On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 04-03-737.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Grall and Humphreys.
Defendant was indicted on two counts of endangering the welfare of a child, N.J.S.A. 2C:24-4b(3) (count one) and N.J.S.A. 2C:24-4a (count two).*fn1 The trial judge presented count one as a second-degree crime because she found the State did not prove that defendant was "a parent, guardian or other person legally charged with [the victim's] care or custody." N.J.S.A. 2C:24-4b(3). The judge also submitted count two only as a lesser-included fourth-degree offense of possession of pornography. N.J.S.A. 2C:24-4b(5)(b). The jury was also instructed that it did not have to consider the fourth-degree crime if it found defendant guilty of the second-degree offense.*fn2
Defendant was convicted of second-degree endangering, N.J.S.A. 2C:24-4b(3), and sentenced to the custody of the Commissioner of Corrections for five years. On this appeal, defendant argues that "the court below erred and committed reversible error in failing to charge the jury regarding the definition of 'cause or permit' as stated in N.J.S.A. 2C:24-4b." We reverse the conviction.
For purposes of our decision, we will accept the statement of facts embodied in the State's brief: Sixteen year-old Alisa K.*fn3 lived in a small one bedroom apartment in Ocean Township with her mother, Svetlana K., defendant, and Alisa's half-brother. Defendant was Svetlana's boyfriend and the father of Alisa's brother.
On December 8, 2003, Alisa woke up and dressed for school. She reached under her bed for her hair dryer and found a video camera. She briefly viewed the contents of the camera and saw that it contained a video of her naked in the shower. Unsure of what to do, Alisa took the video camera to school with her. During her first class, Alisa realized that someone had been videotaping her nude and began crying hysterically. Alisa was sent to the nurse's office where she informed school officials of the video. Svetlana was summoned to pick up Alisa at school and the police were notified.
Alisa's mother, Svetlana, responded to the school and escorted Alisa home. Alisa and Svetlana watched the videotape which was in the camera and observed a film of Alisa sleeping with her shirt partially open, exposing her bare breasts.
Officer Michael Clancy met with Svetlana who gave consent to search the apartment. Officer Clancy recovered the video camera which Alisa had found under her bed from the front closet. The front of the camera was covered in black tape which concealed the metallic finish on the camera and a red light which illuminated when the video camera was recording. Officer Clancy recovered a receipt which indicated that defendant had purchased the camera on April 21, 2001. Additional videotapes were recovered in the video case and by the television.
The videotapes that were recovered contained footage of Alisa over a three year period, beginning when Alisa was thirteen. The video tapes showed Alisa sleeping, dressing and undressing, bathing and attending to her personal needs. There were numerous close-up segments of Alisa's genitals while she slept clothed only in her underwear. The video camera often zoomed in focused on Alisa's breasts and buttocks as she slept. The video tapes also contained clips of a topless dancer interspersed with video of Alisa.
Alisa denied having any sexual contact with defendant. Alisa stated that she was unaware that defendant was filming her while she was sleeping and in the shower. Alisa was shocked when she discovered that ...