RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0741-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM F. SAPONARO, JR.,
Defendant-Appellant.
__________________________________
Argued April 25, 2017 – Decided May 31, 2017
Before Judges Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County Indictment No. 13-04-0411.
Frank Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant William F. Saponaro, Jr. appeals the trial court's
denial of his motion in limine to present a mistake of fact
defense. He argues that the application of N.J.S.A. 2C:14-5c
violated his due process rights because it deprived him of a
defense to the charges of sexual assault and endangering the
welfare of a child. We disagree and affirm.
On or before June 21, 2012, B.W., a thirteen year old boy,
accessed GrindrX on his personal cell phone. GrindrX is a paid,
online dating application through which bisexual and homosexual
persons meet. B.W. and co-defendant, Mark LeMunyon,1 twenty-four
years old, agreed to meet for a sexual encounter. LeMunyon
subsequently invited the defendant, then forty-nine years old, to
participate in the rendezvous; defendant agreed. B.W. went to
defendant's home and engaged in a variety of sex acts with
defendant and LeMunyon. On June 22, B.W. informed his mother of
the assignation with defendant and LeMunyon. Authorities were
notified after B.W.'s mother took him to the hospital for an
examination. Defendant was arrested on June 28.
The victim's age was a statutory factor in two counts
defendant faced. The State was required to prove, as an element
of the sexual assault, that the victim was at least thirteen but
1 LeMunyon pled guilty and did not join this appeal.
2 A-0741-15T3 less than sixteen years old, N.J.S.A. 2C:14-2c(4). It was further
required to prove that the victim was under the age of sixteen as
an element of the endangering charge, N.J.S.A. 2C:24-4a(1).
Defendant moved in limine to present, at trial, that he was
reasonably mistaken as to the age of the thirteen year old victim.
The evidence proffered by defendant in support of the motion was:
the victim told defendant he was eighteen years old, appeared to
be eighteen, and used a website that required the victim to pay
by credit card.
Judge Patricia M. Wild, in a discerning oral opinion, denied
defendant's motion. Thereafter, defendant entered a plea of guilty
to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4a(1), and fourth-degree criminal coercion, N.J.S.A. 2C:13-
5a(1)(amended from a third-degree conspiracy to commit sexual
assault). The plea bargain called for the dismissal of second-
degree sexual assault, N.J.S.A. 2C:14-2c(4).
Pursuant to Rule 3:9-3(f), defendant preserved his right to
appeal the trial court’s denial of his motion in limine, as
memorialized in the record of the plea allocution. The court and
3 A-0741-15T3 the assistant prosecutor acknowledged that the reservation by
defendant was a term of the plea agreement.2
On appeal, defendant contends:
N.J.S.A. 2C:14-5(C) IS UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF THIS CASE. THE TRIAL COURT'S ORDER DENYING DEFENDANT'S RIGHT TO PRESENT A MISTAKE OF FACT DEFENSE MUST BE VACATED AND THE MATTER REMANDED FOR FURTHER PROCEEDINGS. (U.S. CONST., AMENDS. VI; XIV; N.J. CONST., ART. I. PARS. 9, 10)3
N.J.S.A. 2C:14-5c provides, "It shall be no defense to a
prosecution for a crime under this chapter that the actor believed
the victim to be above the age stated for the offense, even if
such a mistaken belief was reasonable." By enacting the strict
liability provisions of N.J.S.A. 2C:14-5c, the Legislature
affirmed the long-standing rejection of the mistake of age defense
for sexual crimes against underage victims. See State v. Moore,
2 The State relies on the majority holding in State v. Davila, 443 N.J. Super. 577 (2016), in arguing that we should decline to hear this appeal because it is moot. Defendant pleaded guilty to the endangering the welfare of a child count. That count was not dismissed. The appeal relating to that charge is cognizable. As to the sexual assault count, defendant complied with the requirements of Rule 3:9-3(f). He reserved his right to appeal; both the court and the State approved that reservation. The issue is not moot as to that charge for the reasons expressed by Judge Gilson in his concurring opinion in Davila, id. at 591-96, with which we agree. 3 Defendant confirmed during oral argument that he abandons the contention made at the trial level that the statute was also constitutionally infirm on its face.
4 A-0741-15T3 105 N.J. Super. 567 (App. Div.), certif. denied, 54 N.J. 502
(1969).
The trial court perceptively recognized the pertinent holding
in State v. Maldonado, 137 N.J. 536, 550-51, 554-56 (1994), where
our Supreme Court ruled that the Legislature has the power to
enact strict liability laws to curb serious threats to public
safety. "[C]onstitutional-due-process limitations on strict
liability criminal statutes apply [only] when the underlying
conduct is so passive, so unworthy of blame, that the persons
violating the proscription would have no notice that they were
breaking the law." Id. at 555. It is enough that the Legislature
reaches "a rational conclusion that the safety of the public
requires" strict liability for serious offenses. Id. at 551.
We have long held that a mistaken belief as to the age of a
victim in an age-based sexual crime is not a defense. In Moore,
supra, 105 N.J. Super. at 571, we considered an argument similar
to that advanced here. Defendant, Moore, challenged a statute that
criminalized "carnal[] abuse of a woman-child of the age of 12
years or over, but under the age of 16, with or without her
consent" by a person sixteen years of age or older. Ibid. Calling
the statute "unconstitutionally arbitrary and irrational," Moore
advanced, "in to-day's sexually oriented and educated society
5 A-0741-15T3 . . . it is absurd to continue to apply the statutory rape standard
as if you were dealing with a ten year old." Ibid.
We rejected Moore's attempt to interpose the defense that he
reasonably believed the victim was above the minimum statutory
age. Id. at 569. We reasoned, "The crime has been defined by the
Legislature in terms which negate any element of criminal intent
on the part of the actor. It is for that body, not the courts,
to change the law, if it chooses to subscribe to a more liberal
pattern of sex behavior." Id. at 571.
Our Legislature recognized that children should be protected—
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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0741-15T3
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
WILLIAM F. SAPONARO, JR.,
Defendant-Appellant.
__________________________________
Argued April 25, 2017 – Decided May 31, 2017
Before Judges Vernoia and Moynihan.
On appeal from the Superior Court of New Jersey, Law Division, Cape May County Indictment No. 13-04-0411.
Frank Pugliese, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Pugliese, of counsel and on the brief).
Jane C. Schuster, Deputy Attorney General, argued the cause for respondent (Christopher S. Porrino, Attorney General, attorney; Sara M. Quigley, Deputy Attorney General, of counsel and on the brief).
PER CURIAM Defendant William F. Saponaro, Jr. appeals the trial court's
denial of his motion in limine to present a mistake of fact
defense. He argues that the application of N.J.S.A. 2C:14-5c
violated his due process rights because it deprived him of a
defense to the charges of sexual assault and endangering the
welfare of a child. We disagree and affirm.
On or before June 21, 2012, B.W., a thirteen year old boy,
accessed GrindrX on his personal cell phone. GrindrX is a paid,
online dating application through which bisexual and homosexual
persons meet. B.W. and co-defendant, Mark LeMunyon,1 twenty-four
years old, agreed to meet for a sexual encounter. LeMunyon
subsequently invited the defendant, then forty-nine years old, to
participate in the rendezvous; defendant agreed. B.W. went to
defendant's home and engaged in a variety of sex acts with
defendant and LeMunyon. On June 22, B.W. informed his mother of
the assignation with defendant and LeMunyon. Authorities were
notified after B.W.'s mother took him to the hospital for an
examination. Defendant was arrested on June 28.
The victim's age was a statutory factor in two counts
defendant faced. The State was required to prove, as an element
of the sexual assault, that the victim was at least thirteen but
1 LeMunyon pled guilty and did not join this appeal.
2 A-0741-15T3 less than sixteen years old, N.J.S.A. 2C:14-2c(4). It was further
required to prove that the victim was under the age of sixteen as
an element of the endangering charge, N.J.S.A. 2C:24-4a(1).
Defendant moved in limine to present, at trial, that he was
reasonably mistaken as to the age of the thirteen year old victim.
The evidence proffered by defendant in support of the motion was:
the victim told defendant he was eighteen years old, appeared to
be eighteen, and used a website that required the victim to pay
by credit card.
Judge Patricia M. Wild, in a discerning oral opinion, denied
defendant's motion. Thereafter, defendant entered a plea of guilty
to third-degree endangering the welfare of a child, N.J.S.A. 2C:24-
4a(1), and fourth-degree criminal coercion, N.J.S.A. 2C:13-
5a(1)(amended from a third-degree conspiracy to commit sexual
assault). The plea bargain called for the dismissal of second-
degree sexual assault, N.J.S.A. 2C:14-2c(4).
Pursuant to Rule 3:9-3(f), defendant preserved his right to
appeal the trial court’s denial of his motion in limine, as
memorialized in the record of the plea allocution. The court and
3 A-0741-15T3 the assistant prosecutor acknowledged that the reservation by
defendant was a term of the plea agreement.2
On appeal, defendant contends:
N.J.S.A. 2C:14-5(C) IS UNCONSTITUTIONAL AS APPLIED TO THE FACTS OF THIS CASE. THE TRIAL COURT'S ORDER DENYING DEFENDANT'S RIGHT TO PRESENT A MISTAKE OF FACT DEFENSE MUST BE VACATED AND THE MATTER REMANDED FOR FURTHER PROCEEDINGS. (U.S. CONST., AMENDS. VI; XIV; N.J. CONST., ART. I. PARS. 9, 10)3
N.J.S.A. 2C:14-5c provides, "It shall be no defense to a
prosecution for a crime under this chapter that the actor believed
the victim to be above the age stated for the offense, even if
such a mistaken belief was reasonable." By enacting the strict
liability provisions of N.J.S.A. 2C:14-5c, the Legislature
affirmed the long-standing rejection of the mistake of age defense
for sexual crimes against underage victims. See State v. Moore,
2 The State relies on the majority holding in State v. Davila, 443 N.J. Super. 577 (2016), in arguing that we should decline to hear this appeal because it is moot. Defendant pleaded guilty to the endangering the welfare of a child count. That count was not dismissed. The appeal relating to that charge is cognizable. As to the sexual assault count, defendant complied with the requirements of Rule 3:9-3(f). He reserved his right to appeal; both the court and the State approved that reservation. The issue is not moot as to that charge for the reasons expressed by Judge Gilson in his concurring opinion in Davila, id. at 591-96, with which we agree. 3 Defendant confirmed during oral argument that he abandons the contention made at the trial level that the statute was also constitutionally infirm on its face.
4 A-0741-15T3 105 N.J. Super. 567 (App. Div.), certif. denied, 54 N.J. 502
(1969).
The trial court perceptively recognized the pertinent holding
in State v. Maldonado, 137 N.J. 536, 550-51, 554-56 (1994), where
our Supreme Court ruled that the Legislature has the power to
enact strict liability laws to curb serious threats to public
safety. "[C]onstitutional-due-process limitations on strict
liability criminal statutes apply [only] when the underlying
conduct is so passive, so unworthy of blame, that the persons
violating the proscription would have no notice that they were
breaking the law." Id. at 555. It is enough that the Legislature
reaches "a rational conclusion that the safety of the public
requires" strict liability for serious offenses. Id. at 551.
We have long held that a mistaken belief as to the age of a
victim in an age-based sexual crime is not a defense. In Moore,
supra, 105 N.J. Super. at 571, we considered an argument similar
to that advanced here. Defendant, Moore, challenged a statute that
criminalized "carnal[] abuse of a woman-child of the age of 12
years or over, but under the age of 16, with or without her
consent" by a person sixteen years of age or older. Ibid. Calling
the statute "unconstitutionally arbitrary and irrational," Moore
advanced, "in to-day's sexually oriented and educated society
5 A-0741-15T3 . . . it is absurd to continue to apply the statutory rape standard
as if you were dealing with a ten year old." Ibid.
We rejected Moore's attempt to interpose the defense that he
reasonably believed the victim was above the minimum statutory
age. Id. at 569. We reasoned, "The crime has been defined by the
Legislature in terms which negate any element of criminal intent
on the part of the actor. It is for that body, not the courts,
to change the law, if it chooses to subscribe to a more liberal
pattern of sex behavior." Id. at 571.
Our Legislature recognized that children should be protected—
without regard to a perpetrator's knowledge of the minor's age—
from sexual assaults. The sexual assault of a child is not passive
conduct. It is not blameless. Sexual offenders cannot reasonably
plead ignorance of a victim's age. The face-to-face violation
provides ample notice to the perpetrator that the victim is a
minor. See United States v. X-Citement Video, Inc., 513 U.S. 64,
72 n.2, 115 S. Ct. 464, 469 n.2, 130 L. Ed. 2d 372, 381 n.2 (1994).
The statute imposing strict liability for sexual relations both
protects the public, i.e., minor children, and acts as a strong
deterrent to sexual attacks on those children. N.J.S.A. 2C:14-5c
does not violate defendant's due process rights. It is a proper
exercise of the Legislature.
6 A-0741-15T3 Defendant's reliance on the dissent in Fleming v. State, 455
S.W.3d 577 (Tex. Crim. App. 2014), is rejected as inapposite to
our settled law.4
Defendant also argues that N.J.S.A. 2C:14-5c does not apply
to the crime of endangering, N.J.S.A. 2C:24-4a(1). He asserts
that he should be allowed to present a defense that he did not
know the victim was under the age of eighteen, or did not
reasonably believe him to be at least eighteen.
First, we note that these crimes occurred on or about June
21, 2012. It was not until July 1, 2013 that the Legislature
increased the age of children protected by Chapter 24 from sixteen
to eighteen. L. 2013, c. 51 §13. The pertinent age here is
sixteen, not eighteen.
Endangering the welfare of a child is not a strict liability
crime. State v. Demarest, 252 N.J. Super. 323, 329 (App. Div.
1991). The Legislature, however, did not include a defendant's
knowledge of the victim's age as an element of the crime of
endangering when it enacted the statute to impair or debauch the
child's morals."
4 The majority decision in Fleming is consonant with New Jersey jurisprudence.
7 A-0741-15T3 In State v. Perez, 177 N.J. 540 (2003), our Supreme Court
held that the Legislature intended the age standards of Chapter
14 apply to Chapter 24:
The child-endangerment statute is codified under chapter 24 of the Code, whereas other sexual offenses are found under chapter 14. Given the statute's text and the Code's overall structure, we conclude that the Legislature intended the chapter 14 standard in respect of a victim's age to apply here. The import of that conclusion is that the child-endangerment statute requires only objective proof that the alleged victim was a child under the age of sixteen, not that the accused knew or reasonably should have known that fact. See N.J.S.A. 2C:14-5c (providing that defendant cannot assert as defense mistaken belief that his or her victim was "above the age stated for the offense"). Under that standard, the State sufficiently proved the age of the victim, irrespective of defendant's statement that D.D.'s "looks [were] deceiving" and that he believed that she was "about 16."
[Id. at 555.]
In light of the consistent efforts of the Legislature to
expand its protection of children by strengthening the provisions
of Chapter 24, see generally State v. Bryant, 419 N.J. Super. 15,
25-27 (App. Div. 2011), it is not unexpected that the Perez Court
grafted the age-related strict liability provisions of Chapter 14
to the endangering statute.
Just as the strict liability treatment of the sexual assault
statute does not violate due process principles, for the same
8 A-0741-15T3 reasons the absence of proof of mens rea with regard to the age
of an endangered child does not violate the constitution.
Judge Wild properly rejected defendant's contentions.
Inasmuch as the application of N.J.S.A. 2C:14-5c to defendant does
not offend the constitution, the motion to permit the mistake of
fact defense was properly denied.
Affirmed.
9 A-0741-15T3