The New Jersey Supreme Court continued in relevant part: 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.
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.
Here, the Appellate Division was likely motivated by their busy docket in denying the State’s unopposed request for oral argument. Fundamental fairness to the State dictates that such a request should be granted liberally when it is unopposed and requested in response to the Court’s raising a crucial issue sua sponte.