On appeal from the Superior Court, law Division, Ocean County.
King, Brody and Ashbey. The opinion of the court was delivered by Ashbey, J.A.D.
The principal holding in this appeal is that a supervisor in a juvenile shelter engaging in sexual conduct with a juvenile resident in the shelter is guilty of the crime of sexual assault under N.J.S.A. 2C:14-2c(3) and that the juvenile's "consent" is not a defense.
Defendant was found guilty of two counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2c(3); one count of second-degree official misconduct, contrary to N.J.S.A. 2C:30-2a, and one count of fourth-degree sexual contact, contrary to N.J.S.A. 2C:14-3b. He was acquitted of two other counts of sexual assault, and sentenced to concurrent seven-year terms for the assaults and official misconduct and to a concurrent 18 month term for sexual contact. A $120 Violent Crimes Compensation Board penalty was imposed. Defendant appeals and we affirm.
On appeal defendant contends:
The evidence was insufficient to sustain convictions under N.J.S.A. 2C:14-2c(3) or N.J.S.A. 2C:14-3(b).
The trial court erred in instructing the jury that consent was not a defense.
The trial court inappropriately sentenced the defendant to a custodial term.
The court erred in not sentencing defendant as a third degree offender.
In large measure the facts were undisputed. Mary,*fn1 a seventeen-year-old adjudicated delinquent, was required to live in the Ocean County Children's Shelter (Shelter) as a condition of probation under N.J.S.A. 2A:4A-43b(3).*fn2 Defendant was employed by the county as a detention officer/youth aide with supervisory duties at the Shelter.
Mary testified that on February 6, 1986, while she was a probationer living at the Shelter under the Family Part order, defendant invited her to go with him to pick up another resident. At that time defendant asked her to perform fellatio, which she did. She said he made her promise not to tell anyone because "he could lose his job." After they returned to the Shelter, defendant fondled her breasts and asked her to touch his groin area. On February 17 and February 19 defendant had sexual intercourse with Mary at the Shelter. These were brief encounters in which defendant stood Mary against the bedroom wall while ostensibly opening and closing locks so she could shower. On February 20, 1986, Mary told the Shelter's psychologist about the incidents.
Defendant testified that on February 17 he was not on duty, he was only visiting the Shelter. He did not deny that the sexual events took place. He claimed Mary said to him, "I want you, I want to be with you, I like you. You're good looking." He said she made sexual suggestions and fondled him. He admitted that on February 6 he exposed himself and that she did perform fellatio, although he said she began the sexual encounter. He said that on February 17 and February
19 she fondled him and they had the brief episodes of intercourse to which Mary testified.
The jury found him not guilty of the charges stemming from the February 17 charge of intercourse when he was not on duty and of another charge of digital penetration on an unspecified date, but guilty of sexual assault respecting the February 6 fellatio, the February 19 intercourse, as well as guilty of sexual contact and official misconduct.
N.J.S.A. 2C:14-2c(3) provides:
An actor is guilty of sexual assault if he commits an act of sexual penetration with another person under any ...