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State v. M.L.

Decided: October 16, 1991.


On appeal from Superior Court, Law Division, Mercer County.

Long and Gruccio.

Per Curiam

Per Curiam

Tried to a jury, defendant M.L. was convicted of endangering the welfare of a child, N.J.S.A. 2C:24-4a. Defendant was sentenced to a four-year term of probation, conditioned upon her serving a six-month custodial term, obtaining employment, enrolling in a drug-treatment program, submitting to urine monitoring and attending psychological counselling. A $30 Violent Crimes Compensation Board penalty was also imposed.

On appeal, defendant contends:

1. The trial court erred in denying defendant's motion to dismiss the indictment against her.

2. The trial court erred in admitting defendant's statement which was obtained in violation of her Miranda rights.

3. There was no basis for the admission of Rule 55 testimony in this case.

4. It was reversible error to advise the jury that defendant had been arrested for shoplifting.

5. The trial court's use of special interrogatories were highly prejudicial and nullify the jury verdict in this case.

6. Considering the specific facts of this case, defendant's indictment and conviction under N.J.S.A. 2C:24-4 violated her constitutional rights to due process and trial by jury.

On January 25, 1988, at approximately 3:20 p.m., defendant was arrested for shoplifting at Jamesway Department Store in Hamilton Township. She and her five-year-old son, J.L., were transported to the Hamilton Township police station where the store security personnel filed a complaint against her for shoplifting. Unable to make bail, defendant arranged for J.S. to pick up J.L. from the police station.*fn1 J.S. took the child to K.C., defendant's friend who lived in the same apartment complex as defendant. When J.S. arrived at K.C.'s apartment at approximately 6:45 p.m., K.C. expressed concern for the whereabouts of defendant's 15-month-old child which prompted her to call the East Windsor Police Department. She spoke to Detective Steven Verdakis who, in turn, called Hamilton Township Patrolman Robert Applegate and informed him of his conversation with K.C. Patrolman Applegate immediately asked defendant the whereabouts of her other child. Defendant told him that her other child was with a babysitter, K.J. However, she could not recall K.J.'s apartment number and claimed that K.J. did not have a telephone.

Faced with this situation, Detective Verdakis and Patrolman Schriten then went to defendant's apartment complex, spoke to the superintendent and obtained a pass key to defendant's apartment. When the officers located the apartment, they saw a pit bull tied outside. The officers, together with K.C. and her

sister, who had accompanied them, then entered the apartment. In their testimony, they described the apartment as filthy; i.e., littered with dirty diapers and laundry, plates of spoiled food and dog feces. In the midst of this, they found defendant's unattended infant child, C.L., asleep in a playpen. C.L. was in desperate need of a diaper change and was sweating in the 90 degrees heat of the apartment. The officers gave C.L. to K.C. and her sister for temporary care.

At approximately 10:30 p.m. Detective Verdakis went to Hamilton Township police station, where defendant was incarcerated, and served a complaint on defendant for endangering the welfare of a child.

Defendant rested without producing any evidence. It was essentially upon these facts that defendant was found guilty of the charge.

Defendant contends that the trial court erred in refusing to dismiss the indictment. We find this issue without merit. R. 2:11-3(e)(2). The indictment charged that:

[M.L.] on or about the 25th day of January, 1988, in the Township of East Windsor in the County aforesaid, and within the jurisdiction of this Court, having a legal duty for the care of, or who has assumed responsibility for the care of C.L., born October 26, 1986, did cause harm to C.L. making C.L. an abused or neglected child as defined in P.L.1974, c. 119, s. 1, L.1915, c. 246, s. 1, L.1944, c. 196, s. 1 (C. 9:6-1, 9:63 and 9:6-8.21), contrary to the provisions of N.J.S.[A.] 2C:24-4(a), and against the peace of this State, the Government and dignity of the same.

N.J.S.A. 2C:24-4(a), in pertinent part, provides that:

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 ยง 1 (C. 9:6-8.21) is guilty of a crime of the third degree.

Our review of the record indicates that defendant's motion to dismiss the indictment was properly denied. Our review further indicates that the prosecution was based upon a clear showing that the child was neglected and harmed and that evidence exists in the record from which the jury could arrive at such a conclusion.

The test of the sufficiency of an indictment is not whether it could have been more precise and definite, but whether it contains elements of the offense intended to be charged and gives the accused reasonable notice of the act or acts he is called upon to defend. Scott v. United States, 231 F. Supp. 360 (D.C.N.J.1964), aff'd, 342 F.2d 813 (3d Cir.1965); State v. Torrance, 41 N.J. Super. 445, 125 A.2d 403 (App.Div.1956); see State v. Bonaccurso, 227 N.J. Super. 159, 545 A.2d 853 (Law Div.1988).

That test was met here. Moreover, R. 3:10-2 provides that any objections based on defects in the institution of the prosecution or in the indictment must be raised by motion before trial and that the failure to do so constitutes a waiver thereof, absent a showing of good cause. R. 3:10-2 (1991). Additionally, defendant's failure to object to the indictment by way of a motion or an application for a bill of particulars until the eve of trial, months after the indictment, procedurally bars defendant from asserting this claim.

Defendant next contends that the trial court erred in admitting her statement that the infant was in the care of a babysitter when, in fact, it was not. The trial judge made his findings which, in sum, indicate that the statements were not protected by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966), and, if protected, were nevertheless, under state and federal decisions, admissible. He found the inquiry unrelated to any police investigation of the charge for which defendant was indicted; that the question was routine, and incident to an arrest and booking; that it was unfocused and, if anything, the question was asked out of concern for the safety of C.L.

We agree with this analysis and, as the trial judge indicated:

It seems clear to this court that it is every bit as important to a police officer who learns there is another child involved or that the arrestee has a child who may not be . . . being cared for and is a younger child, that there certainly is a public safety consideration that must be taken into account in that area. And I

find that even if it were subject to Miranda under these circumstances, there is an exception to it.

We agree with the judge's findings and his assessment of the witness's testimony. We accord deference to the trial judge's ability to evaluate the credibility of the witness and to make factual findings upon the testimony before him. State v. Johnson, 42 N.J. 146, 162, 199 A.2d 809 (1964). Here, he determined that the officer was credible and there was no interrogation. Rhode Island v. Innis, 446 U.S. 291, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980).

Miranda sets forth a balance between the rights of the government and those accused of criminal activity. That balance is enhanced by the requirement that a person in custody be advised of the rights guaranteed by the constitution. Miranda, supra, 384 U.S. at 444, 86 S. Ct. at 1612, 16 L. Ed. 2d at 706-07. Our state law is consonant with that principle. See State v. Graves, 60 N.J. 441, 447, 291 A.2d 2 (1972); State v. Godfrey, 131 N.J. Super. 168, 175, 329 A.2d 75 (App.Div.1974), aff'd, 67 N.J. 267, 337 A.2d 371 (1975). Miranda 's safeguards "come into play whenever a person in custody is subjected to either express questioning or its functional equivalent." Innis, supra, 446 U.S. at 300-01, 100 S. Ct. at 1689, 64 L. Ed. 2d at 307-08. Not all statements obtained by the police after taking a person into custody, however, must be considered the product of interrogation. Id. at 299, 100 S. Ct. at 1689, 64 L. Ed. 2d at 307.

The definition of interrogation has been extended only to a police officer's words or actions that the officer "should know are reasonably likely to elicit an incriminating response from the suspect." Id. at 301, 100 S. Ct. at 1689-90, 64 L. Ed. 2d at 308; State v. Ramos, 217 N.J. Super. 530, 537, 526 A.2d 284 (App.Div.1987) (footnotes omitted). It is abundantly evident that here the officer had no reason to know that the response would lead to circumstances which resulted in this charge ...

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