On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 07-02-0070.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Messano, Espinosa and Kennedy.
Defendant E.W. appeals from the judgment of conviction and sentence imposed following a jury trial at which she was found guilty of four counts of second-degree endangering the welfare of her children, N.J.S.A. 2C:24-4(a). The judge denied defendant's request to be sentenced as a third-degree offender, N.J.S.A. 2C:44-1(f)(2), and imposed four, concurrent eight-year terms of imprisonment, each with a four-year period of parole ineligibility.*fn1
On appeal, defendant raises the following arguments:
THE TRIAL JUDGE ERRED IN DENYING THE DEFENSE REQUEST FOR A MISTRIAL OR, IN THE ALTERNATIVE, A MORE THOROUGH VOIR DIRE PROCESS, ONCE A PSYCHIATRIC DEFENSE WAS INTERPOSED AT THE END OF THE STATE'S CASE U.S. Const. Amends. VI, XIV; N.J. Const.
IN HIS CHARGE TO THE JURY ON INSANITY, THE TRIAL JUDGE ERRED IN FAILING TO DISTINGUISH BETWEEN KNOWING AN ACT IS LEGALLY WRONG AND KNOWING IT IS MORALLY WRONG, DEPRIVING DEFENDANT OF DUE PROCESS OF LAW AND THE RIGHT TO A FAIR TRIAL. U.S. Const. Amends.
VI, XIV; N.J. Const. Art. I, paras. 1, 9, 10 (Not Raised Below)
THE DEFENDANT'S SENTENCE IS EXCESSIVE We have considered these arguments in light of the record and applicable legal standards. We affirm, but remand for purposes of reconsideration of the period of parole ineligibility imposed.
After the indictment was returned, defense counsel requested that defendant be examined to determine her competency to stand trial. Defendant was examined in September 2007 by Dr. Peter Paul, a forensic psychologist, who determined that she was competent to stand trial. The trial commenced with jury selection in October 2009.
The testimony revealed that in 2005, defendant lived in Brooklyn with her husband of twenty years, W.W., and their five children. That summer, defendant took the children and left home without telling her husband or advising where they were going. Defendant sought help from the Times Square Church in Manhattan, where she regularly attended religious services.
Defendant's brother described her as an intensely religious woman who belonged to a "very orthodox" religious organization known as "The Brethren." Defendant met with Gayle Paulsen, the director of the Single Mother's Ministry at the church, who helped her find temporary housing. Defendant told Paulsen that she could not return to her home because W.W. was "using alcohol." Paulsen arranged for defendant and the children to temporarily reside at a lakeside cabin in Hopatcong owned by fellow parishioners Bradley and Lisa Guice.
Paulsen drove defendant and the children to the cabin. Paulsen arranged for the family to use the cabin on a temporary basis, since the Guices had rented it for the summer and the cabin had to be vacant by May 1, 2006. While defendant lived at the cabin, the church paid the rent and utilities and provided money for clothing and food. Defendant would call Paulsen whenever her family needed more food or supplies, and other church members would also bring food to the family.
When Paulsen subsequently called defendant to remind her that she needed to find new living arrangements, defendant responded by leaving a voicemail on the church telephone stating, "God told her to stay." Paulsen tried to make alternate plans, but defendant called Paulsen a few days later and reiterated that she would not be leaving the cabin. The church continued to pay defendant's utility bills, but, in a letter dated May 12, 2006, Paulsen informed defendant the church would stop providing for her family's necessities and begin eviction proceedings.
During these months, the Guices lived in a house next door to the cabin. In mid-July, defendant called Mr. Guice because the water heater was broken. When he arrived to fix the appliance, Guice noticed that defendant appeared very thin. Defendant assured Guice that she and the children had adequate food. The next day, however, defendant called Guice and admitted to lying. Guice called Paulsen who asked him to purchase food for the family.
At the time, defendant's children were eighteen, thirteen, eleven, nine and eight years of age. Guice saw them for the first time when he delivered the food. They looked "extremely thin." Guice told defendant "[t]his is not God, you know, this is you, starving your kids."
On July 25, 2006, Nathan Bell, an investigator from the Division of Youth and Family Services (the Division or DYFS) went to the cabin to investigate allegations that defendant's children were not being fed. Defendant told Bell that her plan for getting food was to pray to God for direction. Bell observed that the children were very thin, lethargic, and had difficulty processing and responding to his inquiries. Bell effectuated an emergency removal of the children and brought them to Newton Memorial Hospital.
There, Dr. Mia Piggee examined the four youngest children and found the weight of each child measured in the third percentile, the lowest possible measure on the growth chart, and that they lacked any "subcutaneous fat" on their bodies. Piggee concluded that the children were suffering from cachexia and chronic malnutrition.*fn2 Dr. Wendy Frieling, who examined the children two days after their removal, reached a similar diagnosis.
Defendant's brother and his wife were granted temporary physical custody of the children. At the end of August, another pediatrician, Dr. Elizabeth Hodgson, examined them and noted that each had gained substantial weight. Hodgson testified that the children still suffered various after-effects from the underlying chronic malnutrition as evidenced by their protuberant bellies, "refeeding gastritis," ...