On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-03-0393.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: November 4, 2010
Before Judges Cuff, Sapp-Peterson and Fasciale.
A jury found defendant guilty of lewdness, N.J.S.A. 2C:14-4, a disorderly persons offense (Count One);*fn1 and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Count Two). After merging Count One with Count Two, Judge Reddin imposed a four and one-half year term of imprisonment. The appropriate fines, penalties and assessments were also imposed.
In November 2000, R.B. was eleven years old and lived with his brother, his mother, I.G., and her fiancee, Angel.*fn2 Defendant M.DV. is Angel's adult brother, who visited the family often. At that time, I.G. was concerned about her son, R.B. As an eight year old, he had been sexually assaulted by his maternal uncle. She worried that the experience might influence R.B.'s sexual orientation. She confided this concern to defendant during a conversation in November 2000 because she knew defendant was openly homosexual. She told defendant about her son's sexual assault and asked about the consequences. I.G. also told defendant about gifts she wanted to buy for her sons but could not afford. Both I.G. and R.B. characterized defendant as a good friend of I.G.'s.
A week after their conversation, defendant had dinner at I.G. and Angel DV's home. When defendant was leaving, I.G. had already cleaned-up and gone to bed. Defendant pretended to leave the home, but entered the room R.B. shared with his brother. Both boys were asleep. Defendant awakened R.B., asked if he wanted a GameBoy, and offered to get him one if the boy would masturbate defendant. Defendant assured R.B. that he was doing nothing wrong and that being gay was not bad. R.B. testified he did as defendant asked. Defendant told R.B. not to tell anyone about what happened if he wanted the GameBoy.
The next day, I.G. awoke believing "something wasn't right." Because of this feeling, she woke R.B. and questioned him. When her other son awoke, he told I.G. that he had seen defendant in the room during the night. I.G. questioned R.B. again. R.B. was unresponsive; therefore, Angel took him for a ride. While they were out of the house, I.G. questioned her other son. He told her that defendant had been in the room by the bunk bed, and the bed moved.
During the ride, Angel asked R.B. if anything had happened. R.B. told Angel "[defendant] asked me to jerk him for the Game Boy." R.B. did not tell Angel that he had, in fact, done so because he felt embarrassed. When they returned to the house, Angel told R.B. to tell I.G. what he had told him, and R.B. did so.
Angel, I.G., and R.B. then went to look for defendant. They found him at his workplace, where I.G. questioned him. Defendant denied their accusations but R.B. confronted him.
I.G. wanted to report the incident, but R.B. implored her not to because he was embarrassed and "didn't want to go through any of this commotion again."
I.G. testified she had further conversations with defendant. Defendant claimed R.B. had prostituted himself for the GameBoy. I.G. also recounted that defendant threatened to tell the authorities that I.G. had encouraged her son to prostitute himself.
The incident remained unreported for a year. I.G. finally reported the incident to a counselor, when R.B.'s behavior in school deteriorated. She then reported the incident to the Division of Youth and Family Services (DYFS) and ...