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State v. Sherman

March 04, 2004

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BARRY SHERMAN, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment Number 02-03-0527.

Before Judges Havey, Fall and Parrillo.

The opinion of the court was delivered by: Fall, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued: February 9, 2004

On November 8, 2001, defendant Barry Sherman abducted a siX year-old female child from in front of her home in Spring Lake for the purpose of holding her for ransom, and kept the child in his mother's home in Neptune City for approximately twenty-two hours, until abandoning his plan and dropping her off in front of the Monmouth Mall in Eatontown. As instructed by defendant, the child approached the first adults she encountered, identified herself, the police were notified, and she was safely returned home. The only harm suffered by the child was emotional and psychological in nature in the form of a post-traumatic stress disorder.

Defendant was charged in Monmouth County Indictment Number 02-03-00527 with first-degree kidnapping, contrary to N.J.S.A. 2C:13-1a (count one); third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2a (count two); two counts of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (counts three and four); and third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (count five).

After entering conditional pleas of guilty to first-degree kidnapping and to one count of second-degree endangering the welfare of a child, defendant was sentenced to a fifteen-year term of imprisonment on the kidnapping conviction, with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a consecutive term of seven years imprisonment on the endangering conviction. He now appeals from his conviction on the first-degree kidnapping charge, and from the sentence imposed on his second-degree conviction for endangering.

Under N.J.S.A. 2C:13-1c, kidnapping is a first-degree crime unless the"actor releases the victim unharmed and in a safe place."*fn1 This appeal requires us to primarily address the following three issues concerning this so-called"released unharmed" section of the kidnapping statute: (1) whether psychological or emotional harm without bodily injury constitutes"harm" within the intendment of that statutory provision; (2) whether the released unharmed provision of N.J.S.A. 2C:13-1c is a"grading mechanism" or a"material element" of the crime of first-degree kidnapping for which a culpability requirement adheres; and (3) where the kidnapper releases the victim in a safe place, whether the Legislature intended to make the crime of kidnapping a first-degree offense only if the defendant caused the psychological or emotional harm beyond that harm caused by the kidnapping itself. We must also address the issue of whether the trial court properly followed applicable sentencing criteria and guidelines when imposing sentence on the second-degree endangering conviction.

In accordance with the Supreme Court's ruling in State v. Federico, 103 N.J. 169, 174-76 (1986), and our decision in State v. Casilla, 362 N.J. Super. 554, 566-67 (App. Div.), certif. denied, 178 N.J. 251 (2003), in order to establish the crime of first-degree kidnapping against a kidnapper who has released the victim prior to his or her apprehension, the State must prove beyond a reasonable doubt that the victim had been harmed or had not been released in a safe place. Thereby, disproving unharmed release is an element of the offense of first-degree kidnapping. Ibid.

We hold that the concept of"harm," as embodied by the released unharmed provision of N.J.S.A. 2C:13-1c, includes emotional or psychological harm suffered by the victim. We also hold that disproving unharmed release is a"material" element of the crime of first-degree kidnapping, requiring the State to prove that a defendant"knowingly" harmed or"knowingly" released the victim in an unsafe place. We conclude that the"harm" component of the unharmed release provision contained in N.J.S.A. 2C:13-1c focuses on the conduct of the kidnapper during the purposeful removal and holding or confining of the victim, as distinguished from the type of harm inherent in every kidnapping. Therefore, when a victim is released in a safe place prior to the kidnapper's apprehension, as here, in order to prove that the kidnapper is guilty of first-degree kidnapping, the State must prove beyond a reasonable doubt that the kidnapper knowingly caused physical, emotional or psychological harm to the victim. We conclude that the trial court erred in denying defendant's motion seeking modification of the model jury charge on the first-degree kidnapping charge to reflect these requirements. Pursuant to the terms of the plea agreement, the matter is remanded to the Law Division for defendant's entry of a substitute plea of guilty to second degree kidnapping and for sentencing thereon.

We reject defendant's argument that the trial court erred in concluding that the unharmed release provisions of the kidnapping statute are not unconstitutionally vague, facially or as applied. We also reject defendant's contention that the trial court erred in denying his application to dismiss the first-degree kidnapping charge on the basis that the grand jury proceedings were defective.

Our review of the sentence imposed on defendant's second-degree endangering conviction discloses that the findings of the sentencing judge on the aggravating factors are not supported by sufficient, credible evidence in the record. Accordingly, we are constrained to vacate the sentence imposed on the endangering conviction and remand the matter to the trial court for resentencing.

I.

We now examine the specific facts and circumstances of this case. Defendant signed a lengthy and detailed confession in his handwriting, in which he explained that he had been suffering from emotional distress and depression and had formulated a plan to kidnap a child in order to obtain monies that would allow him to purchase a sailboat and"'sail away' from his life and the pain." Defendant, who lived with his mother in Neptune City, waited until his mother went on an extended vacation to Spain before executing his plan. Defendant determined that he would obtain a child from Spring Lake, a nearby community, hold the child in his mother's home while she was away, tape a ransom note to the flag pole on Third Avenue in Spring Lake, demand that cash be deposited under a ramp to the beach in Ocean Grove, and then drop the child off at a shopping mall once the ransom had been paid. As part of his plan, about a week before the kidnapping, defendant wrote a ransom note that asked for $175,000.

Defendant made several attempts to abduct a child but could not do it. Then, on November 8, 2001, while driving"up and down the roads" in Spring Lake, he saw"two little girls sitting outside a house." He parked his vehicle, approached them, and told one, A.C., a six year-old child, that"we're just going to go for a little ride." Despite A.C.'s screams, defendant put her in his car and drove away. A.C. calmed down quickly after he reassured her.

After abducting A.C., defendant brought the child to his mother's home, where A.C. sat in the living room and watched cartoons. Defendant gave her Cheerios cereal, apple juice and yogurt. Shortly thereafter, defendant put A.C. in a utility room in which he had built a"fort" from cushions, and left the home for approximately ten minutes to call the Spring Lake Police Department from a public telephone at a nearby convenience store. Defendant spoke with Detective William Coyle at approximately 12:48 p.m., advising him of the location of the ransom note. The note provided instructions to the child's parents for delivering the ransom and warned that if he was observed, apprehended, or interfered with, the child would be immediately killed.

Approximately one hour later, defendant left the house again, driving to the Monmouth Mall in Eatontown to make a second telephone call to the Spring Lake Police Department, inquiring whether the ransom note had been found. That call was placed at approximately 1:52 p.m. Prior to leaving the house to make that call, defendant had again placed A.C. in the utility room; he was gone from the house for approximately forty-five minutes.

Defendant had used the utility room twelve years earlier as a dark room for developing photographs. A large plastic bottle of acetic acid, a chemical used in developing film, which had not been used in twelve years, was located on a counter in that room. The bottle had a"Danger, poison" warning label, and defendant stipulated that this chemical"created a risk of serious bodily injury to the child." However, defendant asserted he did not intend to create any such risk.

The utility room had light and heat, and defendant provided A.C. with a book, a game, and apple juice while he was gone. Defendant then closed the door to the utility room and slid a couch in front of it to prevent A.C. from leaving. On both occasions when he left A.C. alone, the child was physically unharmed when he returned.

In the early evening hours of November 8th, defendant took A.C. upstairs, where she slept on a chair and defendant slept on a sofa. On the morning of November 9th, defendant decided to return the child. He drove the child to the Monmouth Mall when it opened at approximately 10:00 a.m. Defendant dropped A.C. off at the curb, told her to run to the first adults she saw and tell them the police were looking for her, and he then drove away.

Almost immediately thereafter, A.C. encountered a school teacher and her mother, who described the child as neatly dressed, clean and calm, with no signs of physical injury or emotional distress. They brought A.C. to the security office of the Mall. Mall employees also described the child as composed and not in any distress.

The police, who were called to the scene by the Mall employees, transported A.C. to the Jersey Shore Medical Center, where she was reunited with her parents, examined and found to be in good condition with no sign of physical injury or emotional distress. In her statement to an FBI agent, A.C. stated that"the man that took her treated her nicely." The parties stipulated that the child did not suffer any physical injury as a result of the kidnapping.

On November 10, 2001, a videotaped interview of A.C. was conducted by a detective of the Monmouth County Prosecutor's Office who specialized in sex crimes and children. On November 11, 2001, A.C. gave a description of defendant to State Police sketch artists for completion of a composite drawing. On November 12, 2001, Detective Coyle took A.C. to the neighborhood in Neptune City from which defendant had placed the first telephone call. When A.C. saw defendant's home, she screamed,"That's his house."

On November 12, 2001, defendant, who had contemplated suicide, drove to Sandy Hook State Park, but could not remember what happened there. At that time, defendant had not been identified as the kidnapper. He was discovered on the beach in the Park in an unconscious and unresponsive state, and was transported by ambulance to Monmouth Medical Center, where he was examined, found to be in good health, but was unable to speak. When defendant's sister arrived at the hospital, defendant wrote her a note stating that he was"the guy they're looking for for the kidnapping of the little girl." At his request, defendant's sister called the police, who responded to the hospital and obtained defendant's written confession. Defendant accepted responsibility for his conduct and apologized to the child and her family.

Following the kidnapping incident, A.C. developed severe anxiety and started having nightmares. In January 2002, A.C. began therapy with Dr. Patricia Tistan, a psychologist, who diagnosed the child as suffering from a post-traumatic stress disorder, characterized by withdrawal, nightmares, anxiety, and a fear of being captured again. The child was seen by Dr. Tistan on a regular basis through June 2002, at which point Dr. Tistan noted improvement but concluded that the child could suffer a significant and long-lasting effect from the kidnapping incident.

II.

Defendant filed motions seeking dismissal of the first-degree kidnapping charge contained in count one of the indictment, contending: (1) that N.J.S.A. 2C:13-1c was unconstitutionally vague facially and as applied to the facts of this case; and (2) that the evidence presented to the grand jury had failed to demonstrate defendant's intent to harm the victim. Defendant asserted that since he had released the victim unharmed and in a safe place prior to his apprehension, his acts constituted second-degree kidnapping, not first-degree kidnapping. Defendant argued that the kidnapping statute was impermissibly vague because it failed to specify the meaning of the phrase"unharmed and in a safe place[.]" See N.J.S.A. 2C:13-1c.

The motions were argued in the Law Division. The court entered separate orders denying defendant's motions. With respect to defendant's arguments that the kidnapping statute was void for vagueness, both facially and as applied, the judge stated in pertinent part:

As applied in this circumstance, it's not void. It's not void for vagueness. Now, the Legislature, when they used the word harm as I indicated earlier, they didn't choose to use the words serious bodily injury, significant bodily injury or bodily injury. They didn't choose to modify the word harm by the words severe harm.

Although those terms are otherwise described in... State penal statutes[,]... they intentionally chose not to do that. The Legislature intentionally rejected the recommendations of the commission, [and the] recommendations in the Model Penal Code.

I am guided and I am bound by rulings of the Supreme Court. [The prosecutor] is correct... that those cases in the Supreme Court may not have arisen precisely in concert with the issue that we have today. But the Supreme Court has, I think clearly indicated, whether it be implicitly or explicitly, that emotional harm is sufficient to satisfy the statute.

That comports with the Dictionary definition which I had read earlier. They have done that in a host of cases. In [Federico, supra, and] in [State v. Johnson, 309 N.J. Super. 237 (App. Div.), certif. denied, 156 N.J. 387 (1998).]...

And I can't get away from the United State Supreme Court in the matter of [Robinson v. United States, 324 U.S. 282, 65 S. Ct. 666, 89 L. Ed. 2d 944 (1945)] where they were dealing with a non-permanent injury, one that could resolve itself fairly quickly, determined that the statute, much the same as here, in terms of unharmed, was not void for vagueness. There is no basis for me to grant the defendant's application and accordingly, I will deny it.

The motion judge also ruled that the proofs submitted to the grand jury were sufficient to permit the jurors to conclude that in confining the victim the defendant committed a purposeful act under the kidnapping statute. The judge stated that the issue of what proofs would be required or what state of mind the State must demonstrate to secure a conviction on the first-degree kidnapping charge were questions to be dealt with by the trial judge.

Thereafter, defendant filed a motion in limine, seeking a jury instruction clarifying the legal distinction between first-and second-degree kidnapping.*fn2 Defendant sought modification of the model jury charge on kidnapping in a manner that clarified the statutory standard for reduction of the offense to a second-degree crime.

This motion was argued in the Law Division before a different motion judge. Defense counsel contended that first degree kidnapping required the State, in disproving unharmed release, to establish beyond a reasonable doubt that the defendant had purposely harmed or purposely left the victim in an unsafe place. Defendant argued that not releasing the victim unharmed and in a safe place prior to his apprehension were material elements of the offense of first-degree kidnapping, and are not simply"grading" provisions. Defendant asserted that, as material elements of the crime, the jury must be charged on the culpability requirement for establishing those elements beyond a reasonable doubt.

The motion judge rejected the contention that the State must prove defendant acted purposefully, or with any other level of culpability, with regard to the elements of harm and safe place, stating"[t]hat's not substantiated in our law nor in our model jury charge." The judge explained, as follows:

It's the position of the defense that these elements [of harm and safe place] are elements of the offense of kidnapping. I totally disagree....

It's quite clear in the reading of the statute that the unharmed and safe place deal with the grading. It moves a first-degree kidnapping down to a second-degree. So I really don't have a problem with that, and I have reviewed again the model jury charge with regard to kidnapping, and that is not part of our law.

It is not an element of the offense. It is a grading aspect of the offense. True, the State must prove these elements beyond a reasonable doubt to the jury in order for them to find whether or not the victim was harmed or was not released in a safe place. That burden is on the State. But that deals with the grading of the offense, vis-à-vis the offense itself.

So with regard to that request to charge the jury, that request will be denied.

The motion judge also ruled that the"harm" contemplated in the unharmed release provision of the kidnapping statute, N.J.S.A. 2C:13-1c,"encompasses not only physical harm, but emotional harm." An order memorializing those rulings was entered on September 27, 2002.

Pursuant to a conditional plea agreement, defendant entered pleas of guilty on October 22, 2002 to the first-degree kidnapping charge on count one, and to the second-degree endangering charge contained in count three of the indictment. The State agreed that the only harm to the victim resulting from the kidnapping was her post-traumatic stress disorder. The State agreed to seek dismissal of all other charges, and to recommend a fifteen-year term of imprisonment on the kidnapping conviction -- -- subject to the parole disqualifier provisions of the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 -- -- and to imposition of a consecutive term of imprisonment on the endangering conviction up to ten years, as determined by the court.*fn3

The parties agreed that defendant would be permitted to appeal the denial of his pre-trial motions pursuant to Rule 3:9-3(f). The plea agreement provided that if defendant was successful on appeal, he would be permitted to substitute a plea of guilty to second-degree kidnapping, with new negotiations concerning appropriate sentencing recommendations. The trial court accepted defendant's guilty pleas, conditioned upon his right to appeal from the denial of his pre-trial motions.

On March 26, 2003, after hearing the testimony of A.C.'s mother on the issue of the extent of harm suffered by the child and several impact statements, the judge sentenced defendant to a fifteen-year term of imprisonment on the first-degree kidnapping conviction, in accordance with the plea agreement, and to a consecutive seven-year term of imprisonment on the child-endangerment conviction. Pursuant to NERA, the judgment of conviction also required that defendant serve eighty-five percent of the term imposed on the first-degree kidnapping conviction. Applicable mandatory fines and penalties were also imposed.

III.

Defendant contends that A.C.'s post-traumatic stress disorder did not constitute"harm" under N.J.S.A. 2C:13-1c, arguing that some emotional or psychological injury is inherent in every kidnapping. Defendant asserted that if emotional or psychological injury is deemed sufficient to constitute the"harm" required to render the kidnapping a first-degree crime, then"virtually every kidnapping would be one of the first degree."

Defendant also contends that the trial court should have modified the model jury charge to reflect that the"harm" or"unsafe place" provisions in N.J.S.A. 2C:13-1c are elements of the offense of first-degree kidnapping and require a finding by the jury that the State has proven beyond a reasonable doubt that defendant had purposely caused such harm to the victim or had purposely released the victim in an unsafe place. Defendant further argues that the unharmed release provisions contained in N.J.S.A. 2C:13-1c are facially void for vagueness for failure to define"harm" and"safe place," and are void for vagueness as applied by the trial court.

We begin our analysis of these arguments with a discussion of the kidnapping statute, N.J.S.A. 2C:13-1, ...


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