On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-08-0832-I.
Before Judges Ciancia, Parrillo and Coleman.
The opinion of the court was delivered by: Parrillo, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Tried to a jury, defendant Manuel Perez was convicted of third-degree child luring, N.J.S.A. 2C:13-6, and third-degree attempting to endanger the welfare of a child, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:24-4(a), both offenses involving the same two incidents and the same victim. A stalking charge, N.J.S.A. 2C:12-10b, was dismissed by the court on defendant's motion after the State's case. After denial of his motion for a new trial, defendant was sentenced to concurrent three year probationary terms conditioned on serving four days, cumulatively, in the Passaic County jail, payment of mandatory penalties, and lifetime community supervision pursuant to Megan's Law, N.J.S.A. 2C:43- 6.4. Defendant appeals. We reverse and vacate defendant's judgment of conviction.
Defendant's convictions arose out of two brief encounters that he had with D.D., a girl then thirteen years of age, one in February 1999 and the second on May 28, 1999. According to the State's proofs, defendant, a thirty-four-year-old married man, and D.D. lived in the same neighborhood, a few blocks from each other. D.D. had resided in this neighborhood for about three or four years. They were not previously acquainted, however, although D.D. would pass by defendant's home on her way to the junior high school, where she was at the time a seventh grader, and occasionally see defendant going in or out of his house. Prior to the February 1999 encounter, they never spoke to each other.
Defendant's first encounter with D.D. was sometime in February 1999 on a rainy morning at about 7:30 a.m. while D.D. was walking alone to school. D.D. did not have an umbrella, raincoat, or other rain gear, and was carrying a backpack. She was about a block from her school when defendant, on his way to the gym, pulled his car alongside of D.D., who was on his driver's side, and asked her if she wanted a ride. D.D. said "no" and continued on her way to school while defendant drove off. When she returned home from school, she mentioned the incident to her parents and was told by her father that she did the right thing in reporting the encounter to them. After the incident, D.D. continued walking the same path to school and, although they may have passed each other on the street, defendant never spoke to her again until their second encounter on May 28, 1999.
On that day, at around 9:00 p.m., D.D. was riding her bicycle in the neighborhood with her two younger brothers – K.D., then age nine, and F.D., then age eleven – who were rollerblading. They were on their way to visit a friend who lived nearby when, about one block from their home, defendant, alone in his car, pulled up behind them to their right and called out to D.D. to "come over here." D.D. did not respond because she either did not hear or was ignoring defendant, but F.D. asked "what," to which defendant replied "not you, her." D.D. still did not respond but continued riding her bicycle, instructing her brothers to turn around with her and go home. Defendant repeated his request a few more times, inquiring of D.D. whether she remembered him and motioning for her to approach his car, which was stopped at the time. D.D. continued ignoring him and headed home with her brothers while defendant drove off. D.D. never spoke to defendant during this brief encounter.
The children returned home and told their father, who in turn reported the incident to the police. Later that evening, defendant was brought to police headquarters and, under questioning, gave an account of the two encounters nearly identical to D.D.'s version. He volunteered further:
I see this girl all the time, all the time. I've only spoken to her twice during the winter and today. Sometimes on the weekends or after school hours she's with friends, and tonight I saw her on the bicycle. I know she's younger than me, but I didn't know she's a minor. She's cute, she's nice, but her looks are deceiving. I thought she's a teenager, about 16. Also her height, she's a pretty tall girl.
Defendant denied ever "picking up" a girl he knew or believed to be a minor. When specifically asked about his attraction to D.D., defendant responded: "I don't want to give up anything like my marriage, but what impressed me is her looks, she's attractive and her height. I don't know much about her." Defendant specifically recalled seeing D.D. one day on his way to Pathmark:
She was sitting on her front porch and I saw her talking to two young guys. I just drove by and we made eye contact and I just smiled at her. I was surprised that she lived there, I didn't know. I wasn't jealous of them, they were in her age bracket, I guess I'm just trying to take advantage of how I look now while I can. I am obsessed with her, but not like anything out of the ordinary. I find her attractive and there are plenty of young ladies that go by that way and sometimes I get to talk to them. Sometimes girls going to school or joggers. I don't usually fantasize about her but sometimes if it come to me. Mentally I've thought of asking her for a date, but actually no, it's hard to come on to a lady straight. You have to play the game. I wish I could ask her out but physically it is hard.
He explained the May 28, 1999 encounter in this manner:
Yes, I said come over here. She didn't come over, she made a U-turn with the two boys and went up [the] Avenue. I just smiled and continued on my way. I wanted to talk to her because she was across the street, and I wanted to tell her that if she remembers me, and that I was the guy that lives over on the corner ...