In re State D.M.

• Citation: 238 N.J. 2,207 A.3d 250
• Decision Date: 14 May 2019
• Docket Number: 079999,A-30 September Term 2017
• Parties: STATE IN the INTEREST OF D.M., a Juvenile
• Court: United States State Supreme Court (New Jersey)

238 N.J. 2
207 A.3d 250

STATE IN the INTEREST OF D.M., a Juvenile

A-30 September Term 2017
079999

Supreme Court of New Jersey.

Argued October 22, 2018
Decided May 14, 2019

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).

JUSTICE PATTERSON delivered the opinion of the Court.

238 N.J. 6

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).

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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, 168 A.3d 1185 (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

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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

238 N.J. 8

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 [Z.Y.] suck his penis" and that D.M. had told Z.Y. to "put [D.M.'s] penis in his anus."

Z.Y.'s parents and sister took him to the police station, where he gave a videotaped statement to a police officer. Z.Y. recounted to the officer two incidents, both of which allegedly occurred in an outdoor stairwell of the school adjacent to the park. He stated that in the first incident, D.M. led him down the stairwell, which provided access to the school's basement. Z.Y. told the officer that D.M., with his pants down, asked Z.Y. to "suck his thingy," and

238 N.J. 9

that he "just did it for ... two seconds" before leaving the stairwell.

Z.Y. told the officer that a second alleged incident occurred two weeks after the first in the same stairwell. He said that on that occasion, D.M. repeatedly asked him to "suck [his] thingy." Z.Y. told the officer that he complied with D.M.'s request, "but [he] did it for only a second."

207 A.3d 254

Z.Y. said that it made him feel "a little bit weird" and that he quickly left the stairwell. Z.Y. said that the next day, D.M. asked him to go to the stairwell with him again, but that he had refused.

B.

Pursuant to N.J.S.A. 2A:4A-30, 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).

About one week before Z.Y. testified at trial, Z.Y. alleged for the first time a third incident. Z.Y. said that on the only occasion in which he had been inside D.M.'s home, D.M. took him to a secluded corner in the house and asked permission to "[p]ut his thing in [Z.Y.'s] mouth again." Z.Y. said that he complied.

At trial, the State had the burden to prove beyond a reasonable doubt the elements of N.J.S.A. 2C:14-2(a)(1). One of those elements is an act of "sexual penetration," defined as "vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction." N.J.S.A. 2C:14-2(a)(1) ; N.J.S.A. 2C:14-1(c).²

To prove that element, the State relied primarily on Z.Y.'s pretrial statement to the police officer, which was admitted into evidence pursuant to N.J.R.E. 803(c)(27), and on Z.Y.'s testimony

238 N.J. 10

before the Family Part judge at trial. At trial, Z.Y. testified about the two incidents reported in his statement. He added to his account of the first incident in the stairwell an allegation that, on that occasion, D.M. attempted anal penetration. Z.Y. said that it "hurt a little bit," that he told D.M. to stop, and that D.M. complied. Z.Y. also testified about the second alleged incident in the stairwell and the alleged incident at D.M.'s home.

On cross-examination, Z.Y. admitted using a video-chat application to try to contact D.M., and admitted sending D.M. a message on that application. A screenshot of the message, which read "[s]o 69, let me c ur cock," was admitted into evidence.

D.M. testified that all of Z.Y.'s allegations were false. He stated that Z.Y. persistently tried to contact him via the video-chat application and identified the explicit message as a message sent by Z.Y. to him. D.M. and two friends who testified on his behalf recounted incidents in which Z.Y. approached D.M. and others and made...