On appeal from Superior Court of New Jersey, Law Division, Bergen County, 98-10-1873.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 December 3, 2001
In this criminal appeal we must determine the meaning of the words "willfully forsaking," found in part of the definition of abandonment in N.J.S.A. 9:6-1 which is, in turn, incorporated into second degree endangering welfare of children, N.J.S.A. 2C:24-4. We conclude that the statute requires an intent to permanently abandon the child. Because the trial judge did not define the critical term for the jury, we reverse defendant's endangering conviction. We do, however, affirm his conviction for third-degree theft.
Defendant, N.I., appeals from his conviction, after a three- day jury trial, of third degree theft, in violation of N.J.S.A. 2C:20-3a (count one) and second degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a (count two). After denial of his post-trial motion for a judgment of acquittal pursuant to R. 3:18-2, or a new trial pursuant to R. 3:20-1, defendant was sentenced to a five-year state prison term on count one and ten years with four years of parole ineligibility on count two, the terms to run concurrent. Appropriate penalties were also imposed.
On January 31, 1998, defendant was observed in the Stern's Department Store in the Bergen Mall in Paramus taking items of children's clothing and putting them into a bag which was then placed under a blanket resting on the hood of a stroller. Defendant had been seen initially by a salesperson who reported the incident to a store security officer, Ron Botelho, who also made observations. As defendant left the store accompanied by a child, Botelho followed him outside into the parking lot. Botelho identified himself and asked defendant to return to the store to discuss the clothing he had taken. Defendant ignored Botelho and kept walking, pushing the stroller and gradually increasing his pace. At some point, defendant began to run across the parking lot, toward Route 4. As he fled, a large bag fell out of the stroller and the child, who was running with defendant, tripped over the bag and fell. Botelho stopped to assist the child and radioed another security officer, Bochner, of defendant's flight. Bochner gave chase but defendant escaped.
Police responded and learned from the child that her name was K. and that defendant, her father, was N.I. K. was five years old. She was taken to police headquarters but no one came or called to inquire about her.
Botelho subsequently examined the bag which had fallen from the stroller. Inside the bag was a "booster bag," a container lined with foil and plastic, commonly used by shoplifters to prevent merchandise security tags from setting off an alarm. Inside the booster bag were twenty-three articles of children's and infants' clothing with retail price tags totaling $638.
On the evening of January 31, Detective Joseph Ackerman took over the investigation. He observed that K. had no injuries and appeared to be healthy and happy. Ackerman learned that the Hackensack Police Department had a photo of defendant and sent Detective Benkey to pick it up. Benkey thereafter returned from Hackensack not only with the picture but with C.I., K.'s uncle, who had been sent to Hackensack to pick up the child on the mistaken assumption that she was there, arriving at about 10:00 p.m. K. was, understandably, happy to see her uncle.
Defendant's niece, K.W., testified in his defense at trial to the following. On January 31 K.W. accompanied defendant, his girlfriend G.S., and defendant's two children, B. and K., from their homes in the Bronx to go shopping at Stern's. K.W. went off on her own after arriving at the store. At 6:30 p.m. she exited Stern's and heard G.S. screaming. Defendant was sprawled on the pavement and K. was standing a short distance away. An unidentified man came up, obviously angry, and "snatched" K. When the two women followed him to the door of the store, the man pulled out a badge and told them to "pick the baby up at the precinct." After recovering from their shock, K.W. and G.S. went over to defendant, who was on the ground next to the tipped-over stroller holding B. close to his chest. K.W. telephoned her grandmother in the Bronx to tell her what had happened after which she, G.S., defendant, and the child sat in their van for over an hour until her uncle, C.I., arrived with K., after which they returned to the Bronx, arriving home after midnight.
The verdict made it clear that the jury rejected K.W.'s version of the events of January 31, 1998 and generally accepted the scenario proffered by the State.
On appeal, defendant raises the following issues:
POINT I. DEFENDANT IS ENTITLED TO JUDGMENT OF ACQUITTAL FOR ENDANGERING THE WELFARE OF A CHILD BECAUSE THERE WAS INSUFFICIENT EVIDENCE THAT DEFENDANT ABANDONED HIS DAUGHTER. ALSO, THE COURT DID NOT CHARGE THE JURY IN ACCORDANCE WITH THE STATUTE AND FAILED TO DEFINE ABANDONMENT, FORSAKING AND WILLFULLY. (Partially Raised Below)
POINT II. THE ADMISSION OF TESTIMONY THAT THE HACKENSACK POLICE HAD A PHOTOGRAPH OF DEFENDANT, A RESIDENT OF NEW YORK CITY, DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.
POINT III. DEFENDANT'S SENTENCE IS NOT IN ACCORD WITH THE SENTENCING GUIDE-LINES; CONSEQUENTLY, IT MUST BE REDUCED.
POINT IV. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR TRANSFER TO A DRUG TREATMENT PROGRAM.
Defendant raises additional issues in a supplemental pro se brief, entitled "Petition for Certification," but without clear point headings. We have also considered those issues. Because we find that the endangering charge failed to define an essential term for the jury, we reverse defendant's conviction on count two. We affirm the conviction on count one.
Under a single point heading, defendant attacks both the sufficiency of the evidence and the adequacy of the charge.*fn1
We begin with the challenge to the jury instructions.
N.J.S.A. 2C:24-4a provides, in pertinent part, that:
Any person having a legal duty for the care of a child . . . who causes the child harm that would make the child an abused or ...