On appeal from Superior Court of New Jersey, Law Division, Salem County, 98-11-463-I.
Before Judges Stern, Eichen and Collester.
The opinion of the court was delivered by: Collester, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 30, 2001
Tried to a jury, defendant D.V. appeals from her conviction for three counts of the second degree crime of endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a and her sentence of eight years imprisonment concurrent on each count. We affirm.
In June 1998, defendant, a single parent, lived with her three children: J.S., her eight year old son; D.S., a son aged six; and Ja.S., her four year old daughter. Defendant worked part-time at the New Jersey Veteran's Memorial Home with usual hours of 3:00 p.m. to 7:00 p.m. The State's proofs were that on June 29, 2000, the defendant left for work some time in the morning leaving her children at home without any adult supervision. The day was unusually hot with afternoon temperatures reaching 95 to 100 degrees. There was no air conditioner, only one fan and no telephone.
The eight year old son, J.S., testified at trial that on that day his mother closed the windows, shut the blinds and told the children not to answer the door while she was gone. For the next few hours the children were alone. They watched television and played. At one point J.S. cooked scrambled eggs for them on an electric stove.
That afternoon defendant's brother, William, came to the house with his girlfriend and his cousin, Suzanne. As he approached he thought no one was home because the windows were shut and the blinds drawn. When he heard the television, he knocked on the door. He then heard J.S. call that there was someone at the door and D.S. respond, "Mommy said don't answer the door." William identified himself, and "after a bit of an argument," the children opened up the door. He testified the house was very hot, humid and stuffy and had a strong odor of cat urine and feces. Two boys were playing with the cat in the living room while Ja.S. was sitting in spilt milk on the kitchen floor.
Suzanne corroborated that the children were alone, that the house was disheveled with a strong cat odor. She said the children told her that the cat "had gone to the bathroom on their clothes." Ms. Meyer testified that she changed Ja.S.'s wet diaper.
William decided to take the children out of the house. When he looked for some of their clothes, he found cat feces in the drawers. After William took J.S. to his parents' house, his mother called the Division of Youth and Family Services. Suzanne took the other two children to her house. None of the children had any physical injuries.
Later that afternoon there was a confrontation between William and the defendant. He said defendant became "verbally aggressive, screaming and yelling a lot of profanity." He called the State Police and was told to hold the defendant there until their arrival. Accordingly, he "pinned" the defendant in the driver's seat of her car with the butt end of a shotgun. After she backed up, William broke her windshield. When the police arrived, both defendant and William were arrested.
William testified that he and his girlfriend lived with defendant and her children until a month before this incident. They left after several acrimonious incidents. William said that defendant was mad because she wanted them to baby-sit for the children and they refused.
Testifying on her own behalf, defendant said that on June 29 she left for work at about 2:45 p.m. She stated her regular babysitter was her next door neighbor who was assisted by her three children, ages eighteen, sixteen and fifteen. Since the neighbor had to go out on June 29, defendant left her children at her house in the care of one of the neighbor's children. She maintained that the windows and doors were open when she left for work. She allowed the children to bring a stray cat into the house for the first time that day but denied that the house "reeked" of cat urine. She returned to the house that afternoon at about 5:00 p.m. to find her children missing. Neither the neighbor nor any of her children testified. Defendant said that they moved out of state.
Defendant maintained that she would never leave her children alone and unsupervised and denied making a contrary statement to the police. However, on rebuttal State Trooper William Donahue ...