STATE OF NEW JERSEY v. BEATRIZ VELEZ

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NOT FOR PUBLICATION WITHOUT THE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.

BEATRIZ VELEZ,

Defendant-Appellant.

________________________________

Argued March 24, 2015 Decided May 1, 2015

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 13-04-0574.

Raymond R. Wiss argued the cause for appellant (Wiss & Bouregy, P.C., attorneys; Mr. Wiss, of counsel; Thomas K. Bouregy, Jr. and Timothy J. Wiss, on the briefs).

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

PER CURIAM

Following a conditional guilty plea, defendant appeals from the entry of a judgment of conviction for fourth-degree child abuse or neglect, N.J.S.A. 9:6-3. We affirm.

We discern the following facts from the record. In the early morning hours of April 20, 2012, an officer observed defendant driving ninety-two miles per hour on the Palisades Interstate Parkway (Parkway). The officer pulled defendant over and observed defendant's child, a five-year-old, asleep in the vehicle without the protection of a child safety seat or a seat belt. Although defendant did not smell of alcohol, she slurred her words, fumbled slowly with documents, and swayed from side to side while standing outside her vehicle. Because of her impaired appearance, the officer asked defendant to perform field sobriety tests, which she failed. Defendant was arrested and transported to Parkway Headquarters where she underwent an Alcotest. The results of the Alcotest indicated that defendant was not under the influence of alcohol, so defendant was transported to the Westwood Police Department, where an officer trained as a drug recognition expert (DRE) performed a series of tests and concluded that defendant was under the influence of a central nervous system depressant and a narcotic analgesic.

Defendant was issued summonses for driving under the influence, N.J.S.A. 39:4-50, and for driving under the influence with a minor in the car, N.J.S.A. 39:4-50.15, both disorderly person's offenses. She was also issued summonses for fourth-degree child abuse or neglect, N.J.S.A. 9:6-3, and for use or being under the influence of a controlled dangerous substance, N.J.S.A. 2C:35-10b, a disorderly person's offense. Defendant then was also issued tickets for driving under the influence, speeding, unsafe lane change, failure to signal, tailgating, failure to exhibit documents, and reckless driving.

On October 31, 2012, defendant was indicted for fourth-degree child abuse or neglect, N.J.S.A. 9:6-3. On April 17, 2013, the indictment was superseded and defendant was charged with second-degree endangering the welfare of a child. N.J.S.A. 2C:24-4a. In relevant part, the indictment reads

BEATRIZ VELEZ on or about April 20, 2012, in the Borough of Alpine, in the County of Bergen, and within the jurisdiction of this [c]ourt, having a legal duty for the care of, or who has assumed responsibility for the care of A.R., a child 5 years of age, did cause harm to A.R., making A.R. an abused or neglected child as defined in [N.J.S.A.] 9:6-1, [N.J.S.A.] 9:6-3 and . . . [N.J.S.A.] 9:6-8.21[]; contrary to the provisions of N.J.S.A. 2C:24-4a, and against the peace of this State, the Government and dignity of the same.

Defendant moved to dismiss the superseding indictment and the plea judge denied the motion. Defendant entered a conditional guilty plea to an amended count of fourth-degree child abuse or neglect, N.J.S.A. 9:6-3, and driving under the influence, N.J.S.A. 39:4-50, pursuant to a plea agreement. As memorialized in the plea agreement, the State agreed to recommend non-custodial probation, dismiss all remaining motor vehicle tickets, and preserve defendant's challenge to the indictment for appeal. The judge accepted the plea agreement and sentenced defendant to a five-year term of probation, mandatory penalties and fees, DNA testing, and a driver's course.

On appeal, defendant raises the following arguments

POINT I -

THE TRIAL COURT ERRED IN DENYING DEFENDANT/APPELLANT'S MOTION TO DISMISS THE SUPERSEDING INDICTMENT INSOFAR AS SAID INDICTMENT FAILS TO SET FORTH THE FACTS UPON WHICH DEFENDANT IS ALLEGED TO HAVE VIOLATED N.J.S.A. 2C:24-4A.

A. The Superseding Indictment Violates Ms. Velez's Right to Due Process Under the United States and New Jersey Constitutions.

B. The Indictment at Issue Further Runs Afoul of Additional New Jersey Constitutional Provisions.

POINT II -

THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS THE SUPERSEDING INDICTMENT INSOFAR AS SAID INDICTMENT IS CLEARLY IRRECONCILABLE WITH THE PLAIN LANGUAGE OF N.J.S.A. 39:4-50.15 AND THE CLEAR LEGISLATIVE INTENT OF SUCH STATUTE.

In her reply brief, defendant also argues:1

POINT I

THE STATE'S POSITION, ADOPTED BY THE TRIAL COURT, WITH RESPECT TO DISCOVERY, AS OPPOSED TO A WRITTEN INDICTMENT, AS A PROPER VEHICLE TO PROVIDE CONSTITUTIONALLY SUFFICIENT INFORMATION TO THE DEFENDANT, IS INCORRECT AS A MATTER OF LAW.

A decision as to whether to dismiss an indictment is left to the sound discretion of the trial court and is disturbed only if there is an abuse of such discretion. State v. Warmbrun, 277 N.J. Super. 51, 59 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). Such an abuse occurs "when a decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (citation and internal quotations marks omitted).

The standards governing indictments are clear. Indictments are to be dismissed if "manifestly deficient or palpably defective." State v. Hogan, 144 N.J. 216, 228-29 (1996); see also State v. Wein, 80 N.J. 491, 501 (1979). Indictments need only contain a "written statement of the essential facts constituting the offense charged," and "must be examined 'in the light of the constitutional provisions, the rules of court and the decisions.'" State v. Browne, 86 N.J. Super. 217, 232 (App. Div. 1965) (quoting State v. Winne, 12 N.J. 152, 178 (1953)). An indictment must not substantially mislead or misinform the accused but must adequately identify and explain the criminal offense to enable the accused to prepare a defense. Wein, supra, 80 N.J. at 497.

Defendant asserts that the indictment failed to set forth facts by which she violated N.J.S.A. 2C:24-4a. We are satisfied that the indictment adequately informed defendant of the charge against her and enabled her to prepare a defense. The indictment set forth the offense charged, where and when it was committed, the nature of it, and who it was committed against. As the plea judge noted, the information acquired by defendant during discovery as well as the grand jury transcript disclosed the theory of the State's case against defendant. See State v. Mello, 297 N.J. Super. 452, 463 (App. Div. 1997) ("New Jersey's policy of affording a defendant almost complete discovery of the prosecutor's file, including the right to move for a bill of particulars under R. 3:7-5, obviates the potential for prejudice.").

We next address defendant's contention that the indictment should have charged a violation of N.J.S.A. 39:4-50.15, driving under the influence with a minor as a passenger, instead of N.J.S.A. 2C:24-4a, second-degree endangering the welfare of a child. Defendant asserts that the enactment of N.J.S.A. 39:4-50.15, which established driving under the influence with a minor in the car as a disorderly person's offense, effectively forecloses the State from charging the more serious offense of endangering. We disagree.

When conduct violates more than one criminal statute, the State may prosecute defendant under either, given the broad discretion a prosecutor has to enforce the State's criminal laws. Here, the State could have charged defendant under N.J.S.A. 39:4-50.15, however, as the plea court correctly found, "driving under the influence was not the only offense defendant was cited for on the night in question. In addition . . . [defendant] was cited for speeding . . ., tailgating, reckless driving, . . . failure to signal[,] and failure to properly secure her child in the backseat." Thus, there were other proper factual bases for charging defendant with child endangerment, in addition to driving under the influence. We therefore discern no error in the plea court's refusal to dismiss the indictment.

Affirmed.

1 The second argument in defendant's reply brief is omitted as it is identical to the second argument in her initial brief.