July 24, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
RYAN BUDA, DEFENDANT-APPELLANT.
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 03-06-0798.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 1, 2006
Decided December 20, 2006
Remanded by the Supreme Court June 23, 2008
Resubmitted July 14, 2008
Before Judges Stern, Sabatino and Messano.
The Supreme Court has remanded this matter for us to decide the remaining issues which we did not address in light of our reversal of defendant's conviction on three counts of second degree endangering the welfare of a child and one count of aggravated assault. State v. Buda, __ N.J. __, __, __ (June 23, 2008) (slip op. at 12, 38, n.7). The remaining issues deal with the sufficiency of the evidence, a challenge to the jury instructions, and a claim that defendant's aggregate eight year sentence was illegal and excessive. Specifically, he argues in the remaining points:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR ACQUITTAL (U.S. CONST., Amend. V, XIV; N.J. CONST., Art. I, Par. 10)
THE TRIAL COURT'S FAILURE TO COMPLETELY AND PROPERLY INSTRUCT THE JURY DENIED DEFENDANT'S DUE PROCESS AND FAIR TRIAL RIGHTS AND CONSTITUTED REVERSIBLE ERROR (U.S. Const. Amend. V, VI, XIV; N.J. Const. Art. I, Par. 1 (Not Raised Below)
a. Improper Hampton Charge
b. Inapplicable Definition of "Abused and Neglected Child"
c. Failure to Give the Complete Alternate Juror Empanelled After Deliberations Have Begun Instruction
THE SENTENCING PROCEDURE AND IMPOSED SENTENCES WERE IMPROPER (Not Raised Below)
a. When the Trial Court Sentenced Defendant to Greater than Presumptive Sentences and Imposed All Sentences with a Starting Point of the Now Excised Presumptive Sentences, He was Denied His Constitutional Rights to Trial by Jury and Findings Based Upon Proof Beyond a Reasonable Doubt (U.S. Const. Amend V, VI, XIV; N.J. Const. Art. I, Pars. 8, 9, 10, 11)
b. The Trial Court Erred in the Determination of the Applicable Aggravating and Mitigating Factors
c. The Judgment of Conviction Fails to Show the Trial Court's Finding of Aggravating Factor # 7
Given the Supreme Court's determination that the October statement was admissible, we have no hesitancy in determining that there was sufficient evidence to sustain all the convictions. The evidence is detailed in the Supreme Court's opinion, id. at __-__ (slip op. at 3-7) and our prior opinion, State v. Buda, 392 N.J. Super. 241, 247 (App. Div. 2006), and need not be repeated herein. In fact, the trial judge so concluded in denying a judgment of acquittal based on all the evidence which the Supreme Court found to be admissible. Id. at __ (slip op at 8). The test for consideration of a motion for judgment of acquittal and on appellate review of the sufficiency of the evidence is essentially the same. See State v. Reyes, 50 N.J. 454 (1967); State v. Moffa, 42 N.J. 258, 263 (1964). We add only, with respect to gradation, that N.M. called defendant "Daddy," and ultimately the child moved into defendant's home with defendant and his mother. See State v. Galloway, 133 N.J. 631, 657-72 (1993);*fn1 State v. Messino, 378 N.J. Super. 559, 580- 81 (App. Div.), certif. denied, 185 N.J. 297 (2005).
We find no basis, much less plain error, with respect to the jury instructions. R. 2:11-3(e)(2). See also State v. Jenkins, 182 N.J. 112, 135-37 (2004);*fn2 State v. Hampton, 61 N.J. 250, 272 (1972) (dealing with a defendant's statement only); N.J.S.A. 9:6-8.21(c) (definition of "abuse or neglected child" for purposes of endangering).
Finally, we remand for resentencing. All counts should be reconsidered in developing the aggregate sentence in light of the eight year sentences imposed for the second degree convictions and the fact this case was in the "pipeline" when State v. Natale, 184 N.J. 458, 495-96 (2005), was decided. We remand for further proceedings consistent with this opinion. We do not retain jurisdiction.