STATE OF NEW JERSEY v. PARIS WAY

NOT FOR PUBLICATION WITHOUT THE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.

PARIS WAY,

Defendant-Appellant.

__________________________________________

November 30, 2015

Submitted November 9, 2015 Decided

Before Judges Accurso and O'Connor.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 12-09-1397.

Joseph E. Krakora, Public Defender, attorney for appellant (Rochelle Watson, Assistant Deputy Public Defender, on the brief).

John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Anthony Talarico, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant appeals an order denying his motion to amend an indictment charging him with, among other things, second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After reviewing the record and the applicable legal principles, we affirm.

On June 28, 2013, defendant pled guilty to second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a),1 and third-degree terroristic threats, N.J.S.A. 2C:12-3(a). On November 15, 2013, defendant was sentenced to a three-year prison term, subject to a one-year period of parole ineligibility, on the former charge, and to a concurrent, three-year flat term on the latter one.

Before pleading guilty to these offenses, defendant moved to amend the child endangerment charge from a second- to a third-degree crime. The court denied the motion and defendant subsequently pled guilty. At the time he pled, he reserved his right to appeal the denial of his motion. See 3:9-3(f). The basis for that motion was as follows.

The facts in support of the child endangerment charge were that, in April 2012, defendant choked his ten-year-old son, causing him to momentarily lose consciousness. In a certification submitted in support of the motion, which was not signed by defendant but by his attorney, defense counsel asserted that: (1) the child's mother had "sole" custody; (2) defendant had no obligation to support the child and any "sustenance" he provided to the child was a gift; (3) defendant did not have parenting time rights or "[parenting time] conditions set by any court;" (4) parenting time between defendant and his child occurred only at the child's mother's discretion; (5) defendant never assumed any responsibility for the care of his child; and (6) defendant did not have a legal duty to care for his son.

Attached to defendant's motion was an order issued on July 14, 2004 by the Family Court of the State of New York, which awarded custody to the child's mother. The order does not state that the mother was awarded sole custody, merely "custody." The motion papers did not contain any other evidence of substance, including any order, judgment, or agreement between the parties that relieved defendant of his obligation to pay child support or restricted his right to have regular parenting time. Certainly, there was no evidence defendant's parental rights had been terminated.

The gist of defendant's legal argument was that, because at the time of the incident he had not contributed to his son's support and rarely saw him, he had no legal obligation to care for him. Put more succinctly, because he was not in fact caring for his son, he had no legal duty to do so. For that reason defendant urged the trial court to amend the indictment so that he would be charged with third-degree instead of second-degree child endangerment.

I

At the time defendant was charged with and pled guilty to this offense, N.J.S.A. 2C:24-4(a) provided as follows

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a

child who . . . causes the child harm that would make the child an abused or neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L. 1974, c. 119, 1 (C. 9:6-8.21) is guilty of a crime of the second degree. Any other person who

engages in conduct or who causes harm as described in this subsection to a child under the age of 16 is guilty of a crime of the third degree.

On appeal, defendant asserts the following point for our consideration

POINT I THE TRIAL JUDGE ERRED IN FAILING TO AMEND THE ENDANGERING THE WELFARE OF A CHILD COUNT TO THIRD-DEGREE BECAUSE MR. WAY DID NOT OCCUPY A PARENTAL ROLE IN J.W.'S LIFE.

We conclude defendant's argument is devoid of merit and does not warrant discussion in a written opinion. R. 2:11-3(e)(2). We make only the following brief comments.

First, defendant's motion to amend the indictment from a second-degree to third-degree offense was unsupported by any competent evidence. Even if defendant himself had signed the certification his attorney submitted to the court, there is no legal authority for his contention that he was relieved of his legal duty to care for his son because his son's mother had not obtained an order compelling him to pay child support and he had failed to enforce his rights to have regular parenting time. "Not even the absence of a meaningful relationship relieves the legally obliged parent from providing support for a child's basic needs." L.V. v. R.S., 347 N.J. Super. 33, 41 (App. Div. 2002) (citing Fiore v. Fiore, 49 N.J. Super. 219, 227 (App. Div.), certif. denied, 28 N.J. 59 (1958)).

The cases on which defendant relies in support of his argument are inapposite. Under the statute as it then existed, any person having a legal duty for the care of a child who caused the child harm in a manner that would make the child an abused or neglected child as defined under N.J.S.A. 9:6-8.21 was guilty of a crime of the second degree.

As his son's parent, defendant had a legal duty of care for his child. "Parents . . . have a legal duty to care for a child by virtue of their status." State v. Sumulikoski, 221 N.J. 93, 103 (2015) (citing D.W. v. R.W., 212 N.J. 232, 246 (2012)). "The endangering statute applies broadly to a variety of relationships. It of course extends to a 'violation of the duty that a parent owes to a child.'" Id. at 107 (citing State v. Miller, 108 N.J. 112, 118-19 (1987)).

Accordingly, we affirm the trial court's denial of defendant's motion to amend the indictment and his conviction.

Affirmed.

1 N.J.S.A. 2C:24-4(a) was amended on May 6, 2013, effective July 1, 2013, and on August 14, 2013, effective the same day. These amendments do not affect any of the issues on appeal.