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State v. D.A.V.

May 29, 2003

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
D.A.V., DEFENDANT-APPELLANT.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 348 N.J. Super. 107 (2002).

SYLLABUS BY THE COURT

On June 29, 1998, defendant went to work and left her three children, ages eight, six and three, alone in her apartment. Temperatures that day reached as high as 100 degrees and the apartment had no air conditioning, only one fan, and no telephone. Defendant had left all the windows and blinds closed, and instructed her children not to open the door to anyone. That afternoon, defendant's brother, William, came to the house with his girlfriend and cousin and found the children alone. William testified that the house was very hot, humid and stuffy, and that it smelled of cat urine and feces. He further testified that the younger child was sitting in a pool of spilt milk and that when he went to look for clean clothes, he found cat feces in the drawers.

Defendant was arrested, convicted on three counts of second degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a, and sentenced to three concurrent eight-year terms of imprisonment. Defendant appealed, arguing three points: (1) the trial judge erred by using the phrase "making them abused or neglected children" in his jury instruction, in effect directing the jury to convict her; (2) defendant was denied due process by the prosecutor's decision to charge defendant with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, rather than fourth degree abuse or neglect of children, N.J.S.A. 9:6-3; and (3) the sentence imposed on defendant was excessive.

The Superior Court, Appellate Division, Collester, J.A.D., held that: (1) in using the phrase "making them abused or neglected children" in its jury instruction, the trial judge was merely outlining the allegations in the indictment and not directing the jury to convict; (2) where two criminal statutes prohibit the same basic act, the prosecutor may in the exercise of sound discretion proceed under either or both statutes as long as only a single conviction survives; and (3) prior to sentencing, the trial judge made findings of aggravating factors, including defendant's prior and startling criminal record, considered the risk that defendant would commit another offense, and imposed an aggregate sentence of eight years, which sentence was not excessive.

HELD

The judgment of the Appellate Division is AFFIRMED substantially for the reasons expressed in Judge Collester's opinion.

JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LONG joins, urging the Attorney General to promulgate guidelines to assist prosecutors in choosing whether to prosecute a defendant under N.J.S.A. 2C:24-4a or N.J.S.A. 9:6-3; guidelines that facilitate fairness in the charging process and, therefore, fairness in sentencing with respect to those statutes.

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.

The opinion of the court was delivered by: Per Curiam

Argued February 4, 2003

The judgment is affirmed, substantially for the reasons expressed in Judge Collester's opinion of the Appellate Division, reported at 348 N.J. Super. 107 (2002).

CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.

ALBIN, J., concurring.

A parent who abuses or neglects a child can be charged under two identical criminal statutes, second-degree endangering the welfare of child in violation of N.J.S.A. 2C:24-4a or fourth-degree cruelty and neglect of children in violation of N.J.S.A. 9:6-3. Under the two statutes the same conduct is proscribed in the same language; however, when prosecuted pursuant to N.J.S.A. 2C:24-4a, a defendant is exposed to a five-to ten-year state prison term, and when prosecuted pursuant to N.J.S.A. 9:6-3, a defendant is exposed only to an eighteen-month prison term. In that respect, it appears that those provisions are unique in the New Jersey Statutes Annotated. Moreover, there are no statutory or administrative guidelines instructing prosecutors on how to determine what circumstances warrant charging under one statute as opposed to the other. In this case, the State charged defendant D.A.V. with three counts of second-degree endangering the welfare of a child, pursuant to N.J.S.A. 2C:24-4a. She was ...


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