STATE OF NEW JERSEY VS. SAAD A. SAAD (17-10-1485, MONMOUTH COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2019 )

RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4124-18T4
STATE OF NEW JERSEY,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
November 27, 2019
v. APPELLATE DIVISION
SAAD A. SAAD,
Defendant-Respondent.
__________________________
Argued October 10, 2019 – Decided November 27, 2019
Before Judges Nugent, Suter and DeAlmeida.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Monmouth
County, Indictment No. 17-10-1485.
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).
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
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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
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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.
1
The sentencing exposure for a second-degree crime is between five and ten
years and for a third-degree crime between three and five years. N.J.S.A.
2C:43-6(a)(2) and (3). In addition, conviction of a second-degree crime
carries a presumption of imprisonment generally not applicable to a third-
degree crime. N.J.S.A. 2C:44-1(d) and (e). The degree of a crime is an
essential element of the charge that cannot be increased through amendment.
State v. Dorn, 233 N.J. 81, 95-96 (2018).
2
The April 8, 2019 order purports to both dismiss the five counts and to
amend those counts. Dismissal of an indictment and its amendment are
mutually exclusive forms of relief. State v. Blackman, 125 N.J. Super. 125,
129-30 (App. Div. 1973). If an "indictment fully and clearly informed [a]
defendant[] of the factual charges" against him, amendment to state "the
appropriate statute[] violated" is permitted, if doing so "would in no way
impair [his] ability to prepare [his] defense[] . . . ." Id. at 129. Dismissal is
justified when an indictment's "insufficiency has been palpably demonstrated."
Id. at 130. We interpret the April 8, 2019 order as amending the indictment.
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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 (alteration
in original) (quoting State v. LeFurge, 101 N.J. 404, 415 (1986)). The
indictment, therefore, must "allege[] all the essential facts of the crime"
charged. State v. L.D., 444 N.J. Super. 45, 55 (App. Div. 2016) (quoting State
v. N.J. Trade Waste Ass'n, 96 N.J. 8, 19 (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 (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 (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 (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 (2018).
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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 (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. In addition to murder, Galloway was charged with what is now
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second-degree endangering the welfare of a child. Id. at 640.3 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.
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, abandonme nt,
cruelty, and neglect of children as those terms were defined in Title 9. Id. at
659 (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.
3
At the time Galloway was charged, what is now second-degree endangering
the welfare of a child was a third-degree offense and applied to an actor with a
legal duty for the care of the child or who assumed the responsibility for the
care of the child and engaged in sexual conduct which would impair or
debauch the morals of the child or who "caused harm that would make the
child an abused or neglected child as defined in" Title 9. Id. at 657. In 1992,
the Legislature amended the statute to elevate the offense to second-degree
without changing the provisions of the statute regarding the actor's legal duty
or assumed responsibility for the care of the child. L. 1992, c. 6, § 1.
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[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 (citing State v. Miller, 108 N.J. 112, 120 (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.]
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. 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
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jury, therefore, could not reasonably conclude he "assumed the kind of
ongoing and continuous caretaking or supervisory responsibilities over the
child that would be essential to establish the" higher-degree charge. Ibid.
We have found only one published opinion in which an appellate court
held the legal duty for the care or assumption of responsibility element of
N.J.S.A. 2C:24-4(a)(1) had been established outside of a parent-child
relationship. In State v. McInerney, 428 N.J. Super. 432, 435 (App. Div.
2012), McInerney was the coach of a high school's baseball team, and head of
the school's baseball program. On several occasions, McInerney traveled out-
of-state with student members of sports teams. Id. at 436. He also took team
members on personal weekend trips to see professional baseball games in
Boston and Chicago, met at home with a boy who was thinking of joining the
team, regularly allowed students to stop at his house, hosted a party for a
student, and offered to drive students home after sporting events. Ibid.
McInerney employed one student in a business he operated outside of s chool
hours, and played tennis with students in his free time. Ibid.
One of McInerney's victims called him after midnight because he
consumed too much alcohol and did not want his parents to know his situation.
McInerney picked him up and drove him to the student's girlfriend's house.
Ibid. Another victim who was in contact with police due to excessive alcohol
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consumption contacted McInerney, who intervened on the student's behalf.
After the incident, McInerney told the victim to call him every time he
returned home from a night out for a month. Ibid. McInerney gave his victims
money when they asked and purchased some of them sneakers. Ibid.
McInerney also undertook a lengthy pattern of sexualized behavior with
ten of his male students. Id. at 437. He engaged the boys in detailed and
persistent discussions regarding their sexual activities and provided them with
condoms to, McInerney claimed, promote their abstinence from sexual conduct
that could lead to an unplanned pregnancy. Ibid. McInerney asked the boys
for evidence of their compliance with his advice and paid some of the boys to
record their private sexual behavior with a video camera he supplied. Id. at
437-38. His supervision and sexual involvement with the boys took place
during various timeframes. "The shortest of the periods was about five
months, and the longest was about two years." Id. at 438.
After his conviction of ten counts of second-degree endangering the
welfare of a child, McInerney argued that he did not have a legal duty for the
care of the children and had not assumed responsibility for their care. Id. at
441. We noted the Supreme Court's interpretation of N.J.S.A. 2C:24-4(a) in
Galloway and the fact the Legislature amended the statute on numerous
occasions after that decision, but did not alter its legal duty or assumed
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responsibility language, which we described as "persuasive evidence of the
Legislature's agreement with the Court's interpretation." Id. at 442 (citing
Quaremba v. Allan, 67 N.J. 1, 14-15 (1975)).
We held that the evidence, viewed in the light most favorable to the
State, was "adequate to prove beyond a reasonable doubt that [McInerney] had
'assumed responsibility for the care of' these children when he engaged in
conduct endangering their welfare." Id. at 443. We explained,
A jury could find that [McInerney] supervised these
children, who trusted and admired him, on a regular
and continuing basis, over extended periods of time
and in matters generally committed to a child's
parents.
....
[He] assumed the role of a regular and primary
supervisor in matters particularly suitable for parental
oversight and wholly unrelated to performance and
behavior on the playing field. The depth of the
relationships he established with the children is
demonstrated by the fact that several kept in touch
with him after reaching the age of majority and
graduating from the high school.
[Id. at 443-44.]
In light of the holding in Galloway, we are constrained to agree with the
trial court's determination the State has not made a prima facie showing
defendant's relationship with his victims satisfied the legal duty or assumption
of responsibility element of second-degree endangering the welfare of a child.
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Defendant did not have a long-term professional relationship with the victims.
He was a surgical specialist to whom the victims were referred for discrete
treatment of acute medical conditions. He did not have regular, frequent, or
continuous interactions with the victims. His treatments of the victims were
limited in duration and frequency. Defendant did not engender trust with his
victims on any subject beyond medical care.
Defendant's relationship to the victims was solely that of their physician.
While he had a professional obligation to provide appropriate medical
treatment to his patients, an obligation he utterly violated if the State's
allegations are proven true, defendant did not assume a general and ongoing
responsibility for their care within the meaning of N.J.S.A. 2C:24-4(a)(1), as
that statute has been interpreted by our courts.
We reject the State's argument that by virtue of his position as a licensed
physician defendant had a legal duty for the care of his patients within the
meaning of N.J.S.A. 2C:24-4(a)(1), regardless of the duration and extent of his
contacts with his patients. In support of its argument, the State relies on
N.J.A.C. 13:35-6.3(c), which prohibits a physician from "engag[ing] in sexual
contact with a patient with whom he or she has a patient-physician
relationship." The regulation provides, however, that violation of its
provisions "shall be deemed to constitute gross or repeated malpractice
A-4124-18T4
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pursuant to N.J.S.A. 45:1-21(c) or (d) or professional misconduct pursuant to
N.J.S.A. 45:1-21(e) . . . ." N.J.A.C. 13:35-6.3(j). The statutory provisions
cited in the regulation authorize BME to suspend or revoke a license to
practice medicine, but do not subject a physician to criminal sanctions.
We do not read N.J.S.A. 2C:24-4(a)(1) to incorporate this regulatory
provision as a means for establishing the legal duty for the care element of
second-degree endangering the welfare of a child. Nothing in the statute
expressly references the regulation, which itself does not refer to criminal
sanctions. In addition, we do not accept the premise that the elements of a
crime can be defined by an administrative regulation, which can be amended
or repealed by BME without involvement of the Legislature. Moreover,
interpreting the statute to incorporate the regulation would introduce ambiguity
as to which acts constitute criminal behavior, raising serious concerns
regarding notice. See State v. Dougherty, 455 N.J. Super. 336, 341 (App. Div.
2018) ("We must strictly construe any reasonable doubt about the meaning of a
penal statute in favor of a defendant, applying the rule of lenity.").
Finally, the State's argument, if adopted, presumably would apply
second-degree offenses under N.J.S.A. 2C:24-4(a)(1) to a number of licensed
professionals who are subject to administrative regulations regarding sexual
conduct. See, e.g., N.J.A.C. 13:37-8.3(c) (prohibiting sexual contact between
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a person licensed by the Board of Nursing and that person's patient); N.J.A.C.
13:42-10.9(b) (prohibiting sexual contact between a person licensed by the
Board of Psychological Examiners and that person's patient); N.J.A.C. 13:35 -
10.20(c) (prohibiting sexual contact between an athletic trainer licensed by
BME and an athlete); N.J.A.C. 13:44E-2.3(c) (prohibiting sexual contact
between a person licensed by the Board of Chiropractic Examiners and that
person's patient); N.J.A.C. 13:34-19.3(b) (prohibiting sexual contact between a
counselor licensed by the Board of Marriage and Family Therapy Examiners
and that person's patient); N.J.A.C. 13:37A-3.5(c) (prohibiting sexual contact
between a person licensed by the Board of Massage and Bodywork Therapy
and that person's client); N.J.A.C. 13:38-2.14(c) (prohibiting sexual contact
between a person licensed by the Board of Optometrists and that person's
patient). We have seen no indication that the Legislature intended the second-
degree provision of N.J.S.A. 2C:24-4(a)(1) to extend that far.
We also reject the State's argument a physician has a common law duty
for the care of his patients sufficient to satisfy the legal duty element of
second-degree endangering the welfare of a child. See Roe v. Wade, 410 U.S.
113, 130-31 (1973) (discussing the common law duty of a physician to care for
his or her patients rooted in the ancient Hippocratic Oath). As was the case
with the BME regulation, incorporating a common law duty as an element of a
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second-degree offense under N.J.S.A. 2C:24-4(a)(1) would create an
intolerable ambiguity and extend the statute beyond its intended scope. In
addition, when the Legislature intended to include an actor's professional
status as an element of a crime, it has done so explicitly. See N.J.S.A. 2C:14-
2(c)(2) (defining second-degree sexual assault as an act of sexual penetration
with a victim "on probation or parole" or "detained in a hospital, prison or
other institution" if "the actor has supervisory or disciplinary power over the
victim by virtue of the actor's legal, professional or occupational status . . . .").
Pursuant to Rule 3:7-4,
[t]he court may amend the indictment . . . to charge a
lesser included offense provided that the amendment
does not charge another or different offense from that
alleged and the defendant will not be prejudiced
thereby in his or her defense on the merits.
The indictment fully and clearly states the acts the State alleges constituted
defendant's criminal behavior. It also charges him with endangering the
welfare of a child. Amendment of the indictment to lower the degree of the
five counts alleging that crime to reflect the removal of the legal duty or
assumption of responsibility element of the second-degree offenses does not
impair defendant's ability to defend himself.
With our holding today, we in no way intend to minimize the harm
inflicted on a minor who is subjected to sexual contact by a physician during a
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medical examination. The physician-patient relationship is one of trust. That
trust is particularly keen where a patient is a minor. Here, the victims' parents
allowed their children to submit to physical examinations by defendant on the
understanding that any physical contact initiated by defendant would be
medically necessary. A physician's violation of that trust and engagement in
sexual contact with a minor patient for his sexual gratification warrants
criminal sanction. We are, however, bound by the Supreme Court's
interpretation of the elements of the various degrees of endangering the
welfare of a child set forth in N.J.S.A. 2C:24-4(a)(1). Lake Valley Assocs.,
LLC v. Twp. of Pemberton, 411 N.J. Super. 501, 507 (App. Div. 2010); State
v. Hill, 139 N.J. Super. 548, 551 (App. Div. 1976). We are also bound by
legislative judgment in determining the appropriate sanction for criminal acts.
Affirmed. The matter is remanded for amendment of the April 8, 2019
order to reflect amendment of the five counts of the indictment charging
endangering the welfare of a child without dismissal of those counts and for
further proceedings consistent with this opinion.
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