On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 08-10-2334.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo, Grall and Alvarez.
A jury found defendant Bartholomew P. McInerney, a high school baseball coach, guilty of endangering the welfare of ten children under the age of eighteen, a crime of the second degree defined in subsection a of N.J.S.A. 2C:24-4.*fn1 The judge sentenced him to three consecutive six-year terms of imprisonment and seven concurrent five-year terms.
This second-degree crime applies only to a "person having a legal duty for the care of a child or who has assumed responsibility for the care of a child." N.J.S.A. 2C:24-4a. Although the evidence was adequate to permit the jury to conclude that defendant "assumed responsibility for the care of" each child, the jury instruction on the meaning of that phrase was inadequate and contradictory. The flaws are attributable to the incorporation of definitions of abuse and neglect that equate paid and volunteer members of a school staff with parents and custodians, effectively enlarging the class of persons to whom the second-degree crime applies. The erroneous instruction requires a new trial. To avoid repetition of the error, we urge the Supreme Court's Committee on Model Criminal Jury Charges to clarify the Model Jury Charge (Criminal), "Endangering the Welfare of a Child (Second Degree)" (Nov. 10, 2003) (hereinafter the Model Charge).
Except for a one season hiatus from June 2005 to March 2007, defendant was the coach of a Catholic high school varsity baseball team and head of the school's baseball program from 1994 until November 2007. He left the position when he was arrested for this crime and complied with the principal's request that he refrain from coming onto school property or speaking with the students.
As head coach, defendant was responsible for the "overall development" of the school's baseball program. He supervised the assistant coaches assigned to the freshman and junior varsity teams and was expected to monitor the "performance of the players in the lower teams" to assess their potential for moving to the varsity level. Some of the players were moved up to varsity while they were freshmen and sophomores. During defendant's tenure, the varsity team won a State championship.
Although the baseball season starts in March and ends in May or June, depending on a team's success in post-season tournaments, defendant frequently came to the high school in the off season. He attended to his other responsibilities, which included fundraising for the baseball program and scheduling games for the next season. Because the high school did not have playing fields, defendant also had to arrange for his teams to practice and compete elsewhere. In addition, defendant came to the high school to work out in the gym, visit with teachers and other coaches and keep score at basketball games. Defendant's brother coached the soccer team, and defendant attended its games as well.
Although high school coaches are subject to rules that preclude off-season coaching, defendant was involved with the baseball players most of the year and expected his players to be involved all year as well. He organized summer and fall leagues in which his high school's students played, and he attended practices and games. He also managed a recreational softball league, and some of his team members assisted him with this.
On several occasions, defendant traveled out-of-state with members of the high school baseball and soccer teams. During Easter break, members of the baseball team participated in tournaments in Hawaii, Alaska, and North Carolina, even though the rules of the diocese precluded the high school from supporting trips that required airplane travel and the team could not use the high school's name.
Defendant spent time with team members outside of organized baseball. For example, he took select players who were Mets fans on weekend trips to see games played in cities like Boston and Chicago; met with a boy who was thinking about coming to his high school to play baseball at his home; regularly allowed players to stop at his home; hosted a party for a player who was offered a baseball scholarship to a prestigious university; and offered to drive students to their homes after sporting events. Defendant and his brother also had a t-shirt and uniform business, and one member of his brother's soccer team worked there. That soccer player traveled with the baseball team to an out-of-state tournament. Defendant also played tennis with team members in his free time.
Furthermore, defendant involved himself in the lives of the players in matters unrelated to sports. One of the victims called defendant after midnight because he had consumed too much alcohol to drive; defendant picked up the boy and drove him to his girlfriend's home. The boy called defendant because he did not want his parents to know he was drinking and defendant had offered to do that for his players. Another victim whose drinking brought him to the attention of the police came to defendant for assistance, and he intervened. After the incident, defendant directed that boy to call him every time he returned home from a night out for one month. Defendant also gave the boys money when they asked, and he bought some of them sneakers. Several of the victims kept in contact with him after they graduated, even those who attended college away from home.
The endangering charges were based on defendant's supervision and direction of the boys in matters unrelated to sports or alcohol consumption. The ten boys gave similar accounts of that conduct. Defendant would approach a player individually by speaking to him after practice, while giving him a ride, at his home, on the tennis court or on a field-trip.
Defendant would begin a conversation about "behaving" by asking the boy about alcohol and drugs and moving on to inquire about the boy's sexual behavior. He would ask whether the boy had a girlfriend and question him about the extent of their sexual activity. He cautioned about unplanned pregnancy and the impact it would have on the boy's life, asked if the boy understood how pregnancy occurred and knew how to avoid it, and he encouraged abstinence. Defendant also directed the boys to reduce the risk of failing to abstain by masturbating, asked if they had done it and how, and instructed them on means and methods.
To encourage the practice of that behavior and monitor the boys' compliance, defendant paid them to send him reports by telephone, instant message or text message. He told the boys the messages were important to him because when he received them he would know they were behaving and not "worry" about them failing to abstain. He gave them directions on how to send reports indicating the duration and quality of the experience and the volume of ejaculate, phrased so that only they would understand. Records of cell phones used by defendant and the boys reflected the frequency of text messages sent by the boys to defendant from April through November 2007.
Defendant also urged the boys to use condoms during masturbation and in the event of failure to remain abstinent. He supplied the condoms, and he directed some of the boys to bring him the used condoms for inspection, which some of them did. When defendant gave condoms to a boy, he directed him not to identify defendant as the source if someone else found them.
Finally, defendant asked some of the boys to video record their masturbation and lent them his camera. Defendant gave the boys various explanations for that suggestion and offered rewards such as money and tickets to professional games. When those who complied gave defendant the tape, he destroyed it in their presence without viewing it, as he had promised he would. Defendant also took the camera on one of the out-of-state trips; there he approached boys and offered to leave his room so the boy could make a recording.
When defendant first broached the topic of sexuality with the boys, three of them were younger than sixteen and the others were sixteen or seventeen. Some of the conversations took place outside New Jersey, and in some instances the conversations, texts and supplying of condoms continued after a boy's eighteenth birthday and after the boy left for college.
Defendant's supervision of the several victims' sexual behavior took place during various timeframes. The shortest of the periods was about five ...