraints, that history added nothing because the jury had already heard testimony about how the injury occurred. Additionally, Dr. Silverstein acknowledged that the history he received was provided via medical records as well as through information provided by the victim's mother.

For these reasons, we conclude that any hearsay contained in Dr. Silverstein's statement was harmless, and certainly not plain error. Id. at 337.

Finally, the challenge to the jury charge pertaining to count four, criminal restraint, was abandoned at oral argument. Without having briefed the issue, defendant contended for the first time at oral argument that even though the jury instruction on count four was free of error, the errors made in count three "tainted" the guilty verdict on count four, requiring a reversal of the guilty verdict on that count. That argument lacks sufficient merit to warrant discussion. R. 2:11-3(e)(2). Accordingly, the conviction on criminal restraint (count four) is affirmed.

Affirmed in part; reversed in part.

 

The indictment, judgment of conviction, both parties' briefs, point headings, and all documents associated with this case incorrectly refer to the name of this statute as "endangering the welfare of a disabled person." To avoid confusion we refer to the statute by that title, rather than by its correct name, "neglect of elderly or disabled persons."

Originally, the indictment contained two other counts: a charge of first degree kidnapping was dismissed by the State prior to jury selection and a count charging recklessly endangering another person was dismissed by the court on motion of the defendant before the case went to the jury.

Most likely, this error resulted from the fact that there was no Model Criminal Jury Charge for this relatively recently enacted Criminal Code offense.

The jury's note to the court stated: "Count Two, please clarify the charge of endangering an injured [victim] in two respects; number 1, if the defendant knew there was bodily injury and failed to provide proper and timely care or treat [the] injured [victim], does that constitute endangering an injured [victim]? Number 2, does leaving the bedroom, but not the building, qualify as leaving the scene?" The court ultimately declined to answer those questions, telling the jury that to do so would improperly invade the jury's fact-finding responsibilities.

As to the jury charge on count three, we are not persuaded by defendant's arguments that the court's definition of "unreasonable neglect" and "abandoned" were improper.

(continued)

(continued)

18

A-5245-03T5

November 14, 2006