In a recent published case a N.J. appeals court considered and rejected the State’s argument that defendant’s alleged assault of her elderly mother qualified as criminal neglect of the parent.- J.S.A. 2C:24-8(a) imposes criminal liability on those who have “assumed continuing responsibility for the care of a person 60 years of age or older,” making it a crime of the third-degree to “abandon the elderly person . . . or unreasonably neglect to do or fail to permit to be done any act necessary for the physical or mental health of the elderly person.
- J.S.A. 2C:24-8(a) requires an assault of an elderly person in order to establish a criminal legal conviction.
Background of Case
Mom moved from Florida to the Englewood home of her daughter, and her daughter’s boyfriend. Mom and her daughter had a typical mother/daughter relationship, ranging from affectionate to tense.
One particular afternoon, the daughter and her companion went out to lunch with friends, leaving mom at home alone until around 3:00 p.m. Daughter consumed alcohol at lunch, continued to drink after getting home and, according to testimony, was slightly intoxicated. Mother and daughter started arguing. The argument escalated into a “screaming” match and daughter’s companion entered the bedroom to “stop the quarreling.” On entering, he observed mom with her back to a wall shaking a back scratcher at daughter who in response grabbed mom’s hands to avoid being struck. Because the pair “were going back and forth with each other the companion physically pulled daughter out of the room. Daughter, however, reentered the room three more times to reengage; and with each time, her companion physically removed her. He testified he did not observe anything wrong with mom’s face, though he also admitted he was suffering from a vision problem and could only see “gray” and generally a “person’s form.” (Sounds like the courtroom scene from “My Cousin Vinny”, doesn’t It?) Daughter remained on the couch with her companion for quite a while, and mom remained in the bedroom. As I stated earlier the companion did not observe that mom had sustained any injuries.
The next morning, the boyfriend was scheduled to bring mom to a doctor’s appointment. Things were “peaceful” between mom and daughter but, as the morning wore on, mom became “obstinate” and refused to shower or get dressed for her appointment. Mom later walked out of the apartment alone. Both daughter and her companion believed mom was outside waiting for them and, therefore, they did not go to look for her.
Around noon, a police officer was sent to a nearby residence where an ambulance had been requested. On arriving, the officer observed mom sitting in the front yard with others standing beside her. Mom appeared “excited,” and the officer noted she had bruising on her left arm, right hand, and left cheekbone, and redness and swelling on her forehead.
Mom was taken to the hospital and her injuries were photographed, while her daughter was taken to police headquarters to be interviewed. The officer conducting the interview did not observe any visible injuries on the daughter other than a small scratch on her right earlobe.
Daughter was charged with one count of third-degree aggravated assault, N.J.S.A. 2C:12-l(b)(12), and one count of third-degree neglect of an elderly person, N.J.S.A. 2C:24-8(a). During a two-day trial, mom testified that her daughter caused the bruising to her face and arms by hitting her “[v]ery hard” as she attempted to defend herself. She stated that the hitting started again that morning “right when [they] were getting out of bed,” and this prompted her to “sneak out” of the house. Despite this fracas, mom testified she wished she still lived with defendant and that defendant “took very good care” of her, and that generally they had “[v]ery good times” together.
The jury acquitted defendant of aggravated assault but convicted her of the lesser-included offense of simple assault, N.J.S.A. 2C: 12-l(a)(l); the jury also convicted the daughter of neglect of an elder, N.J.S.A. 2C:24-8(a). The conviction of neglect is the focus of this blog. Defendant was sentenced to concurrent three-year terms of probation conditioned on serving 364 days in jail.
A very interesting legal argument was found in this case:
In appealing her conviction, daughter argued, among other things, that the State’s theory of criminal culpability under N.J.S.A. 2C:24-8(a) was “legally insufficient” because the statute requires “neglect,” and the State’s theory was not that defendant neglected mom but that she assaulted her. As the State argued in successfully opposing defendant’s motion for an acquittal, the assault was the neglect: “striking an elderly person by itself by its very nature is neglect.” The question presented to the appellate court was no different. The court was asked to determine whether assaulting an elderly person – by a person who has assumed responsibility constitutes the type of neglect criminalized by N.J.S.A. 2C:24-8(a). In answering that question, the court agreed with defendant that an assault – criminalized elsewhere in the criminal code – cannot constitute the neglect required by N.J.S.A. 2C:24-8(a). This author (Frederick P. Niemann, Esq.) agrees with this opinion.
The court started off with the language of the statute itself. N.J.S.A. 2C:24-8(a) which makes it a third-degree offense for a person, in the relationship daughter had with her mother, to “abandon” or “unreasonably neglect to do or fail to permit to be done any act necessary for the physical or mental health” of the elderly person. The words describing the criminalized conduct – “abandon,” “neglect,” and “fail” – all connote an act of omission rather than an act of commission. Indeed, “abandon” is further defined in the statute as “willful desertion or forsaking” of the protected person, additional words connoting inaction.
To accept the State’s theory that a caretaker’s assault of a protected person constitutes neglect, abandonment, desertion, or a failure to act, would require a court to twist the law beyond its plain meaning. Statutes must instead be interpreted to “discern and effectuate” the legislative intent.
The assault alleged here cannot also constitute a violation of N.J.S.A. 2C:24-8(a), as the evidence presented at trial lacked support for a charge that defendant abandon[ed] … or unreasonably neglect[ed] to do or fail[ed] to permit to be done any act necessary for the physical or mental health of an elderly person.
For these reasons, the appellate court reversed the judgment of conviction and remand for both a dismissal of the charge brought under N.J.S.A. 2C:24-8(a) and a new trial on the simple assault charge.
To discuss NJ elder abuse, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
By Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a Freehold Township, Monmouth County, NJ Elder Abuse Attorney