State v. Vasquez-Merino

• Decision Date: 04 May 2023
• Docket Number: A-2269-21
• Parties: STATE OF NEW JERSEY, Plaintiff-Appellant, v. ANGEL VASQUEZ-MERINO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

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STATE OF NEW JERSEY, Plaintiff-Appellant, v. ANGEL VASQUEZ-MERINO, Defendant-Respondent.

No. A-2269-21

Superior Court of New Jersey, Appellate Division

May 4, 2023

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

Submitted December 12, 2022

On appeal from the Superior Court of New Jersey, Law Division Middlesex County, Indictment No. 20-12-0494.

Yolanda Ciccone, Middlesex County Prosecutor, attorney for appellant (Patrick F. Galdieri, II, Assistant Prosecutor, of counsel and on the brief).

Joseph E. Krakora, Public Defender, attorney for respondent (Stefan Van Jura, Assistant Deputy Public Defender, of counsel and on the brief).

Before Judges Gooden Brown and DeAlmeida.

PER CURIAM

The State appeals from the February 18, 2022 order of the Law Division dismissing a seven-count indictment against defendant Angel Vasquez-Merino with prejudice. We reinstate two counts of the indictment and reverse the February 18 2022 order to the extent that it dismisses the remaining counts of the indictment with prejudice.

I.

In 2020, an assistant prosecutor called a single witness, a detective employed by the prosecutor's office, to testify before a grand jury with respect to seven proposed charges against defendant. Through a series of leading questions, the detective confirmed statements given to her and other investigators by defendant, then twenty-two years old, the two victims, S.B., then twelve years old, and her sister V.O., then seven years old, and two adult witnesses, Andrazette Ramirez and Kalen O'Donnell.^[1] The detective recounted the following.

S.B. reported that on July 1, 2020, defendant followed her and V.O. as they walked along a New Brunswick sidewalk. He asked the girls where they were going and if S.B. "needed company." Defendant stopped the girls by a supermarket where he told S.B. that "she shouldn't be running" and that she "was too pretty to be running" while looking at her legs. S.B. felt scared and uncomfortable. Defendant then reached over and touched S.B.'s hair with his hand. He asked if S.B. "wanted to go to the store to get water." S.B. said no.

V.O. corroborated S.B.'s account of their interaction with defendant. She added that defendant was on a bicycle and when he started following the girls, they went from walking to running to get away from him. V.O. heard defendant say, "why are you running? You shouldn't be running because you're so pretty" and "do you want to go to the store to get water?"

Ramirez and O'Donnell saw the interaction between defendant and the girls. They reported that they observed the girls run past them followed by "an older male on a bike." They watched defendant talk to the girls and touch S.B.'s head. They then asked the girls if they knew defendant. S.B. responded that they did not know defendant and he had been following them. The witnesses waved to police for assistance and O'Donnell took a photograph of defendant before he fled. S.B. and V.O. confirmed that the witnesses approached them, asked if they knew defendant, and took a photograph of defendant.

S.B. also reported that six days later, on July 7, 2020, she saw defendant in front of her apartment building. According to S.B., defendant said "Hi. Do you remember me?" S.B. told her mother that defendant was the same man who followed her earlier. S.B.'s mother told her to call the police, which S.B. did. S.B. later identified defendant.

Defendant admitted to the detective that he followed S.B. and V.O. on his bicycle while they walked down the sidewalk on July 1. He said that he asked S.B. "how are you?" and "where are you going?" Defendant initially stated that he touched S.B.'s shoulder, but upon further questioning conceded that he touched her hair. Defendant also admitted being "interested in S.B." and that he thought she was "cute." He said that he was confronted by a woman who yelled at him, which caused him to leave the scene. Defendant also admitted that he saw S.B. on July 7, asked her "are you the same girl as before?" and told her that she "was bad for calling the police on" him.

The grand jury indicted defendant, charging him with: (1) second-degree luring, N.J.S.A. 2C:13-6(a) (S.B. on July 1) (count one); (2) third-degree endangering the welfare of a child by engaging in sexual conduct, N.J.S.A. 2C:24-4(a)(1) (S.B. on July 1) (count two); (3) second-degree luring, N.J.S.A. 2C:13-6(a) (V.O.) (count three); (4) third-degree endangering the welfare of a child by engaging in sexual conduct, N.J.S.A. 2C:24-4(a)(1) (V.O.) (count four); (5) second-degree luring, N.J.S.A. 2C:13-6(a) (S.B. on July 7) (count five); (6) third-degree endangering the welfare of a child by engaging in sexual conduct, N.J.S.A. 2C:24-4(a)(1) (S.B. on July 7) (count six); and (7) fourth-degree stalking, N.J.S.A. 2C:12-10(b) (S.B. on July 7) (count seven).

Defendant moved to dismiss the indictment with prejudice. He argued the State failed to make a prima facie showing to the grand jury of the following elements of the charged offenses: (1) intent to commit a criminal offense against either S.B. or V.O. for the three luring counts; (2) knowing engagement in sexual conduct with a child for the three child endangerment counts; and (3) purposeful or knowing engagement in a course of conduct directed at a specific person for the stalking count.

The trial court issued a written opinion granting defendant's motion. With respect to the three luring counts, the court noted that one element of luring is that the defendant attempted "to lure or entice a child . . . into a . . . structure or isolated area, or to meet or appear at any other place . . . ." N.J.S.A. 2C:13-6(a). The court concluded that "the State provided no evidence to suggest that the defendant attempted to 'lure' the victims anywhere on either" July 1 or July 7. The court characterized the evidence relating to July 1 as suggesting only that defendant attempted to speak to the victims and followed them in order to ask if they wanted to go into a supermarket to get water. The court found that the evidence relating to July 7 suggests "the defendant did nothing more than launch a single innocuous inquiry towards the older girl upon seeing her from an unidentified distance in front of her home, and nothing more."

In addition, the court found that the State did not make a prima facie showing of another element of luring, that the attempt to lure was made "with a purpose to commit a criminal offense with or against the child." Ibid. The court reasoned that

[t]he discovery does provide that the defendant admitted to liking the older of these two sisters, and so the motivation for approaching them seems clear. What the discovery does not provide is any evidence of what the defendant was attempting to do . . . . Without more, it is also clear that the crux of this presentation is premised upon unsupported speculation concerning the defendant's intent based simply on the difference in age and gender between the defendant and these sisters, the older of which he had expressed a liking to.

The court further explained,

[w]hile likely an interaction a parent would not endeavor to entertain nor tolerate, the State fails to satisfy this second prima facie element as they cannot identify, and are barred from inferring the existence of, an unprotected and non-public space to which the girls were to be drawn away . . . in either instance . . . . The conversation recounted by the State makes clear that only the store they stood in front of was the location referenced and for an expressed non-criminal purpose (i.e., buying them water). How the charge would be deemed applicable in the second instance when no invitation was extended and only a simple question was posed to the older sister is even more baffling.

The court found that the State failed to instruct the jury as to the particular crime it alleged defendant intended to commit after luring the victims to a non-public space, invalidating the luring counts of the indictment. "This remains especially true," the court reasoned,

where the evidence proffered reasonably suggests the possibility of an innocent purpose, as in this case . . . . Without such an instruction, jurors would be allowed unbridled autonomy in determining criminal purpose and to speculate whether the defendant's purpose, which they may have deemed to be wrongful, was not only unlawful but criminal.

Thus, the court concluded, the grand jurors were allowed "to speculate as to a criminal purpose they could impute to defendant's actions . . . based upon their own notions of inappropriate conduct which they could impermissibly equate with criminality . . . ."

With respect to the three endangering counts, the court found that the evidence produced by the State relating to July 1 does not "identify a requisite sexual component to the interaction . . . beyond the age and gender of" defendant and the victims. The court found that the evidence relating to July 7, "fails even further to satisfy the elements of this charge." Absent evidence "of the forbidden prurient interest attached to such actions" the encounter between defendant and S.B. on that date was insufficient, the court found, to constitute prima facie evidence of sexual conduct.

The trial court did not address the stalking charge. However, the court found that the manner in which the State presented evidence to the grand jury with respect to all of the charges was defective. Although acknowledging that an indictment may be based solely on hearsay testimony, the court concluded that the grand jury could not perform its...