Justice Walter Timpone / Photo by Carmen Natale

In order to obtain a conviction for endangering the welfare of a child, prosecutors need not prove that the child sustained actual harm, but only that there was a substantial likelihood that harm could result from the parent’s or guardian’s action, a divided New Jersey Supreme Court has ruled.

In a 4-3 ruling, the majority said there was abundant support in case law to hold that a showing of actual harm is not mandatory to sustain a conviction under the statute.

Justice Walter Timpone, writing for the majority in State v. Fuqua on Aug. 9, said a trial judge was correct in denying Danyell Fuqua’s bid to dismiss the endangering charge based on the contention that no harm came to the six children that were under her care.

“Relying on ample precedent the court held that the state need only prove, and did prove, that a child faced a ‘risk’ of harm sufficient to convict,” Timpone said.

Chief Justice Stuart Rabner and Justice Barry Albin dissented, in two separate opinions.

According to the decision, Fuqua was the girlfriend of  a man, Tyrell Johnson, who was the target of a drug investigation by Middlesex County law enforcement in September 2011. Law enforcement then executed a search warrant on a motel room that December.

In the motel room, officers found marijuana, heroin, pills and other drug paraphernalia, and also present were six children, ages 1 to 13, the ruling said.

Both Johnson and Fuqua were charged with endangering and multiple drug offenses.

Johnson eventually pleaded guilty, but Fuqua opted to go to trial.

After the judge denied her motion to dismiss the endangerment charges, she was convicted and sentenced to six years in prison, according to the court.

The Appellate Division rejected the defense arguments that there had to be a showing of actual harm.

The majority agreed, holding that only a showing of risk of harm was needed.

“Not one published opinion holds otherwise,” Timpone said. “We find no reason to disturb the decades-old sound precedent predicated on the plain language of the statute.”

Timpone said there was a commonsense reason why actual harm need not be a prerequisite for a conviction.

“Children are naturally curious and inquisitive,” Timpone said. “Drugs hauntingly surrounded children’s toys and clothing. The easy access to cocaine, heroin and marijuana, and the attraction of brightly colored pills, all created a potentially lethal trap for the children that could have sprung at any moment.”

Rabner, in his dissent, said the Legislature did not make its intent clear when it enacted the statute, and that the courts should therefore give it a narrow interpretation.

Albin said the majority’s ruling gives prosecutors license to base a criminal charge on what is a civil law definition of endangerment. Justice Jaynee LaVecchia joined in the dissent.

Fuqua’s attorney, Assistant Deputy Public Defender Matthew Astore, said he was disappointed with the ruling. “The court is saying there is no distinction between actual harm and the risk of harm.”

Middlesex County Prosecutor Andrew Carey issued a statement.

“We appreciate the decision from the Supreme Court, which will enable law enforcement statewide to best protect the safety of our children,” Carey said.