On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 06-10-1220.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2010
Before Judges Grall and LeWinn.
Defendant John Notte appeals from a judgment of conviction entered after a bench trial. He waived his right to trial by jury. The crimes with which he was charged arose from acts of indecency in the presence of two girls under the age of thirteen, E.M. and N.T., and defendant's subsequent failure to heed an officer's signal to stop his van. The judge found defendant guilty of an act of fourth-degree lewdness against N.T., N.J.S.A. 2C:14-4b(1); third-degree endangering of N.T.'s welfare, N.J.S.A. 2C:24-4a; second-degree sexual assault of E.M., N.J.S.A. 2C:14-2b; third-degree endangering of E.M.'s welfare, N.J.S.A. 2C:24-4a; and fourth-degree eluding, N.J.S.A. 2C:29-2a.*fn1
The judge merged defendant's convictions for sexual assault and endangering of E.M. Pursuant to N.J.S.A. 2C:44-1f(2), the judge imposed a sentence within the third-degree range for second-degree assault, a term of four years. That sentence is to be served at Avenel and is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. In addition, the judge sentenced defendant to a concurrent eighteen-month term for lewdness against E.M.; a concurrent three-year term for endangering N.T.'s welfare; and a concurrent three-year term for eluding. Appropriate fines, penalties and assessments were also imposed.
The State's evidence of defendant's conduct on the day in question can be summarized as follows. During the afternoon of July 8, 2006, E.M. and N.T. were outside on the sidewalk adjacent to Hope Street in Passaic. They were washing off rugs in front of the restaurant where E.M.'s mother worked. A van marked "Mechanical Millennium" pulled up and N.T. told E.M. to look at the man inside. It was defendant. E.M. looked and returned her attention to the rugs, but when defendant coughed, she looked back and saw him stand up a little bit and remove his shirt. They thought "he was doing bad stuff."
Jesus Robles, a friend of E.M.'s mother who lived near the restaurant, was sitting outside and about seventeen feet away from the girls. He thought they were playing with a rope and did not notice the van until the girls ran toward him and pointed to it. As N.T. reached Robles and pointed to the van, E.M. saw defendant "stand up a little bit," unbutton his pants and rub his penis. E.M. did not remember if his penis was inside or outside his pants but remembered seeing him stroking it. Knowing it was wrong and feeling embarrassed, she turned away and spoke to Robles.
From the way the girls ran and pointed, Robles thought they were nervous and scared. They said "[t]hat there was a person playing with his thing." Robles approached the van and, from a distance of about two and one-half feet, saw defendant. He was naked and masturbating. Although defendant drove away, Robles was able to get the van's license plate number.
Several hours later, police officers patrolling in separate marked cars spotted the van and signaled the driver to stop by using the lights on both vehicles and the air horn on one. Before stopping, defendant drove two blocks, made several turns onto adjoining streets, ran a stop sign and veered in front of an officer who drove up alongside the van. When he was stopped, defendant was not wearing a shirt and his pants were not zippered. His underwear, socks and boots were in the front of the van.
Although defendant showed no signs of intoxication, responded appropriately to the arresting officers' commands and there was no odor or other evidence of drug use in the van, his defense was drug-induced blackout. In the psychiatrist's opinion, if defendant committed the alleged acts, it was due to his disoriented state, a blackout, caused by consumption of crack cocaine. Such a blackout would not prevent defendant from performing complex tasks but would preclude him from knowing what he was doing, forming the intent required for conviction of these crimes and understanding that his conduct was wrong.
Defendant was forty-seven years old at the time of these crimes. In his testimony at trial, he acknowledged his predilection for exposing himself to adult women, especially prostitutes, and sexual addictions involving masturbation and relations with prostitutes. He claimed an inability to stop using cocaine once he started, a problem he has had since his teenage years.
By defendant's account of his activities on the afternoon of the crimes, he had been binging on crack cocaine since noontime. He purchased cocaine three or four times that afternoon on Myrtle Street in Passaic. He "typically" buys about $100 worth at a time. He used the drug in the van and drove around. He recalled throwing the pipe out of the van's window and wiping the drug residue from the seat of the car.
Defendant had no recollection of seeing children or any events involving them, but he offered explanations as to why he would not have done what the girls alleged. First, he lacks the capacity to masturbate while binging on cocaine. Second, he has no desire to engage in that conduct in front of children and, as a father himself, would not want to harm a child.
Following trial, the judge issued a written decision setting forth his findings of fact and legal conclusions. The judge explained why he rejected the defense based on drug-induced blackout and concluded that the State established the essential elements of lewdness, sexual assault and ...