State v. D.A.V.

SYLLABUS
 

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
 
State v. D.A.V. (A-130-01)
 
 
(NOTE: The Court wrote no full opinion in this case. Rather, the Court s affirmance of the
judgment of the Appellate Division is based substantially on the reasons expressed in Judge Collester s opinion below.)
 
 
Argued February 4, 2003 -- Decided May 29, 2003

PER CURIAM

On June 29, 1998, defendant went to work and left her three children, ages eight, six and three, alone in her apartment. Temperatures that day reached as high as 100 degrees and the apartment had no air conditioning, only one fan, and no telephone. Defendant had left all the windows and blinds closed, and instructed her children not to open the door to anyone. That afternoon, defendant s brother, William, came to the house with his girlfriend and cousin and found the children alone. William testified that the house was very hot, humid and stuffy, and that it smelled of cat urine and feces. He further testified that the younger child was sitting in a pool of spilt milk and that when he went to look for clean clothes, he found cat feces in the drawers.

Defendant was arrested, convicted on three counts of second degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, and sentenced to three concurrent eight-year terms of imprisonment. Defendant appealed, arguing three points: (1) the trial judge erred by using the phrase making them abused or neglected children in his jury instruction, in effect directing the jury to convict her; (2) defendant was denied due process by the prosecutor s decision to charge defendant with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, rather than fourth degree abuse or neglect of children, N.J.S.A. 9:6-3; and (3) the sentence imposed on defendant was excessive.

The Superior Court, Appellate Division, Collester, J.A.D., held that: (1) in using the phrase making them abused or neglected children in its jury instruction, the trial judge was merely outlining the allegations in the indictment and not directing the jury to convict; (2) where two criminal statutes prohibit the same basic act, the prosecutor may in the exercise of sound discretion proceed under either or both statutes as long as only a single conviction survives; and (3) prior to sentencing, the trial judge made findings of aggravating factors, including defendant s prior and startling criminal record, considered the risk that defendant would commit another offense, and imposed an aggregate sentence of eight years, which sentence was not excessive.
 
HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Collester s opinion.

JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LONG joins, urging the Attorney General to promulgate guidelines to assist prosecutors in choosing whether to prosecute a defendant under N.J.S.A. 2C:24-4a or N.J.S.A. 9:6-3; guidelines that facilitate fairness in the charging process and, therefore, fairness in sentencing with respect to those statutes.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.

SUPREME COURT OF NEW JERSEY
A- 130 September Term 2001
 
 
STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.
 
D.A.V.,

Defendant-Appellant.

Argued February 4, 2003 Decided May 29, 2003

On certification to the Superior Court, Appellate Division, whose opinion is reported at 348 N.J. Super. 107 (2002).

Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne Smith Segars, Public Defender, attorney).

H. John Witman, III, Deputy Attorney General, argued the cause for respondent (Peter C. Harvey, Acting Attorney General of New Jersey, attorney).

PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in Judge Collester s opinion of the Appellate Division, reported at 348 N.J. Super. 107 (2002).
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.

 
 
 
 
SUPREME COURT OF NEW JERSEY
A- 130 September Term 2001
 

 

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.A.V.,

Defendant-Appellant.

ALBIN, J., concurring.
A parent who abuses or neglects a child can be charged under two identical criminal statutes, second-degree endangering the welfare of child in violation of N.J.S.A. 2C:24-4a or fourth-degree cruelty and neglect of children in violation of N.J.S.A. 9:6-3. Under the two statutes the same conduct is proscribed in the same language; however, when prosecuted pursuant to N.J.S.A. 2C:24-4a, a defendant is exposed to a five- to ten-year state prison term, and when prosecuted pursuant to N.J.S.A. 9:6-3, a defendant is exposed only to an eighteen-month prison term. In that respect, it appears that those provisions are unique in the New Jersey Statutes Annotated. Moreover, there are no statutory or administrative guidelines instructing prosecutors on how to determine what circumstances warrant charging under one statute as opposed to the other. In this case, the State charged defendant D.A.V. with three counts of second-degree endangering the welfare of a child, pursuant to N.J.S.A. 2C:24-4a. She was convicted of all three charges and sentenced to three concurrent eight-year terms of imprisonment. The Appellate Division affirmed the convictions and sentence. State v. D.V., 348 N.J. Super. 107 (App. Div. 2002). We granted certification. 174 N.J. 39 (2002).
I concur with the majority s decision to affirm the Appellate Division because the record before this Court reveals no basis to conclude that the prosecutor s decision to prosecute defendant for the second-degree offenses under N.J.S.A. 2C:24-4a was arbitrary compared to other such cases. However, it is not difficult to imagine the day when there will be a record showing similarly situated defendants charged disparately and suffering widely disparate sentences under those two identical statutes. Uniformity in sentencing is one of the paramount goals of the Code of Criminal Justice (Code). State v. Lagares, 127 N.J. 20, 31 (1992). Without guidelines, it is inevitable that unjustifiable disparities will follow from the varied application of the two statutes. I, therefore, would direct the Attorney General to develop standards to channel the exercise of prosecutorial discretion in choosing the appropriate statute in abuse cases.

 
I.
 
 
On the afternoon of June 29, 1998, defendant went to work at her part-time job, leaving her three children, an eight-year-old son, a six-year-old son, and a three-year-old daughter, alone in the home. Before leaving, defendant shut all of the windows in the house, locked the door, and instructed her eldest son not to permit anyone inside. As the outside temperature that afternoon rose to approximately ninety-five degrees, the house, which contained only one fan, became very hot. The house had no telephone and the children were not told what to do in case of an emergency.
Defendant s brother and cousin visited the house that afternoon and found the three children alone. The three-year-old girl was sitting in a soiled diaper in a puddle of milk on the kitchen floor. The eight-year-old boy had made his siblings scrambled eggs on the electric stove. The house smelled of cat urine and feces. When defendant s cousin went to find a change of clothes for the boys, she could find none that were not sullied by cat excrement. Defendant s brother and cousin immediately removed the children from the home.
Defendant was indicted on three separate counts of endangering the welfare of a child (one for each child) pursuant to N.J.S.A. 2C:24-4a. The record does not reveal any basis for the prosecutor s decision to charge and prosecute defendant under N.J.S.A. 2C:24-4a, as opposed to N.J.S.A. 9:6-3.
 
II.
 
As noted earlier, child abuse and neglect are criminalized in two separate statutes. N.J.S.A. 9:6-3, which is part of the Child Welfare Act, states, in relevant part:
Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.

[N.J.S.A. 9:6-3.]

The child endangerment section of the Code incorporates the standards of N.J.S.A. 9:6-3, raising child abuse and neglect to a second-degree offense:
Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who engages in sexual conduct which would impair or debauch the morals of the child, or 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, s.1 (C.9:6-8.21) is guilty of a crime of the second degree.
 
[N.J.S.A. 2C:24-4a (emphasis added).]

Child abuse and neglect constitute a fourth-degree crime under N.J.S.A. 9:6-3 and a second-degree crime under N.J.S.A. 2C:24-4a. The two identical statutes require proof of the same knowing level of mental culpability. State v. Demarest, 252 N.J. Super. 323, 333 (App. Div. 1991). The only distinction between the two statutes is the degree of crime and the range of sentence. State v. N.A., 355 N.J. Super. 143, 153 (App. Div. 2002), certif. denied, 175 N.J. 434 (2003). No standards are currently in place to guide prosecutorial discretion in selecting under which statute to prosecute a defendant.
In our scheme of justice, the courts have the ultimate responsibility to ensure fairness and uniformity in sentencing. Lagares, supra, 127 N.J. at 27-28. The prosecutor, however, controls the charging process, which determines the sentencing exposure of a defendant in any particular case. Id. at 27. Our courts must pay great deference to those prosecutorial decisions because the separation of powers doctrine demands that respect be given to a coordinate branch of government. State v. Leonardis (Leonardis II), 73 N.J. 360, 381 (1977). That deference, however, does not require that courts abdicate their power to promote uniformity in sentencing. Lagares, supra, 127 N.J. at 27-28, 31.
In furtherance of that imperative, which is grounded in fundamental fairness, this Court has required prosecutors to be guided by uniform guidelines and subject to judicial review on decisions implicating the ultimate sentence of a defendant. See, e.g., State v. Brimage, 153 N.J. 1, 24-25 (1998) (ordering Attorney General to promulgate guidelines to channel discretion of prosecutors when deciding whether to waive mandatory terms of imprisonment under N.J.S.A. 2C:35-12); State v. Vasquez, 129 N.J. 189, 196 (1992) (enabling judicial oversight and review of waiver of mandatory terms of imprisonment under N.J.S.A. 2C:35-12 by requiring prosecutors to state reasons for waiver or non-waiver on record and requiring promulgation of written guidelines governing exercise of prosecutorial discretion); Lagares, supra, 127 N.J. at 32 (preserving constitutionality of N.J.S.A. 2C:43-6f by requiring prosecutors to state on record reasons for seeking extended sentence and requiring promulgation of guidelines to assist prosecutorial decision-making); and State v. Leonardis (Leonardis I), 71 N.J. 85, 119, 121 (1976) (holding that prosecutors must provide statement of reasons for denying consent to admission to pre-trial intervention (PTI) program applicants and requiring PTI programs to be implemented according to uniform guidelines).
Permitting prosecutors to choose at their whim whether to charge between identical child abuse and neglect statutes, one with a maximum range of eighteen months and the other ten years in prison, would add undue variability, inevitable inconsistency, and greater disparity to the sentencing process. Brimage, supra, 153 N.J. at 12 (quoting State v. Warren, 115 N.J. 433, 449 (1989)). In Brimage, supra, 153 N.J. at 4, this Court was faced with a challenge to the Attorney General s then-existing plea agreement guidelines regarding waiver of mandatory minimum terms of imprisonment under Section 12 of the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-12. Although those guidelines prescribed statewide minimum plea offers, they permitted county prosecutors offices to adopt more stringent plea offers. Brimage, supra, 153 N.J. at 4. The result was great variation between counties in their plea-bargaining policies that led to disparity in sentencing. Id. at 15-16, 17, 19. We concluded that the Attorney General should adopt new guidelines to assure uniformity among the twenty-one counties. In reaching that outcome, the Court reviewed its prior decisional law, concluding that
the Vasquez/Lagares line of cases held that judicial review of prosecutorial decisions through uniform written guidelines was necessary not only to meet the requirements of the separation of powers doctrine, but also to comport with the statutory goal of increasing uniformity in sentencing.

[Id. at 13.]

I urge the Attorney General to promulgate guidelines to assist prosecutors in choosing whether to prosecute a defendant under N.J.S.A. 2C:24-4a or N.J.S.A. 9:6-3. The guidelines need not be Byzantine or prolix, but sufficient to guide the discretion of prosecutors so that rational distinctions are made in applying the appropriate statute. Without such guidance, it is inevitable that glaring disparities will arise as different prosecutors and different prosecutor s offices choose between the two statutes based on personal preference or philosophy rather than an objective distinction. A proper respect for the function of coordinate branches of government, the judiciary and the executive, can be achieved by standards that promote uniform sentencing policies. Guidelines that facilitate fairness in the charging process and, therefore, fairness in sentencing with respect to those statutes will likely avert a future constitutional challenge.
Justice Long joins in this opinion.

SUPREME COURT OF NEW JERSEY

NO. A-130 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

D.A.V.,

Defendant-Appellant.

DECIDED May 29, 2003
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY Justice Albin
DISSENTING OPINION BY

CHECKLIST AFFIRM
CONCUR CHIEF JUSTICE PORITZ X
JUSTICE COLEMAN X
JUSTICE LONG (X)
X JUSTICE VERNIERO X
JUSTICE LaVECCHIA X
JUSTICE ZAZZALI X
JUSTICE ALBIN (X)
X TOTALS 7