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State ex rel D.M.

Supreme Court of New Jersey

May 14, 2019

State in the Interest of D.M., a Juvenile

          Argued October 22, 2018

          On certification to the Superior Court, Appellate Division, whose opinion is reported at 451 N.J.Super. 415 (App. Div. 2017).

          Michele C. Buckley, Assistant Prosecutor, argued the cause for appellant State of New Jersey (Michael A. Monahan, Acting Union County Prosecutor, attorney; Milton S. Leibowitz, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the briefs).

          Rochelle Watson, Assistant Deputy Public Defender, argued the cause for respondent D.M. (Joseph E. Krakora, Public Defender, attorney; Rochelle Watson, of counsel and on the brief, and Seon Jeong Lee, Designated Counsel, on the brief).

          Sarah D. Brigham, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Sarah D. Brigham, of counsel and on the brief).

         PATTERSON, J., writing for the Court.

         The Court considers whether a juvenile can be adjudicated delinquent for endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a)(1) when the juvenile and his alleged victim are fewer than four years apart in age and the Family Part judge makes no findings of sexual penetration, force, or coercion. The Court also considers the impact of the Family Part's conflicting characterizations, at the adjudication and disposition hearings, of its factual findings regarding the juvenile's conduct.

         According to testimony, Z.Y., eleven, stated that fourteen-year-old D.M. had "made [Z.Y.] suck his penis" and told Z.Y. to "put [D.M.'s] penis in his anus." Z.Y. ultimately described three encounters with D.M. at which the conduct allegedly occurred. The State charged D.M. with delinquency based on conduct which, if committed by an adult, would constitute first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2(a)(1). At trial, the State had the burden to prove beyond a reasonable doubt the elements of that statute. One of those elements is an act of "sexual penetration."

         D.M. requested that the judge consider third-degree endangering the welfare of a child as a lesser-related offense. In order to establish a violation of N.J.S.A. 2C:24-4(a)(1), the State had the burden to prove beyond a reasonable doubt that D.M. engaged in "sexual conduct which would impair or debauch the morals of the child." The State agreed with D.M.'s counsel that there was a rational basis in the evidence for the endangering charge, and consented to the request.

         In a written decision, the court made detailed credibility findings. The court found that the State failed to prove sexual penetration and accordingly declined to adjudicate D.M. delinquent on the charge of first-degree aggravated sexual assault. The court found, however, that the State had satisfied its burden of proof with respect to the lesser-related offense of third-degree endangering the welfare of a child. The court found beyond a reasonable doubt that D.M. "exposed his penis to Z.Y., sought Z.Y. to touch his penis with his mouth, and had his penis physically touch Z.Y.'s buttocks." The court found that these acts "would tend to debauch and impair the morals of a child" within the meaning of N.J.S.A. 2C:24-4(a)(1), and adjudicated D.M. delinquent as to that offense.

         At a disposition hearing, the court stated, in part: "I adjudicated [D.M.] to a third degree, but quite frankly, the elements of the first[-]degree offense were met." The court noted that it had "considered a lesser[-]related offense really as a humanitarian gesture to [D.M.] . . . in light of his lack of a prior record, his extremely devoted grandmother, his trials and tribulations, [and] his active and noble extracurriculars," but that, "if one were to really look at the evidence that was presented and one were to be honest about assessing that evidence, there is no doubt in the eyes of the [c]ourt that the elements of the first[-]degree offense have been made and surely an attempt."

         D.M. appealed his juvenile adjudication and disposition. The State and D.M. briefed the issues raised. Neither party requested oral argument. The Appellate Division panel sua sponte ordered the parties to submit supplemental briefs on "whether the lack of a finding of penetration or coercion undermines the delinquency finding of endangering the welfare of a child, in light of the four-year age difference required for a delinquency finding of sexual assault" under N.J.S.A. 2C:14-2(b). 451 N.J.Super. 415, 423 (App. Div. 2017). The State then requested oral argument, and D.M. did not oppose that application. The panel, however, denied the State's request.

         The panel reversed D.M.'s delinquency adjudication, based on its resolution of the question it had raised sua sponte. Id. at 426-28. The panel acknowledged that "sexual conduct," which would impair or debauch the morals of the child, was undefined in N.J.S.A. 2C:24-4(a)(1). Id. at 426. It concluded, however, that the Legislature sought to limit the endangering statute, as applied to juveniles, to cases in which the juvenile's conduct also would give rise to a charge of either sexual assault or criminal sexual contact by force or coercion. Id. at 424-25, 428. Noting that coercion was not at issue, id. at 424-25, and citing the sexual penetration element of N.J.S.A. 2C:14-2(a), and the age disparity element of N.J.S.A. 2C:14-2(b), the panel held that "[t]he Legislature did not intend sexual behavior between children close in age not involving penetration, which it specifically exempted from the criminal statutes, to nonetheless be included within the crime of child endangerment," id. at 427.

         The Court granted the State's petition for certification. 231 N.J. 553 (2017).

         HELD: Although the Legislature may decide that N.J.S.A. 2C:24-4(a)(1) should not apply in juvenile proceedings based on conduct such as that at issue here, nothing in the current text of that statute precludes the adjudication in this case. The Court declines to rewrite the statute's plain language in this appeal. However, the Family Part court's adjudication must be reversed because the court's disavowal, at the disposition hearing, of critical aspects of its previously-stated factual findings undermined its determination as to both offenses. In this extraordinary setting, it is unclear whether the State met its burden to prove beyond a reasonable doubt that D.M. violated N.J.S.A. 2C:24-4(a)(1). Accordingly, the Court affirms on other grounds the panel's judgment.

         1. The panel should have granted the State's unopposed motion for oral argument, and the Court cautions appellate courts in similar settings involving expanded issues to seriously consider granting motions for oral argument, even when no party requested argument when it filed its original brief. (p. 16)

         2. The Appellate Division's decision relies on Code provisions set forth in three statutes: the sexual assault statute, N.J.S.A. 2C:14-2; the criminal sexual contact statute, N.J.S.A. 2C:14-3(b); and the endangering the welfare of a child statute, N.J.S.A. 2C:24-4(a)(1). D.M. was charged with first-degree aggravated sexual assault pursuant to N.J.S.A. 2C:14-2(a)(1), under which the State must prove that the juvenile committed an act of sexual penetration on a victim less than thirteen years of age, but need not prove that the juvenile is four or more years older than the victim. Under another section of N.J.S.A. 2C:14-2 cited by the Appellate Division, a juvenile may be adjudicated delinquent if the State proves beyond a reasonable doubt that the juvenile committed an act of sexual contact -- whether or not that contact involved sexual penetration, force, or coercion --provided that the juvenile charged is four or more years older than the alleged victim. Finally, if the State seeks a delinquency adjudication pursuant to N.J.S.A. 2C:14-3(b) based on the offense defined in subsection (c)(1) of N.J.S.A. 2C:14-2, it must prove that the juvenile committed an act of sexual contact with a victim using "physical force or coercion." In contrast to the offenses cited by the Appellate Division panel, third-degree endangering the welfare of a child requires proof only that the victim is a child and sexual conduct by any person which "would impair or debauch the morals of the child." N.J.S.A. 2C:24-4(a)(1). The phrase "sexual conduct which would impair or debauch the morals of the child" is undefined in the endangering statute, but the Court has observed that "sexual conduct" clearly includes sexual assault and sexual contact. (pp. 17-20)

         3. There is no evidence in the endangering statute's plain language that the Legislature intended to incorporate the penetration or age-disparity elements of the sexual assault statute, or the force or coercion elements of the criminal sexual contact statute, into the endangering offense. The Court does not agree that in order for a juvenile, who is fewer than four years older than the victim, to be adjudicated delinquent under N.J.S.A 2C:24-4(a)(1), there must be proof of sexual penetration, force, or coercion. The endangering statute simply makes no mention of the elements cited by the panel. Had the Legislature intended to limit the application of N.J.S.A. 2C:24-4(a)(1) to cases in which the juvenile has also violated specific provisions of N.J.S.A. 2C:14-2 or N.J.S.A. 2C:14-3, as the panel suggests, it would have done so by adding language to that effect. Accordingly, N.J.S.A. 2C:24-4(a)(1) as currently drafted may apply to a juvenile, even when the specific conduct involved does not involve sexual penetration, force, or coercion and the juvenile and alleged victim are fewer than four years apart in age. (pp. 20-23)

         4. The contrasting interpretations of N.J.S.A. 2C:24-4(a)(1) advanced in this case signal a need for legislative review of the endangering statute as it applies to juvenile settings such as this appeal. As D.M.'s case illustrates, it would be helpful if the statutory language "sexual conduct which would impair or debauch the morals of the child" provided clearer guidance to courts, counsel, and the public in settings involving sexual conduct by juveniles close in age. Should it choose to do so, the Legislature could amend N.J.S.A. 2C:24-4(a)(1) to clarify its intent with respect to the statute's application to juvenile adjudications. (pp. 23-24)

         5. The Family Part judge's credibility assessment and core factual findings -- that D.M. "exposed his penis to Z.Y., sought Z.Y. to touch his penis with his mouth, and had his penis physically touch Z.Y.'s buttocks," but that the State fell short of proving oral or anal penetration -- fully supported the judge's determination on the two offenses considered. Had the court not deviated from its written decision in its later comments, there would be no basis to overturn that determination in this appeal. The court's statement at the disposition hearing, however, directly contravened the findings set forth in its adjudication. The juvenile's personal characteristics are an important factor at the disposition stage, but they do not warrant a "downgrade" of his charges at the adjudication stage, or any other finding inconsistent with the proofs. The court sitting as factfinder in a juvenile adjudication must find the facts that the State has proven beyond a reasonable doubt; it has no authority to nullify its findings in order to achieve a more lenient disposition, or for any other purpose. In this matter, the court disclosed at the disposition that, although the State proved N.J.S.A. 2C:14-2(a)(1)'s sexual-penetration element, the court discounted that proof and adjudicated the juvenile delinquent on the lesser-related offense. That disclosure undermines confidence in both determinations. In its wake, it is simply unclear what facts the court actually found and what facts it did not find. Accordingly, D.M.'s adjudication must be reversed. (pp. 24-26)

         The judgment of the Appellate Division is affirmed on other grounds.

         JUSTICE ALBIN, concurring, agrees that D.M.'s juvenile adjudication for endangering must be reversed and that N.J.S.A. 2C:24-4(a)(1) is in need of legislative review but expresses the view that the child endangerment statute was never intended to criminalize consensual sexual experimentation between close-in-age juveniles that does not violate the sexual offense statutes, N.J.S.A. 2C:14-2 and -3. Without such limitations, Justice Albin observes, the endangering statute is vulnerable to a future as-applied constitutional challenge.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON'S opinion. JUSTICE ALBIN filed a concurrence.

          OPINION

          PATTERSON JUSTICE.

         In this appeal, we consider whether a juvenile can be adjudicated delinquent for endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a)(1) when the juvenile and his alleged victim are fewer than four years apart in age and the Family Part judge makes no findings of sexual penetration, force, or coercion. We also consider the impact of the Family Part's conflicting characterizations, at the adjudication and disposition hearings, of its factual findings regarding the juvenile's conduct.

         The State charged fourteen-year-old D.M. with delinquency based on conduct which, if committed by an adult, would constitute first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1). The State alleged that D.M. committed acts of sexual penetration against an eleven-year-old acquaintance, Z.Y. With the parties' consent, the Family Part judge also considered the lesser-related charge of third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a)(1).

         Following the trial, the court found that the State had failed to prove beyond a reasonable doubt sexual penetration, an element of the first-degree aggravated sexual assault charge under N.J.S.A. 2C:14-2(a)(1). The court found that the State had proven the elements of the third-degree endangering offense, including "sexual conduct which would impair or debauch the morals of the child." N.J.S.A. 2C:24-4(a)(1).

         At the disposition hearing, however, the court contradicted its earlier findings. The court said that the State had actually met its burden to prove sexual penetration, but that the court instead adjudicated D.M. delinquent on the third-degree charge "as a humanitarian gesture" warranted by the juvenile's personal qualities.

         An Appellate Division panel reversed the juvenile adjudication. State in Interest of D.M., 451 N.J.Super. 415, 418 (App. Div. 2017). The panel reasoned that the Legislature did not intend for the endangering statute, N.J.S.A. 2C:24-4(a)(1), to support a delinquency adjudication based on a juvenile's sexual contact with another minor fewer than four years younger than he, in the absence of a finding of sexual penetration, force, or coercion.

         We do not concur with the Appellate Division panel's construction of the endangering statute. Although the Legislature may decide that statute should not apply in juvenile proceedings based on conduct such as that at issue here, nothing in the current text of N.J.S.A. 2C:24-4(a)(1) precludes the adjudication in this case. We decline to rewrite the statute's plain language in this appeal.

         We conclude, however, that the Family Part court's adjudication must be reversed. When the court, at the disposition hearing, disavowed critical aspects of its previously-stated factual findings and characterized its decision to adjudicate D.M. under the lesser-related offense as a humanitarian gesture, it undermined its determination as to both offenses. In this extraordinary setting, it is unclear whether the State met its burden to prove beyond a reasonable doubt that D.M. violated N.J.S.A. 2C:24-4(a)(1).

         Accordingly, we affirm on other grounds the panel's judgment.

         I.

         A.

         At the time of the alleged incidents that gave rise to this proceeding, D.M. was one of a group of teenage boys who sometimes spent after-school hours together at a park adjacent to a school.[1] Z.Y. and his younger brother would sometimes join the older boys in the park, which was located near a business owned by their mother.

         One evening, Z.Y. was sharing a bedroom with his younger brother and a seven-year-old boy who was staying at his home. Checking on her sons and her young guest, Z.Y.'s mother found Z.Y. and the seven-year-old boy sitting together on a bed. She noticed that Z.Y.'s shorts were "shifted" in a manner that she considered peculiar. Concerned about what the boys had been doing, Z.Y.'s mother questioned the seven-year-old. She stated that he told her Z.Y. had "rubb[ed] his penis" on him. Z.Y.'s mother, upset by the younger child's revelation, asked Z.Y. "what was he doing, and where did he get it from." According to his mother, Z.Y. responded, "[M]ommy, the boy did it to me." At that time, Z.Y. did not identify the "boy" to whom he referred.

         According to the testimony of Z.Y.'s adult sister, who lived in the family home, Z.Y. was distraught about the incident and his mother's reaction to it. She stated that she took Z.Y. to a different room and questioned him, and that Z.Y. identified D.M. as the boy to whom he had earlier referred. By his sister's account, Z.Y. stated that D.M. had "made ...


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