(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
(NOTE: The Court wrote no full opinion in this case. Rather, the Court’s affirmance of the
judgment of the Appellate Division is based substantially on the reasons expressed in Judge Collester’s opinion below.)
Argued February 4, 2003 -- Decided May 29, 2003
PER CURIAM
On June 29, 1998, defendant went to work and left her three children, ages eight, six and three, alone in her apartment. Temperatures that day reached as high as 100 degrees and the apartment had no air conditioning, only one fan, and no telephone. Defendant had left all the windows and blinds closed, and instructed her children not to open the door to anyone. That afternoon, defendant’s brother, William, came to the house with his girlfriend and cousin and found the children alone. William testified that the house was very hot, humid and stuffy, and that it smelled of cat urine and feces. He further testified that the younger child was sitting in a pool of spilt milk and that when he went to look for clean clothes, he found cat feces in the drawers.
Defendant was arrested, convicted on three counts of second degree endangering the welfare
of a child, in violation of N.J.S.A. 2C:24-4a, and sentenced to three concurrent
eight-year terms of imprisonment. Defendant appealed, arguing three points: (1) the trial judge
erred by using the phrase “making them abused or neglected children” in his
jury instruction, in effect directing the jury to convict her; (2) defendant was
denied due process by the prosecutor’s decision to charge defendant with second-degree endangering
the welfare of a child, N.J.S.A. 2C:24-4a, rather than fourth degree abuse or
neglect of children, N.J.S.A. 9:6-3; and (3) the sentence imposed on defendant was
excessive.
The Superior Court, Appellate Division, Collester, J.A.D., held that: (1) in using the
phrase “making them abused or neglected children” in its jury instruction, the trial
judge was merely outlining the allegations in the indictment and not directing the
jury to convict; (2) where two criminal statutes prohibit the same basic act,
the prosecutor may in the exercise of sound discretion proceed under either or
both statutes as long as only a single conviction survives; and (3) prior
to sentencing, the trial judge made findings of aggravating factors, including defendant’s prior
and startling criminal record, considered the risk that defendant would commit another offense,
and imposed an aggregate sentence of eight years, which sentence was not excessive.
HELD: The judgment of the Appellate Division is AFFIRMED substantially for the reasons
expressed in Judge Collester’s opinion.
JUSTICE ALBIN filed a separate, concurring opinion, in which JUSTICE LONG joins, urging
the Attorney General to promulgate guidelines to assist prosecutors in choosing whether to
prosecute a defendant under N.J.S.A. 2C:24-4a or N.J.S.A. 9:6-3; guidelines that facilitate fairness
in the charging process and, therefore, fairness in sentencing with respect to those
statutes.
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this
opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.
SUPREME COURT OF NEW JERSEY
A-
130 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.A.V.,
Defendant-Appellant.
Argued February 4, 2003 – Decided May 29, 2003
On certification to the Superior Court, Appellate Division, whose opinion is reported at
348 N.J. Super. 107 (2002).
Jay L. Wilensky, Assistant Deputy Public Defender, argued the cause for appellant (Yvonne
Smith Segars, Public Defender, attorney).
H. John Witman, III, Deputy Attorney General, argued the cause for respondent (Peter
C. Harvey, Acting Attorney General of New Jersey, attorney).
PER CURIAM
The judgment is affirmed, substantially for the reasons expressed in Judge Collester’s opinion
of the Appellate Division, reported at
348 N.J. Super. 107 (2002).
CHIEF JUSTICE PORITZ and JUSTICES COLEMAN, VERNIERO, LaVECCHIA, and ZAZZALI join in this
opinion. JUSTICE ALBIN filed a separate concurring opinion, in which JUSTICE LONG joins.
A- 130 September Term 2001
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.A.V.,
Defendant-Appellant.
ALBIN, J., concurring.
A parent who abuses or neglects a child can be charged under two
identical criminal statutes, second-degree endangering the welfare of child in violation of N.J.S.A.
2C:24-4a or fourth-degree cruelty and neglect of children in violation of N.J.S.A. 9:6-3.
Under the two statutes the same conduct is proscribed in the same language;
however, when prosecuted pursuant to N.J.S.A. 2C:24-4a, a defendant is exposed to a
five- to ten-year state prison term, and when prosecuted pursuant to N.J.S.A. 9:6-3,
a defendant is exposed only to an eighteen-month prison term. In that respect,
it appears that those provisions are unique in the New Jersey Statutes Annotated.
Moreover, there are no statutory or administrative guidelines instructing prosecutors on how to
determine what circumstances warrant charging under one statute as opposed to the other.
In this case, the State charged defendant D.A.V. with three counts of second-degree
endangering the welfare of a child, pursuant to N.J.S.A. 2C:24-4a. She was convicted
of all three charges and sentenced to three concurrent eight-year terms of imprisonment.
The Appellate Division affirmed the convictions and sentence. State v. D.V.,
348 N.J.
Super. 107 (App. Div. 2002). We granted certification.
174 N.J. 39 (2002).
I concur with the majority’s decision to affirm the Appellate Division because the
record before this Court reveals no basis to conclude that the prosecutor’s decision
to prosecute defendant for the second-degree offenses under N.J.S.A. 2C:24-4a was arbitrary compared
to other such cases. However, it is not difficult to imagine the day
when there will be a record showing similarly situated defendants charged disparately and
suffering widely disparate sentences under those two identical statutes. Uniformity in sentencing is
one of the paramount goals of the Code of Criminal Justice (Code). State
v. Lagares,
127 N.J. 20, 31 (1992). Without guidelines, it is inevitable that
unjustifiable disparities will follow from the varied application of the two statutes. I,
therefore, would direct the Attorney General to develop standards to channel the exercise
of prosecutorial discretion in choosing the appropriate statute in abuse cases.
I.
On the afternoon of June 29, 1998, defendant went to work at her part-time job, leaving her three children, an eight-year-old son, a six-year-old son, and a three-year-old daughter, alone in the home. Before leaving, defendant shut all of the windows in the house, locked the door, and instructed her eldest son not to permit anyone inside. As the outside temperature that afternoon rose to approximately ninety-five degrees, the house, which contained only one fan, became very hot. The house had no telephone and the children were not told what to do in case of an emergency.
Defendant’s brother and cousin visited the house that afternoon and found the three children alone. The three-year-old girl was sitting in a soiled diaper in a puddle of milk on the kitchen floor. The eight-year-old boy had made his siblings scrambled eggs on the electric stove. The house smelled of cat urine and feces. When defendant’s cousin went to find a change of clothes for the boys, she could find none that were not sullied by cat excrement. Defendant’s brother and cousin immediately removed the children from the home.
Defendant was indicted on three separate counts of endangering the welfare of a child (one for each child) pursuant to N.J.S.A. 2C:24-4a. The record does not reveal any basis for the prosecutor’s decision to charge and prosecute defendant under N.J.S.A. 2C:24-4a, as opposed to N.J.S.A. 9:6-3.
As noted earlier, child abuse and neglect are criminalized in two separate statutes. N.J.S.A. 9:6-3, which is part of the Child Welfare Act, states, in relevant part:
Any parent, guardian or person having the care, custody or control of any child, who shall abuse, abandon, be cruel to or neglectful of such child, or any person who shall abuse, be cruel to or neglectful of any child shall be deemed to be guilty of a crime of the fourth degree.
[N.J.S.A. 9:6-3.]
The child endangerment section of the Code incorporates the standards of N.J.S.A. 9:6-3,
raising child abuse and neglect to a second-degree offense:
Any person having a legal duty for the care of a child or
who has assumed responsibility for the care of a child who engages in
sexual conduct which would impair or debauch the morals of the child, or
who causes the child harm that would make the child an abused or
neglected child as defined in R.S. 9:6-1, R.S. 9:6-3 and P.L.1974, c. 119,
s.1 (C.9:6-8.21) is guilty of a crime of the second degree.
[N.J.S.A. 2C:24-4a (emphasis added).]
Child abuse and neglect constitute a fourth-degree crime under N.J.S.A. 9:6-3 and a
second-degree crime under N.J.S.A. 2C:24-4a. The two identical statutes require proof of the
same “knowing” level of mental culpability. State v. Demarest,
252 N.J. Super. 323,
333 (App. Div. 1991). The only distinction between the two statutes is the
degree of crime and the range of sentence. State v. N.A.,
355 N.J.
Super. 143, 153 (App. Div. 2002), certif. denied,
175 N.J. 434 (2003). No
standards are currently in place to guide prosecutorial discretion in selecting under which
statute to prosecute a defendant.
In our scheme of justice, the courts have the ultimate responsibility to ensure
fairness and uniformity in sentencing. Lagares, supra, 127 N.J. at 27-28. The prosecutor,
however, controls the charging process, which determines the sentencing exposure of a defendant
in any particular case. Id. at 27. Our courts must pay great deference
to those prosecutorial decisions because the separation of powers doctrine demands that respect
be given to a coordinate branch of government. State v. Leonardis (Leonardis II),
73 N.J. 360, 381 (1977). That deference, however, does not require that courts
abdicate their power to promote uniformity in sentencing. Lagares, supra, 127 N.J. at
27-28, 31.
In furtherance of that imperative, which is grounded in fundamental fairness, this Court
has required prosecutors to be guided by uniform guidelines and subject to judicial
review on decisions implicating the ultimate sentence of a defendant. See, e.g., State
v. Brimage,
153 N.J. 1, 24-25 (1998) (ordering Attorney General to promulgate guidelines
to channel discretion of prosecutors when deciding whether to waive mandatory terms of
imprisonment under N.J.S.A. 2C:35-12); State v. Vasquez,
129 N.J. 189, 196 (1992) (enabling
judicial oversight and review of waiver of mandatory terms of imprisonment under N.J.S.A.
2C:35-12 by requiring prosecutors to state reasons for waiver or non-waiver on record
and requiring promulgation of written guidelines governing exercise of prosecutorial discretion); Lagares, supra,
127 N.J. at 32 (preserving constitutionality of N.J.S.A. 2C:43-6f by requiring prosecutors to
state on record reasons for seeking extended sentence and requiring promulgation of guidelines
to assist prosecutorial decision-making); and State v. Leonardis (Leonardis I),
71 N.J. 85,
119, 121 (1976) (holding that prosecutors must provide statement of reasons for denying
consent to admission to pre-trial intervention (PTI) program applicants and requiring PTI programs
to be implemented according to uniform guidelines).
Permitting prosecutors to choose at their whim whether to charge between identical child
abuse and neglect statutes, one with a maximum range of eighteen months and
the other ten years in prison, “‘would add undue variability, inevitable inconsistency, and
greater disparity to the sentencing process.’” Brimage, supra, 153 N.J. at 12 (quoting
State v. Warren,
115 N.J. 433, 449 (1989)). In Brimage, supra, 153 N.J.
at 4, this Court was faced with a challenge to the Attorney General’s
then-existing plea agreement guidelines regarding waiver of mandatory minimum terms of imprisonment under
Section 12 of the Comprehensive Drug Reform Act of 1987, N.J.S.A. 2C:35-12. Although
those guidelines prescribed statewide minimum plea offers, they permitted county prosecutors’ offices to
adopt more stringent plea offers. Brimage, supra, 153 N.J. at 4. The result
was great variation between counties in their plea-bargaining policies that led to disparity
in sentencing. Id. at 15-16, 17, 19. We concluded that the Attorney General
should adopt new guidelines to assure uniformity among the twenty-one counties. In reaching
that outcome, the Court reviewed its prior decisional law, concluding that
the Vasquez/Lagares line of cases held that judicial review of prosecutorial decisions through
uniform written guidelines was necessary not only to meet the requirements of the
separation of powers doctrine, but also to comport with the statutory goal of
increasing uniformity in sentencing.
[Id. at 13.]
I urge the Attorney General to promulgate guidelines to assist prosecutors in choosing
whether to prosecute a defendant under N.J.S.A. 2C:24-4a or N.J.S.A. 9:6-3. The guidelines
need not be Byzantine or prolix, but sufficient to guide the discretion of
prosecutors so that rational distinctions are made in applying the appropriate statute. Without
such guidance, it is inevitable that glaring disparities will arise as different prosecutors
and different prosecutor’s offices choose between the two statutes based on personal preference
or philosophy rather than an objective distinction. A proper respect for the function
of coordinate branches of government, the judiciary and the executive, can be achieved
by standards that promote uniform sentencing policies. Guidelines that facilitate fairness in the
charging process and, therefore, fairness in sentencing with respect to those statutes will
likely avert a future constitutional challenge.
Justice Long joins in this opinion.
SUPREME COURT OF NEW JERSEY
NO. A-130 SEPTEMBER TERM 2001
ON CERTIFICATION TO Appellate Division, Superior Court
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
D.A.V.,
Defendant-Appellant.
DECIDED May 29, 2003
Chief Justice Poritz PRESIDING
OPINION BY Per Curiam
CONCURRING OPINION BY Justice Albin
DISSENTING OPINION BY
CHECKLIST