June 24, 2003
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
JAMES L. MAXWELL, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 99-11-1086-I, whose opinion is reported at __ N.J. Super. __ (Law Div. 2001).
Before Judges Stern, Coburn and Collester.
The opinion of the court was delivered by: Per Curiam
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 3, 2003
Following the denial of his motion to dismiss the indictment and entry of a guilty plea under the plea preservation rule, R. 3:9-3(f), defendant was convicted of aggravated sexual assault of S.M. in June 1999, N.J.S.A. 2C:14-2a(1) (count one), and endangering the welfare of ten other young girls, N.J.S.A. 2C:24-4 (counts five through fourteen). Count two charged attempted aggravated sexual assault on S.M. in September 1999, and counts three and four charged endangering S.M. in June and September, respectively. These three counts were dismissed under the negotiated disposition.
On this appeal, defendant argues that"the trial court erred in denying the motion to dismiss counts one and two of the indictment because N.J.S.A. 2C:14-2a(1) requires physical presence [of the defendant]" and"because the phrase'upon the actor's instruction' is unconstitutionally vague on its face and as applied." He also argues that"the trial court erred in denying the motion to dismiss counts three through fourteen of the indictment [the endangering counts] because the State did not present any evidence that defendant was in the victims' physical presence."
We reject the arguments, and affirm the denial of defendant's motion to dismiss substantially for the reasons expressed by Judge Marilyn C. Clark in her opinion of March 28, 2001, __ N.J. Super. __ (Law Div. 2001). See also State v. Hackett, 166 N.J. 66, 77-81 (2001). Affirmed.
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