On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 09-10-1753.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Hayden.
Defendant T.F.*fn1 appeals from his conviction, following a jury trial, of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), and from that part of his sentence that imposed parole supervision for life. For reasons that follow, we affirm the conviction and remand for resentencing.
We discern the following from the trial record. In July 2003, T.F., who had just turned seventeen, came from his home in Florida to stay with his aunt in New Jersey. He slept in a finished basement of the aunt's home. During that month, the aunt's grandchildren, five-year-old A.V. and her seven-year-old brother C.V., also visited the home.
On one occasion, the grandchildren were in the basement when only T.F. was present. According to A.V., she was lying on T.F.'s bed while her brother was playing a video game across the room. T.F., standing next to A.V., massaged her foot, ran his hand up her leg, then began to touch her vagina with his finger in a circular motion and rub her hips with his hands. In a quiet tone, he told her not to tell anybody. A.V. was too afraid to tell any of the adults upstairs about what had transpired.
At some point, C.V. paused his game and turned around to see defendant touching his sister in the upper thigh area. From across the room, defendant put a finger to his lips and made a "shush" sound. C.V. was then called upstairs for dinner. The defendant and A.V. came up a minute or so later.
In January 2004, A.V.'s family moved from New Jersey to another state. She had nightmares for several months before and after the move and suffered from anxiety and trouble sleeping. In November 2007, A.V., then ten years old, told her mother about the incident with T.F. in her grandmother's basement four years earlier. When questioned, C.V. also told his mother what he had seen. In January 2008, A.V.'s mother and father contacted the police department in the town where the grandmother had lived during 2003. The police took statements from A.V. and her family. Shortly thereafter, the police questioned T.F., who denied that he was ever alone with the children and that the incident took place. On July 20, 2009, defendant was arrested at his residence in Florida.
On October 8, 2009, a grand jury returned an indictment charging T.F. with second-degree sexual assault, N.J.S.A. 2C:14-2(b). In October 2010, a jury trial took place. At the close of the presentation of evidence, the State asked the judge to charge the jury on the lesser offense of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge asked defense counsel what his position was. Counsel asked for time to consider the issue. When the parties came back after lunch, defense counsel stated that he had no objection to the endangering charge.
During their deliberations, the jurors twice asked a question about the difference between the sexual assault charge and the endangering charge. The judge reread both charges. On October 28, 2010, the jury acquitted defendant of sexual assault, but found him guilty of endangering the welfare of a child.
On February 28, 2011, the trial judge sentenced defendant to 364 days in the county jail and imposed parole supervision for life, Megan's Law registration, and the requisite monetary ...