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State v. McAllister

July 13, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
DANIEL C. MCALLISTER, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-09-1460.

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

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted May 30, 2007

Before Judges Skillman, Lisa and Grall.

The issue presented by this appeal is whether a conviction for the elevated first degree offense of endangering the welfare of a child by the production of pornography proscribed by N.J.S.A. 2C:24-4b(3), which requires the State to show that the defendant was a "parent, guardian or other person legally charged with the care or custody of the child," can be based on evidence that the defendant was a live-in boyfriend of the victim's mother who had a de facto parental relationship with the victim. We conclude that only a person who has been assigned responsibility for a child's care or custody by a court or public agency may be found to be "legally charged" with the child's care or custody. Therefore, defendant's de facto parental relationship with the victim was insufficient to support his conviction for the first degree offense.

Defendant was indicted on three counts of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a; sexual assault, in violation of N.J.S.A. 2C:14-2b; first degree endangering the welfare of a child by the production of child pornography, in violation of N.J.S.A. 2C:24-4b(3); second degree endangering the welfare of a child by the production of child pornography, in violation of N.J.S.A. 2C:24-4b(4); second degree endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a; and possession of child pornography, in violation of N.J.S.A. 2C:24-4b(5)(b).

Defendant entered into a plea bargain under which he agreed to plead guilty to one count of aggravated sexual assault and first degree endangering the welfare of a child by the production of pornography and the State agreed to dismiss the other charges. The plea bargain also provided that the State could seek consecutive sentences for the two first degree offenses for which defendant agreed to plead guilty.

The trial court sentenced defendant in accordance with the plea bargain to a fifteen-year term of imprisonment, with seven and a half years of parole ineligibility, for aggravated sexual assault, and a consecutive ten-year term for first degree endangering the welfare of a child by the production of child pornography. The court also found that defendant was a repetitive and compulsive sex offender and directed that his sentence be completed at the Adult Diagnostic and Treatment Center.

We initially heard defendant's appeal on an excess sentence calendar. See R. 2:9-11. However, after hearing oral argument, we determined that defendant's argument that his relationship to the victim did not provide a factual basis for his plea to first degree endangering the welfare of a child by the production of pornography was sufficiently substantial to require briefing. Therefore, we transferred the appeal to a regular calendar.

The offense of endangering the welfare of a child by the production of pornography is proscribed by N.J.S.A. 2C:24-4b(3), which provides:

A person commits a crime of the second degree if he causes or permits a child to engage in a prohibited sexual act or in the simulation of such an act if the person knows, has reason to know or intends that the prohibited act may be photographed, filmed, reproduced, or reconstructed in any manner, including on the Internet, or may be part of an exhibition or performance. If the person is a parent, guardian or other person legally charged with the care or custody of the child, the person shall be guilty of a crime of the first degree. (Emphasis added.)

It is undisputed that defendant was not the victim's "parent" or "guardian." The only question is whether he provided a factual basis for finding that he was ...


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