State v. Saad

• Decision Date: 27 November 2019
• Docket Number: DOCKET NO. A-4124-18T4
• Citation: 461 N.J.Super. 517,222 A.3d 713
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Saad A. SAAD, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

461 N.J.Super. 517

222 A.3d 713

STATE of New Jersey, Plaintiff-Appellant,

v.Saad A. SAAD, Defendant-Respondent.

DOCKET NO. A-4124-18T4

Superior Court of New Jersey, Appellate Division.

Argued October 10, 2019

Decided November 27, 2019

Monica Lucinda do Outeiro, Assistant Prosecutor, argued the cause for appellant (Christopher J. Gramiccioni, Monmouth County Prosecutor, attorney; Monica Lucinda do Outerio, of counsel and on the briefs; Heather A. Muh, Legal Assistant, on the brief).

Michael J. Pappa argued the cause for respondent (Rudnick Addonizio Pappa Casazza, PC, attorneys; Michael J. Pappa, of counsel and on the brief; Jeffrey Zajac, on the brief).

Before Judges Nugent, Suter and DeAlmeida.

The opinion of the court was delivered by

DeALMEIDA, J.A.D.

On leave granted, the State appeals from the April 8, 2019 order of the Law Division amending the five counts of a ten-count indictment against defendant Saad A. Saad charging him with second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). The amendment lowered the five counts to charge third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). We affirm.

I.

The State presented evidence to a grand jury that defendant, a pediatric surgeon, molested four teenage patients during and after medical examinations. The grand jury indicted defendant, charging him with five counts of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b), and five counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1). The child endangerment counts alleged defendant had a legal duty, or had assumed responsibility, for the care of the victims at the time of the sexual contact.

Defendant moved to dismiss the five counts charging him with endangering the welfare of a child. He argued the State could not make a prima facie showing he had a legal duty for the care of his victims or had assumed responsibility for their care, a statutory element of second-degree endangering the welfare of a child. In addition, defendant argued, the court lacked authority to amend the indictment to reduce the charges to third-degree counts, which do not have a legal duty or assumption of responsibility element. Defendant did not seek dismissal of the criminal sexual contact counts.

On April 8, 2019, the trial court granted the motion in part and denied the motion in part. In a written opinion, the court concluded that even when the evidence presented to the grand jury is viewed in the light most favorable to the State, defendant, while obligated to provide medical treatment to his victims, did not have a legal duty, and had not assumed responsibility, for the care of the victims within the meaning of N.J.S.A. 2C:24-4(a)(1).

The court also rejected the argument that N.J.A.C. 13:35-6.3(c), a regulation of the Board of Medical Examiners (BME) prohibiting sexual contact between a physician and his or her patient, created a legal duty for the care of the victims within the meaning of N.J.S.A. 2C:24-4(a)(1). The court found violation of the regulation subjects a physician to discipline by BME, but not criminal liability. Thus, the court concluded the State could not establish defendant committed second-degree endangering the welfare of a child.

The court found third-degree endangering the welfare of a child, also codified at N.J.S.A. 2C:24-4(a)(1), includes all the elements of second-degree endangering the welfare of a child, except for a legal duty or assumed responsibility for the care of the child. Therefore, the court concluded, the indictment put defendant on notice of third-degree endangering the welfare of a child charges. Because lowering the charges from second degree to third degree would benefit defendant, the court concluded amendment of the five counts to third-degree counts was permissible under Rule 3:7-4.¹

On April 8, 2019, the court entered an order amending the five counts of the indictment to charge third-degree endangering the welfare of a child.²

We granted the State's motion for leave to appeal. The State makes the following argument for our consideration:

THE LOWER COURT ERRED IN DISMISSING THE SECOND-DEGREE ENDANGERING ENHANCER BECAUSE THE DEFENDANT, A DOCTOR, HAD A LEGALLY-RECOGNIZED DUTY TO CARE FOR HIS VICTIM-PATIENTS.

Defendant did not seek leave to appeal the amendment of the indictment.

II.

The New Jersey Constitution provides that "[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury, except in cases" not applicable here. N.J. Const. art. I, ¶ 8. An indictment "informs[s] the defendant of the offense charged against him, so that he may adequately prepare his defense." Dorn, 233 N.J. at 93, 182 A.3d 938 (alteration in original) (quoting State v. LeFurge, 101 N.J. 404, 415, 502 A.2d 35 (1986) ). The indictment, therefore, must "allege[ ] all the essential facts of the crime" charged. State v. L.D., 444 N.J. Super. 45, 55, 130 A.3d 590 (App. Div. 2016) (quoting State v. N.J. Trade Waste Ass'n, 96 N.J. 8, 19, 472 A.2d 1050 (1984) ). In addition, the State must present proof to the grand jury of every element of an offense and allege those elements in the indictment. State v. Fortin, 178 N.J. 540, 633, 843 A.2d 974 (2004).

We review the evidence presented to the grand jury in a light most favorable to the State. State v. Morrison, 188 N.J. 2, 12-13, 902 A.2d 860 (2006). In addition, we review an order determining the sufficiency of an indictment for an abuse of discretion. State v. Tringali, 451 N.J. Super. 18, 27, 164 A.3d 1072 (App. Div. 2017). When that determination turns on a legal question, as is true here, our review is de novo. State v. Twiggs, 233 N.J. 513, 532, 187 A.3d 123 (2018).

The State argues the evidence presented to the grand jury, when viewed in a light most favorable to the State, establishes each element of the five counts of the indictment charging second-degree endangering the welfare of a child. N.J.S.A. 2C:24-4(a)(1) provides:

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 is guilty of a crime of the second degree. Any other person who engages in conduct or who causes harm as described in this paragraph to a child is guilty of a crime of the third degree.

At issue here is the statutory distinction between a second-degree offense and a third-degree offense under the statute, which depends on whether the State can prove the actor has "a legal duty for the care of a child or ... assumed responsibility for the care of a child ...." N.J.S.A. 2C:24-4(a)(1). Our Supreme Court has interpreted this provision narrowly.

In State v. Galloway, 133 N.J. 631, 638, 628 A.2d 735 (1993), Galloway was at his girlfriend's home when she left to run an errand. She left her three-month-old son with Galloway. Ibid. When the baby started crying, Galloway picked him up and violently shook him, causing injuries that lead to the child's death. Id. at 637-38, 628 A.2d 735. In addition to murder, Galloway was charged with what is now second-degree endangering the welfare of a child. Id. at 640, 628 A.2d 735.³ After his conviction, Galloway challenged a jury instruction that he could be found guilty if "on the basis of all of the surrounding circumstances," the jury found he had "assumed responsibility for the care of" the child. Id. at 658, 628 A.2d 735.

Finding the statute ambiguous, the Court examined its legislative history and discovered that when enacting N.J.S.A. 2C:24-4(a), the Legislature incorporated into the criminal code the existing law of abuse, abandonment, cruelty, and neglect of children as those terms were defined in Title 9. Id. at 659, 628 A.2d 735 (citing N.J.S.A. 9:6-1, -3, and -8.21). Title 9 pertains to offenses against children by a "person having the care, custody or control of any child." Ibid. After examining the relevant Title 9 provisions, the Court held:

[W]e can reasonably infer that the Legislature intended the crime of third [now second]-degree child endangerment to apply to a person who has "assumed the care of a child" or is "living with the child" or has a "general right to exercise continuing control and authority over" the child.

[ Ibid. ]

The Court noted an enhanced degree is warranted by the "profound effect on the child when the harm is inflicted by a parental figure in whom the child trusts." Id. at 661, 628 A.2d 735 (citing State v. Miller, 108 N.J. 112, 120, 527 A.2d 1362 (1987) ). Thus, the Court held the higher degree of the crime applies

to those who have assumed a general and ongoing responsibility for the care of the child. That responsibility may be legal and formal or it may arise from informal arrangements. It may be based on a parental relationship, legal custody, or on less-structured relations; or it may arise from cohabitation with the child's parent. The actor, however, must have established a continuing or regular supervisory or caretaker relationship with the child that would justify the harsher penalties of the [higher]-degree crime of child endangerment under N.J.S.A. 2C:24-4. Conversely, a person assuming only temporary, brief, or occasional caretaking functions, such as irregular or infrequent babysitting, would be chargeable with child endangerment in the [lesser] degree.

[ Id. at 661-62, 628 A.2d 735.]

In light of its holding, the Court concluded the evidence was insufficient to justify submission of the higher-degree charge to Galloway's jury. Id. at 662, 628 A.2d 735. As the Court explained, Galloway "did not live with or near" the child or the child's mother. Ibid. He had dated the mother for three months and visited her on a weekly basis. In addition, there was no evidence Galloway "had ever regularly, frequently, or continuously assumed the care of the child." Ibid. A jury, therefore, could not reasonably conclude he "assumed the kind of ongoing and continuous...