On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1142.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Yannotti.
Defendant Todd A. Mosby appeals from his conviction of official misconduct, and abuse or neglect of a child. For the reasons that follow, we reverse and remand for a new trial.
Defendant was charged in a seven-count indictment with second degree official misconduct, contrary to N.J.S.A. 2C:30-2 (counts one, three and four); fourth degree criminal sexual contact, contrary to N.J.S.A. 2C:14-3(b) (counts two, five and six); and fourth degree abuse or neglect of a child, contrary to N.J.S.A. 9:6-3 (count seven). Prior to trial, the court severed counts one and two. The matter proceeded to trial on the remaining counts.
The State presented testimony which established that, at the time of the charged offenses, defendant was an officer in the Garfield Police Department (GPD). He had joined the GPD in 2001, having previously worked as a police officer in the City of Orange. After joining the GPD, defendant was assigned to patrol duty on the night shift, from 11:00 p.m. to 7:00 a.m.
In the summer of 2006, T.S., a female who was then almost seventeen years old, was dating A.M., who she met in high school. On the evening of August 1, 2006, A.M. was at T.S.'s home in Garfield. They had an argument and A.M. left to walk home. Later that evening, T.S. spoke with A.M. by phone. She said that, around 1:49 a.m., she walked to a baseball field near her home to meet A.M..
T.S. testified that she and A.M. talked in an effort to resolve their differences. T.S. stated that, after about thirty or forty minutes, they started to return to T.S.'s home. A.M. was going to sleep over. They started to walk out of the baseball field, when T.S. observed a police car approaching them. Defendant was driving the car.
Defendant told her that he had been at her house on a prior occasion but T.S. did not recognize him. He directed A.M. to go sit down on a bench. According to T.S., defendant said that she was "gorgeous" and he asked what she was "doing with a kid like that?" Defendant stated that A.M. was "only trying to get in [her] pants." He told her to go home. She called A.M. and they started to walk towards T.S.'s house.
Defendant asked where A.M. lived and she told him that his house was on the other side of the city. Defendant decided to give A.M. a ride home. A.M. and T.S. got into the back seat of defendant's patrol car. Defendant drove A.M. to his house and A.M. got out of the car. T.S. told A.M. that she would call him when she got home. T.S. got back into the car and sat in the front seat of the car.
Defendant drove back to the baseball field and parked the patrol car near an empty building. According to T.S., it was about 2:40 a.m. Defendant asked her if she had sexual relations with A.M. Defendant also asked her whether she had sexual relations with other men. T.S. said that A.M. was "the only guy." Defendant moved the car to another location and asked T.S. other questions of a sexual nature. According to T.S., defendant asked her about her "favorite position" and whether she liked "oral sex." T.S. said that she was shocked by these questions.
T.S. further identified that defendant began touching her ear, her legs near the thigh and her chest. Defendant told T.S. that she had a sexy body, pretty face and beautiful smile. She kept moving her body away from him. She thought he was never going to let her get out of the car. According to T.S., defendant told her that he just wanted her to be "comfortable with him."
At around 4:30 a.m., A.M. called T.S. on her cell phone. He asked her what she was doing. He wanted to know why she had not called him. T.S. told A.M. that she was still "with the cop" and they were talking. He said, "all right" and asked her to call him when she got home.
T.S. stated that defendant again began to rub her ear. She became very nervous. According to T.S., defendant touched her leg and kept "getting closer and closer to [her] vagina[.]" Defendant told T.S. that she was "horny" and "want[ed] to have sex." Defendant said that if he were "to push up on" her, she "would have sex with [him]." T.S. denied it but defendant said that if he were a younger cop, she would "definitely" have sex with him and kiss him. T.S. said that she would not. He asked her to give him a hug.
T.S. did not hug defendant. Defendant said that he was going to be the teacher and she was going to be his student. He said that he would give T.S. a "lesson." He asked her to "give [him] a hug." He pulled her close and she patted him on the back. He then grabbed her, squeezed her tightly and insisted that she kiss him. T.S. said that defendant kissed her on the cheek and the lips.
T.S. testified that she pushed defendant off and asked him what he was doing. Defendant then drove out of the parking lot and continued to discuss sexual matters with her. He dropped her off at home. T.S. said that she was hysterical. She tried to phone A.M. but he did not answer because he was apparently asleep. The next day, T.S. told her ...