On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 05-07-0963.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern and C. S. Fisher.
Defendant appeals from a judgment of conviction for second- degree endangering the welfare of a minor and sexual assault. A judge (other than the trial judge) imposed two concurrent nine- year terms, the sentence for sexual assault (count two) including parole ineligibility term under the No Early Release Act (NERA). On a motion for a new trial belatedly heard, the original trial judge amended the sentences to seven years, with NERA to apply. The State appeals as to the sentence modification.*fn1
In its special verdict, the jury found defendant guilty of second as well as third-degree endangering (the jury returning a verdict on the lesser-included offense) - because defendant "assumed the responsibility for the care of" T.M. when performing the acts. The jury also found an act or acts of criminal sexual contact occurred when T.M. was less than thirteen years old and defendant was at least four years older.
The jury found defendant not guilty of aggravated criminal sexual contact and criminal sexual contact when the victim was between thirteen to sixteen years of age.*fn2
THE JURY'S VERDICT WAS CLEARLY AGAINST THE WEIGHT OF THE EVIDENCE, REQUIRING A NEW TRIAL.
THE DEFENDANT WAS ENTITLED TO A MISTRIAL AS A RESULT OF THE MOTHER'S STATEMENT THAT THE DEFENDANT HAD BEEN INCARCERATED DURING THE PERIOD OF THEIR RELATIONSHIP.
THE COURT ERRED BY NOT GRANTING THE DEFENDANT'S MOTION FOR AN ACQUITTAL ON COUNT FIVE OF THE INDICTMENT, WHICH REQUIRED THAT THE DEFENDANT BE A FOSTER PARENT, A GUARDIAN, OR IN LOCO PARENTIS IN RELATION TO THE ALLEGED VICTIM.
THE INDICTMENT SHOULD HAVE BEEN DISMISSED BECAUSE, IN THE ABSENCE OF A BILL OF PARTICULARS, IT FAILED TO PROVIDE ADEQUATE NOTICE TO THE DEFENDANT AS TO THE TIME PERIOD OF THE ALLEGED OFFENSES.
A. The Indictment Warranted Dismissal Because It Failed To Provide Adequate Notice of the Charges Against the Defendant.
B. The Trial Court's Decision Was Not Based Upon An Accurate View of the Record and Failed to Appreciate the Factors Set Forth in the Seminal K.A.W. Case, Especially With Respect to the Alleged Victim's Age.
THE DEFENDANT WAS ENTITLED TO AN IN CAMERA REVIEW BY THE COURT OF MENDOZA'S DYFS, JUVENILE, AND PSYCHIATRIC RECORDS.
A. The Defendant Was Entitled to Discovery of Mendoza's DYFS Records.
B. The Defendant Was Entitled To Discovery of Relevant Juvenile Records Regarding Mendoza.
[THE] MODIFICATION OF THE DEFENDANT'S SENTENCE SHOULD BE AFFIRMED ON APPEAL.
THE AGGREGATE LEGAL ERRORS AT TRIAL HAD THE CUMULATIVE EFFECT OF DENYING THE DEFENDANT ...