On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 96-9-1587-I.
Before Judges Skillman, Cuff and Winkelstein.
The opinion of the court was delivered by: Cuff, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2002
Following a jury trial, N.A. was convicted of second degree endangering the welfare of a child contrary to N.J.S.A. 2C:24- 4a. The victim was defendant's two year old son. Defendant was sentenced to a nine-year term of imprisonment. The trial judge also imposed a $50 VCCB assessment, a $30 LEOTEF penalty, and a $75 SNSF assessment.
In June 1996, defendant and R.M. were living together with their two year old son, K.M., and their one year old daughter, B.M. On June 18, the two children were in the playpen, while R.M. was on the couch watching television and defendant was sleeping in the next room. R.M. fell asleep and awoke to hear defendant screaming at their son. Defendant then grabbed the child and threw him on the floor. Defendant picked him up and hit him on the legs, buttocks, back and head. She slapped and punched the child fifteen to twenty times. Then, she took the boy into the bedroom and hit the boy five to ten times on his buttocks with a hairbrush.
R.M. followed defendant to the doorway of the bedroom. He saw the hairbrush in defendant's hand and saw her hit his son. When defendant saw R.M., she stopped hitting the child. R.M. returned to the living room and defendant brought the child with her into the room. When she started to hit the child once again, R.M. grabbed the boy and took him to a neighbor's house.
When R.M. arrived at the neighbor's house, he called his sister. After a half hour, R.M. returned to his apartment and started to pack some clothes. When his sister arrived, R.M. left with his son and took him to a second sister's apartment. There, his sisters videotaped the child. A case worker from the Division of Youth and Family Services also arrived at the apartment and interviewed K.M.
A friend of defendant's, who frequently watched the child, responded with R.M.'s sister to his call for assistance. When the friend arrived at the couple's apartment, she picked up the child and noticed bumps on the child's head and marks on his face, arms, buttocks and legs. Defendant's neighbor also testified that she observed two or three bruises on the boy's legs when R.M. brought the boy to her house. She also testified that R.M. pulled down the child's pants and showed her his buttocks which were bright red.
The following day, defendant used her neighbor's telephone to call her father. The neighbor overheard defendant's side of the conversation and reported that defendant told her father that "she had just beat the shit out of [K.M.]" because he went into her purse and was playing with her makeup. Defendant related that she was afraid he would harm himself. The neighbor further stated that defendant acknowledged to her father that she needed help and that her son did not deserve the beating. Yet, after she completed the call, defendant told her neighbor that R.M. had beaten the child.
Defendant's father confirmed that his daughter called him on June 19. He stated that she was "very hysterical, crying, and said her son had gotten into her . . . pocketbook." Defendant told her father that "she became upset and smacked him with a hairbrush."
Defendant testified at trial. She denied hitting her son but admitted that she chastised him for playing with her pocketbook and its contents. According to defendant, she placed the child in a corner but he threw himself on the ground. She admitted to spanking him one or two times on the hand but denied hitting him with a hairbrush. She attributed the bruises on the child's back, legs and buttocks to blows administered by R.M. She accused R.M. not only of beating the child but also overreacting to her punishment of the child. She further testified that she told R.M. to leave the apartment and that she called the police to report R.M.'s beating of the child. She also denied that she told her father that she hit the child with a hairbrush. According to defendant, she told her father that she was being accused of hitting the child with the brush.
On appeal, defendant raises the following arguments: POINT I
THE DEFENDANT'S PRIVILEGE AGAINST SELF- INCRIMINATION AS GUARANTEED BY THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND THE NEW JERSEY COMMON LAW AND THE DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AS GUARANTEED BY THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION AND ART. I PAR. 1 OF THE NEW JERSEY CONSTITUTION WERE VIOLATED BY THE ERRONEOUS AND PREJUDICIAL INSTRUCTION ON PRIOR INCONSISTENT STATEMENTS THAT PERMITTED THE JURORS TO CONSIDER THE DEFENDANT'S PRIOR ...