When Is a Child Considered “Endangered” According to NJ Law

There are several statutes in New Jersey that our legislature has enacted to prosecute crimes against children. One such statute is N.J.S.A. 2C:24-4; Endangering the Welfare of a Child, a crime which can carry a mandatory prison term between 5-10 years if it is charged in the second degree.

Under subsection (a)(1) of N.J.S.A. 2C:24-4, it is a crime of the second degree for a person who has a legal duty of care or responsibility of a child to engage in sexual conduct that impairs his or her morals. Similarly, it is a crime of the second degree under subsection (a)(2) of N.J.S.A. 2C:24-4 for a person with the same duty to cause a child “harm” that would make him or her abused or neglected as defined by N.J.S.A. 9:6-1, N.J.S.A. 9:6-3 or N.J.S.A. 9:6-8.21.

On August 9, 2018, the New Jersey Supreme Court in State v. Fuqua, addressed the issue of whether the “harm” to a child which causes him or her to be abused or neglected must be actual or whether the exposure to a “substantial risk” of harm is sufficient to sustain a conviction under N.J.S.A. 2C:24-4(a)(2).

In the Fuqua case, the execution of a search warrant led police to discover six children between the ages of one and thirteen being housed in a motel room which contained substantial amounts of controlled dangerous substances. Relying on decades of Appellate Division precedent and the unambiguous language of N.J.S.A. 2C:24-4(a)(2) read in conjunction with N.J.S.A. 9:6-8.21, the Court found that “harm” under N.J.S.A. 2C:24-4(a)(2) expressly incorporates the Title 9 definition of abuse and neglect, which proscribes exposing a child to an “imminent danger” or a “substantial risk thereof.”

Accordingly, the Court affirmed the lower courts’ rulings that the potential access to the drugs posed an imminent danger to the children and therefore, a conviction under N.J.S.A. 2C:24-4 can be sustained by exposing children to a “substantial risk of harm.”

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Greg S. Gargulinski is a partner with Davison, Eastman, Muñoz, Lederman & Paone. He focuses his practice in the areas of criminal law and municipal court defense.  In this capacity, he represents clients in matters involving DWI/DUI, as well as criminal defense at the County, Appellate and Federal Levels. Contact Greg.