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State v. C.S.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


August 6, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
C.S., DEFENDANT-APPELLANT.
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
T.F., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-11-1412.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted February 23, 2009

Before Judges Sabatino and Simonelli.

These back-to-back appeals involve the alleged abuse of A.S. (Andrew)*fn1 by defendants C.S., his father, and T.F., his mother. A grand jury indicted defendants for second-degree conspiracy, N.J.S.A. 2C:5-2 (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two); second-degree aggravated assault, N.J.S.A. 2C:12-1b (count three); third-degree aggravated assault, N.J.S.A. 2C:12-1b (count four) and fourth-degree unlawful possession of a large capacity ammunition magazine, N.J.S.A. 2C:39-3j (count five).

A jury acquitted defendants on count one, and acquitted T.F. on counts three and four. The jury convicted defendants of second-degree endangering the welfare of a child (count two); and fourth-degree unlawful possession of a large capacity ammunition magazine (count five). The jury also convicted C.S. of the lesser-included disorderly persons offense of simple assault, N.J.S.A. 2C:12-1a (count three); and third-degree aggravated assault (count four).

After denying C.S.'s motion for a new trial, the trial judge merged count three into count two and sentenced him to a six-year term of imprisonment with a three-year period of parole ineligibility on count two; to a concurrent three-year term of imprisonment with a one-year, six-month period of parole ineligibility on count four; and to a three-month term of imprisonment with no parole on count five. The judge also imposed the appropriate assessment, fine, and penalty.

The trial judge sentenced T.F. to a three-year term of imprisonment with no parole ineligibility on count two; and to a concurrent three-month term of imprisonment with no parole ineligibility on count five. The judge also imposed the appropriate assessments, fine, and penalty.

On appeal, defendants contend that the trial judge improperly charged the jury by not explaining the difference between endangering the welfare of a child and reasonable and excessive corporal punishment, and improperly failed to grant an adjournment to permit them to obtain and review records from the New Jersey Division of Youth and Family Services (DYFS). Defendants also challenge their sentences.

Separately, C.S. contends that the judge erred in failing to suppress his statement to a police officer taken in violation of his Miranda*fn2 rights, or alternatively, that he did not knowingly, intelligently, or voluntarily waive those rights. In a pro se supplemental brief, C.S. contends that:

The process was contaminated by (1) an unlicensed and unprincipled person serving as the prosecuting attorney; and (2) was rendered impossible by the errors of the trial court in (a) denying a motion to adjourn to afford adequate time to defense expert, Cook, and (b) denying a motion to all defendant opportunity to utilize his extensive preparation in psychology to, at least, educate the jury (indirectly by the manner in which he examined the state's soles witness, utilizing his experience as a doctoral level psychologist, with training in interviewing persons with psychological disabilities), all the while familiarizing the jury to the technical terms in the psychological reports and the implications of these terms for the issues before it.

Separately, T.F. contends that the judge erred in failing to charge accomplice liability, in failing to suppress her statements to DYFS taken in violation of her Miranda rights, or alternatively, that the judge improperly redacted the statement. We reject all of defendants' contentions and affirm.

We summarize the facts from the record. C.S. and T.F. married in 1991 but separated in October 2002. They are Andrew's biological parents and the biological parents of Andrew's younger brother, John. On August 16, 2003, Andrew told his older half-brother, Daniel,*fn3 that his C.S. and T.F. abused him; specifically, that they hit him with a belt or a stick when he acted up, made him sleep in the bathtub one or twice because he acted up, and made him crawl one time on all fours with a belt around his neck as a leash. On August 17, 2003, Daniel took Andrew to the Plainsboro Police Department to report the abuse.

According to Officer Scott Seitz, Andrew met with him and advised him in detail of the physical and psychological abuse his parents inflicted beginning at age three.*fn4 Seitz then contacted DYFS investigators Michael Fraser and Barbara Simmons and the Plainsboro Police Department juvenile detective, Steven Stryker to assist in the investigation. During their interview of Andrew, he told them about the abuse.

Seitz telephoned T.F., advised her that Andrew was at the police station and had made abuse allegations, and asked her to come to the police station. T.F. arrived at the station with C.S. Seitz and Stryker then advised C.S. that Andrew had made serious abuse allegations against him. C.S. left the station and later returned with T.F. Before leaving, C.S. asked Stryker about the law in New Jersey pertaining to punishing your child. When C.S. returned to the station, Seitz advised him of his Miranda rights, placed him under arrest for an unrelated outstanding traffic warrant, and placed him in the lock-up area.

Stryker testified that before interviewing C.S. in the lock-up area, he identified himself as a police officer, advised C.S. that he was going to face criminal charges and that the charges were "pretty severe." Stryker then read C.S. his Miranda rights in the presence of Sergeant Joseph Duffy. C.S. acknowledged that he understood and wrote English, and that he signed a Miranda card, indicating that he understood his rights.

Stryker also testified that he did not promise C.S. anything with respect to the interview, that he did not coerce or threaten C.S., that C.S. did not refuse to answer any questions and agreed to talk to him, that C.S. never asked to stop the questioning, and that C.S. never asked for an attorney during questioning. C.S. admitted using "hands-on" punishment with the Andrew, and using a web-type belt, a wooden stick, or a cane.*fn5 However, he denied hitting Andrew hard enough to cause any type of injury, or gagging Andrew to make him stop crying.

After Seitz arrested and removed C.S., Stryker explained to T.F. what was happening. When Stryker attempted to interview T.F., she requested that C.S. be present. After Stryker advised T.F. that this was not possible, T.F. replied that she did not want to speak with the detective without an attorney present. Stryker then said "okay, would you like to proceed with the [DYFS investigators], and... left the room[.]" T.F. agreed to proceed with the DYFS investigators. At this point, no decision had been made to file criminal charges against T.F. Stryker did not advise T.F. of her Miranda rights, and he did not know if Fraser or Simmons did so.

DYFS investigator Fraser indicated that during T.F.'s conversation with him and Simmons, referring to Andrew, T.F. said that "we have not beaten him recently." During a pre-trial conference, the State noted the potential problem with T.F.'s statement under Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed. 2d 476 (1968), and suggested that the judge redact the statement to read, "I have not beaten him recently."

After hearing testimony, the judge redacted the statement as requested.

C.S. gave a different version of his interaction with the police. He testified that after his arrest he asked five or six times to speak to an attorney, and that after these requests, a police officer*fn6 handed him "a piece of paper with some phraseology on it" and asked him whether he understood it. C.S. told the officer that he understood but wanted an attorney. The officer responded that C.S. had to sign the paper to indicate that he understood the writing on it. C.S. stated that he again requested an attorney.

C.S. also testified that he was able to read the paper and understood his rights before he signed it. He continued that he requested an attorney by name, and had no desire to waive his rights. C.S. denied making any statements regarding Andrew's allegations, and specifically denied stating that he implemented "hands-on" punishment, or used a belt or stick. C.S. stated that two officers continued asking him questions but he continued requesting an attorney until eventually being placed in a holding cell.

DYFS removed Andrew and placed him in a group home. Thereafter, Andrew wrote several notes, indicating his confusion about the case, and that he might have exaggerated to the police. In one note, Andrew said, "I deny everything I said about me and my parents abusing me." In the final note Andrew said, "To whom it may concern, the reason I am telling the truth finally because I realize that what I done is wrong, that I am harming many people. I lied because I wanted to live with my grandparents. I deny everything I said about abuse."

At trial, Andrew testified that the notes were untrue. He explained that he wrote them because he did not want his parents to go to jail or get into trouble, and because he disliked where he lived and wanted to go home to his family. He also denied exaggerating to the police, and he insisted that what he told the police was true and that he was telling the truth at trial.

Andrew also testified that the abuse occurred in Plainsboro when he was three years old and it continued until he was twelve. The majority of the time C.S. hit him but T.F. would sometimes hit him as well. When C.S. hit him with a stick or belt, it would be over ten times across his back. The belt was a thick and black, similar to a weight lifting belt; and the stick was one that is typically used to keep windows open. Andrew continued that C.S. used the belt when he did something "not so bad," and used the stick when he did something "really bad[.]"

Andrew also testified that one time, when he was three years old, C.S. hit him in the nose, causing his face to swell and bleed. When he yelled, C.S. poured water on his face so that he could not open his mouth. Andrew continued that when he started to yell other times, C.S. placed a t-shirt in his mouth. Andrew also testified that twice he had to sleep in the bathtub with only a blanket, once for not taking a shower and once because he "mooned" his brother; and that once C.S. made him crawl around on all fours with a belt around his neck like a leash because "[C.S.] said if I acted like an animal I would be treated like an animal[.]"

Andrew further testified that T.F. hit him with a slipper, and one time hit him in the face with the metal end of a belt. He continued that T.F. was present when C.S. would hit him. Andrew testified that if he acted up or did poorly in school, he had to stand in the corner for a day or two, he would not be allowed to eat until the second day, and he had to use a cup to urinate because he was not allowed to go to the bathroom. Finally, Andrew testified that after being hit his back would swell, that he would have black marks, and that C.S. would not let him go to school the day after being hit.

On cross-examination Andrew admitted telling Dr. Gerald Cook, a forensic psychologist, that he lied all the time when he was younger. He also admitted that during the 2002-2003 school year, the school year following his parents' separation, he "was always getting into trouble[]" and would lie to try to get out of trouble. Andrew stated that he was not happy moving back to Plainsboro with his mother in 2003 because he would have to help with John. Finally, Andrew told the doctor that he once accused a gym teacher of punching him, and once accused a lunchroom worker of grabbing his shirt and choking him.

I.

We first address defendants' contention that the trial judge denied them the right to a fair trial by denying their request to adjourn the trial for two weeks.

"The granting of trial adjournments rests within the sound discretion of the trial court. Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error." State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div. 1970) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971); see also State v. Bellamy, 329 N.J. Super. 371, 378 (App. Div. 2000). An abuse of discretion only arises on demonstration of "manifest error or injustice." Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (citations omitted). An abuse of discretion occurs when the trial judge's "decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008) (citations omitted). Further, a defendant must demonstrate prejudice. State v. Middleton, 299 N.J. Super. 22, 33-34 (App. Div. 1997); State in Interest of D.P, 232 N.J. Super. 8, 20 (App. Div. 1989); D'Orsi, supra, 113 N.J. Super. at 532-33. Applying these standards, we continue our analysis.

In November 2003, C.S. filed a motion, seeking an order compelling DYFS to turn over all of its records in this matter. On January 26, 2004, the court entered an order granting the motion and compelling DYFS to produce the documents to the court within ten days.

In the meantime, defendants retained Dr. Cook as a potential defense witness to evaluate Andrew. The doctor evaluated Andrew and prepared a report in time for the scheduled trial date of February 15, 2005. The trial was adjourned to May 10, 2005. In March 2005, DYFS finally produced the documents to the court. In April 2005, the trial judge submitted certain DYFS documents to defense counsel, who then submitted them to Dr. Cook on May 5, 2005. However, the doctor was on vacation until May 16, 2005.

On May 6, 2005, four days before the trial, and again on May 10, 2005, C.S.'s attorney requested a two-week adjournment.*fn7

Counsel argued that Andrew's credibility was "very much at issue." Counsel represented that Dr. Cook needed time to review DYFS's psychological records, which "raise a lot of issues [relating] to [Andrew's] development, his ability to appreciate truthfulness from untruthfulness," and which indicate that the child "admitted to lying a lot... when he was younger, and there is what appears to be a lot of psychological evidence that goes right to this issue[.]" The trial judge denied the request, stating "[o]nly now am I learning that it was the defense's position they wanted to have Doctor Cook review all of the material that the Court permitted disclosed as to which the Court permitted disclosure, after [its] review of these [DYFS] records."

C.S. contends that he demonstrated prejudice in his inability to present a viable defense. He argues that because the entire case centered on Andrew's credibility, his only viable defense was to establish that the jury should not believe the child's testimony. He concludes that Dr. Cook had to examine all of DYFS's records in order to form an opinion about Andrew's psychological make-up, which shows that the child has a propensity to lie.

T.F. argues that defendants retained Dr. Cook "to help explain a possible defense that [Andrew] had concocted the allegations as a product of his own mental and emotional disturbance." Therefore, Dr. Cook had to review DYFS's records to determine how they would impact his expert opinion.

Defendants rely on State v. Bellamy, 329 N.J. Super. 371 (App. Div. 2000) and State v. Middleton, 299 N.J. Super. 22 (App. Div. 1997)). However, these cases are distinguishable. In Bellamy, supra, 239 N.J. Super. at 374-75, a co-defendant, and State's witness, changed his version of the facts on the day before trial to include a potential material witness of which neither the State nor the defendant were aware. We found that the denial of defendant's motion to adjourn the trial constituted an abuse of discretion because the defendant was forced to go to trial "against material facts extremely detrimental to him, with no opportunity to investigate." Id. at 376.

In Middleton, supra, 299 N.J. Super. at 27, we permitted the State to amend the indictment midway through jury selection to state that the offense occurred on a different day. Trial began the next day and defense counsel filed a motion for an adjournment because defendant had an alibi for the new date and time. Ibid. The State joined in the motion, seeking to investigate the newly claimed alibi. Ibid. The judge denied the adjournment, stating that defense counsel could interview the new witnesses during a break. Id. at 28. The case proceeded, and the State's first witness testified that the indictment still indicated the wrong time. Ibid. Defendant claimed to have an alibi for this time as well, and defense counsel again requested an adjournment, which was denied. Id. at 28-29. We found that the trial judge's refusal to grant an adjournment prejudiced defendant because it prevented him from presenting his alibi defense. Id. at 34.

Here, defendants were not prejudiced by the denial of an adjournment. Defendants offered Dr. Cook to attack Andrew's credibility by opining that the child had a propensity to lie as the result of his psychological make-up. However, an expert cannot opine about the credibility of another witness. State v. Vandeweaghe, 177 N.J. 229, 238 (2003). In Vandeweaghe, a State's expert testified that the defendant suffered from an "antisocial personality," and "that a person with an antisocial personality 'has a longstanding history of being able to lie and to lie successfully.'" Id. at 236. Our Supreme Court noted that that this expert improperly "'told the jury, in effect, that defendant was a liar' and that defendant had a 'longstanding history of lying.'" Id. at 239 (citation omitted). The Court held that such testimony "impermissibly usurped the jury's exclusive role in assessing [a] witness'[s] credibility[,]" and should not have been allowed. Ibid. (citing State v. Frisby, 174 N.J. 583, 595 (2002)). "'There is simply no scientific foundation for an expert's evaluation of the credibility of a witness or the conclusion that a psychologist or other social scientist has some particular ability to ferret out truthful from deceitful testimony.'" State v. Papasavvas, 163 N.J. 565, 613 (2000) (quoting State v. J.Q., 252 N.J. Super. 11, 40 (App. Div. 1991), aff'd, 130 N.J. 554 (1993)).

Because Dr. Cook could not properly opine to the jury about Andrew's credibility, no prejudice occurred. Accordingly, the denial of defendants' adjournment request was proper.

II.

Defendants contend for the first time on appeal that the trial judge erred in failing to tailor the jury charges to the facts of this case to include an explanation of the forms of corporal punishment. We disagree.

Proper jury instructions are essential to a fair trial. State v. Green, 86 N.J. 281, 287 (1981). As most lay people do not understand legal jargon, the court must give the jury "a comprehensive explanation of the questions that the jury must determine, including the law of the case applicable to the facts that the jury may find." Id. at 287-88. The jury charge should include instruction on all "essential and fundamental issues and those dealing with substantially material points." Id. at 290. In assessing the propriety of the jury charge, an appellate court examines the entire charge to see whether it was ambiguous or misleading or whether it misinformed the jury of the law. State v. R.B., 183 N.J. 308, 324 (2005).

"The absence of an objection suggests that trial counsel perceived no error or prejudice, and, in any event, prevented the trial judge from remedying any possible confusion in a timely fashion." Bradford v. Kupper Associates, 283 N.J. Super. 556, 573-74 (App. Div. 1995), certif. denied, 144 N.J. 586 (1999). Therefore, a showing of plain error must occur when the defendant claims error on appeal, but did not object to the charge below. R. 1:7-2. Plain error is an error that is "clearly capable of producing an unjust result." R. 2:10-2. In order to reverse, we must find that this "capability" is "sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).

C.S. contends that a major issue in this case was whether his actions constituted abuse or acceptable corporal punishment. Therefore, the jury should have been instructed on both endangering the welfare of a child and corporal punishment.

T.F. argues that not all forms of corporal punishment constitute endangering the welfare of a child, and therefore, the judge should have explained to the jury "that only excessive corporal punishment that unreasonably inflicts harm on a child constitutes endangerment." T.F. acknowledges that the model jury charge for endangering the welfare of a child does not contain an explanation of the difference between reasonable and excessive corporal punishment, but submits that this case required the judge to do so. T.F. concludes that we approved such a jury charge in State v. T.C., 347 N.J. Super. 219 (App. Div. 2002), certif. denied, 177 N.J. 222 (2003), and that the judge's failure to provide such instructions was clearly capable of producing an unjust result.

T.F. further argues that the State's evidence was not overwhelming. She claims that defendants admitted to physically disciplining their son, but denied the child's abuse allegations. T.F. concludes that the jury could have rejected the allegations of abuse and found that defendants' actions constituted corporal punishment; therefore, the judge should have explained "that only excessive corporal punishment that unreasonably inflicts harm on a child constitutes endangerment[.]"

"[T]here is no principle requiring that in every case a court must deliver a specifically tailored instruction relating the facts of the case to the applicable law." T.C., supra, 347 N.J. Super. at 240. A specifically tailored instruction is only required if "necessary to avoid confusion or misunderstanding, or when the facts and legal concepts are complex and require such treatment." Ibid.

When charging a defendant under N.J.S.A. 2C:24-4a, the court does not have to provide the jury with an explanation of the difference between reasonable and excessive corporal punishment. See Model Jury Charge (Criminal), Endangering the Welfare of a Child, Second Degree (revised 11/10/03). However, the court must provide a definition of "abused or neglected child" that is in accordance with N.J.S.A. 9:6-1 and N.J.S.A. 9:6-8.21. Ibid. The judge may quote from and paraphrase these provisions. T.C., supra, 347 N.J. Super. at 239.

N.J.S.A. 9:6-8.21c defines "[a]bused or neglected child" as anyone younger than eighteen years of age whose parent:

(1) inflicts or allows to be inflicted upon such child physical injury by other than accidental means which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ; (2) creates or allows to be created a substantial or ongoing risk of physical injury to such child by other than accidental means which would be likely to cause death or serious or protracted disfigurement, or protracted loss or impairment of the function of any bodily organ; (3) commits or allows to be committed an act of sexual abuse against the child; (4) or a child whose physical, mental, or emotional condition has been impaired or is in imminent danger of becoming impaired as the result of the failure of his parent or guardian, as herein defined, to exercise a minimum degree of care (a) in supplying the child with adequate food, clothing, shelter, education, medical or surgical care though financially able to do so or though offered financial or other reasonable means to do so, or (b) in providing the child with proper supervision or guardianship, by unreasonably inflicting or allowing to be inflicted harm, or substantial risk thereof, including the infliction of excessive corporal punishment; or by any other acts of a similarly serious nature requiring the aid of the court; (5) or a child who has been willfully abandoned by his parent or guardian, as herein defined; (6) or a child upon whom excessive physical restraint has been used under circumstances which do not indicate that the child's behavior is harmful to himself, others or property; (7) or a child who is in an institution and (a) has been placed there inappropriately for a continued period of time with the knowledge that the placement has resulted or may continue to result in harm to the child's mental or physical well-being or (b) who has been willfully isolated from ordinary social contact under circumstances which indicate emotional or social deprivation.

A child shall not be considered abused or neglected pursuant to paragraph (7) of subsection c. of this section if the acts or omissions described therein occur in a day school as defined in this section No child who in good faith is under treatment by spiritual means alone through prayer in accordance with the tenets and practices of a recognized church or religious denomination by a duly accredited practitioner thereof shall for this reason alone be considered to be abused or neglected.

Here, the judge instructed the jury on endangering the welfare of a child as follows:

This indictment is based on a statute which reads as follows.

Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child is guilty of a crime.

For a defendant to be guilty of [endangering the welfare of a child] the State must prove beyond a reasonable doubt the following elements[: F]irst, that [Andrew] was a child prior to August of 2003.

Second, that a particular defendant knowingly caused [Andrew] harm that would make him abused or neglected.

Third, that he or she knew that such conduct would cause [Andrew] harm that would make him abused or neglected; and [F]ourth, that he or she had a legal duty for [Andrew's] care.

The judge then explained each of the four elements in detail. In explaining the second element the judge stated:

What does it mean to be an abused child?

An abused child is a person less than eighteen years [of] age upon whom someone responsible for the care for that child, either inflicts physical injury by other than accidental means, which causes or creates a substantial risk of death, or serious or protracted disfigurement, or protracted loss or impairment of physical or emotional health, or protracted loss or impairment of the function of any bodily organ, or who creates a substantial or ongoing risk of physical [in]jury by other than accidental means which would be likely to cause death or serious or protracted disfigurement or protracted loss or impairment of the function of any bodily organ.

An abused or neglected child is also a child whose physical, mental or emotional condition has been impaired or is in imminent danger of becoming impaired as a result of someone who is responsible for his care failing to exercise a minimum degree of care in providing the child with proper supervision and guardianship, by unreasonably inflicting harm, or substantial risk thereof on the child. Harm need not be physical. Harm my be inferred. You may reach a logical conclusion that harm exists from the kind of abuse or neglect shown by the evidence; but an abused, but the evidence must conform to the above requirements that I read to you.

In other words, even though it doesn't have to be physical in nature alone it has to create a substantial risk of death or serious or protracted disfigurement or protracted impairment of physical or emotional health or protracted loss or impairment of the function of any bodily organ.

The charge given follows the model jury charge for endangering the welfare of a child. The judge explained in great detail, and in lay terms, each element of the charge and the State's burden of proof. The judge also emphasized important words and phrases of each element and properly paraphrased what constitutes an abused or neglected child, which is in accordance with N.J.S.A. 9:6-8.21(c). T.C., supra, 347 N.J. Super. at 239.

Further, the facts and legal issues in this case were not so confusing as to require a fact specific charge of excessive versus reasonable corporal punishment. Andrew's allegations were quite severe and clearly fell within the judge's description of what constitutes endangering the welfare of a child. Defendants have not shown that the exclusion of the additional language they now seek was clearly capable of producing an unjust result.

III.

T.F. contends for the first time on appeal that the judge erred by failing to give an accomplice liability charge. She argues that because Andrew almost exclusively accused C.S. of the actual abuse, the trial judge should have explained to the jury that she could only be accountable for C.S.'s acts if she shared the same mental purpose as him. T.F. submits that the judge's failure to charge this allowed "the jury to decide the case against both defendants in bulk[,]" without properly assessing the proofs against each defendant independently. T.F.'s contention lacks merit.

The judge instructed the jury that a person commits endangering if he or she "causes harm that would make the child an abused or neglected child." He explained that "an abused child" is one upon whom has been inflicted physical injury by other that accidental means, by "someone responsible for the care of that child," or by someone "who creates a substantial or ongoing risk of physical [in]jury other than by accidental means." The judge further explained that "[a]n abused or neglected child is also a child whose physical, mental or emotional condition has been impaired... as a result of someone who is responsible for his care failing to exercise a minimum degree of care in providing the child with proper supervision and guardianship."

"[A] guardian fails to exercise a minimum degree of care when he or she is aware of the dangers inherent in a situation and fails adequately to supervise the child or recklessly creates a risk of serious injury to that child." G.S. v. Dep't of Human Servs., 157 N.J. 161, 181 (1999). In G.S., the court continued that:

[w]hether a parent or guardian has failed to exercise a minimum degree of care is to be analyzed in light of the dangers and risks associated with the situation. We recognize that a variety of factual scenarios can give rise to the finding that a guardian has failed to exercise a minimum degree of care, and do not attempt to describe them. We simply remind DYFS and the courts that the inquiry should focus on the harm to the child and whether that harm could have been prevented had the guardian performed some act to remedy the situation or remove the danger. [Id. at 181-82.]

These instructions permitted the jury to find T.F. guilty of endangering the welfare of a child if it found that she either directly inflicted physical abuse on Andrew, or that she failed to prevent C.S. from doing so. Reviewing the jury charge in its entirety, we are satisfied that the judge conveyed this to the jury in a clear manner. There was no need for an accomplice liability charge. Accordingly, no error, let alone plain error, occurred.

IV.

C.S. contends that the judge erred in failing to suppress his statements to Stryker taken in violation of Miranda, or alternatively, in failing to find that he did not knowingly or intelligently waive those rights. C.S. argues that although this issue turns on credibility, it is undisputed that he only signed a Miranda card, which states that the police read him his rights, but never signed a written waiver of his rights.

Following the Miranda hearing, the judge agreed that the Miranda card C.S. signed stated the Miranda rights but did not contain any waiver language. However, the judge did not find this dispositive of the waiver issue. Rather, the judge found C.S. to be a highly educated*fn8 man who speaks, reads, and understands English, and that C.S.'s signature on the Miranda card indicated that he understood his rights, that his continuing to answer questions following that signature "reflect[ed] a waiver of the Miranda requirements, and that C.S. was endeavoring to cooperate fully with the police. The judge also found Stryker's testimony more credible than C.S.'s testimony, and that the detective's recollection of C.S.'s answers was not questionable.

Our review of a trial judge's findings is "exceedingly narrow." State v. Locurto, 157 N.J. 463, 470 (1999) (citing State v. Johnson, 42 N.J. 146, 161-62 (1964)). We give great deference to the trial judge's factual findings and will not "engage in an independent assessment of the evidence as if [we] were the court of first instance." Id. at 471. We also give deference to the trial judge's credibility determinations. Id. at 474; Johnson, supra, 42 N.J. at 161. In reviewing a motion to suppress, we "must uphold the factual findings underlying the trial court's decision so long as those findings are 'supported by sufficient credible evidence in the record.'" State v. Elders, 192 N.J. 224, 243 (2007) (quoting Locurto, supra, 157 N.J. at 474); State v. Alvarez, 238 N.J. Super. 560, 562-64 (App. Div. 1990). We will reverse only if we are convinced that the trial judge's factual findings are "so clearly mistaken 'that the interests of justice demand intervention and correction.'" Id. at 244 (quoting Johnson, supra, 42 N.J. at 162.) "In those circumstances solely [we] 'appraise the record as if [we] were deciding the matter at inception and make [our] own findings and conclusions.'" Ibid. (quoting Johnson, supra, 42 N.J. at 162).

Any person subject to custodial interrogation "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed[,]" before any questioning begins. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. "The defendant may waive effectuation of these rights, provided the waiver is made voluntarily, knowingly, and intelligently." Id. at 444, 86 S.Ct. 1612, 16 L.Ed. 2d 707. The State has the "heavy burden" of proving that any waiver was made voluntarily, intelligently and knowingly. State v. Hartley, 103 N.J. 252, 260 (1986). This question "must be determined on 'the particular facts and circumstances surrounding that case[.]'" North Carolina v. Butler, 441 U.S. 369, 374, 99 S.Ct. 1755, 1758, 60 L.Ed. 2d 286, 293 (1979) (citations omitted).

The Miranda waiver does not have to be written. State v. Warmbrun, 277 N.J. Super. 51, 62-63 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995). "Any clear manifestation of a desire to waive is sufficient." State v. Kremens, 52 N.J. 303, 311 (1968). "The test is the showing of a knowing intent, not the utterance of a shibboleth. The criterion is not solely the language employed but a combination of that articulation and the surrounding facts and circumstances." Ibid.

Here, C.S. signed a Miranda card, indicating that he read and understood his rights. He never requested an attorney or refused to speak to the police. As the judge noted, C.S. is a highly educated man, who could read and understand English. He cannot point to anything in the record indicating that he did not understand his rights. C.S.'s voluntary responses to Stryker's questions indicate a desire to waive his Miranda rights and to cooperate with the investigation. Given the judge's credibility findings, the totality of the circumstances supports the conclusion that C.S. received his Miranda rights and voluntarily and knowingly waived them.

V.

T.F. contends that the judge erred in failing to suppress her statement to the DYFS investigator that "we have not beaten him recently" because it was taken in violation of her Miranda rights. She argued that she was entitled to a Miranda warning during her conversation with the DYFS investigators because she was "in custody" or perceived herself to be in custody.

The judge disagreed, stating that one is not automatically in police custody simply because he or she is in the police station. He defined custody as a situation "where police conduct constitutes the functional equivalent of a formal arrest based on an objective evaluation of the totality of the circumstances." The judge found that the circumstances of this case did not indicate that T.F. "was subject to the functional equivalent of an arrest." He also noted that T.F. made her statements to Fraser. The judge concluded that although T.F.'s statement occurred in a police station, nothing suggested that the police had charged her or advised her that she was facing charges. Further, the police treated T.F. much differently than they treated C.S.

As stated supra, any person subject to custodial interrogation "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed[,]" before any questioning begins. Miranda, supra, 384 U.S. at 444, 86 S.Ct. at 1612, 16 L.Ed. 2d at 706. One does not need to be formally arrested or questioned in a police station to be in "custody." State v. Coburn, 221 N.J. Super. 586, 595 (App. Div. 1987), certif. denied, 110 N.J. 300 (1988). For custody to exist the court must determine whether the "action of the interrogating officers and the surrounding circumstances, fairly construed, would reasonably lead a detainee to believe he could not leave freely." Id. at 596 (citing State v. Godfrey, 131 N.J. Super. 168, 176 n.1 (App. Div. 1974), aff'd, 67 N.J. 267 (1975)). When viewing the totality of the circumstances, courts should consider the length of the interrogation, the time and place of the interrogation, the nature of the questions, the conduct of the police, the status of the interrogator, the status of the detainee, and any other relevant factors. State v. P.Z., 152 N.J. 86, 103 (1997); State v. Milledge, 386 N.J. Super. 233, 244 (App. Div.), certif. denied, 185 N.J. 355 (2006); State v. Choinacki, 324 N.J. Super. 19, 44 (App. Div.), certif. denied, 162 N.J. 197 (1999). The investigating officer's subjective intent is only relevant if he or she discloses it to the detainee and it would affect the reasonable person's belief regarding freedom of action. Stansbury v. California, 511 U.S. 318, 325, 114 S.Ct. 1526, 1530, 128 L.Ed. 2d 293, 300 (1994).

If a detainee is in custody at the time of an interview, "'any indication of a desire for counsel, however ambiguous, will trigger entitlement to counsel.'" P.Z., supra, 152 N.J. at 105 (quoting State v. Reed, 133 N.J. 237, 253 (1993)). However, when a detainee is not in custody, although he or she is free to remain silent or insist upon having a lawyer present, this does not constitute an invocation of those rights and the interview does not have to stop. Ibid.

The totality of the circumstances here indicates that T.F. was not in custody during her conversation with the DYFS investigators, nor could she have perceived herself in custody. T.F. voluntarily came to the police station and was free to leave at any time as she was not handcuffed, detained, or charged with any crime. Also, DYFS conducted the interview outside the police's presence, T.F. voluntarily spoke to the investigators, and she left after the conversation ended.

Further, a DYFS worker can be required to advise a detainee of his or her Miranda rights during a custodial interrogation only in very limited situations. State v. Helewa, 223 N.J. Super. 40, 47 (App. Div. 1988). In Helewa, the detainee had already been arrested by police, and had been confined at the Middlesex County Adult Corrections Center for over a day when the interview occurred. Id. at 42-43. We found that under these specific facts, the DYFS worker had to read the detainee his Miranda rights. Id. at 50. These facts do not exist here.*fn9

VI.

Alternatively, T.F. contends that the judge erred in redacting her statement to the DYFS investigators. We disagree.

Referring to Andrew, T.F. stated to Fraser that "we have not beaten him recently." The judge changed the statement to read, "I have not beaten him recently." T.F. admits that the original statement posed constitutional problems, and warranted some protective action. However, she argues that she was unfairly prejudiced by the change because most of Andrew's allegations were against C.S. T.F. submits that the original version at least implicated C.S., however, the modified version suggests that T.F. admitted to being the primary abuser. T.F. concludes that the redaction requires a dismissal of her conviction because the State relied on this statement in obtaining her conviction.

When a defendant makes a statement which implicates a co-defendant, the trial court must limit the admissibility of the statement so that the statement is either not used at trial, or redacted in a way that the co-defendant is no longer implicated. Bruton, supra, 391 U.S. at 133-34, 88 S.Ct. at 1626-27, 20 L.Ed. 2d at 483-84. Additionally, "relevant evidence may be excluded if its probative value is substantially outweighed by the risk of undue prejudice, confusion of issues, or misleading the jury[.]" N.J.R.E. 403.

Here, there was no error in the redaction. By removing C.S. from the statement, the judge did not change its meaning. Changing the "we" to "I" did not suggest that T.F. admitted being the primary abuser; it maintained the meaning that T.F. denied having beaten her child recently. Therefore, the redaction was proper.

VII.

We now address defendants' sentences. C.S. only challenges the judge's finding of aggravating factor N.J.S.A. 2C:44-1a(1) (the nature and circumstances of the offense, and the role of the actor therein, including whether or not it was committed in an especially heinous, cruel, or depraved manner).*fn10 He contends that the judge failed to state why he found this aggravating factor.

T.F. challenges the judge's finding of aggravating factors N.J.S.A. 2C:44-1a(2) (the gravity and seriousness of harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, ill-health, or extreme youth, or was for any other reason substantially incapable of exercising normal physical or mental power of resistance), and N.J.S.A. 2C:44-1a(4) (a lesser sentence will depreciate the seriousness of the defendant's offense because it involved a breach of the public trust under chapters 27 and 30, or the defendant took advantage of a position of trust or confidence to commit the offense). She contends that these factors were already part and parcel of the endangerment crime, and thus, finding them constituted impermissible double counting.

T.F. also challenges aggravating factor N.J.S.A. 2C:44-1a(9) (the need for deterring the defendant and others from violating the law). She contends that this aggravating factor was not supported by the record and conflicts with the judge's finding of mitigating factor N.J.S.A. 2C:44-1b(8) (the defendant's conduct was the result of circumstances unlikely to recur).

We review a judge's sentencing decision under an abuse of discretion standard. State v. Pierce, 188 N.J. 155, 166 (2006); State v. Roth, 95 N.J. 334, 364-66 (1984). When reviewing a judge's sentencing decision, we "may not substitute [our] judgment for that of the trial court[.]" State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, we may review and modify a sentence when the judge's determination was "clearly mistaken." State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). In determining the propriety of a sentence, we must make sure that sentencing guidelines were not violated, determine that findings on aggravating and mitigating factors are based on the evidence, and decide whether application of the guidelines make a particular sentence clearly unreasonable that it shocks the judicial conscience. Roth, supra, 95 N.J. at 364-65; O'Donnell, supra, 117 N.J. at 215.

As to C.S., at sentencing, the prosecutor reminded the judge of Andrew's trial testimony about the nature and extent of the severe abuse to which he was subjected. Although the judge did not explicitly find thatC.S. committed the abuse in an especially heinous, cruel, or depraved manner, such a finding is clearly supported by the record.

Further, the range for a second-degree crime is five to ten years. The judge sentenced C.S. to six years, well within the statutory range for a second-degree crime. Accordingly, we discern no reason to disturb C.S.'s sentence.

As to T.F., the State agrees that the judge should not have found aggravating factor N.J.S.A. 2C:44-1a(4). See State v. Miller, 108 N.J. 112, 118-19 (1987). However, the State argues that T.F.'s actions justified the sentence, that T.F. received the shortest possible sentence for a second-degree crime, and that the sentence was not excessive given the circumstances. We agree.

T.F. was convicted of a second-degree crime, and with that comes the presumption of incarceration. See N.J.S.A. 2C:44-1d. The judge properly determined that T.F. did not demonstrate that her incarceration would be such an injustice as to override the need to deter others from allowing child abuse to occur. Additionally, the judge sentenced T.F. to the minimum sentence for a third-degree conviction. N.J.S.A. 2C:43-6a(3). There is nothing in the record to suggest that T.F.'s sentence is excessive.

VIII.

C.S.'s remaining contentions raised for the first time in his pro se supplemental brief are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(2). However, we add the following comments.

In his pro se supplemental brief, C.S. sets forth several reasons why his conviction should be reversed: (1) the assistant prosecutor who tried his case was "unlicensed" to practice law in New Jersey at the time of the trial; (2) that the State did not comply with a discovery order, but instead delivered a portion of the requested documents on the eve of trial; (3) due an encounter he had with T.F. and Andrew in the courthouse on May 12, 2005, Andrew changed his allegations to focus almost entirely on C.S. while reducing the allegations against T.F., and the State orchestrated this encounter and intended for its results; (4) the State knew or should have known that Andrew "was incapable of generating credible testimony due to mental disease," and that the State removed evidence of this disease from the discovery record; and (5) the State advised the judge during sentencing, that he was a flight risk because he had friends in Virginia, which was false.

Contentions (2), (3) and (4) have no factual support in the record; and contention (5) relates to the prosecutor's statement at a bail hearing, not at sentencing, that C.S. was a flight risk.

As to contention (1), it is true that the assistant prosecutor involved in this case was temporarily ineligible to practice law from September 19, 2004 to October 12, 2005 for failure to comply with R. 1:20-1/1:28-2, the Client Security Fund annual registration and fee requirement. The trial court considered this issue and found no authority guaranteeing a defendant the right to be prosecuted by an eligible prosecutor, or overturning a conviction because the prosecuting attorney was ineligible to practice law at the time of trial due to her failure to contribute to the Client Security Fund. The judge analogized this case to State v. Green, 274 N.J. Super. 15 (App. Div.), certif. denied, 137 N.J. 312 (1994), where we stated that a criminal conviction "should not be annulled merely because the defendant was represented by an attorney whose license was suspended for financial reasons[]" and where the defense attorney was ineligible to practice law at the time of defendant's trial pursuant to R. 1:28. Id. at 25-28.

The judge continued that Rule 1:28 distinguishes between ineligibility and license revocation, and explained that R. 1:28-1(a) states that the purpose of this rule "is reimbursement of losses caused by dishonest lawyers." The judge concluded that: the purpose of declaring a noncompliant attorney ineligible to practice is to promote compliance with the payment of these fees to protect clients who have been in a fiduciary relationship with an attorney and who has lost or been defrauded and not in any way, shape or form to indicate that an attorney who has not paid the fee cannot practice or in some way does not or no long has a license to practice. These particular rule[s] are merely regulatory, and violations of them do not equate the violations of due process or fundamental fairness, but rather, they amount to an ethical violation, which... should be handled by the [Office of Attorney Ethics] as they see fit.

Although we do not condone an attorney's failure to comply in a timely manner with the annual Client Security Fund requirement, we agree with the judge that C.S.'s conviction should not be overturned for this reason. The prosecutor's temporary oversight of this administrative item had no bearing upon her integrity or upon the manner in which the case was prosecuted.

Affirmed.


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