On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-07-1109.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Payne and Waugh.
Defendant, M.D., appeals from a denial of his motion for admission to Hudson County's pretrial intervention (PTI) program over the prosecutor's objection, arguing that the prosecutor patently and grossly abused his discretion in rejecting defendant's application and that the prosecutor did not consider several statutory factors that were relevant to his decision.
The record discloses that, on May 12, 2007, defendant, the stepfather of an eleven-year-old boy, ordered the child to remain in the bedroom that he shared with his baby half-brother while the stepfather and the child's mother quit the apartment with the baby to do the laundry, leaving the child alone in the residence. The stepfather placed two strips of scotch tape over the door so he would know if the child left the room while the parents were away. Additionally, to avoid child care expense on school mornings, the child was left at a Dunkin' Donuts at 7:45, where he remained unattended by his parents until 8:10, at which time the boy walked the short distance to school. Following school, the child was instructed to go to the local library to complete his homework and to go home when his parents had returned from work. The boy, instead, often played with friends.
The parents' landlady overheard that the child was to be left alone for a period of time on May 12 and reported the matter to the police, stating additionally that the parents taped the door shut and provided the eleven-year-old with diapers if he needed to relieve himself. She also expressed concerns regarding the child's weight and speculated that he was not being properly fed.
A police officer responded to the residence. After persuading the child to open the door, he confirmed that the boy was, in fact, alone. The boy stated that he had been confined to his room as punishment for leaving the library. The officer observed diapers in the bedroom, which the child stated had been given to him in case he had to relieve himself.
The child was then taken by the police to the local police station, where he was interviewed. During the course of the interview, the boy showed the police a bruise on his lower back that he said was the result of being hit with a belt by defendant. In response to police questioning, the child stated that he was fed only one slice of bread three times a day.
A further police interview was conducted on May 16, 2007. On that day, the child stated that defendant had been angry with him for the past few months, and that he was routinely punished by being forced to stare at the ceiling for hours at a time until his neck hurt. The child also stated that he was forced by defendant to remain at the Dunkin' Donuts so that defendant would not have to see his face, and that he was left there for approximately one hour a day. Although the child initially denied being hit by defendant, he later detailed three incidents: once, when he was punched just below the rib cage; once, when he was smacked across the face; and once, when he was struck on the knuckles with a "whirly."
The child and his baby brother were removed by the Division of Youth and Family Services (DYFS) from their parents' custody on an emergency basis and placed in foster care. N.J.S.A. 9:6-8.29. Both children were initially placed with their maternal uncle and his family. However, discord developed between the older child and his cousin and, for that and other reasons, both children were removed from the uncle's and aunt's care. The baby was placed with his paternal grandmother in Massachusetts; the older boy was placed with the parents of his mother's former boyfriend, John.
Later interviews by psychologist Charles S. Hasson with the defendant, his wife, and the child suggest that the substance of some of the child's statements to the police was inaccurate or exaggerated. For instance, the diapers were present in the bedroom because the child's eighteen-month-old step-brother slept there, and they would never have fit an eleven-year-old. There was no substantiation of charges that the child was underfed, and the one time that the child had been hit with a belt resulted from conduct by his mother, not defendant.
Additionally, the child had a motive to cast defendant in an unfavorable light, since the child regarded him as breaking up the long-term relationship between his mother and John, to whom the child had bonded, and thwarting contact between the child and John that would have otherwise occurred. Frequent contact between the child and John resumed as the result of the child's second foster placement.
Defendant was charged with child abuse in a Title Nine action, which was tried over a two-day period in late June 2007. At the conclusion of the fact-finding trial, the Family Part judge found child abuse or neglect to have occurred,*fn1 but that "[t]here was no proof in this case that [the child] has been substantially harmed in any definition of that word." The parties have included only a single page of the record of that proceeding, and we therefore do not know who testified, the substance of the testimony offered, or other aspects of the judge's decision. On appeal, defendant has stated, and the State has not denied, that a representative of the Hudson County Prosecutor's Office was present throughout the trial.
On July 3, 2007, a Hudson County Grand Jury handed down an indictment against defendant charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a, and with child abuse, N.J.S.A. 9:6-1 and 9:6-3, a fourth-degree offense.
At some point, defendant and his wife moved to Massachusetts and took up residence near defendant's mother, who had custody of the couple's baby. Liberal visitation with the baby was allowed and took place on a daily basis. During this period, the couple also had an additional child, a daughter, who remained in their custody. Upon the urging of DYFS, its Massachusetts equivalent conducted an assessment of ...