(retired and temporarily assigned on recall), concurring and dissenting.
I concur with the majority to affirm the convictions on counts two, three, five and six. However, I part company with my colleagues in their reversal of the sexual assault convictions because I believe that the jury could, and did, reasonably infer that defendant was aware of the two children who were obviously in his view when they observed him and therefore defendant could be found guilty beyond a reasonable doubt of violations of N.J.S.A 2C:14-2b. Thus, I would affirm the convictions on counts one and four.
*623A more detailed recitation of the facts is necessary before deciding if defendant was entitled to a judgment of acquittal. On June 18,1994, defendant was first observed by Patrolman Frederick Jenkins of the Neptune Police Department who had been assigned to patrol the Ocean Grove beach area. Shortly after 8:00 p.m., Patrolman Jenkins had exited his vehicle and undertaken routine foot patrol on the boardwalk, near “the northeast most building” in Ocean Grove, which contained a restaurant, an ice cream shop, and various other stores.
Accompanied by Patrolman Phil Seidell, Patrolman Jenkins observed a small group on the beach consisting of Carol S., and four young children, K.B., E.B., J.F, and C.F. Carol was supervising these children. Patrolman Jenkins observed two of the children swimming and the other two playing with Carol in the sand. As he patrolled the boardwalk, Jenkins encountered defendant standing on the boardwalk, next to a bicycle, looking out at the water. Jenkins subsequently left the area and returned to his patrol vehicle.
At the time defendant was masturbating, J.F. and C.F. were playing in the water and apparently did not view any of the events that transpired. E.B. and K.B., ages eight and ten respectively, and Carol were playing on the beach. The defendant was located on the boardwalk some seventy-five feet from E.B., K.B. and Carol. Carol exclaimed “look at that man jerking off over there.” Initially, E.B. looked the wrong way after Carol’s remark, but subsequently, E.B. looked towards the boardwalk and saw defendant with his pants and underwear down, masturbating. K.B. also made the same observations. E.B., K.B. and Carol all clearly observed defendant masturbating while on the boardwalk. While masturbating, defendant appeared to be watching J.F. and C.F. playing in the water. Both E.B. and K.B. were frightened by defendant’s demonstration. Subsequently, Carol dispatched E.B. to get a police officer.
While at his patrol vehicle with Patrolman Seidell, Jenkins observed E.B. running towards them in “kind of a frantic type, *624excited manner.” This occurred no more than two to three minutes after Jenkins had left the beach area. Jenkins also characterized E.B. as “kind of seared” and Jenkins was unable to understand what E.B. was trying to tell him. Thereafter, Carol and K.B. joined Jenkins and E.B., and Jenkins observed both of them to be excited as well. Carol advised Jenkins that defendant was masturbating on the boardwalk. By the time Jenkins was able to reach the defendant’s location the defendant was standing, leaning, looking over the water. At trial Jenkins remarked that from where E.B., K.B. and Carol were located on the beach, they could have clearly seen a person on the boardwalk where defendant was standing, what that person was wearing, and what that person was doing with his hands.
Defendant was subsequently arrested and charged.
In counts one and four defendant was charged with sexual assault under N.J.S.A 2C:14-2b, by committing “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.” ' The two victims were eight and ten years of age. Defendant was forty years old. Therefore, the issue was solely whether defendant committed sexual contact as defined in N.J.S.A 2C:14-ld. He certainly committed sexual contact by “an intentional touching by [himself] ... of [his own] intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying [himself].” The pertinent part of the definition which the majority finds lacking is that the act “with himself must be in the view of the victim whom the actor knows to be present.”
The ultimate issue is:
whether, viewing the State’s evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt.
[State v. Reyes, 50 N.J. 454, 459, 236 A.2d 385 (1967).]
The majority concludes that the “defendant did not look in [E.B.’s and KJB.’s] direction nor did he make any gesture toward either one of them, and, so far as the record discloses, neither *625K.B. or E.B. were in close proximity to defendant.” See majority opinion, at 619, 691 A2d at 869.1 submit that defendant’s location on the edge of a boardwalk overlooking an almost deserted beach, seventy-five feet away from the victims and in clear view of the victims equates to close proximity. That at least would be a question for the jury to determine.
Furthermore, the majority’s reliance upon State v. Ridgeway, 256 N.J.Super. 202, 606 A.2d 873 (App.Div.), certif. denied, 130 N.J. 18, 611 A.2d 656 (1992), is misplaced. There is no requirement in the aforesaid statutes that the actor has to make any gesture towards the victim. There does not have to be “specific victimization and aggressive assaultive conduct,” as the majority holds. See majority opinion, at 620, 691 A.2d at 869. All that is necessary is that the sexual act be “in the view of the victim whom the actor knows to be present.” N.J.S.A 2C:14-ld.
Despite defendant’s attorney’s cross-examination and summation to the jury arguing that E.B. and K.B. were not in a position to view the defendant, the jury, and ultimately the trial judge, rejected this argument.
Police Officer Jenkins observed defendant on the boardwalk next to a bicycle. There was no proof how long defendant had been there, nor need there be. The jury could reasonably conclude that it had been much more than a few seconds. They could also reasonably conclude that the defendant did not approach on his bicycle and park it on the boardwalk without observing what or who was in the immediate vicinity. Rather, the jury could reasonably conclude that defendant stopped at a particular spot and, for a period of several minutes or more, he was aware that the minors, E.B., a girl, and K.B., a boy, and their female supervisor of unknown age,1 were on the beach only seventy-five feet away. Certainly, it is not necessary for the State to obtain an admission by the defendant that he was aware of the victims’ presence or *626their observation of him. Defendant’s awareness may be inferred by the circumstances.
Furthermore, the Legislature has made it a more serious offense when a victim of an otherwise lesser sexual offense is below the critical age. One authority has stated:
The distinction between lewdness, sexual contact and sexual assault lies in the relation of the actor to the victim. Both sexual assault and sexual contact are essentially assaultive crimes: by force or other unfair advantage, the victim is made to participate in a sexual event. The victim of lewdness, while subject to affront or alarm, is not really made a part of the act itself but is merely an observer. Where a young victim is the observer, however, the more serious crime of sexual assault may be found. This last result follows from the scheme of 2C:14-2 under which the age of the victim functions as the criminal equivalent of force. Therefore, any sexual exposure involving contact of the actor with himself or herself which he or she causes to be observed by a person 13 or under will constitute sexual contact with that victim, and sexual contact with a victim of that age constitutes sexual assault under 2C:14-2b.
[Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:14-4 (1996-97).]
Defendant’s argument that E.B. and K.B. inadvertently observed his conduct is without legal significance, as is the argument that they were not his target. The fact that the children, while on the beach, turned their heads to observe the defendant does not affect defendant’s intent. Defendant’s guilt does not turn on the fortuitous event of when and why the minors turned their heads to observe him. It would be unreasonable to assume that when defendant arrived at the .place on the boardwalk where he masturbated, he did not even look at the beach in the immediate vicinity for at least five or more minutes.
The real question under N.J.SA 2C:14-ld is whether defendant knew E.B. and K.B. were present. The evidence indicated that he must have known and the jury could reasonably infer that he did know. The jury knew that E.B., K.B. and their supervisor were the only people on the beach at the time of the incident. Therefore, the record is not clear, as the majority holds, “that there was no entreaty to either K.B. or E.B. by defendant nor were they specifically singled out by him.” See majority opinion, at 622, 691 A.2d at 870. The jury could have so concluded but *627they did not. We must keep in mind that when the motion for judgment of acquittal was made, the State was entitled to all the favorable inferences that could reasonably be drawn.
This is likewise true regarding the majority’s conclusion that there were no “victims” and that E.B. was really not scared because of defendant’s actions, but rather, his behavior was attributable to Carol’s request to report defendant’s criminal conduct to the police. See majority opinion, at 616 n. 1, 691 A.2d at 867 n. 1. Notably, E.B. testified that when she observed the defendant, E.B. “was scared” because she “thought [the defendant] was crazy.” This was before the police were summoned. The reason that E.B. and K.B. were scared and traumatized was clearly for the jury to determine, which was not difficult.
In any event, giving the State the benefit of all favorable inferences, a reasonable jury could, and did, conclude that defendant did look and knew that very young children were present and looked at them. Accordingly, the trial court properly denied the defendant’s motion for a judgment of acquittal as to the sexual assault charges.
Lastly, the sentence of ten years in prison with a five-year parole ineligibility to be served at the Adult Diagnostic and Treatment Center in Avenel does not “shock the judicial conscience.” State v. Roth, 95 N.J. 334, 364-65, 471 A.2d 370 (1984). The trial judge specifically considered the Avenel report which concluded that defendant suffered from a compulsive and repetitive pattern of exhibitionist behavior, as well as defendant’s “very extensive record of sexual offenses.”
Defendant had three indecent exposure complaints sustained as a juvenile, starting at age fourteen. Since 1975, he has had eight convictions for lewdness and a sexual assault conviction for which he was sentenced to an indeterminate term not to exceed ten years on April 10,1981. Defendant has established a long history of exhibitionist behavior which has continued despite two terms of specialized sex offender treatment.
Therefore, I would affirm the sexual assault convictions.
At the time of trial, the supervisor could not be located and therefore did not testify.