STATE OF NEW JERSEY v. BRENDAN BEGGAN

 

 
NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5322-03T45322-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

BRENDAN BEGGAN,

Defendant-Appellant.

_______________________________

 

Submitted December 5, 2005 - Decided May 26, 2006

Before Judges Alley and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, 02-08-1112-I.

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

Peter C. Harvey, Attorney General of New Jersey, attorney for respondent (Jeanne Screen, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

After defendant, Brendan Beggan, was indicted by a Passaic County Grand Jury in Indictment No. 02-08-1112 for third-degree interference with custody for taking or detaining A.C., an eleven year old child, "with the purpose of concealing him and thereby depriving the child's parent of custody or parenting time with the minor child," N.J.S.A. 2C:13-4a(1) (Count One), the indictment was amended by agreement of the State and the attorney for the defendant. As amended, the indictment charged defendant with fourth-degree interference with custody, specifically for taking or enticing a committed person, A.C., an eleven year old child, away from lawful custody when he was not privileged to do so, N.J.S.A. 2C:13-4b (Count One).

Tried to a jury on December 10, 2003, defendant was found guilty of the fourth-degree charge of interference with custody. At sentencing, the court imposed the sentence of five years of probation, with various conditions, including testing and monitoring under substance dependency rules, reporting to probation as directed, taking all medications, and various other requirements. Appropriate assessments and penalties were also imposed.

The facts of this case are as follows. A.C., an autistic child, resides with his mother L.C. in Haledon, where he attends special education classes. A.C. is cognitively impaired, with social interaction and communication problems, and he cannot understand complex instructions. A.C. cannot be left home alone, and though he sometimes plays with other children without his mother present, he is unable to cross the street by himself. There is a common driveway in back of their home, about fifty feet long, on which A.C. can ride his bicycle, though A.C. is not allowed to go any further than the driveway. Because of the traffic on Haledon Avenue, which their house faces, A.C. is not allowed to play in the front of the house.

Defendant lives in a second floor apartment of a four unit building behind the house occupied by L.C. and A.C., but L.C. does not know defendant and has never met him. Defendant is forty-one years of age.

On June 30, 2002, L.C. was at home with her fiancé and son. A.C. came down the stairs at about 2:00 or 2:30 p.m. and asked L.C. if he could go outside and ride his bicycle in the driveway. L.C. allowed A.C. to do so, but only for a brief period because she was expecting that they would soon be eating dinner. When A.C. was outside, a neighbor observed defendant seemingly speak to A.C. and then A.C. rode his bike away from defendant up the driveway.

L.C. was preparing dinner when A.C. came in the house and said "Mommy, Mommy, Haledon Grill." This is an establishment across the street from L.C.'s house, but further up the block. A.C.'s favorite restaurant is Haledon Grill, but L.C. told A.C. that he could not go right then because he was "going to have dinner." She told him to bring in his bicycle.

When A.C. did not come in for dinner, L.C. went out to check for him, and found his bicycle lying on the ground with the wheels spinning. After L.C. and her fiancé searched the area for the child, L.C.'s fiancé suggested they check the Haledon Grill. Upon doing so, they saw A.C. and defendant seated at a table, whereupon A.C. said to L.C., "Mommy come eating a cheeseburger." L.C. banged her hand on the table and asked defendant "what are you doing with my son?" She grabbed A.C. Defendant said, "Hi, my name is Brendon and I am your neighbor." She replied "I don't care who you are. What are you doing with my son?" Two off-duty police officers who were in the restaurant saw what was going on and directed defendant to stand up. The police and defendant walked outside and across the street. One of the officers directed L.C. to call the police, who arrived and arrested defendant.

The following stipulation was agreed upon which was read to the jury: "Officer Gottheiner would have testified that [A.C.] showed no sign of physical injury and that [L.C.] told him, Office Gottheiner, that [defendant] told [L.C.] that he and [A.C.] were eating." Defendant did not testify and he presented no witnesses at trial. On appeal, defendant contends as follows in his brief:

POINT I: THE OPENING STATEMENT AND SUMMATION OF THE PROSECUTOR WAS GROSSLY PREJUDICIAL AND DENIED THE DEFENDANT A FAIR TRIAL. (Partially Raised Below)

POINT II: SINCE THE COURT ERRONEOUSLY CONSTRUED THE MEANING OF N.J.S.A. 2C:13-4b, REVERSAL OF DEFENDANT'S CONVICTION IS REQUIRED.

POINT III: THE VERDICT OF GUILTY UNDER N.J.S.A. 2C:13-4b WAS AGAINST THE WEIGHT OF THE EVIDENCE.

POINT IV: THE COURT'S CHARGE AND SUPPLEMENTAL INSTRUCTION TO THE JURY WAS ERRONEOUS.

We comment only with respect to the contention by defendant that the prosecutor made improper comments in her opening and summation. We have reviewed those contentions, and note not only that they were objected to, but that they were capably responded to by defense counsel. There was a reference in the testimony of L.C. to the word kidnapping and the judge properly gave a corrective instruction that the jury was obliged to disregard that erroneous reference. With regard to the prosecutor's opening statement and her use of the phrase "this is a parent's worst nightmare," defense counsel alertly and ably pointed out that "all this man did was take a child for a cheeseburger and fries." Defense counsel reiterated at the conclusion of his summation that there had been no realization of L.C.'s so-called worst nightmare. Certainly the prosecutor would have been well advised to avoid engaging in the statements now challenged on appeal.

Nevertheless, we note that defense counsel did not object to the comments about "every parent's worst nightmare," and we presume that this means defense counsel did not find the statement to be unfair or prejudicial. See State v. Frost, 158 N.J. 76, 84 (1999). Finally, we do not find that the prosecutor so departed from the evidence that the summation was so egregious as to have deprived the defendant of a fair trial. See State v. Josephs, 174 N.J. 44, 124 (2002); State v. Johnson, 287 N.J. Super. 247 (App. Div.) certif. denied, 144 N.J. 587 (1996).

We have carefully considered, in light of the record and the applicable law, each of the remaining contentions asserted on appeal by defendant. We are satisfied that none of those contentions is of sufficient merit to warrant discussion in a written opinion, and we affirm. R. 2:11-3(e)(2).

Affirmed.

 

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A-5322-03T4

May 26, 2006