On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Indictment No. 06-09-0346.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2010
Before Judges Sapp-Peterson and Simonelli.
Following a jury trial, defendant John B., a Catholic priest, was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count two). The trial judge imposed an eighteen-year term of imprisonment with a seven-year period of parole ineligibility on count one to be served at the Adult Diagnostic Treatment Center (ADTC) and a concurrent eight years with three years of parole ineligibility on count two, which together will run consecutively to a fifteen-year sentence defendant was already serving for first-degree aggravated sexual assault, second-degree sexual assault, and third-degree endangering the welfare of a child conviction stemming from defendant's sexual assault of an altar boy. The judge also imposed the appropriate assessments and penalties, and ordered defendant to pay $10,597.17 to the Violent Crimes Compensation Board.
On appeal, defendant raises the following arguments:
THE MODEL JURY INSTRUCTION ON CHILD SEXUAL ABUSE ACCOMMODATION SYNDROME (CSAAS) UNCONSTITUTIONALLY INTRUDES ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TELLS THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT THEIR [THE ALLEGED VICTIMS'] TESTIMONY IS UNTRUTHFUL BASED ONLY ON THEIR SILENCE OR DELAY DISCLOSURE." (Not Raised Below)
THE TRIAL JUDGE ERRED IN DISMISSING COUNT TWO AT THE END OF THE STATE'S CASE; IN THE ALTERNATIVE, A MORE PRECISE DEFINITION OF "LEGAL DUTY TO CARE" AND "ASSUMED RESPONSIBILITY" SHOULD HAVE BEEN GIVEN TO THE JURY AS PART OF THE ENDANGERING THE WELFARE OF A CHILD CHARGE. (Partially Raised Below)
THE DEFENDANT'S SENTENCE IS EXCESSIVE
We affirm defendant's conviction and sentence on count one. Because we conclude that the evidence failed to establish second-degree endangering the welfare of a child, we are constrained to reverse on count two.
We derive the following facts from the evidence presented at trial.
In 1991, T.P.,*fn1 then six years old, attended public school in New Jersey. He also attended weekly after-school classes of Confraternity of Christian Doctrine (CCD) instruction at the parish center of a Catholic church, where masses were also held. Defendant was the pastor and was commonly seen around the parish's buildings during CCD classes.
T.P. and his family attended masses at the parish center, which defendant officiated. When T.P. was in the second grade, he received his First Holy Communion in a ceremony that defendant officiated.
While attending CCD classes one day, T.P. went to the bathroom in the parish center. He tried to open the bathroom door, but it was locked, and a teacher had to unlock it so that T.P. could enter. Upon entering the bathroom, T.P. saw two pairs of feet in one stall and heard voices. When the stall door opened, T.P. saw defendant, who was wearing his "priest uniform," "step out with a very startled, kind of angry look on his face. Very surprised." T.P. also saw a "little boy" exit the stall. Defendant looked at T.P. angrily and told the other boy he could leave. After the little boy left, defendant ordered T.P. to stay in the bathroom and locked the door. As T.P. faced the urinal to use it, defendant stood "very close[ly]" behind him and instructed him to pull his pants "all the way down" and not turn around. T.P. could feel defendant's body "almost touching" his body. Defendant then unbuckled his belt and remained closely behind T.P. for a ...