June 21, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued April 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-10-1836.
Joshua D. Sanders, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Sanders, of counsel and on the brief).
Steven A. Yomtov, Deputy Attorney General, argued the cause for respondent (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Yomtov, of counsel and on the brief).
Before Judges Koblitz and Accurso.
Defendant T.S. appeals from her conviction for third-degree aggravated assault of E.C., N.J.S.A. 2C:12-1(b)(7), for which she received a sentence of probation for two years on condition she receive counseling. Defendant claims the indictment should have been dismissed before she pled guilty because a Family Part judge had found that she did not commit abuse or neglect of her two children based on the same incident. After consideration of her claim of collateral estoppel, we affirm.
At the time of the incident, defendant and E.C. lived together with their two small children, aged two and three. The New Jersey Division of Youth and Family Services (Division) filed a Title 9 complaint, pursuant to N.J.S.A. 9:6-8.21, against defendant alleging that the two children had been abused or neglected by defendant on March 21, 2010. A Family Part judge held a fact-finding hearing over the course of four days.
The judge related the facts as follows. On March 21, defendant and E.C. had been arguing when a pot of boiling water spilled on him, causing extensive second-degree burns to his back and shoulder. E.C. stayed in the hospital for ten days as a result of these injuries. E.C. related that defendant intentionally threw the pot of boiling water on his back. Defendant stated that E.C. carried a pot of boiling water into the bathroom where defendant was located. She indicated that she became fearful, put her hands on the pot, pushing upward and inadvertently causing the water to spill on E.C.
In his September 14, 2010 written opinion, the Family Part judge described the testimony of the two parties as "diametrically opposed to each other." He noted that if he found E.C.'s testimony credible, he would find that the Division met its burden, because E.C.'s testimony supported a finding that defendant "threw a pot of scalding water on [E.C.] with the children in close proximity . . . ." He found, however, that defendant's testimony was "more rational and believable" than E.C.'s version. Upon consideration of all of the evidence, he found it in "equipoise" and dismissed the Title 9 complaint against defendant because the Division had not met its burden of proof. The judge indicated that while the children did not suffer any physical harm, there was some indication that at least the oldest child suffered emotionally from witnessing the incident. After dismissing the abuse and neglect complaint, he determined that both children should be returned to defendant's physical custody.
In connection with this same incident, the Bergen County Grand Jury indicted defendant on October 21, 2010, for second-degree aggravated assault, N.J.S.A. 2C:12-1(b)(1), as well as third-degree aggravated assault, N.J.S.A. 2C:12-1(b)(7). Defendant's pre-trial motion to dismiss on the basis of collateral estoppel was denied and she pled guilty, answering under oath "yes" to her lawyer's question, "And at that time, knowingly and under circumstances manifesting indifference to the value of human life, did you recklessly cause [E.C.] injury during a confrontation with him, him being scalded with hot water?"
When she pled guilty, defendant reserved her right to appeal the pre-trial motion to dismiss the indictment and does so in her appeal, raising that issue only:
POINT I: THE INSTANT PROSECUTION FOR AGGRAVATED ASSAULT WAS PRECLUDED BY THE DOCTRINE OF COLLATERAL ESTOPPEL. ACCORDINGLY, THE CONVICTION MUST BE VACATED AND THE INDICTMENT DISMISSED. U.S. CONST., AMEND. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 11.
A. THE ISSUE TO BE PRECLUDED IS IDENTICAL TO THE ISSUE DECIDED IN THE PRIOR PROCEEDING.
B. THE ISSUE WAS ACTUALLY LITIGATED IN THE PRIOR PROCEEDING.
C. THE COURT IN THE PRIOR PROCEEDING ISSUED A FINAL JUDGMENT ON THE MERITS.
D. THE DETERMINATION OF THE ISSUE WAS ESSENTIAL TO THE PRIOR JUDGMENT.
E. THE PARTY AGAINST WHOM THE DOCTRINE IS ASSERTED WAS A PARTY TO OR IN PRIVITY WITH A PARTY TO THE EARLIER PROCEEDING.
1. THE STATE WAS A PARTY TO BOTH PROCEEDINGS.
2. ASSUMING ARGUENDO THAT THIS COURT DOES NOT FIND THAT THE STATE WAS A PARTY TO BOTH PROCEEDINGS, [THE DIVISION] AND THE BERGEN COUNTY PROSECUTOR'S OFFICE WERE IN PRIVITY.
Defendant argues that because the Division, represented by the Attorney General's Office, was unable to convince the Family Part judge that she put her children in harm's way by committing an act of domestic violence, the Bergen County Prosecutor's Office is precluded from pursuing a criminal action against defendant for the same actions. We disagree.
"[C]ollateral estoppel, or issue preclusion, bars the re litigation of an issue that has already been addressed in a prior matter . . . ." Bondi v. Citigroup, Inc., 423 N.J.Super. 377, 423 (App. Div. 2011), certif. denied, 210 N.J. 478 (2012). That is, whereas res judicata, or claim preclusion, bars re litigation of already adjudicated claims between the same parties or their privies, collateral estoppel "bars re litigation of issues in suits that arise from different causes of action." Selective Ins. Co. v. McAllister, 327 N.J.Super. 168, 173 (App. Div.) (citation omitted), certif. denied, 164 N.J. 188 (2000).
Collateral estoppel requires a party to establish:
(1) the issue to be precluded is identical to the issue decided in the prior proceeding; (2) the issue was actually litigated in the prior proceeding; (3) the court in the prior proceeding issued a final judgment on the merits; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom the doctrine is asserted was a party to or in privity with a party to the earlier proceeding.
[First Union Nat'l Bank v. Penn Salem Marina, Inc., 190 N.J. 342, 352 (2007) (citation omitted).]
In his fact-finding decision, the Family Part judge found the evidence presented by defendant and the Division to be in equipoise, and in fact found defendant to be somewhat more credible than E.C. He determined that the Division did not meet its burden of proving that defendant committed abuse or neglect of her children. Defendant argues that privity existed between the Division and the Bergen County Prosecutor's Office and therefore collateral estoppel bars criminal action related to the Family Part proceedings. We need not analyze the other four elements of the collateral estoppel analysis if privity does not exist between the two entities.
Privity requires that the Prosecutor's Office "actually controls the litigation[, ]" or that the relationship between the Division and the Prosecutor's Office is so close that the Division "is a virtual representative" of the Prosecutor's Office. See State v. Brown, 394 N.J.Super. 492, 503 (App. Div. 2007). In the fact-finding, the full criminal investigative resources of the Prosecutor's Office were not brought to bear against defendant. The State was not present in its capacity as a law enforcement agency intended to enforce the criminal laws to protect the public. Just as in Brown, where we determined that the victim in a domestic violence case was not in privity with the State in a criminal case, id. at 502-07, so too the Division is not in privity with the Prosecutor's Office.
The Division of Law within the Attorney General's Office represents State agencies. N.J.S.A. 52:17A-4(e). The Attorney General is also the chief law enforcement officer in the State. N.J.S.A. 52:17B-98. Thus, the Attorney General's Office has two roles, one civil and one criminal. When the Division of Law represents the Division in pursuit of a finding of abuse or neglect, the goal is to protect the specific children involved, and the proof presented is intended to demonstrate by a preponderance of the evidence that the parent placed the children at risk of harm. In that capacity, the Attorney General uses the resources of the Division, which do not include criminal investigators, to prove its case, working within a much shorter time-frame than a criminal trial proceeding.
Criminal and child protective services litigation frequently proceed on parallel tracks. Although not involved in whether to file an abuse or neglect complaint, or how to present the case, law enforcement frequently alerts the Division to the need to investigate a family, as occurred here. The Division is also required to serve a copy of all abuse and neglect complaints on the prosecutor. N.J.S.A. 9:6-8.36(a). A judiciary protocol has been established to foster communication between family and criminal proceedings to encourage fair and efficient handling of the two matters.
These procedures have been set up to enhance cooperation between the Division and law enforcement agencies "when parallel investigations are pursued." Div. of Youth & Family Servs. v. Robert M., 347 N.J.Super. 44, 63 (App. Div.), certif. denied, 174 N.J. 39 (2002); see also State v. P.Z., 152 N.J. 86, 100 (1997). The Supreme Court criminal and family committees agreed upon procedures to be used in instances when both proceedings occur in the same matter. See supra, note 6. This cooperation does not establish privity.
Sound policy reasons also dictate that the decision of a Family Part judge in an abuse and neglect proceeding should not preclude a subsequent criminal proceeding. As the motion judge noted, the focus of the family case was on the welfare of the particular children in the family, while the focus of the criminal case is the safety of the public. The Division "seeks to secure the health, safety, and best interests of the child; the State's interest is in furtherance of a criminal prosecution" Div of Youth & Family Servs
v NS, 412 N.J.Super. 593 638-40 (App Div 2010) (discussing under what circumstances the same attorney should be permitted to represent a parent in both a protective services and companion criminal case); see also Brown supra 394
N.J.Super. at 504 (discussing the difference in purpose between the Prevention of Domestic Violence Act intended to protect victims and criminal statutes enacted to protect the public interest)
Thus the procedures and purpose of the criminal process are different from those of the Family Part The outcome of an abuse and neglect fact-finding should not determine whether related criminal proceedings are precluded To hold otherwise would impair public protection and unfairly bind the prosecution to the results of litigation conducted without the prosecutor's participation