STATE IN the INTEREST OF D.M., a Juvenile

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the
Clerk for the convenience of the reader. It has been neither reviewed nor approved by the
Court. In the interest of brevity, portions of an opinion may not have been summarized.

State in the Interest of D.M., a Juvenile (A-30-17) (079999)

Argued October 22, 2018 -- Decided May 14, 2019

PATTERSON, J., writing for the Court.

The Court considers whether a juvenile can be adjudicated delinquent for
endangering the welfare of a child in violation of N.J.S.A. 2C:24-4(a)(1) when the
juvenile and his alleged victim are fewer than four years apart in age and the Family Part
judge makes no findings of sexual penetration, force, or coercion. The Court also
considers the impact of the Family Part’s conflicting characterizations, at the adjudication
and disposition hearings, of its factual findings regarding the juvenile’s conduct.

According to testimony, Z.Y., eleven, stated that fourteen-year-old D.M. had
“made [Z.Y.] suck his penis” and told Z.Y. to “put [D.M.’s] penis in his anus.” Z.Y.
ultimately described three encounters with D.M. at which the conduct allegedly occurred.
The State charged D.M. with delinquency based on conduct which, if committed by an
adult, would constitute first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-
2(a)(1). At trial, the State had the burden to prove beyond a reasonable doubt the
elements of that statute. One of those elements is an act of “sexual penetration.”

D.M. requested that the judge consider third-degree endangering the welfare of a
child as a lesser-related offense. In order to establish a violation of N.J.S.A. 2C:24-
4(a)(1), the State had the burden to prove beyond a reasonable doubt that D.M. engaged
in “sexual conduct which would impair or debauch the morals of the child.” The State
agreed with D.M.’s counsel that there was a rational basis in the evidence for the
endangering charge, and consented to the request.

In a written decision, the court made detailed credibility findings. The court found
that the State failed to prove sexual penetration and accordingly declined to adjudicate
D.M. delinquent on the charge of first-degree aggravated sexual assault. The court
found, however, that the State had satisfied its burden of proof with respect to the lesser-
related offense of third-degree endangering the welfare of a child. The court found
beyond a reasonable doubt that D.M. “exposed his penis to Z.Y., sought Z.Y. to touch his
penis with his mouth, and had his penis physically touch Z.Y.’s buttocks.” The court
found that these acts “would tend to debauch and impair the morals of a child” within the
meaning of N.J.S.A. 2C:24-4(a)(1), and adjudicated D.M. delinquent as to that offense.

1
At a disposition hearing, the court stated, in part: “I adjudicated [D.M.] to a third
degree, but quite frankly, the elements of the first[-]degree offense were met.” The court
noted that it had “considered a lesser[-]related offense really as a humanitarian gesture to
[D.M.] . . . in light of his lack of a prior record, his extremely devoted grandmother, his
trials and tribulations, [and] his active and noble extracurriculars,” but that, “if one were
to really look at the evidence that was presented and one were to be honest about
assessing that evidence, there is no doubt in the eyes of the [c]ourt that the elements of
the first[-]degree offense have been made and surely an attempt.”

D.M. appealed his juvenile adjudication and disposition. The State and D.M.
briefed the issues raised. Neither party requested oral argument. The Appellate Division
panel sua sponte ordered the parties to submit supplemental briefs on “whether the lack
of a finding of penetration or coercion undermines the delinquency finding of
endangering the welfare of a child, in light of the four-year age difference required for a
delinquency finding of sexual assault” under N.J.S.A. 2C:14-2(b). 451 N.J. Super. 415,
423 (App. Div. 2017). The State then requested oral argument, and D.M. did not oppose
that application. The panel, however, denied the State’s request.

The panel reversed D.M.’s delinquency adjudication, based on its resolution of the
question it had raised sua sponte. Id. at 426-28. The panel acknowledged that “sexual
conduct,” which would impair or debauch the morals of the child, was undefined in
N.J.S.A. 2C:24-4(a)(1). Id. at 426. It concluded, however, that the Legislature sought to
limit the endangering statute, as applied to juveniles, to cases in which the juvenile’s
conduct also would give rise to a charge of either sexual assault or criminal sexual
contact by force or coercion. Id. at 424-25, 428. Noting that coercion was not at issue,
id. at 424-25, and citing the sexual penetration element of N.J.S.A. 2C:14-2(a), and the
age disparity element of N.J.S.A. 2C:14-2(b), the panel held that “[t]he Legislature did
not intend sexual behavior between children close in age not involving penetration, which
it specifically exempted from the criminal statutes, to nonetheless be included within the
crime of child endangerment,” id. at 427.

The Court granted the State’s petition for certification. 231 N.J. 553 (2017).

HELD: Although the Legislature may decide that N.J.S.A. 2C:24-4(a)(1) should not
apply in juvenile proceedings based on conduct such as that at issue here, nothing in the
current text of that statute precludes the adjudication in this case. The Court declines to
rewrite the statute’s plain language in this appeal. However, the Family Part court’s
adjudication must be reversed because the court’s disavowal, at the disposition hearing,
of critical aspects of its previously-stated factual findings undermined its determination
as to both offenses. In this extraordinary setting, it is unclear whether the State met its
burden to prove beyond a reasonable doubt that D.M. violated N.J.S.A. 2C:24-4(a)(1).
Accordingly, the Court affirms on other grounds the panel’s judgment.

2
1. The panel should have granted the State’s unopposed motion for oral argument, and
the Court cautions appellate courts in similar settings involving expanded issues to
seriously consider granting motions for oral argument, even when no party requested
argument when it filed its original brief. (p. 16)

2. The Appellate Division’s decision relies on Code provisions set forth in three statutes:
the sexual assault statute, N.J.S.A. 2C:14-2; the criminal sexual contact statute, N.J.S.A.
2C:14-3(b); and the endangering the welfare of a child statute, N.J.S.A. 2C:24-4(a)(1).
D.M. was charged with first-degree aggravated sexual assault pursuant to N.J.S.A.
2C:14-2(a)(1), under which the State must prove that the juvenile committed an act of
sexual penetration on a victim less than thirteen years of age, but need not prove that the
juvenile is four or more years older than the victim. Under another section of N.J.S.A.
2C:14-2 cited by the Appellate Division, a juvenile may be adjudicated delinquent if the
State proves beyond a reasonable doubt that the juvenile committed an act of sexual
contact -- whether or not that contact involved sexual penetration, force, or coercion --
provided that the juvenile charged is four or more years older than the alleged victim.
Finally, if the State seeks a delinquency adjudication pursuant to N.J.S.A. 2C:14-3(b)
based on the offense defined in subsection (c)(1) of N.J.S.A. 2C:14-2, it must prove that
the juvenile committed an act of sexual contact with a victim using “physical force or
coercion.” In contrast to the offenses cited by the Appellate Division panel, third-degree
endangering the welfare of a child requires proof only that the victim is a child and sexual
conduct by any person which “would impair or debauch the morals of the child.”
N.J.S.A. 2C:24-4(a)(1). The phrase “sexual conduct which would impair or debauch the
morals of the child” is undefined in the endangering statute, but the Court has observed
that “sexual conduct” clearly includes sexual assault and sexual contact. (pp. 17-20)

3. There is no evidence in the endangering statute’s plain language that the Legislature
intended to incorporate the penetration or age-disparity elements of the sexual assault
statute, or the force or coercion elements of the criminal sexual contact statute, into the
endangering offense. The Court does not agree that in order for a juvenile, who is fewer
than four years older than the victim, to be adjudicated delinquent under N.J.S.A 2C:24-
4(a)(1), there must be proof of sexual penetration, force, or coercion. The endangering
statute simply makes no mention of the elements cited by the panel. Had the Legislature
intended to limit the application of N.J.S.A. 2C:24-4(a)(1) to cases in which the juvenile
has also violated specific provisions of N.J.S.A. 2C:14-2 or N.J.S.A. 2C:14-3, as the
panel suggests, it would have done so by adding language to that effect. Accordingly,
N.J.S.A. 2C:24-4(a)(1) as currently drafted may apply to a juvenile, even when the
specific conduct involved does not involve sexual penetration, force, or coercion and the
juvenile and alleged victim are fewer than four years apart in age. (pp. 20-23)

4. The contrasting interpretations of N.J.S.A. 2C:24-4(a)(1) advanced in this case signal
a need for legislative review of the endangering statute as it applies to juvenile settings
such as this appeal. As D.M.’s case illustrates, it would be helpful if the statutory

3
language “sexual conduct which would impair or debauch the morals of the child”
provided clearer guidance to courts, counsel, and the public in settings involving sexual
conduct by juveniles close in age. Should it choose to do so, the Legislature could amend
N.J.S.A. 2C:24-4(a)(1) to clarify its intent with respect to the statute’s application to
juvenile adjudications. (pp. 23-24)

5. The Family Part judge’s credibility assessment and core factual findings -- that D.M.
“exposed his penis to Z.Y., sought Z.Y. to touch his penis with his mouth, and had his
penis physically touch Z.Y.’s buttocks,” but that the State fell short of proving oral or
anal penetration -- fully supported the judge’s determination on the two offenses
considered. Had the court not deviated from its written decision in its later comments,
there would be no basis to overturn that determination in this appeal. The court’s
statement at the disposition hearing, however, directly contravened the findings set forth
in its adjudication. The juvenile’s personal characteristics are an important factor at the
disposition stage, but they do not warrant a “downgrade” of his charges at the
adjudication stage, or any other finding inconsistent with the proofs. The court sitting as
factfinder in a juvenile adjudication must find the facts that the State has proven beyond a
reasonable doubt; it has no authority to nullify its findings in order to achieve a more
lenient disposition, or for any other purpose. In this matter, the court disclosed at the
disposition that, although the State proved N.J.S.A. 2C:14-2(a)(1)’s sexual-penetration
element, the court discounted that proof and adjudicated the juvenile delinquent on the
lesser-related offense. That disclosure undermines confidence in both determinations. In
its wake, it is simply unclear what facts the court actually found and what facts it did not
find. Accordingly, D.M.’s adjudication must be reversed. (pp. 24-26)

The judgment of the Appellate Division is affirmed on other grounds.

JUSTICE ALBIN, concurring, agrees that D.M.’s juvenile adjudication for
endangering must be reversed and that N.J.S.A. 2C:24-4(a)(1) is in need of
legislative review but expresses the view that the child endangerment statute was
never intended to criminalize consensual sexual experimentation between close-in-
age juveniles that does not violate the sexual offense statutes, N.J.S.A. 2C:14-2 and
-3. Without such limitations, Justice Albin observes, the endangering statute is
vulnerable to a future as-applied constitutional challenge.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, FERNANDEZ-
VINA, SOLOMON, and TIMPONE join in JUSTICE PATTERSON’S opinion.
JUSTICE ALBIN filed a concurrence.

4
SUPREME COURT OF NEW JERSEY
A-30 September Term 2017
079999

State in the Interest of D.M., a Juvenile

On certification to the Superior Court,
Appellate Division, whose opinion is reported at
451 N.J. Super. 415 (App. Div. 2017).

Argued Decided
October 22, 2018 May 14, 2019

Michele C. Buckley, Assistant Prosecutor, argued the
cause for appellant State of New Jersey (Michael A.
Monahan, Acting Union County Prosecutor, attorney;
Milton S. Leibowitz, Special Deputy Attorney
General/Acting Assistant Prosecutor, of counsel and
on the briefs).

Rochelle Watson, Assistant Deputy Public Defender,
argued the cause for respondent D.M. (Joseph E.
Krakora, Public Defender, attorney; Rochelle Watson,
of counsel and on the brief, and Seon Jeong Lee,
Designated Counsel, on the brief).

Sarah D. Brigham, Deputy Attorney General, argued
the cause for amicus curiae Attorney General of New
Jersey (Gurbir S. Grewal, Attorney General, attorney;
Sarah D. Brigham, of counsel and on the brief).

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we consider whether a juvenile can be adjudicated

delinquent for endangering the welfare of a child in violation of N.J.S.A.
1
2C:24-4(a)(1) when the juvenile and his alleged victim are fewer than four

years apart in age and the Family Part judge makes no findings of sexual

penetration, force, or coercion. We also consider the impact of the Family

Part’s conflicting characterizations, at the adjudication and disposition

hearings, of its factual findings regarding the juvenile’s conduct.

The State charged fourteen-year-old D.M. with delinquency based on

conduct which, if committed by an adult, would constitute first-degree

aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1). The State

alleged that D.M. committed acts of sexual penetration against an eleven-year-

old acquaintance, Z.Y. With the parties’ consent, the Family Part judge also

considered the lesser-related charge of third-degree endangering the welfare of

a child, contrary to N.J.S.A. 2C:24-4(a)(1).

Following the trial, the court found that the State had failed to prove

beyond a reasonable doubt sexual penetration, an element of the first-degree

aggravated sexual assault charge under N.J.S.A. 2C:14-2(a)(1). The court

found that the State had proven the elements of the third-degree endangering

offense, including “sexual conduct which would impair or debauch the morals

of the child.” N.J.S.A. 2C:24-4(a)(1).

At the disposition hearing, however, the court contradicted its earlier

findings. The court said that the State had actually met its burden to prove

2
sexual penetration, but that the court instead adjudicated D.M. delinquent on

the third-degree charge “as a humanitarian gesture” warranted by the

juvenile’s personal qualities.

An Appellate Division panel reversed the juvenile adjudication. State in

Interest of D.M., 451 N.J. Super. 415, 418 (App. Div. 2017). The panel

reasoned that the Legislature did not intend for the endangering statute,

N.J.S.A. 2C:24-4(a)(1), to support a delinquency adjudication based on a

juvenile’s sexual contact with another minor fewer than four years younger

than he, in the absence of a finding of sexual penetration, force, or coercion.

We do not concur with the Appellate Division panel’s construction of

the endangering statute. Although the Legislature may decide that statute

should not apply in juvenile proceedings based on conduct such as that at issue

here, nothing in the current text of N.J.S.A. 2C:24-4(a)(1) precludes the

adjudication in this case. We decline to rewrite the statute’s plain language in

this appeal.

We conclude, however, that the Family Part court’s adjudication must be

reversed. When the court, at the disposition hearing, disavowed critical

aspects of its previously-stated factual findings and characterized its decision

to adjudicate D.M. under the lesser-related offense as a humanitarian gesture,

it undermined its determination as to both offenses. In this extraordinary

3
setting, it is unclear whether the State met its burden to prove beyond a

reasonable doubt that D.M. violated N.J.S.A. 2C:24-4(a)(1).

Accordingly, we affirm on other grounds the panel’s judgment.

At the time of the alleged incidents that gave rise to this proceeding,

D.M. was one of a group of teenage boys who sometimes spent after-school

hours together at a park adjacent to a school.1 Z.Y. and his younger brother

would sometimes join the older boys in the park, which was located near a

business owned by their mother.

One evening, Z.Y. was sharing a bedroom with his younger brother and

a seven-year-old boy who was staying at his home. Checking on her sons and

her young guest, Z.Y.’s mother found Z.Y. and the seven-year-old boy sitting

together on a bed. She noticed that Z.Y.’s shorts were “shifted” in a manner

that she considered peculiar. Concerned about what the boys had been doing,

Z.Y.’s mother questioned the seven-year-old. She stated that he told her Z.Y.

had “rubb[ed] his penis” on him. Z.Y.’s mother, upset by the younger child’s

1
We derive our summary of the facts from the transcripts of Z.Y.’s
videotaped statement to police, the N.J.R.E. 104 hearing conducted by the
Family Part judge to determine the admissibility of Z.Y.’s out-of-court
statements under N.J.R.E. 803(c)(27), and D.M.’s trial.
4
revelation, asked Z.Y. “what was he doing, and where did he get it from.”

According to his mother, Z.Y. responded, “[M]ommy, the boy did it to me.”

At that time, Z.Y. did not identify the “boy” to whom he referred.

According to the testimony of Z.Y.’s adult sister, who lived in the family

home, Z.Y. was distraught about the incident and his mother’s reaction to it.

She stated that she took Z.Y. to a different room and questioned him, and that

Z.Y. identified D.M. as the boy to whom he had earlier referred. By his

sister’s account, Z.Y. stated that D.M. had “made [Z.Y.] suck his penis” and

that D.M. had told Z.Y. to “put [D.M.’s] penis in his anus.”

Z.Y.’s parents and sister took him to the police station, where he gave a

videotaped statement to a police officer. Z.Y. recounted to the officer two

incidents, both of which allegedly occurred in an outdoor stairwell of the

school adjacent to the park. He stated that in the first incident, D.M. led him

down the stairwell, which provided access to the school’s basement. Z.Y. told

the officer that D.M., with his pants down, asked Z.Y. to “suck his thingy,”

and that he “just did it for . . . two seconds” before leaving the stairwell.

Z.Y. told the officer that a second alleged incident occurred two weeks

after the first in the same stairwell. He said that on that occasion, D.M.

repeatedly asked him to “suck [his] thingy.” Z.Y. told the officer that he

complied with D.M.’s request, “but [he] did it for only a second.” Z.Y. said

5
that it made him feel “a little bit weird” and that he quickly left the stairwell.

Z.Y. said that the next day, D.M. asked him to go to the stairwell with him

again, but that he had refused.

Pursuant to N.J.S.A. 2A:4A-30, the State charged D.M. with

delinquency based on conduct which, if committed by an adult, would

constitute first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-

2(a)(1).

About one week before Z.Y. testified at trial, Z.Y. alleged for the first

time a third incident. Z.Y. said that on the only occasion in which he had been

inside D.M.’s home, D.M. took him to a secluded corner in the house and

asked permission to “[p]ut his thing in [Z.Y.’s] mouth again.” Z.Y. said that

he complied.

At trial, the State had the burden to prove beyond a reasonable doubt the

elements of N.J.S.A. 2C:14-2(a)(1). One of those elements is an act of “sexual

penetration,” defined as “vaginal intercourse, cunnilingus, fellatio or anal

intercourse between persons or insertion of the hand, finger or object into the

6
anus or vagina either by the actor or upon the actor’s instruction.” N.J.S.A.

2C:14-2(a)(1); N.J.S.A. 2C:14-1(c).2

To prove that element, the State relied primarily on Z.Y.’s pretrial

statement to the police officer, which was admitted into evidence pursuant to

N.J.R.E. 803(c)(27), and on Z.Y.’s testimony before the Family Part judge at

trial. At trial, Z.Y. testified about the two incidents reported in his statement.

He added to his account of the first incident in the stairwell an allegation that,

on that occasion, D.M. attempted anal penetration. Z.Y. said that it “hurt a

little bit,” that he told D.M. to stop, and that D.M. complied. Z.Y. also

testified about the second alleged incident in the stairwell and the alleged

incident at D.M.’s home.

On cross-examination, Z.Y. admitted using a video-chat application to

try to contact D.M., and admitted sending D.M. a message on that application.

A screenshot of the message, which read “[s]o 69, let me c ur cock,” was

admitted into evidence.

D.M. testified that all of Z.Y.’s allegations were false. He stated that

Z.Y. persistently tried to contact him via the video-chat application and

identified the explicit message as a message sent by Z.Y. to him. D.M. and

2
N.J.S.A. 2C:14-1(c) also provides that “[t]he depth of insertion shall not be
relevant as to the question of commission of the crime.”
7
two friends who testified on his behalf recounted incidents in which Z.Y.

approached D.M. and others and made sexually explicit comments.

Following the trial, but prior to the Family Part judge’s adjudication

decision, D.M. requested that the judge consider third-degree endangering the

welfare of a child, in violation of N.J.S.A. 2C:24-4(a)(1), as a lesser-related

offense of first-degree aggravated sexual assault. In order to establish a

violation of N.J.S.A. 2C:24-4(a)(1), the State had the burden to prove beyond a

reasonable doubt that D.M. engaged in “sexual conduct which would impair or

debauch the morals of the child.” N.J.S.A. 2C:24-4(a)(1).

The State agreed with D.M.’s counsel that there was a rational basis in

the evidence for the endangering charge, and consented to the request. The

court reopened the matter and heard supplemental closing arguments

addressing the endangering offense.

In a written decision, the court made detailed credibility findings.

Concluding that Z.Y. provided consistent and specific testimony about the

three alleged incidents, the court found him credible. It commented that

although D.M. had testified “confidently, precisely, and articulately,” and

appeared to be “a mild-mannered and likable young man,” his credibility was

diminished because he was “inauthentic” and “trying to sell himself.” The

8
court found Z.Y.’s mother to be highly credible, and viewed the friends whom

D.M. called as fact witnesses to be “earnest” witnesses with little information

relevant to the case.

The court found that the State failed to prove beyond a reasonable doubt

a critical element of the aggravated sexual assault charge: sexual penetration.

It found the evidence of oral penetration to be “unclear and undeveloped,”

noting that although “there was some evidence of brief oral penetration, it did

not reach the threshold of beyond a reasonable doubt.” The court also found

the State’s proofs unclear and insufficient with respect to whether D.M. had

anally penetrated Z.Y. Accordingly, the court declined to adjudicate D.M.

delinquent on the charge of first-degree aggravated sexual assault, N.J.S.A.

2C:14-2(a)(1).3

The court found, however, that the State had satisfied its burden of proof

with respect to the lesser-related offense of third-degree endangering the

welfare of a child, in violation of N.J.S.A. 2C:24-4(a)(1). After noting the

undisputed fact that Z.Y. was a “child” within the meaning of that statute, the

court determined that D.M. knowingly engaged in sexual conduct which would

3
The court also declined to adjudicate D.M. delinquent on the lesser-included
offenses of attempted aggravated sexual assault under N.J.S.A. 2C:14-2(a)(1),
N.J.S.A. 2C:5-1, and N.J.S.A. 2C:1-8(d)(2), criminal sexual contact under
N.J.S.A. 2C:14-3(b), or sexual assault under N.J.S.A. 2C:14-2(b), citing
elements of each of those offenses that were unsupported by the evidence.
9
“impair or debauch” Z.Y.’s morals. The court found beyond a reasonable

doubt that in the two incidents in the school stairwell, D.M. “exposed his penis

to Z.Y., sought Z.Y. to touch his penis with his mouth, and had his penis

physically touch Z.Y.’s buttocks.” It further concluded that in the third

incident, in D.M.’s home, D.M. “sought Z.Y. to touch his penis with his

mouth.” The court found that these acts “would tend to debauch and impair

the morals of a child” within the meaning of N.J.S.A. 2C:24-4(a)(1), and

adjudicated D.M. delinquent as to that offense.

Three months later, the court held a disposition hearing pursuant to

N.J.S.A. 2A:4A:43. Addressing one of the dispositional factors prescribed by

N.J.S.A. 2A:4A-43(a), “[t]he nature and circumstances of the offense,” the

court stated:

The record should be very clear. This is a very serious
offense. And I will say the following. I adjudicated
[D.M.] to a third degree, but quite frankly, the elements
of the first[-]degree offense were met.

The [c]ourt, in conferring with counsel, considered a
lesser[-]related offense really as a humanitarian gesture
to [D.M.] and gave him each and every conceivable
benefit of the doubt in order to downgrade it to a
third[-]degree in light of his lack of a prior record, his
extremely devoted grandmother, his trials and
tribulations, his active and noble extracurriculars.

But if one were to really look at the evidence that was
presented and one were to be honest about assessing
that evidence, there is no doubt in the eyes of the [c]ourt
10
that the elements of the first[-]degree offense have been
made and surely an attempt.

So for the purposes of any reviewing court, if a
reviewing court is left, as it might be, scratching its
head, how come the [c]ourt didn’t adjudicate [D.M.]
based upon the overwhelming [evidence] that the
[c]ourt credit[ed], there is the [c]ourt’s response. It was
-- in the [c]ourt’s judgment the elements were met. It
was the [c]ourt[’s] effort to accord the Defense, as he is
entitled, every conceivable benefit of the doubt.

The court imposed on D.M. three years’ probation, ordered that he

undergo treatment in an outpatient residential program, and mandated his

compliance with Megan’s Law requirements.

D.M. appealed his juvenile adjudication and disposition, challenging the

sufficiency of the evidence supporting the Family Part judge’s finding of

delinquency with respect to the charge of endangering the welfare of a child,

and raising three other issues not germane to this appeal. The State and D.M.

briefed the issues raised. Neither party requested oral argument in the

Appellate Division pursuant to Rule 2:11-1(b); according to the State, it did

not request oral argument because the issues raised by D.M. were governed by

settled law.

The Appellate Division panel sua sponte ordered the parties to submit

supplemental briefs on a question it characterized as an expansion of D.M.’s

11
challenge to the sufficiency of the evidence: “whether the lack of a finding of

penetration or coercion undermines the delinquency finding of endangering the

welfare of a child, in light of the four-year age difference required for a

delinquency finding of sexual assault” under N.J.S.A. 2C:14-2(b). D.M., 451

N.J. Super. at 423. As a result of the panel’s order, the State requested oral

argument pursuant to Rule 2:11-1(b), and D.M. did not oppose that

application. The panel, however, denied the State’s request.

The panel reversed D.M.’s delinquency adjudication, based on its

resolution of the question it had raised sua sponte. Id. at 426-28. The panel

acknowledged that “sexual conduct,” which would impair or debauch the

morals of the child, was undefined in N.J.S.A. 2C:24-4(a)(1). Id. at 426. It

concluded, however, that the Legislature sought to limit the endangering

statute, as applied to juveniles, to cases in which the juvenile’s conduct also

would give rise to a charge of either sexual assault, N.J.S.A. 2C:14-2, or

criminal sexual contact by force or coercion, N.J.S.A. 2C:14-3(b). Id. at 424-

25, 428. Citing the sexual penetration element of N.J.S.A. 2C:14-2(a), and the

age disparity element of N.J.S.A. 2C:14-2(b), the panel held that “[t]he

Legislature did not intend sexual behavior between children close in age not

involving penetration, which it specifically exempted from the criminal

12
statutes, to nonetheless be included within the crime of child endangerment.”

Id. at 427.

Based on a finding that N.J.S.A. 2C:24-4(a)(1) was ambiguous, and

invoking the rule of lenity, the panel reversed D.M.’s adjudication of

delinquency. Id. at 428. It reasoned that “[a]lthough D.M. engaged in

behavior that would generally be considered sexual conduct with another child,

the sexual contact [in this case] was exempted from criminal liability by a

specific statute.” Id. at 427. The panel did not consider the remaining issues

raised by D.M. Id. at 423.

We granted the State’s petition for certification. 231 N.J. 553 (2017).

We also granted the Attorney General’s application to appear as amicus curiae.

II.

The State observes that N.J.S.A. 2C:24-4(a)(1)’s plain language requires

proof of only two elements: that the victim is a child, and that the defendant

engages in “sexual conduct” that would impair or debauch the morals of the

child. It argues that because N.J.S.A. 2C:24-4(a)(1) does not cross-reference

N.J.S.A. 2C:14-2, the Court should not infer that the State must prove the

elements of N.J.S.A. 2C:14-2 when a juvenile is charged under N.J.S.A.

13
2C:24-4(a)(1). It asserts that the Appellate Division panel should have granted

its unopposed motion for oral argument after sua sponte raising a new issue.

D.M. contends that N.J.S.A. 2C:24-4(a)(1) and the sexual assault

statutes should be construed in tandem because they serve the same legislative

goal. He argues that the Legislature did not enact the endangering statute to

criminalize peer-to-peer adolescent sexual experimentation that is expressly

excluded from the sexual assault statutes. D.M. asserts that in accordance with

the rule of lenity, the Court should resolve any ambiguity in N.J.S.A. 2C:24-

4(a)(1) in his favor.

The Attorney General asserts that the Legislature’s omission of

penetration, force, coercion, and age disparity elements from N.J.S.A. 2C:24-

4(a)(1) evinces its intent to exclude those elements from the offense of

endangering the welfare of a child. The Attorney General views the court’s

comments at D.M.’s disposition to reveal that the court improperly

downgraded the charge from a first-degree offense to a third-degree offense

based on sentencing factors irrelevant to adjudication.

14
III.

In the appeal of a juvenile delinquency adjudication, “[o]ur standard of

review is narrow and is limited to evaluation of whether the trial judge’s

findings are supported by substantial, credible evidence in the record as a

whole.” State in Interest of J.P.F., 368 N.J. Super. 24, 31 (App. Div. 2004)

(citing State v. Locurto, 157 N.J. 463, 471 (1999); State v. Johnson, 42 N.J.

146, 161 (1964)). We determine whether those findings “could reasonably

have been reached on sufficient credible evidence present in the record as a

whole.” State in Interest of S.B., 333 N.J. Super. 236, 241 (App. Div. 2000)

(citing Locurto, 157 N.J. at 471; Johnson, 42 N.J. at 162). “If we are satisfied

that the findings and result meet this criterion, our task is complete, and we

may not disturb the result, even though we may feel we may have reached a

different conclusion.” Ibid. (citing Locurto, 157 N.J. at 471; Johnson, 42 N.J.

at 162). “On the other hand, a trial judge’s interpretation of the law and the

legal consequences that flow from established facts are not entitled to any

special deference.” Ibid. (citing Manalapan Realty, L.P. v. Twp. Comm. of

Manalapan, 140 N.J. 366, 378 (1995)).

15
B.

The statutory construction issue raised by the Appellate Division panel --

whether a juvenile’s sexual conduct with another juvenile close in age that

does not involve sexual penetration, force, or coercion may nonetheless

constitute “sexual conduct which would impair or debauch the morals of the

child” under N.J.S.A. 2C:24-4(a)(1) -- was not discussed by the parties in their

original appellate briefs. That question, first raised by the panel after the

initial briefs were filed, substantially expanded the issues on appeal and the

potential impact of the appeal on other juvenile adjudications. Recognizing

that fact, the panel ordered supplemental briefs.

So that counsel could address that important -- and ultimately dispositive

-- issue in argument, the panel should have granted the State’s unopposed

motion for oral argument. We caution appellate courts in similar settings

involving expanded issues to seriously consider granting motions for oral

argument, even when no party requested argument when it filed its original

brief.

We review the Appellate Division panel’s interpretation of N.J.S.A.

2C:24-4(a)(1) pursuant to familiar principles of statutory construction. Our

16
task is to “ascertain the Legislature’s intent, reflecting its chosen language, and

to give the words of the statute ‘their generally accepted meaning.’” State v.

Bolvito, 217 N.J. 221, 228-29 (2014) (quoting State v. Marquez, 202 N.J. 485,

499 (2010)); see also N.J.S.A. 1:1-1. We must “effectuat[e] the legislative

plan as it may be gathered from the enactment [when] read in full light of its

history, purpose and context.” Bolvito, 217 N.J. at 229 (alterations in original)

(quoting Koch v. Dir., Div. of Taxation, 157 N.J. 1, 7 (1999)).

“When the Legislature’s chosen words lead to one clear and

unambiguous result, the interpretive process comes to a close, without the need

to consider extrinsic aids.” State v. Shelley, 205 N.J. 320, 323 (2011). A

court “seek[s] out extrinsic evidence, such as legislative history, for assistance

when statutory language yields ‘more than one plausible interpretation.’” Id.

at 323-24 (quoting DiProspero v. Penn, 183 N.J. 477, 492 (2005)).

If a question concerns more than one statutory provision, “[r]elated parts

of an overall statutory scheme can . . . provide relevant context.” Beim v.

Hulfish, 216 N.J. 484, 498 (2014) (alterations in original) (quoting DYFS v.

A.L., 213 N.J. 1, 20 (2013)).

The Appellate Division’s decision relies on Code provisions set forth in

three statutes: the sexual assault statute, N.J.S.A. 2C:14-2; the criminal sexual

17
contact statute, N.J.S.A. 2C:14-3(b); and the endangering the welfare of a child

statute, N.J.S.A. 2C:24-4(a)(1). We review each in turn.

D.M. was charged with first-degree aggravated sexual assault pursuant

to N.J.S.A. 2C:14-2(a)(1), which provides, “[a]n actor is guilty of aggravated

sexual assault if he commits an act of sexual penetration with another person ”

if that person “is less than 13 years old.”

Thus, in a juvenile adjudication premised on an alleged violation of

N.J.S.A. 2C:14-2(a)(1), the State must prove that the juvenile committed an act

of sexual penetration on a victim less than thirteen years of age, but need not

prove that the juvenile is four or more years older than the victim. Ibid.

Another section of N.J.S.A. 2C:14-2 cited by the Appellate Division

criminalizes acts of sexual contact on the basis of the age disparity between the

actor and the victim. 4 Pursuant to N.J.S.A. 2C:14-2(b), an actor is guilty of

sexual assault, a second-degree crime, if he “commits an act of sexual contact

with a victim who is less than 13 years old and the actor is at least four years

older than the victim.” A juvenile may be adjudicated delinquent under that

provision if the State proves beyond a reasonable doubt that the juvenile

4
“Sexual contact” is defined as the “intentional touching by the victim or
actor, either directly or through clothing, of the victim’s or actor’s intimate
parts for the purpose of degrading or humiliating the victim or sexually
arousing or sexually gratifying the actor.” N.J.S.A. 2C:14-1(d).
18
committed an act of sexual contact -- whether or not that contact involved

sexual penetration, force, or coercion -- provided that the juvenile charged is

four or more years older than the alleged victim. Ibid.

Finally, under N.J.S.A. 2C:14-3(b), “[a]n actor is guilty of criminal

sexual contact,” a fourth-degree offense, “if he commits an act of sexual

contact with the victim under any of the circumstances set forth in [N.J.S.A.

2C:14-2(c)] (1) through (4).” If the State seeks a delinquency adjudication

pursuant to N.J.S.A. 2C:14-3(b) based on the offense defined in subsection

(c)(1) of N.J.S.A. 2C:14-2, it must prove that the juvenile committed an act of

sexual contact with a victim using “physical force or coercion.” N.J.S.A.

2C:14-2(c)(1).

In contrast to the offenses cited by the Appellate Division panel, third-

degree endangering the welfare of a child requires proof only that the victim is

a child and sexual conduct by any person which “would impair or debauch the

morals of the child.” N.J.S.A. 2C:24-4(a)(1). The endangering statute

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.

19
[N.J.S.A. 2C:24-4(a)(1).]5
The phrase “sexual conduct which would impair or debauch the morals

of the child” is undefined in the endangering statute. See ibid. As we

observed in the appeal of an adult defendant’s conviction of child luring and

attempted child endangerment, “[a]lthough the term ‘sexual conduct’ is not

defined, clearly included are sexual assault[] and sexual contact.” State v.

Perez, 177 N.J. 540, 553 (2003) (quoting State v. Perez, 349 N.J. Super. 145,

153 (App. Div. 2002)).

Against that backdrop, we review the Appellate Division panel’s

interpretation of N.J.S.A. 2C:24-4(a)(1).

We concur with the Appellate Division panel that D.M. could not be

adjudicated delinquent of the lesser-included offenses of aggravated sexual

assault under either N.J.S.A. 2C:14-2(c), absent proof of sexual penetration,

5
N.J.S.A. 2C:24-4 clearly is not limited to adults and may be applied to
juveniles. See N.J.S.A. 2C:24-4(a)(1) (providing that any “person” who
“engages in conduct or who causes harm” to a child, as described in that
subsection of the statute, may be found guilty of the offense); N.J.S.A. 30:4-
123.53a(c) (charging Juvenile Justice Commission with the responsibility to
provide written notice to the prosecutor when it anticipates the release of a
juvenile adjudicated delinquent on a charge of endangering the welfare of a
child); see also State in Interest of A.B., 328 N.J. Super. 96, 99, 101 (Ch. Div.
1999) (holding that a juvenile can be adjudicated delinquent pursuant to
N.J.S.A. 2C:24-4(b)(3), a provision of the endangering statute that
criminalizes child pornography).
20
force, or coercion, or under N.J.S.A. 2C:14-3(b), absent proof of force or

coercion. D.M., 451 N.J. Super. at 424-25. We further agree with the panel

that D.M. could not be adjudicated delinquent under N.J.S.A. 2C:14-2(b), as a

lesser-included offense of aggravated sexual assault, because D.M. and Z.Y.

are fewer than four years apart in age. Id. at 425.

We part company with the panel, however, with respect to its

construction of N.J.S.A. 2C:24-4(a)(1). We find no evidence in the

endangering statute’s plain language that the Legislature intended to

incorporate the penetration or age-disparity elements of the sexual assault

statute, or the force or coercion elements of the criminal sexual contact statute,

into the endangering offense. We do not agree that in order for a juvenile, who

is fewer than four years older than the victim, to be adjudicated delinquent

under N.J.S.A 2C:24-4(a)(1), there must be proof of sexual penetration, force,

or coercion. See id. at 428. The endangering statute simply makes no mention

of the elements cited by the panel. See N.J.S.A. 2C:24-4(a)(1).

Moreover, when the Legislature seeks to import a part of one Code

provision into another, it expresses that intent in unambiguous terms. See,

e.g., N.J.S.A. 2C:14-3(a) (explicitly cross-referencing N.J.S.A. 2C:14-2(a)(2)-

(7)); N.J.S.A. 2C:14-3(b) (explicitly cross-referencing N.J.S.A. 2C:14-2(c)(1)-

(4)); N.J.S.A. 2C:33-12(c) (explicitly cross-referencing N.J.S.A. 2C:34-2, -3,

21
and -4); N.J.S.A. 2C:33-28(a) (explicitly cross-referencing definitional

provision of N.J.S.A. 2C:33-29). Had the Legislature intended to limit the

application of N.J.S.A. 2C:24-4(a)(1) to cases in which the juvenile has also

violated specific provisions of N.J.S.A. 2C:14-2 or N.J.S.A. 2C:14-3, as the

panel suggests, it would have done so by adding language to that effect. It has

not done so.6 See In re Expungement of the Arrest/Charge Records of T.B.,

236 N.J. 262, 275 (2019) (declining to interpret a statute to exclude certain

offenses from a required assessment when the Legislature could have

expressed its intention to exclude those offenses, “[b]ut it did not”).

Accordingly, we do not adopt the Appellate Division’s restrictive view

of the endangering statute. In appropriate settings, N.J.S.A. 2C:24-4(a)(1) as

currently drafted may apply to a juvenile, even when the specific conduct

6
N.J.S.A. 2C:24-4(a)(1)’s legislative history confirms that, following its 1979
amendment, the endangering statute was not limited to conduct that would also
violate N.J.S.A. 2C:14-2 or -3. Although the Assembly Judiciary Committee’s
statement to the statute’s 1979 amendments provides that those amendments
“should be read in combination with” the amendments to the sexual assault
statute, it does not state or imply that the endangering statute should be limited
to offenses set forth in the sexual assault statute amendments. A. Judiciary,
Law, Pub. Safety & Defense Comm.’s Statement to A. 3279 78-79 (June 28,
1979). To the contrary, the Statement makes clear that the endangering
statute’s 1979 amendments were intended to incorporate “[s]ocially
unacceptable sexual conduct between a person over 16 and a person under 16,
which may not otherwise be covered by 2C:14-2 or 2C:14-3,” and to make
such conduct “a third or fourth degree crime.” Id. at 79.

22
involved does not involve sexual penetration, force, or coercion and the

juvenile and alleged victim are fewer than four years apart in age.

The contrasting interpretations of N.J.S.A. 2C:24-4(a)(1) discussed

above signal a need for legislative review of the endangering statute as it

applies to juvenile settings such as this appeal. As D.M.’s case illustrates, it

would be helpful if the statutory language “sexual conduct which would impair

or debauch the morals of the child” provided clearer guidance to courts,

counsel, and the public in settings involving sexual conduct by juveniles close

in age. Indeed, laws with language analogous to that of our current

endangering statute were criticized in the commentary to Model Penal Code

(MPC) § 230.4, which addressed the offense of endangering the welfare of a

child; the MPC’s drafters rejected language similar to that of N.J.S.A. 2C:24 -

4(a)(1), in favor of language tethering the offense to a defendant’s violation of

“a duty of care, protection and support.” MPC § 230.4 (Am. Law Inst. 1980). 7

7
When the Legislature enacted the first version of our Code’s endangering
statute, N.J.S.A. 2C:24-4(a)(1), it based the statute’s language in part on MPC
§ 230.4. Cannel, N.J. Criminal Code Annotated, cmt. 1 on N.J.S.A. 2C:24-4
(2018). Generally consistent with MPC § 230.4, that version of the statute
criminalized conduct by “[a]ny person having a legal duty for the care of a
child or who has assumed responsibility for such care,” when that person
“causes such child such harm as would make such child an abused or neglected
child” as defined in N.J.S.A. 9:6-8.21. L. 1978, c. 95. In 1979, the Legislature
amended N.J.S.A. 2C:24-4(a)(1) to expand its reach beyond persons with a
23
As the MPC’s drafters noted, “[s]tatutes broadly condemning any conduct that

contributes to the delinquency of a minor contravene the general precept that

criminal laws should state their proscriptions with fair specificity and

precision.” MPC, cmt. 2 on § 230.4, at 449 (1980).

Should it choose to do so, the Legislature could amend N.J.S.A. 2C:24-

4(a)(1) to clarify its intent with respect to the statute’s application to juvenile

adjudications.

The Family Part judge’s credibility assessment and core factual findings

-- that D.M. “exposed his penis to Z.Y., sought Z.Y. to touch his penis with his

mouth, and had his penis physically touch Z.Y.’s buttocks,” but that the State

fell short of proving oral or anal penetration -- fully supported the judge’s

determination on the two offenses considered. Had the court not deviated from

its written decision in its later comments, there would be no basis to overturn

that determination in this appeal.

The court’s statement at the disposition hearing, however, directly

contravened the findings set forth in its adjudication. Addressing a

prospective appellate court that might review the case, the court stated that the

legal duty or assumed responsibility for the care of a child, and to criminalize
“sexual conduct” by any person “which would impair or debauch the morals of
the child.” L. 1979, c. 178, § 46. That language remains in effect today.
24
elements of the first-degree offense were met but that it had “downgrade[d]”

the offense to the third-degree charge of endangering the welfare of a child.

The court indicated that this “downgrade” was not due to a deficiency in the

State’s proofs, but to factors personal to D.M.: the lack of prior offenses on

his record, the grandmother whose devotion to D.M. had impressed the court,

D.M.’s “trials and tribulations,” and the juvenile’s admirable extracurricular

activities.

The juvenile’s personal characteristics are an important factor at the

disposition stage, but they do not warrant a “downgrade” of his charges at the

adjudication stage, or any other finding inconsistent with the proofs. In

accordance with Rule 1:7-4(a), the court sitting as factfinder in a juvenile

adjudication must find the facts that the State has proven beyond a reasonable

doubt; it has no authority to nullify its findings in order to achieve a more

lenient disposition, or for any other purpose. See Locurto, 157 N.J. at 470

(noting that Rule 1:7-4(a) requires “a trial court sitting without a jury to ‘state

clearly its factual findings and correlate them with the relevant legal

conclusions’” (quoting Curtis v. Finneran, 83 N.J. 563, 570 (1980))). When it

conducts a juvenile adjudication proceeding, the Family Part must hold the

State to its burden of proof beyond a reasonable doubt. When the State meets

25
that burden, however, the court must make findings consistent with the

evidence.

In this matter, the court disclosed at the disposition that, although the

State proved N.J.S.A. 2C:14-2(a)(1)’s sexual-penetration element, the court

discounted that proof and adjudicated the juvenile delinquent on the lesser-

related offense of endangering under N.J.S.A. 2C:24-4(a)(1). That disclosure

undermines our confidence in both determinations. In its wake, it is simply

unclear what facts the court actually found and what facts it did not find.

Accordingly, although we do not share the Appellate Division panel’s

interpretation of N.J.S.A. 2C:24-4(a)(1), we concur with its conclusion that

D.M.’s adjudication pursuant to that statute must be reversed.

IV.

We affirm on other grounds the judgment of the Appellate Division.

CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
FERNANDEZ-VINA, SOLOMON, and TIMPONE join in JUSTICE
PATTERSON’S opinion. JUSTICE ALBIN filed a concurrence.

26
SUPREME COURT OF NEW JERSEY
A-30 September Term 2017
079999

State in the Interest of D.M., a Juvenile

JUSTICE ALBIN, concurring.

I agree with the majority that D.M.’s juvenile adjudication for

endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(1), must be reversed.

I also concur with the majority that N.J.S.A. 2C:24-4(a)(1) is in need of

legislative review, in my view because of its potential to be overread. Unlike

the majority, however, I would give some guidance on the limitations of the

endangering statute when applied to children close in age who engage in

consensual sexual conduct.

The endangering statute is a very broad and vaguely written statute and

therefore may be susceptible to varying interpretations by different prosecutors

and judges, particularly when applied to close-in-age juveniles involved in

consensual sexual conduct. Therein lies the danger. We should construe the

endangering statute in a sensible manner -- consistent with the Legislature’s

probable intent -- so that it does not conflict with related statutes or exceed its

1
constitutional bounds. See State v. Burkert, 231 N.J. 257, 276-77 (2017);

Tumpson v. Farina, 218 N.J. 450, 467 (2014).

A criminal statute must give fair notice to a reasonable person of the

conduct the law prohibits. The vice of vague laws is that they lack explicit

standards and therefore lend themselves to abuse. See Town Tobacconist v.

Kimmelman, 94 N.J. 85, 118 (1983) (“A law is void as a matter of due process

if it is so vague that persons ‘of common intelligence must necessarily guess at

its meaning and differ as to its application.’” (quoting Connally v. Gen.

Constr. Co., 269 U.S. 385, 391 (1926))). Vague laws are constitutionally

suspect because they may ensnare the innocent who are unable to discern the

dividing line between permissible and prohibited conduct, because such laws

may be subject to arbitrary and discriminatory enforcement, and because they

delegate to prosecutors and judges the resolution of issues on a subjective

basis. State v. Cameron, 100 N.J. 586, 591 (1985) (citing Grayned v. City of

Rockford, 408 U.S. 104, 108-09 (1972)).

The endangering statute criminalizes “sexual conduct which would

impair or debauch the morals of the child.” N.J.S.A. 2C:24-4(a)(1). The

meaning of the endangering statute is far from clear, particularly when applied

to consensual conduct between close-in-age juveniles. The sexual offense

statutes of the Code of Criminal Justice, however, are very clear. Those

2
statutes do not criminalize sexual contact between consenting juveniles who

are less than four years apart in age. N.J.S.A. 2C:14-2, -3. We should assume

that the Legislature did not intend to place in conflict related statutes that

speak to a common subject. See In re Registrant J.G., 169 N.J. 304, 334

(2001) (“When this Court is confronted with conflicting statutory provisions

that relate to a common subject, we strive to reconcile the inconsistent

provisions and to interpret them harmoniously.”). We cannot ascribe to the

Legislature the intent to criminalize under the broadly written endangering

statute the very conduct that the more specific sexual offense statutes render

permissible -- sexual contact between close-in-age consenting juveniles. See

State v. Robinson, 217 N.J. 594, 609 (2014) (“[A] canon of statutory

construction directs that a specific statute generally overrides a general

statute.”).

Even in the absence of further legislative direction, I would not leave to

the discretion of prosecutors and judges, for example, whether a consensual

sexual act between a seventeen-year-old high school senior and a fifteen-year-

old high school sophomore is conduct that debauches the morals of a minor

under N.J.S.A. 2C:24-4(a)(1) when that conduct is clearly not criminal under

N.J.S.A. 2C:14-2 or -3. Whatever else the endangering statute may prohibit, it

3
does not criminalize sexual conduct between consenting juveniles specifically

designated as not criminal under N.J.S.A. 2C:14-2 or -3.

Without such limitations, the endangering statute is vulnerable to a

future as-applied constitutional challenge. Prosecutors therefore must act with

caution. I doubt that most prosecutors would charge a juvenile who engaged

in a consensual sexual act with another juvenile of similar age with child

endangerment when such conduct does not contravene N.J.S.A. 2C:14-2 or -3.

The child endangerment statute was never intended to criminalize consensual

sexual experimentation between close-in-age juveniles that does not violate

our sexual offense statutes, N.J.S.A. 2C:14-2 and -3.

The Legislature can now make that point clear.