NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 9, 2013
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment Nos. 07-02-0256 and 07-03-0408.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
Camelia M. Valdes, Passaic County Prosecutor, attorney for respondent (Marc A. Festa,
Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Nugent.
Defendant appeals his conviction by a jury of attempted endangering the welfare of a child and his conviction by a judge of violating the conditions of his community supervision for life (CSL), a sentence he was serving when arrested for attempted child endangerment. In this appeal, defendant argues the court misinstructed the jury on the elements of attempt and child endangerment at his first trial. He also argues that the subsequent non-jury trial placed him in double jeopardy because the charges were based on the same conduct underlying his conviction of attempted child endangerment. Alternatively, he argues the CSL conviction should be dismissed because he did not knowingly waive his right to a jury trial on that offense, and the court should have merged the convictions before he was sentenced. Defendant made none of these arguments to the trial court. We affirm his convictions and his sentences.
The State's trial evidence established that early one morning in November 2006, while walking to school with her brother, ten-year old Natalie decided to stop at a bodega where defendant worked behind the counter. Her brother did not stop with her. She walked into the store and to the counter, ordered a buttered roll from defendant, and then walked away to get orange juice. After getting orange juice, she returned to the counter where she paid for the juice and roll. Natalie then walked away from the counter to get some potato chips. While she was looking for the potato chips, defendant approached her, grabbed her by putting his arm around her, leaned forward, and said "kiss me." Scared, Natalie pushed him away and ran out of the store.
Natalie walked quickly to school where she asked the school nurse to call her mother. According to the nurse, Natalie was crying, gasping for breath, and "a little hysterical." The nurse calmed her down, Natalie explained what happened, and the nurse notified the principal. When her mother arrived at the school, Natalie was still crying hysterically. She told her mother that she had stopped at a store to get breakfast and a man tried to attack her.
Police officers arrived at the school and drove Natalie, in a police car with tinted windows, by the bodega, where she identified defendant. Later that day, Natalie gave a videotaped statement to an employee of the Passaic County Prosecutor's office trained in conducting forensic interviews of children.
The same day, a detective interviewed defendant, age fifty, who initially denied knowing "what girl" the detective was talking about. Later in his statement, defendant said that the store's owner, who was also his girlfriend, came down when the girl was there. Defendant subsequently acknowledged that Natalie had been in the store that morning while he was working alone. He remembered that she ordered a buttered roll, got juice, put the money on the counter, and left. He then contradicted himself again and said Natalie went to the "chips area" before leaving the store. The police arrested defendant.
When the events involving Natalie occurred, defendant was serving a special sentence of CSL as the result of a previous conviction for a sexual offense. Following defendant's arrest, a Passaic County Grand Jury charged him in a two-count indictment with second-degree attempted sexual assault, N.J.S.A. 2C:5-1 and 2C:14-2b (count one), and third-degree attempted endangering the welfare of a child, N.J.S.A. 2C:5-1 and 2C:24-4a (count two). In a separate indictment, the Passaic County Grand Jury charged defendant with two counts of violating a condition of his special sentence of CSL, N.J.S.A. ...