State v. Perez

ZAZZALI, J.,

concurring in part and dissenting in part.

I agree with the conclusion set forth in the majority’s persuasive opinion that the evidence presented by the State supports defendant’s conviction for child luring. N.J.S.A. 2C:13-6. I respectfully disagree, however, that the same evidence supports his conviction for attempted child endangering. N.J.S.A. 2C:5—1; N.J.S.A. 2C:24-4a. To convict defendant of that offense, the State must *557prove beyond a reasonable doubt that he took a “substantial step” towards commission of the object crime of child endangering. Ante, at 553, 832 A.2d at 311 (citing N.J.S.A. 2C:5-la(3)). Because I believe that the evidence presented in this case does not support such a finding, I dissent from that portion of the majority’s opinion.

A substantial step is conduct “strongly corroborative of the actor’s criminal purpose.” N.J.S.A. 2C:5-lb. Attempt crimes require that the actor take a substantial step towards the commission of an object offense to ensure that “very remote prepatory acts” remain excluded from the ambit of criminal liability. New Jersey Penal Code, Volume IP. Commentary, Final Report of the New Jersey Criminal Law Revision Commission at 117-18. The substantial step requirement reflects the Legislature’s policy judgment that an individual should not be subject to criminal prosecution and punishment for a criminal attempt unless he or she firmly has advanced toward some criminal objective. Ibid. It balances a fundamental concern for the liberty of our citizens with the State’s general interest in criminal deterrence. Ibid.

In this ease, the State alleges that defendant attempted to commit the underlying crime of child endangering. N.J.S.A 2C:24-4a (requiring defendant to engage in “sexual conduct which would impair or debauch the morals of [a] child”). Although a jury reasonably might have inferred from defendant’s statements to police that he desired sexual conduct with D.D., the State failed to offer sufficient evidence that defendant took a substantial step toward that end. The record establishes that defendant offered D.D. a ride to school on a rainy February day. D.D. declined defendant’s offer and defendant drove away. On a second occasion, three months later, defendant saw D.D. playing on a public street with her younger brothers, stopped, and motioned for D.D. to come over to his car. When D.D. ignored defendant, he again drove away. Those two incidents comprised defendant’s entire course of conduct toward D.D.

*558As noted, to support a conviction for attempted child endangerment, defendant’s actions must be “strongly corroborative” of a desire to engage in sexual conduct with D.D. N.J.S.A. 2C:5-lb. If defendant’s conviction for child luring, which does not require that a defendant take a substantial step, presents a “close case,” ante at 552-53, 832 A.2d at 310-11, his conviction for attempted child endangering, which does require a substantial step, should fall. On the thin facts of this appeal, a jury reasonably could not have concluded that defendant’s actions were “strongly corroborative” of an underlying criminal intent.

I therefore would vacate defendant’s attempted child endangering conviction for failure to present sufficient evidence of a substantial step in accordance with the reasons expressed by Judge Parrillo on that issue. State v. Perez, 349 N.J.Super. 145, 155-57, 793 A.2d 89 (App.Div.2002).

For reversal and reinstatement—Chief Justice PORITZ and Justices COLEMAN, LONG, YERNIERO, LaVECCHIA and ALBIN—6.

For concurring in part; dissenting in part—Justice ZAZZALI— 1.