July 22, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
ZBIGNIEW SAFIN, Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-12-02260.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Fuentes.
Defendant Zbigniew Safin was tried before a jury and convicted of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). After merging the offenses, pursuant to N.J.S.A. 2C:1-8(a), the court sentenced defendant to a five-year term of imprisonment with an eighty-five percent period of parole ineligibility and a three-year period of parole supervision to commence following his release from prison as mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also ordered to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11.
In this appeal, defendant argues the State failed to present sufficient evidence to establish his guilt beyond a reasonable doubt, entitling him to a judgment of acquittal as a matter of law pursuant to Rule 3:18-2. Alternatively, defendant argues he is entitled to a new trial because the court committed reversible error by not permitting the jury to consider the disorderly person offense of lewdness, N.J.S.A. 2C:14-4(a), as a lesser included offense. Defendant also argues that the sentence imposed by the court was based on the judge's erroneous understanding of his discretionary authority under the sentencing guidelines. If we affirm his conviction, defendant requests that we remand the matter for re-sentencing, instructing the trial judge to consider the imposition of a sentence within the third-degree range pursuant to N.J.S.A. 2C:43-6(a)(3).
We are not persuaded by defendant's arguments and affirm. We derive the following facts from the record developed before the trial court.
At approximately one o'clock in the afternoon on August 19, 2010, Joyce decided to take Jane, her nine-year-old daughter, and John, her four-year-old son, to a nearby park in Wallington, New Jersey. When they reached the park, John joined his friends to play, and Jane walked over to join two other girls who were using a stick to draw in a sandy area. Using photographs of the park, the prosecutor questioned Joyce as to where she was standing in relation to the girls at the time that she noticed defendant's presence. At the request of the prosecutor, Joyce turned to face the jurors and used the photograph to indicate where she was standing.
Although Joyce's description of where she was standing in relation to the area where the children were playing is difficult to follow relying only on the transcript of her testimony,  it appears that she was standing with her back "turned towards the play area, . . . looking towards the woodsy area." At some point, she noticed defendant walking up a walkway "in front of" her. Defendant sat down on the bench of a picnic table facing the area where the girls were playing. During the prosecutor's direct examination, Joyce testified that defendant "went to sit down on the bench on the other side of the walkway, which is maybe the distance of where that sir is sitting over there with the plaid shirt. Not as far as -- no, the juror. . . . That's how far he would sit down from me." (Emphasis added).
According to Joyce, immediately after defendant sat down, the following occurred:
Well, after he sat down he put his hand down into his pants. And the -- I didn't see his penis or anything like that. That I would honestly say I didn't see his penis. But his hand motion was going up and down. Obviously, he was masturbating.
And for a minute I says well maybe he's you know scratching. You know it was a hot day. But the way he was doing it up and down the motion with his -- I would hundred percent probably say it was his left hand. And he was going up and down, up and down with the hand obviously masturbating.
And what really got me upset is because the girls were right in front of him. It was like the walkway would be where this bar right here is. And just right past the walkway the girls played in the sand. And I didn't want the girls to even notice anything, so I didn't want to say, you know, because they was so busy playing and I just said I don't know should I call; shouldn't I call.
And I was sort of with myself going should I call or shouldn't I call. And I says I have to, you know, he's looking at the girls and masturbating.
On cross-examination, Joyce clarified that the bench that defendant sat on was approximately twenty-five feet away from the area where the girls were playing. Defense counsel also confirmed that Joyce was never "close enough" to see if defendant had exposed his penis.
Bergen County Police Officer Justin Garcia responded to Joyce's 9-1-1 call, complaining of a man masturbating in front of children at the park. Garcia spoke to Joyce to confirm that she was the one who had reported the incident. Joyce and "two other complainants" who, according to Garcia, had also "observed the activity" identified defendant as the man that they had seen masturbating. Garcia approached defendant, who was sitting approximately fifty feet in an easterly direction facing the playground. The playground had twenty to thirty "young children between the ages of five to ten" years old. The children were accompanied by their parents who were seated beside them.
Garcia testified that defendant was "sitting on the park bench holding a water bottle, crying or tears were rolling down his face. And he was holding a water bottle and the zipper to his shorts was completely unzipped." No part of defendant's anatomy was exposed and no ejaculate was found on his clothing or anywhere in the area. Two backup officers arrived, including one Police Officer from the Wallington Police Department, who acted as a "Polish translator" because, as Garcia testified, "there was a language barrier." Defendant was arrested and charged with sexual assault and endangering the welfare of a child.
Defendant did not testify in his own defense. Defense counsel called an investigator who testified concerning a sketch drawing of the area Joyce allegedly drew in the kitchen of her own home one month before the start of trial. Joyce did not recall drawing the sketch when defense counsel questioned her on cross-examination.
On this evidence, the jury found defendant guilty of second-degree sexual assault and third-degree endangering the welfare of a child. Defendant now raises the following arguments on appeal:
BECAUSE THE STATE FAILED TO PROVE ALL OF THE ELEMENTS OF SECOND-DEGREE SEXUAL ASSAULT AND THIRD-DEGREE ENDANGERING THE WELFARE OF A CHILD, A JUDGMENT OF ACQUITTAL OR, IN THE ALTERNATIVE, THE MOTION FOR NEW TRIAL SHOULD HAVE BEEN GRANTED.
THE NEED FOR A LESSER-INCLUDED-OFFENSE INSTRUCTION ON DISORDERLY PERSONS LEWDNESS WAS CLEARLY INDICATED IN THE RECORD. (Not Raised Below)
IN THE ABSENCE OF FINDINGS WITH RESPECT TO AGGRAVATING AND MITIGATING FACTORS, THIS MATTER SHOULD BE REMANDED WITH INSTRUCTIONS TO CONSIDER IMPOSING A SENTENCE IN THE THIRD-DEGREE RANGE, WHICH THE COURT EXPRESSED IT WAS DISPOSED TO DO, BUT MISTAKENLY THOUGHT IT WAS NOT AUTHORIZED TO DO UNDER THE LAW.
Before we address defendant's arguments directly, we first need to define the crimes that the jury found defendant committed. Citing N.J.S.A. 2C:14-1(d), 14-2(b), the Supreme Court in State v. Zeidell, 154 N.J. 417, 431 (1998), defined second-degree, tender-years sexual assault as the intentional touching by an actor of his or her intimate parts for the purpose of arousal or sexual gratification conducted in the view of an underage child, whom the actor knows to be present.
In State v. Breitweiser, 373 N.J.Super. 271, 276 (App. Div. 2004), certif. denied, 182 N.J. 628 (2005), we held that a defendant can be convicted of this offense even if it is undisputed, as it is here, that the underage victim or victims did not actually view the alleged offensive conduct. "To establish that the offensive conduct occurred 'in the view of' the underage victim, it is sufficient for the State to prove, beyond a reasonable doubt, that either (1) the underage child actually observed the act; or (2) there was an unreasonable risk that the underage child might view the act." Ibid.
With these principles in mind, we now address defendant's argument that the State failed to prove the elements of second-degree sexual assault beyond a reasonable doubt. Defendant's argument is predicated on the availability of relief under Rule 3:18-1 and Rule 3:18-2, which the Court definitively construed in State v. Reyes, 50 N.J. 454, 458-59 (1967).
The Reyes test requires the trial court to determine "whether, viewing the State's evidence in its entirety . . . and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt . . . beyond a reasonable doubt."
[State v. Wilder, 193 N.J. 398, 406 (2008) (quoting Reyes, supra, 50 N.J. at 459) (alteration in original).]
In reviewing a motion for acquittal under Rule 3:18-2, attacking the sufficiency of the State's evidence, we focus on the adequacy of the State's proof at trial. Id. at 410 n.1.
Here, the State's case depended entirely on the credibility of Joyce's testimony. The verdict indicates that the jury believed her account of defendant's conduct, including the sexual nature of his hand movements in his unzipped shorts. Joyce's testimony also provided sufficient evidence that "there was an unreasonable risk" that the underage child might view defendant's conduct. Under Breitweiser, the State met its burden of proving defendant guilty, beyond a reasonable doubt, of second-degree sexual assault.
The remainder of defendant's arguments do no warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only this brief comment with respect to the sentence imposed by the court. In a footnote in its brief, the State asks this court to amend defendant's judgment of conviction (JOC) to include a $100 surcharge that was not imposed by the trial court as required under N.J.S.A. 2C:43-3.7. It is improper for the State to have raised this issue in a footnote. See State v. Mays, 321 N.J.Super. 619, 636 (App. Div.), certif. denied, 162 N.J. 132 (1999). However, an illegal sentence cannot stand. State v. Schubert, 212 N.J. 295, 309-10 (2012). We thus remand the matter so that the trial court can amend defendant's JOC to reflect the imposition of the $100 penalty as required under N.J.S.A. 2C:43-3.7.