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State v. Martinez

August 15, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
MANUEL O. MARTINEZ, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 05-06-0570.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted August 5, 2008

Before Judges Sapp-Peterson and Baxter.

Defendant Manuel Martinez appeals from his July 13, 2007 conviction following a trial by jury on a charge of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced him to a term of five years imprisonment and assessed reasonable fines and penalties. The judge also imposed community supervision for life and required defendant to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-2.

On appeal, defendant presents the following arguments for our consideration:

I. DID THE STATE PRODUCE SUFFICIENT EVIDENCE FOR THE JURY TO FIND THAT THE DEFENDANT HAD A LEGAL DUTY OF CARE OR ASSUMED RESPONSIBILITY FOR THE CARE OF A.R.

II. THE TRIAL COURT ERRED IN NOT GRANTING A MOTION FOR MISTRIAL AFTER THE VICTIM TESTIFIED THAT SHE WAS HOSPITALIZED RECENTLY AS A RESULT OF A SUICIDE ATTEMPT SHE MADE BECAUSE OF THE UPCOMING TRIAL.

We affirm.

I.

A.R. was approximately ten-years-old in 1997 when the Division of Youth and Family Services (DYFS) removed her from her mother's custody because her mother failed to obtain proper medical treatment for A.R.'s diabetes. After a few brief foster placements, DYFS placed A.R. with her maternal grandmother in Cumberland County. Defendant, who was A.R.'s grandmother's husband,*fn1 also lived there along with A.R.'s sister, aunt and uncles. According to A.R., on numerous occasions when she was alone with defendant, he sexually assaulted her. We will not describe the details of those assaults because defendant does not challenge the sufficiency of the evidence concerning his conduct. Instead, we confine our discussion of the record to the two points defendant raises on appeal, the first of which is his contention that the evidence in the record was insufficient to establish that he assumed responsibility for the care of A.R., an element which elevates the crime to a second-degree offense.

According to A.R.'s testimony, when she was approximately thirteen years old, there were many occasions when she was home alone with defendant while he took care of her:

Q: While you were living with him . . . with those people, did there ever come a point in time ...


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