NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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., ...