On Aug. 9, 2018, our Supreme Court handed down a decision in State v. Fuqua that we believe was in error as set forth in the dissents of Chief Justice Rabner and Justice Albin (joined in by Justice LaVecchia).
In this 4-3 decision, the court held that to convict a defendant of the second-degree crime of endangering the welfare of a child under N.J.S.A. §2C:24-4(a), the state did not have to prove that a child suffered actual harm. Rather, it was sufficient for the state to prove that a child was exposed to a “substantial risk of harm.” Accordingly, the court affirmed denial of the defendant’s motion for a judgment of acquittal.
The facts are straightforward. Having obtained a search warrant, police officers entered a motel room rented by two suspected drug dealers. They found six children, ages one to 13, the smell of burnt marijuana, hundreds of bags of heroin and cocaine, bottles of pills, drug paraphernalia, over $2,000 in cash, and children’s shoes and toys nearby. No actual harm to any child had occurred or was alleged, but the Appellate Division concluded that the children were exposed to a “substantial risk of harm” and were in “imminent danger” because they could have ingested accessible drugs. One defendant pleaded guilty to drug distribution charges and was not a subject of this decision. The other was convicted of the second-degree offense of endangering the welfare of children and sentenced to six years in prison, rather than the fourth-degree offense of abuse and neglect under N.J.S.A. §9:6-3, under which her exposure would have been less.
The statute that is the subject of this decision, N.J.S.A. §2C:24-4(a)(2), reads in pertinent part: “Any person having a legal duty for the care of a child or who has assumed responsibility for the care of a child who causes the child harm that would make the child an abused or neglected child as defined in [N.J.S.A.] 9:6-1, [N.J.S.A.] 9:6-3 and … [N.J.S.A. 9:6-8.21] is guilty of a crime of the second degree.”
The majority opinion considered the Title 9 sections referenced in this statute to be “linchpins to the statute’s applicability to this case.” But on the statute’s face, this does not seem to be correct because those Title 9 sections are all prefaced by the phrase “who causes the child harm.” In other words, they are limitations on the type of actual “harm” that can constitute this crime, not an additional and separate basis to impose a second-degree penalty or a negation of the requirement for “harm.”
The two dissents are well grounded. Chief Justice Rabner states simply that at best, the statute in question is subject to two different reasonable interpretations and so therefore, because this is a criminal statute, the rule of lenity applies, requiring courts “to construe penal statutes strictly and interpret ambiguous language in favor of a criminal defendant.” Justice Albin takes the majority to task in particularly harsh language, saying that it “ignores the common usage of words, fails to acknowledge … differences between the two statutes, disregards … legislative history, pays no heed to the doctrine that criminal statutes are to be narrowly construed, and accepts as ‘sound precedent’ wrongly decided Appellate Division decisions … .” His discussion of legislative history is persuasive and clear, and he concludes by saying, as did Chief Justice Rabner, that at the very least, there are two reasonable interpretations of the criminal endangering statute and so the doctrine of lenity should have been applied. He concludes by warning that now, with this decision, a parent or guardian who violates the civil abuse and neglect statute is also guilty of the second-degree crime of endangering, carrying a maximum prison exposure of 10 years, and so, as he says, the majority wrongly “has criminalized” this civil statute.
While we think, along with Justice Albin, that the statute, as written, clearly requires actual harm, now that Fuqua has clouded its meaning, we urge the legislature to take up this issue and amend N.J.S.A. §2C:24-4(a) to overrule Fuqua and make even clearer the legislative intent to differentiate between the penalties applicable when a child has suffered actual harm at his or her caretaker’s hands, or simply been put at risk of never-suffered harm. Actual harm to the child should be required before a defendant is subject to a prison sentence of as much as 10 years.