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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-2357-18






                   Submitted January 20, 2021 – Decided February 12, 2021

                   Before Judges Fisher and Gilson.

                   On appeal from the Superior Court of New Jersey, Law
                   Division, Hudson County, Indictment No. 17-02-0117.

                   Joseph E. Krakora, Public Defender, attorney for
                   appellant (Laura B. Lasota, Assistant Deputy Public
                   Defender, of counsel and on the brief).

                   Gurbir S. Grewal, Attorney General, attorney for
                   respondent (William P. Cooper-Daub, Deputy Attorney
                   General, of counsel and on the brief).

      Defendant was convicted, at the conclusion of a jury trial, of second-

degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), which

prohibits a person "having a legal duty for the care of a child or who has assumed

responsibility for the care of a child" from engaging in "sexual conduct" that

"would impair or debauch the morals of the child." He was acquitted of first-

degree aggravated sexual assault and second-degree sexual assault, charges that

were based on the same conduct that formed the basis for the child-

endangerment conviction.

      The alleged victim was A.K.D. (Alice, a fictitious name), who, at the time

in question, was the ten-year-old daughter of defendant's girlfriend. Defendant

argues: the motion judge erroneously admitted Alice's out-of-court statements;

the trial judge erred by failing to charge the jury more specifically about its need

to reach a unanimous finding concerning the particular "sexual conduct" it might

find in deciding the child-endangerment count; the trial judge should have

downgraded the second-degree conviction to the third-degree range, claiming

the judge failed to apply other mitigating factors and should have concluded that

the mitigating factors substantially outweighed the aggravating factors; the

judge erroneously imposed a sex crime victim treatment fund penalty without

determining defendant's ability to pay; and the judge "imposed an illegal certain

sexual offenders surcharge" under N.J.S.A. 2C:43-3.7. We reject the first three

arguments but, as the State also recognizes, mistakes were made about the

monetary aspects of the sentence that require a remand for further proceedings

and entry of an amended judgment of conviction.

        In February 2017, defendant was charged with first-degree aggravated

sexual assault, N.J.S.A. 2C:14-2(a)(1), second-degree sexual assault, N.J.S.A.

2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A.

2C:24-4(a)(1),1 alleged to have occurred at various dates between September 20,

2015, and September 1, 2016, when Alice was ten years old.

        In June 2017, Judge Mitzy Galis-Menendez conducted a hearing at which

she reviewed the recorded statement Alice gave to police and denied defendant's

motion to exclude that statement under N.J.R.E. 803(c)(27). The following

month, after hearing testimony from V.B. (Vicki, a fictitious name),2 to whom

Alice spoke about the events alleged in the indictment, the judge determined

those statements could also be admitted at trial under N.J.R.E. 803(c)(27).

 A fourth count, charging fourth-degree child abuse, N.J.S.A. 9:6-1 and 9:6-3,
was dismissed prior to trial.
    Vicki is five years older than Alice. They have the same father.
      A seven-day trial took place in February 2018. At its conclusion, the jury

acquitted defendant of aggravated sexual assault and sexual assault but

convicted him of child endangerment. Defendant later moved for a judgment of

acquittal, arguing that the acquittal on the other counts precluded a conviction

of child endangerment. The trial judge denied that motion for reasons expressed

in a written opinion.

      Defendant was sentenced on December 11, 2018. The judge rejected

defendant's request to be sentenced as a third-degree offender and imposed a

six-year prison term. Among other things, the judge imposed a $100 Certain

Sexual Offenders (CSO) surcharge, N.J.S.A. 2C:43-3.7, and a $500 Sex Crime

Victim Treatment Fund (SCVTF) penalty, N.J.S.A. 2C:14-10.

      Defendant appeals and, as noted above, argues that (1) the motion judge

erroneously admitted Alice's statements to police and to Vicki; (2) the trial judge

erroneously failed to provide the jury with specific unanimity instructions as to

the child endangerment charge; and (3) the trial judge erred in a number of

respects when he sentenced defendant.


      Defendant's first argument about the admissibility of Alice's out-of-court

statements is without merit.       Judge Galis-Menendez applied the correct

standards, and properly exercised her discretion, State v. Scharf, 

225 N.J. 547


575 (2016), in determining that the statements were sufficiently trustworthy to

be admitted under the hearsay exception described in N.J.R.E. 803(c)(27).

      Hearsay, of course, is "a statement that the declarant does not make while

testifying . . . offer[ed] in evidence to prove the truth of the matter asserted in

the statement," N.J.R.E. 801(c), and is inadmissible unless the rules provide an

exception, N.J.R.E. 802.      N.J.R.E. 803(c)(27) allows the admission of a

statement made by a child under the age of twelve "relating to sexual

misconduct" on a finding of three conditions. The first is the requirement that

the proponent give notice of an intention to use the statement, N.J.R.E.

803(c)(27)(a), which was satisfied here. The second requires that the judge

conduct a hearing, pursuant to N.J.R.E. 104(a) – as occurred here – and, before

admitting such a statement, determines there is a "probability that the statement

is trustworthy" "on the basis of the [statement's] time, content and

circumstances." N.J.R.E. 803(c)(27)(b). The third requires, as pertinent here,

that the child testify. N.J.R.E. 803(c)(27)(c). Alice testified at trial.

      In this case, the focus is on the second condition and whether the judge

properly concluded that the statements were trustworthy. Defendant argues that

the judge failed to "comprehensively consider the trustworthiness factors

enumerated in our jurisprudence." We disagree.

       Our Supreme Court relied on Idaho v. Wright, 

497 U.S. 805

, 821-22

(1990), in describing the relevant factors as "spontaneity, consistent repetition,

mental state of the declarant, use of terminology unexpected of a child of similar

age, and lack of motive to fabricate." State v. P.S., 

202 N.J. 232

, 249 (2010);

see also State in Interest of A.R., 

234 N.J. 82

, 103 (2018). The judge thoroughly

considered these factors.

       In finding trustworthy Alice's statements to Vicki, the judge described the

circumstances, noting that Alice had first spoken to S.B. (Sarah, a fictitious

name), Vicki's younger sister.3 Vicki recounted how Sarah and Alice came to

her with this information. As the judge explained in her findings, "[o]bviously

the information was . . . too much" for Sarah "to handle as she told [Vicki] she

didn't know what to do with it." So, in the company of Alice, Sarah went to

Vicki and told Alice to repeat what she had just said to her. Alice told Vicki

that defendant "raped" her. Vicki then asked Alice what she meant by that; in

her testimony at the N.J.R.E. 104(a) hearing, Vicki described this discussion:

              And I said, what do you mean, raped? And she's like
              [defendant] touched me in places. And I was like, like,

    Sarah is approximately two years older than Alice.
             did he touch you in your private spot and stuff like that?
             And she was like, yeah, he did everything to me. And
             then I didn't know what to do, so after I asked her all
             the questions, I was like, asking her, like, are you sure
             about this? Are you sure he touched you there? And
             she's like, yeah, he did everything.

Vicki was asked at the hearing what Alice said when Vicki asked her where she

was touched, and responded that Alice said, "wherever you can think of, he

touched me." The judge determined there was no suggestiveness, that the words

Alice used were words not uncommon for a child of Alice's age, and that there

was no apparent motive for Alice to make such an accusation.

      Following what Alice divulged, Vicki reached out to her mother, and soon

after Alice was interviewed by a police officer. That interview was recorded,

and the judge found that it, too, was reliable. The judge concluded the tone of

questioning was "very conversational," and the officer did not prompt the child

in a way to elicit particular responses.       Those findings are entitled to our


      For these reasons, and substantially for the reasons set forth by Judge

Galis-Menendez in her oral decisions at the conclusion of both N.J.R.E. 104(a)

hearings, we reject defendant's first point.


      The judge charged the jury that its verdict had to be unanimous. In his

second point, defendant contends that the judge should have more specifically

instructed the jury that to convict on the child-endangerment count, they needed

to be unanimous on what particular "sexual conduct" formed the basis for the


      An essential ingredient of a fair trial is the judge's obligation to accurately

instruct the jury on how to apply the law. State v. Maloney, 

216 N.J. 91

, 104-

05 (2013); State v. Green, 

86 N.J. 281

, 287 (1981). Rule 1:8-9, which has

constitutional underpinnings, see State v. Parker, 

124 N.J. 628

, 633 (1991),

requires that a "verdict shall be unanimous in all criminal actions." As a result,

courts must be vigilant in ensuring that guilty verdicts are not rendered on a

jury's "patchwork" view but on a "shared" view of the evidence.

Id. at 636-37.

In this regard the Parker Court recognized that "the unanimous jury requirement

'impresses on the trier of fact the necessity of reaching a subjective state of

certitude on the facts in issue.'"

Id. at 633

(quoting In re Winship, 

397 U.S. 358


364 (1970)).

      Normally, the unanimity charge given here, which merely instructed the

jurors that they all had to agree on their verdict, will suffice. But a judge must

do more "where there is a danger of a fragmented verdict." State v. Frisby, 

174 N.J. 583

, 597-98 (2002) (quoting 

Parker, 124 N.J. at 637

). The Supreme Court

has provided examples, advising that this danger might arise when:

            (1) a single crime could be proven by different theories
            supported by different evidence, and there is a
            reasonable likelihood that all jurors will not
            unanimously agree that the defendant's guilt was
            proven by the same theory; (2) the underlying facts are
            very complex; (3) the allegations of one count are either
            contradictory or marginally related to each other; (4)
            the indictment and proof at trial varies; or (5) there is
            strong evidence of jury confusion.

            [State v. Cagno, 

211 N.J. 488

, 517 (2012) (quoting

Parker, 124 N.J. at 635-36


We find none of these circumstances were present and there was no concern

about a fragmented verdict here.

      By way of explanation, a relatively simple example is that of an alleged

robbery. To convict a defendant of robbery, a jury must find that the defendant,

in the course of committing a theft, inflicted bodily injury or used force "upon

another." N.J.S.A. 2C:15-1(a)(1). In State v. Gentry, 

370 N.J. Super. 413

, 416

(App. Div. 2004), we considered a jury inquiry, made during deliberations,

about whether they could convict the defendant of robbery if one group of jurors

thought force was used on a person inside the store while another group thought

force was used on a different person in the vestibule and outside the store. The

trial judge instructed that if all jurors found that force was used it didn't matter

if they disagreed about which person was victimized by that force.

Id. at 417.

A majority of this court agreed with the trial judge and held that the jury was

not required to agree on that fact

, id. at 425,

but the Supreme Court reversed,

adopting Judge Coburn's dissent

, id. at 426,

in holding the jury was required to

agree on the identity of the victim of the defendant's use of force, State v. Gentry,

183 N.J. 30

, 33 (2005).

      Unlike Gentry – where the operative facts occurred in a short span of time,

in the same vicinity, and provided a clear choice for the jury between two

possible events – prosecutions under N.J.S.A. 2C:24-4(a) present their own

difficulties about unanimity. In 

Frisby, 174 N.J. at 587

, the defendant was

convicted of second-degree endangering under N.J.S.A. 2C:24-4(a), in

connection with the death of her son. At trial, the State offered two theories:

the defendant either inflicted the injuries, or she abandoned her son.

Id. at 598.

In recognizing the jury was asked to consider "[d]ifferent theories . . . based on

different acts and entirely different evidence," the Court concluded that the

absence of a specific unanimity charge allowed for "a non-unanimous patchwork


Id. at 599.

The Court concluded that, even in the absence of evidence

that the jury reached a patchwork verdict, the argument that such evidence is

required "dices the notion of jury confusion referred to in our unanimity case

law too finely."

Ibid. In State v.


347 N.J. Super. 219

, 241 (App. Div. 2002), which

preceded the Court's holding in Frisby,4 we concluded that a specific unanimity

charge was not required where the defendant was charged with abusing or

neglecting her child, over the course of sixteen months, in three ways: hitting

him with a belt; restraining him through installation of an alarm on the door to

his room; and withholding food. We viewed these three categories of abuse as

"conceptually similar" because they all "degrad[ed]" the child and were all

"'parts of defendant's plan to abuse and torture'" the child.

Id. at 242-43.


thus harmonized that conclusion with 

Parker, 124 N.J. at 639

, where a teacher

was charged with official misconduct based on allegations that:         "she had

exhibited sexually explicit magazines to students"; "caused her students to make

collages from photographs in those magazines"; and "discussed her own and

others' sexual proclivities with her students." 

T.C., 347 N.J. Super. at 242-43


Parker, 124 N.J. at 631-32

). In Parker, the Court held there was no danger

of a patchwork verdict in those 

circumstances. 124 N.J. at 641-42


  The Frisby Court neither endorsed nor rejected T.C., holding only that it was

distinguishable. 174 N.J. at 599-600

      Despite the many attempts to categorize cases in which specificity is

required, the Supreme Court has recognized that, in the final analysis, juries

must be unanimous on the "material facts" and "only common sense and

intuition can define the specificity with which the jury must describe the

defendant's conduct before it may convict." 

Parker, 124 N.J. at 634


Note, Right to Jury Unanimity on Material Fact Issues: United States v. Gipson,

91 Harv. L. Rev. 499, 502 (1977)). In adhering to both the letter and spirit of

our unanimity jurisprudence, particularly the Court's decision in Parker and our

own decision in T.C., we find it unlikely the jury was confused or that the

absence of a more specific unanimity instruction was capable of producing an

unjust result.5

  We note that defendant argued in the trial court – but not here – that the child-
endangerment conviction should be set aside because it was inconsistent with
the acquittals. To find an aggravated sexual assault, the jury was required to
find beyond a reasonable doubt that defendant "commit[ted] an act of sexual
penetration," N.J.S.A. 2C:14-2(a) (emphasis added), and to convict on the
second-degree sexual assault charge, the jury was required to find that defendant
"committed an act of sexual contact," N.J.S.A. 2C:14-2(b) (emphasis added).
While the child-endangerment statute narrows the scope of potential offenders
– those persons who "have a legal duty for the care of a child" – it casts a wider
net as to the conduct that constitutes a violation: engaging "in sexual conduct
which would impair or debauch the morals of the child." N.J.S.A. 2C:24-4(a)(1)
(emphasis added). "Sexual conduct" is not defined but is understood as
including those things prohibited by N.J.S.A. 2C:14-2(a) and N.J.S.A. 2C:14-
2(b), and more. So, if the conduct prohibited by all three of these statutes were


      Defendant presents several arguments about the sentence imposed. He

first argues that the judge should have sentenced him as a third-degree offender

because the mitigating factor found – including mitigating factor seven, N.J.S.A.

2C:44-1(b)(7), that defendant had no prior history of criminal activity and had

lived a law-abiding life for a substantial period – substantially outweighed

aggravating factors two, N.J.S.A. 2C:44-1(a)(2), which focuses on the particular

victim's vulnerabilities, and nine, N.J.S.A. 2C:44-1(a)(9), the need for

deterrence of the defendant and others.

presented as a Venn diagram, sexual penetration and sexual contact would
constitute smaller circles completely enveloped by a larger sexual conduct
circle. The evidence presented only aimed for those smaller circles. And the
judge charged the jury that the State's evidence of "sexual conduct" was the same
as the evidence offered to support the charges of aggravated sexual assault and
sexual assault. The jury found that same evidence insufficient on the first two
counts but sufficient to support the "sexual conduct" element of the child
endangerment statute. This result invites a legitimate question: by what logic
could the jury find the only evidence offered – evidence about sexual penetration
and sexual contact – was not proven on the first counts but proven on the child-
endangerment count? The answer, as the trial judge held in denying defendant's
motion for acquittal, is simply that the verdict does not have to be logical, as we
have held in precisely the same circumstances. See, e.g., State v. Overton, 

357 N.J. Super. 387

, 397 (App. Div. 2003). That holding was well supported by a
long line of higher court decisions that recognize courts should not attempt to
rationalize or set aside inconsistent verdicts so long as there is evidence in the
record – as there was here – to support the conviction. United States v. Powell,

469 U.S. 57

, 65 (1984); State v. Ingenito, 

87 N.J. 204

, 211-12 (1981).
      Defendant argues that in applying aggravating factor two, the judge

engaged in "double-counting" because the conviction itself included that

circumstance. See, e.g., State v. C.H., 

264 N.J. Super. 112

, 140 (App. Div.

1993) (finding error in applying aggravating factor two where the victim's age

was what raised the sexual assault conviction to a first-degree offense); State v.


207 N.J. Super. 363

, 367 (App. Div. 1986) (finding that because the

victim's age and defendant's parental relationship were elements of aggravated

sexual assault, they could not support aggravating factors). To be sure, in

sentencing defendant, the judge observed "[t]his was a young child," defendant

was "her mother's paramour," twenty years older, and defendant was in a place

of trust due to his relationship as "paramour" of the child's mother – facts that

formed elements or parts of the elements of a child-endangerment conviction.

But the judge also found that the child was "undergoing" difficulties arising from

her place in a fragmented family, as well as the child's "lack of stability in her

life, all of which made her all the more vulnerable to [defendant's] attacks." We

are satisfied that the judge was entitled to find aggravating factor two here.

      We also conclude that the judge was entitled to reject application of the

other mitigating factors urged by defendant. Defendant argues that mitigating

factors eight, nine, and eleven should have been applied. N.J.S.A. 2C:44-1(b)(8)

applies when a defendant's conduct "was the result of circumstances unlikely to

recur"; the judge responded to this argument by finding that the circumstances

did recur because, in the judge's view, the conduct for which defendant was

convicted occurred on multiple occasions.         The judge found as well that

mitigating factor nine, N.J.S.A. 2C:44-1(b)(9) (defendant's "character and

attitude . . . indicate . . . he is unlikely to commit another offense"), and eleven,

N.J.S.A. 2C:44-1(b)(11) (imprisonment "would entail excessive hardship" to the

defendant or dependents), did not apply. As to the former, the judge found there

was nothing in the record to support its application and, while noting that

imprisonment is always a hardship, the judge found no evidence of an excessive

hardship on defendant or his dependents, since defendant's wife was working

and supporting their child. We have been provided with no principled reason to

reject the judge's findings on these mitigating factors.

      In short, we conclude that the judge's findings and application of

aggravating factors two and nine, and mitigating factor seven, were appropriate

and supported by the record, and that the judge was entitled to conclude from

his reasonable analysis of all the determined factors that the one mitigating

factor did not substantially outweigh the aggravating factors.

      Defendant's second and third arguments concern monetary aspects of the

sentence imposed. He argues that the judge erred in imposing a $500 SCVTF

penalty, under N.J.S.A. 2C:14-10(a)(2), without considering defendant's ability

to pay or the nature of the offense and without providing a reason for his

determination. Defendant also argues that the judge erred in imposing a CSO

surcharge under N.J.S.A. 2C:43-3.7, because that statute permits a surcharge

only when the defendant has been convicted of "an act of aggravated sexual

assault or sexual assault" under N.J.S.A. 2C:14-2, or "aggravated criminal

sexual contact or criminal sexual contact" under N.J.S.A. 2C:14-3.

      The State agrees with defendant's correct positions on both these monetary

assessments. Accordingly, we remand for further proceedings on the SCTVF

assessment and for an amended judgment of conviction that does not contain a

CSO surcharge under N.J.S.A. 2C:43-3.7.


      Affirmed but remanded only for further proceedings regarding the

sentence and the entry of an amended judgment of conviction. We do not retain



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