On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 99-03-0320.
Before Judges Havey, Coburn, and Weissbard.
The opinion of the court was delivered by: Weissbard, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2001
Defendant, Sonya Jones, appeals from her conviction after a trial by jury on a single count indictment charging interference with custody, in violation of N.J.S.A. 2C:13-4a(4). Defendant had been on probation for passing a bad check and her conviction on the interference charge resulted in a violation of the probation. On January 21, 2000, defendant was sentenced to a nine-year prison term on the jury trial conviction and a concurrent five-year term on the bad check charge. Finding error in the instructions to the jury, we reverse the interference conviction and remand for a new trial. As a result, we also vacate the concurrent sentence which was predicated upon the interference conviction under Indictment No. 97-01-0005.
Defendant and Roland Jones divorced in July 1995, after approximately eighteen years of marriage. At the time of the divorce, they had three children, Roland Jr., born May 25, 1979, Marissa, born September 27, 1980, and Cody, born October 10, 1984. Their daughter, Marissa, subsequently died in 1994 of a heart ailment.
Defendant and Jones entered into a property settlement and custody agreement. The agreement, drafted by defendant, provided for the division of their assets and the custody of their children. The consent judgment of divorce incorporated the agreement.
With respect to custody, the agreement provided, in pertinent part, as follows:
1. The Wife and Husband shall have joint custody of the minor children born of the marriage as follows:
a. Commencing with every Friday evening, the party having custody shall relinquish custody to the other party for the period of one (1) week.
b. The minor children will be available to both parties on holidays, as shall be worked out between the parties.
c. Either party may temporarily remove the children from the State of New Jersey for a reasonable period of time and only upon reasonable notice to the other party.
The agreement further provided that:
A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist on performance or any other provision of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature.
Although the agreement was never modified in writing, it was substantially modified by conduct; for some unspecified period of time Roland Jr. lived exclusively with his father, and commencing on June 15, 1998 Cody lived with defendant, spending only four days with Jones during that entire summer.
On September 26, 1998, defendant purchased two one-way airline tickets to Lima, Peru and on September 28, 1998 Cody, who was just two weeks shy of his fourteenth birthday, left with defendant for Peru.*fn1 Defendant did not inform Jones about the trip. On October 1, 1998, Jones received a call from defendant's landlord, presumably inquiring of defendant's whereabouts, as a result of which he called Cody's school and learned that he had not been in attendance. Jones then called the police and reported his son missing. Jones also returned to court and obtained an order granting him sole custody of Cody effective October 16, 1998.
With the assistance of the Federal Bureau of Investigation (FBI), defendant and Cody were located in Bolivia in December 1998. Jones flew to Bolivia and returned to the United States with his son. Defendant was arrested by local authorities in Bolivia and returned to the United States where she was arrested and taken into custody.
On appeal, defendant raises the following issues:
POINT I. THE COURT DEPRIVED DEFENDANT OF A FAIR TRIAL IN REFUSING TO ALLOW DEFENDANT'S TEEN-AGE SON TO TESTIFY, THUS DEPRIVING HER OF HER RIGHT TO PRESENT A DEFENSE.
POINT II. THE COURT'S REFUSAL TO CONDUCT A HEARING PURSUANT TO N.J.R.E. 104(a) AND TO PERMIT CROSS-EXAMINATION OF THE STATE'S MAIN WITNESS REGARDING THE ORAL MODIFICATION OF THE DIVORCE AGREEMENT ON CUSTODY ISSUES VIOLATED DEFENDANT'S RIGHT OF CONFRONTATION AND THE ABILITY TO PRESENT A DEFENSE.
POINT III. THE COURT, IN ITS CHARGE, CONFUSED THE JURY IN ITS INSTRUCTIONS THAT THE DEFENDANT "TOOK" HER SON FROM THE CUSTODY OF HIS FATHER WITHOUT DEFINING THIS TERM AND THEN IN REPEATING THIS CHARGE IN RESPONSE TO A QUESTION, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL.
POINT IV. THE COURT'S RULINGS EXHIBITED A CLEAR BIAS IN FAVOR OF THE PROSECUTION, THUS DEPRIVING DEFENDANT OF A FAIR TRIAL.
POINT V. N.J.S.A. 2C:13-4 IS OVERBROAD IN THAT IN INFRINGES UPON THE CONSTITUTIONALLY PROTECTED RELATIONSHIP BETWEEN PARENT AND CHILD, IN VIOLATION OF THE FOURTEENTH AMENDMENT. (NOT RAISED BELOW)
POINT VI. THE SENTENCE WAS MANIFESTLY EXCESSIVE IN THAT DEFENDANT SHOULD HAVE RECEIVED THE MINIMUM PERIOD OF IMPRISONMENT FOR A SECOND DEGREE OFFENSE.
We find merit in Point III, although not for the precise reasons argued by defendant. We address that issue first and then comment briefly on other issues that may surface again in the event of a retrial.
The statute in question provides, in pertinent part, ...