                        RECORD IMPOUNDED

                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION


                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-0216-15T2

                                      APPROVED FOR PUBLICATION
STATE IN THE INTEREST OF
D.M., a juvenile.                           August 9, 2017
_________________________
                                          APPELLATE DIVISION


         Submitted May 16, 2017 — Decided August 9, 2017

         Before Judges Reisner, Koblitz and Sumners.

         On appeal from the Superior Court of New
         Jersey, Chancery Division, Family Part,
         Union County, Docket No. FJ-20-209-15.

         Joseph E. Krakora, Public Defender, attorney
         for   appellant   D.M.   (Seon   Jeong  Lee,
         Designated Counsel, on the briefs).

         Grace   H.    Park,   Acting   Union    County
         Prosecutor, attorney for respondent State of
         New Jersey (Milton S. Leibowitz, Special
         Deputy   Attorney   General/Acting   Assistant
         Prosecutor, of counsel and on the briefs).

    The opinion of the court was delivered by

KOBLITZ, J.A.D.

    D.M.,1    appeals   from   a    May    29,     2015   adjudication     of

delinquency for acts which, if committed by an adult, would

constitute   third-degree   endangering      the    welfare    of   a   child,

1
  We use initials and pseudonyms to protect the identity of the
juvenile and minors involved in these proceedings.     R. 1:38-
3(d).
N.J.S.A. 2C:24-4(a).           The dispositional order imposed a three-

year probationary term, N.J.S.A. 2A:4A-43(b)(3), treatment at an

outpatient residential placement program, and full compliance

with sex offender requirements pursuant to Megan's Law, N.J.S.A.

2C:7-1 to -11.2         The trial judge found that the State did not

prove the sexual behavior between fourteen-year-old D.M. and his

eleven-year-old         alleged    victim,     "Zane,"      involved      sexual

penetration.      Coercion was not alleged or found.            Based on those

findings,   using        the    appropriate        principles   of   statutory

construction, an adjudication of delinquency against a child for

endangering the welfare of another child less than four years

younger   based    on    sexual    contact    is    not   sustainable    and    we

therefore reverse.


2
  Because D.M. was over the age of fourteen when the incident
occurred, he must report for at least fifteen years.    N.J.S.A.
2C:7-2(f); In re Registrant J.G., 169 N.J. 304, 337 (2001)
(holding that in the case of a ten-year old adjudicated
delinquent for aggravated sexual assault of his eight-year-old
cousin, Megan's Law applies until age eighteen if the juvenile
offender is under the age of fourteen and is determined by clear
and convincing evidence to be unlikely to pose a threat to the
safety of others); State ex rel. J.P.F., 368 N.J. Super. 24, 38-
39 (App. Div.), certif. denied, 180 N.J. 453 (2004) (declining
to extend the holding in J.G. regarding termination of Megan's
Law requirements to a seventeen-year-old juvenile offender
adjudicated delinquent for fourth-degree criminal sexual contact
of another seventeen year old, as juvenile was over fourteen
years of age).     Cf. State ex rel. C.K., 228 N.J. 238 (2016)
(granting certification on the issue of whether lifetime
registration     requirements   imposed    on    juveniles    is
constitutional).


                                  2                                     A-0216-15T2
     D.M.    was   charged    with     delinquency   for   conduct   occurring

between April 1 and August 20, 2014, which, if engaged in by an

adult, would constitute first-degree aggravated sexual assault,

N.J.S.A. 2C:14-2(a)(1).

     After    conducting      an   N.J.R.E.    104(a)   hearing,     the   trial

judge   admitted    into     evidence    Zane's   out-of-court     disclosures

pursuant to N.J.R.E. 803(c)(27) (permitting hearsay testimony by

a child under the age of twelve "relating to sexual misconduct

committed with or against that child" if the court finds "there

is a probability that the statement is trustworthy"). The following

facts were developed at the hearing3 and subsequent trial.

     Eleven-year-old Zane and his younger brother, Za.Y., who

was nine years old, spent time when not in school in the area

where their mother, L.Y., operated her hair salon.                    Zane and

Za.Y. played across the street from the salon in the playground

behind a school with their friend, R.R., who was fifteen years

old at the time and lived a few doors away from the salon.                  R.R.

and D.M. had been friends for several years.                 R.R. introduced

D.M. to Zane at the playground.           D.M. is approximately three and

one-half years older than Zane.               During April 2014, D.M. was

fourteen years old.

3
  By consent, testimony from the hearing was incorporated into
the bench trial. See State v. Gibson, 219 N.J. 227, 249 (2014)
(allowing that procedure in a drunk-driving prosecution).


                                   3                                   A-0216-15T2
      L.Y.,   her     adult    daughter,   N.C.,   N.C.'s   boyfriend,     Zane,

Za.Y, and E.B., L.Y.'s boyfriend's seven-year-old son were at

L.Y.'s house one evening in August 2015.             Zane and Za.Y. were in

their shared upstairs bedroom with E.B.             L.Y. went to "check on

the boys."      Upon entering the room, she observed Za.Y. sleeping

on the top section of the bunkbed, and Zane and E.B. sitting

together on the bottom bed in an odd arrangement.                Although she

initially left, L.Y. shortly returned and observed that Zane's

shorts were "twisted."          L.Y. angrily asked Zane "what [were] you

doing?"   Zane initially denied any wrongdoing.              L.Y. then asked

E.B. what was going on.           E.B. told L.Y. that "[Zane] was doing

nasty things" including "rubbing his penis on him."               L.Y. yelled

at Zane, "popped" Zane on the buttocks, and asked him repeatedly

where he learned this behavior.             Zane answered, "the boy did it

to me."

      According to N.C., she came upstairs and her mother, L.Y.,

sounded "furious."           N.C. found her mother in her bedroom crying

and   yelling    at    her    brother,    Zane.    N.C.   took   Zane    to   the

downstairs bathroom, hugged Zane as he was crying, and told him

he "shouldn't be in bed with another little boy."                  N.C. asked

him three times, "where did he get that from?"               Zane responded,

"someone did that to him."             Zane then told N.C. that D.M. "made

him suck his penis . . . and [D.M.] told [Zane] to put his penis


                                   4                                    A-0216-15T2
in his anus."      Zane said he had not told his family because "he

was scared of what everyone would think."                   L.Y. testified, and

N.C. confirmed, that Zane stated he was afraid "daddy's going to

kill me" and his brothers and father "would think he was gay."

       Sergeant Walter Johnson of the Union County Prosecutor's

Office, Special Victims Unit, testified that he conducted a one-

on-one video-recorded interview with Zane sometime mid-morning

on the day following this incident.

       On the video recording,4 Johnson asked Zane "do you know why

you're here today?"        Zane responded, "Yeah" and, "[c]ause I did

something."       Zane    was     initially   unresponsive,       until   Johnson

assured Zane that he was "not in any trouble[,]" after which he

asked Zane "what happened?"

       Zane revealed two interactions two weeks apart with D.M.

while they were at the playground.              Zane said that, at D.M.'s

request, Zane "sucked [D.M.'s] thingy."               Zane further stated to

Johnson    that   the    sexual    activity   with    D.M.    occurred     at   the

playground in a stairwell after it "got dark" and their friends

and    Za.Y.   left.     According     to   Zane,    both    he   and   D.M.    were

standing while Zane performed fellatio on D.M. for only "two

seconds."      Zane also claimed he did not know any other name for

the part he referred to as "thingy," and that D.M. did not touch

4
    We were provided with the transcript but not the recording.


                                   5                                      A-0216-15T2
any other part of Zane's body.                 Zane said, "[i]t made [him] feel

weird."

       Although Zane originally denied that D.M. had touched him

during this second incident, he later stated that D.M. "touched

[him] on [his] butt" with D.M.'s "thingy."                          Zane stated that

D.M. told him to take off his clothes and he tried to put it in,

but Zane told him to stop because "[i]t kind of hurt."                                 At

trial, Zane testified that it was during the first incident that

D.M. attempted to anally penetrate him.

       Johnson asked Zane if "something like [the D.M. incident]

happened     with   anyone    else[,]"          and     Zane    confirmed     that     it

happened with E.B., his mother's boyfriend's seven-year-old son,

after Zane asked E.B. "to suck his thingy[,]" and E.B. complied.

Zane told Johnson that "[l]ast night" was the only time that

Zane   had   ever   done     that       with    E.B.,    and    that      nothing    else

occurred between them.

       Zane told Johnson that he told both L.Y. and his father,

"everything [he] told [Johnson]."

       Zane's father was in the courtroom as a "support person"

during     Zane's   testimony.           In      addition      to   his    disclosures

regarding     the   two    incidents           with   D.M.     in    the    playground

stairwell, Zane testified at trial about another incident when

he and D.M. walked to D.M.'s house.                      The first time he told


                                    6                                          A-0216-15T2
anyone    about     this    third    incident       was    one   week     before    trial

"because [he] didn't remember it" before then.                            According to

Zane, D.M. asked Zane if he could "[p]ut his thing in [Zane's]

mouth again," for which Zane complied.                    Zane did not recall when

this occurred.       When questioned about the incidents in the park,

and asked whether D.M. told him or "politely ask[ed]" him to

stay, Zane responded: "He asked me."                      Zane denied D.M. forced

him or threatened him, although he said the interaction made him

feel uncomfortable and "weird" and he did not like it.

       On cross-examination, Zane admitted that he used the video

and messaging chat application, "Oovoo," to contact D.M.                             Zane

confirmed    that     one     night      at    10:29      p.m.   he     messaged     D.M.

Although he refused to read the message aloud, he acknowledged

he wrote to D.M., "So 69, let me C-U-R cock."                             D.M. did not

respond,    although       Zane   tried       to   call   him    again.      Zane    also

testified on cross-examination that he knew what "cock" and "69"

meant, and that his older friend R.R. had previously shown him

"dirty" pictures on R.R.'s smartphone.                    Zane also said that when

discovered with E.B., his mother "popped" him for the first time

in his life.

       Zane stated that the night he was discovered having E.B.

perform fellatio on him was not the first time he engaged in

that     behavior    with     E.B.        Zane      admitted      to    three      sexual


                                     7                                          A-0216-15T2
encounters    with    the   seven-year-old.              Zane    said    he    told    the

younger child he had learned the behavior from pornography.

    D.M.      presented     B.V.,        aged     seventeen,      and        B.C.,    aged

eighteen, as defense witnesses.               Both were in the Junior Reserve

Officer Training Corps with D.M.                  B.V. testified he was "best

friends" with D.M. and that they would "hang out" together at

the playground behind the school.                B.V. stated that he sometimes

saw Zane, who frequently urinated in public and "cursed a lot."

B.C. testified he also went to the playground with D.M., who he

described      as     "committed,          hardworking,          outgoing,           [and]

outspoken."     B.C. stated that Zane acted inappropriately at the

playground    by    "piss[ing]      on    a     tree."      He   stated       Zane    made

statements    to    R.R.,   B.V.,    and      B.C.,      like:   "Can    I    suck    your

dick?"

    D.M. denied any sexual contact with Zane.                       D.M. testified

that Zane asked to "suck [D.M.'s] dick" or if D.M. "would suck

[Zane's] dick."       D.M. corroborated B.C.'s and B.V.'s testimony

that Zane urinated on the playground in public.                         D.M. testified

that he received the "Oovoo" message from Zane, and was annoyed

with Zane "[b]ecause he kept calling."                      On cross-examination,

D.M. admitted someone from his school called D.M.'s mother about

D.M.'s "gay bashing" during a verbal altercation with another

student, resulting in a "Saturday detention."


                                 8                                              A-0216-15T2
       The    parties    agreed    that    the    court       could    consider     the

lesser-related charge of third-degree endangering the welfare of

a child, N.J.S.A. 2C:24-4(a), as provided in State v. Thomas,

187 N.J. 119, 134 (2006).              In summation, D.M.'s counsel argued

that he was not guilty of any offense, and the prosecutor argued

that    the   juvenile     had    committed      acts   that     would    constitute

aggravated sexual assault if committed by an adult and would

also support a finding of third-degree endangering the welfare

of a child.

       The judge rendered a written opinion finding D.M. committed

third-degree endangering the welfare of a child, N.J.S.A. 2C:24-

4(a).    The judge found D.M.'s testimony was "inauthentic" as it

"could more aptly be described as a job interview, where [D.M.]

was    trying   to     sell    himself."       The    judge     determined      D.M.'s

witnesses,      B.V.     and   B.C.,    were     "earnest"      but    both     lacked

specific      relevant    information.         The    judge    found     Zane   was    a

credible witness who provided consistent and specific testimony

on all three incidents with D.M.                     The judge, however, found

insufficient proof of penetration.5               The judge held the evidence


5
    According to N.J.S.A. 2C:14-1(c):

              'Sexual     penetration'   means    vaginal
              intercourse, cunnilingus, fellatio or anal
              intercourse between persons or insertion of
              the hand, finger or object into the anus or


                                   9                                          A-0216-15T2
adduced at trial proved that D.M. knowingly engaged in sexual

conduct that would impair or debauch the morals of a child.

Three   months   later,   when    imposing    a   disposition,   the    judge

commented    that   he    had     found      no   penetration    only     for

"humanitarian reasons," and in spite of the strength of the

proofs.

    D.M. raised the following issues on appeal:

            POINT I: THE COURT ERRED IN RULING THAT
            [ZANE'S]       SELF-SERVING     OUT-OF-COURT
            STATEMENTS MADE UNDER DURESS AND COERCION BY
            ADULT FAMILY MEMBERS WERE TRUSTWORTHY AND
            ADMISSIBLE    UNDER    N.J.R.E.  803(c)(27),
            DEPRIVING D.M. OF A FAIR TRIAL. U.S. CONST.
            AMENDS. VI, XIV; N.J. CONST. (1947) ART. 1,
            PAR. 10.

            POINT II: THE COURT'S FINDING OF DELINQUENCY
            WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE
            EVIDENCE AND MUST BE REVERSED.

            POINT III: THE ADJUDICATION OF DELINQUENCY
            SHOULD    BE   REVERSED   BECAUSE    D.M.'S
            PREDISPOSITION REPORT WAS NOT PROVIDED AT
            THE DISPOSITION HEARING AND D.M. DID NOT
            EXPRESSLY WAIVE THIS MANDATORY REQUIREMENT.
            R. 5:24-2.

            POINT IV: THE COURT'S IMPOSITION OF THE
            MAXIMUM SENTENCE OF 3 YEARS' PROBATION WAS
            EXCESSIVE AND SHOULD BE REDUCED.




            vagina either by the actor or upon the
            actor's   instruction.       The   depth of
            penetration shall not be relevant as to the
            question of the commission of the crime.


                                 10                                A-0216-15T2
      At    our    request,   the     parties    also   submitted        supplemental

briefs expanding the issue the juvenile raised in Point II to

encompass     the    question    of   whether     the   lack    of   a    finding       of

penetration or coercion undermines the delinquency finding of

endangering the welfare of a child, in light of the four-year

age   difference      required      for    a   delinquency     finding     of     sexual

assault.     Because we reverse the adjudication on this issue, we

do not address the other points raised by D.M. on appeal.

      When reviewing the result of a bench trial, we do not make

factual findings.          "We must give deference to those findings of

the trial judge which are substantially influenced by his or her

opportunity to hear and see the witnesses and have the 'feel' of

the case, which we do not enjoy upon appellate review."                            State

ex rel. S.B., 333 N.J. Super. 236, 241 (App. Div. 2000).                         We

             do not weigh the evidence, assess the
             credibility    of    witnesses,    or    make
             conclusions about the evidence. We are not
             in a good position to judge credibility and
             ordinarily should not make new credibility
             findings.   However,   our  review    of  the
             sufficiency of the facts to satisfy an
             applicable legal standard is a question of
             law.

             [Mountain   Hill,    L.L.C. v.   Twp.   of
             Middletown, 399 N.J. Super. 486, 498 (App.
             Div. 2008) (internal quotation marks and
             citations omitted).]

      The     potential       lesser-included        crime      of       first-degree

aggravated        sexual   assault    of   a   child,   fourth-degree        criminal

                                     11                                         A-0216-15T2
sexual contact through force or coercion, N.J.S.A. 2C:14-3(b),

was    expressly     excluded    from     consideration         by     the     judge.

Coercion was not charged in the complaint and the judge found no

evidence    of    coercion,     force    or     an    attempt     to    commit       an

aggravated sexual assault.            The judge stated he made findings

consistent with Zane's testimony, writing "at no time did [D.M.]

use force or threaten him to perform the charged sex acts, and

in fact, was rather polite in his requests."                    Coercion as used

in    N.J.S.A.    2C:14-3(b)    is    defined   the    same     way    as    criminal

coercion in N.J.S.A. 2C:13-5(a).          N.J.S.A. 2C:14-1(j).

            A person is guilty of criminal coercion if,
            with    purpose  unlawfully   to    restrict
            another's freedom of action to engage or
            refrain   from  engaging  in   conduct,   he
            threatens to:

            (1) Inflict bodily injury on anyone or
            commit any other offense, regardless of the
            immediacy of the threat;

            (2)    Accuse anyone of an offense;

            (3) Expose any secret which would tend to
            subject any person to hatred, contempt or
            ridicule, or to impair his credit or
            business repute;

            (4) Take or withhold action as an official,
            or cause an official to take or withhold
            action;

            (5) Bring about or continue a strike,
            boycott or other collective action, except
            that such a threat shall not be deemed
            coercive when the restriction compelled is
            demanded in the course of negotiation for

                                 12                                          A-0216-15T2
          the benefit of the group in whose interest
          the actor acts;

          (6) Testify   or   provide   information   or
          withhold  testimony   or   information   with
          respect to another's legal claim or defense;
          or

          (7) Perform any other act which would not
          in itself substantially benefit the actor
          but which is calculated to substantially
          harm another person with respect to his
          health, safety, business, calling, career,
          financial condition, reputation or personal
          relationships.

          [N.J.S.A. 2C:13-5(a).]

Although the judge found D.M. was larger and older than Zane,

the judge found a lack of coercion or threat.

    In an adult criminal case where no penetration is found,

the factfinder could consider the lesser-included second-degree

crime of sexual assault of a child under the age of thirteen,

N.J.S.A. 2C: 14-2(b).    The definition of sexual contact is:

          an intentional touching by the victim or
          actor, either directly or through clothing,
          of the victim's or actor's intimate parts
          for the purpose of degrading or humiliating
          the victim or sexually arousing or sexually
          gratifying the actor.

          [N.J.S.A. 2C:14-1(d).]

    Sexual    assault   of   a    child   by   sexual   contact,   however,

requires a four-year age difference between the actor and the

victim.      N.J.S.A. 2C:14-2(b) states: "An actor is guilty of

sexual assault if he commits an act of sexual contact with a

                                 13                                A-0216-15T2
victim who is less than 13 years old and the actor is at least

four years older than the victim."                  Logically, the purpose of

this    section     is    to   avoid       criminalizing     non-coercive        sexual

contact between two juveniles who are less than four years apart

in age.6      See    Assembly Judiciary, Law and Public Safety, and

Defense Committee Statement to Assembly Bill No. 3279, at 78-79

(June 28, 1979) (indicating that the Legislature did not intend

to     criminalize       sexual     experimentation       between      juveniles       of

similar ages).

       As the judge stated in his opinion, because he did not find

sexual penetration or coercion, and D.M. was less than four

years    older    than     Zane,     the    judge   did    not   consider      lesser-

included sexual crimes.              He considered only the lesser-related

third-degree crime of endangering the welfare of a child.                           Both

the State and juvenile had agreed to that possible disposition

when the issue of penetration was alleged and unresolved.

       Once   the    judge        found    insufficient      evidence     of     sexual

penetration, the question became whether a juvenile who is not

guilty of sexual assault due to an insufficient age differential

could      nonetheless         be     adjudicated         delinquent     of       child

endangerment for that same behavior.                  In other words, did the


6
  No adult could be less than four years older than a child
twelve years old or younger.


                                     14                                        A-0216-15T2
Legislature        particularly       exempt       sexual     contact     between       two

children      close     in    age     from       delinquent    liability        only     to

criminalize that same conduct under the more general rubric of

child endangerment?            The State argues that even without the

four-year age difference, D.M.'s behavior constitutes "sexual

conduct" and thus fits the definition of endangerment.                            As our

Supreme Court has stated, however, when a clear ambiguity exists

"a   canon    of    statutory        construction       directs    that     a   specific

statute      generally       overrides       a    general   statute."           State    v.

Robinson,     217     N.J.    594,    609    (2014);    see    also   State      ex    rel.

J.P.F., supra, 368 N.J. Super. at 38 ("Under usual rules of

statutory      construction,          the        more   specific      law       must     be

interpreted as prevailing over the more general one.").

      The    pertinent       part     of    the    child    endangerment        statute,

N.J.S.A. 2C:24-4(a), states:

              (1) Any person having a legal duty for the
              care   of  a  child   or  who   has  assumed
              responsibility for the care of a child who
              engages in sexual conduct which would impair
              or debauch the morals of the child is guilty
              of a crime of the second degree. Any other
              person who engages in conduct or who causes
              harm as described in this paragraph to a
              child is guilty of a crime of the third
              degree.

              [(Emphasis added).]

      "Although the term 'sexual conduct' is not defined [in the

child     endangerment        statute],          clearly    included      are      sexual

                                      15                                         A-0216-15T2
assaults and sexual contact[.]"                   State v. Perez, 177 N.J. 540,

553 (2003) (quoting State v. Perez, 349 N.J. Super. 145, 153

(2002))    (second    alteration           in    the   original).     To    ascertain

Legislative intent we "read words and phrases in their context

and apply their 'generally accepted meaning.'"                      N. Jersey Media

Grp., Inc. v. Twp. of Lyndhurst, __ N.J. __, __ (2017) (slip op

at   39-40)   (quoting         N.J.S.A.         1:1-1).    "[W]e    can    also    draw

inferences    based       on     the       statute's      overall    structure      and

composition."       State v. S.B., __ N.J. __, ___ (2017) (slip op.

at 6).

     The   Legislature         did     not      intend    sexual   behavior   between

children    close    in    age       not     involving     penetration,     which     it

specifically exempted from the criminal statutes, to nonetheless

be included within the crime of child endangerment.                       Our Supreme

Court has told us to analyze ambiguous statutes in a criminal

context in favor of the accused:

            Like all matters that require interpretation
            of a statute, our goal of implementing the
            Legislature's intent begins with the text of
            the statute. If the meaning of the text is
            clear and unambiguous on its face, we
            enforce that meaning. If the language admits
            to more than one reasonable interpretation,
            we may look to sources outside the language
            to ascertain the Legislature's intent. When
            extrinsic sources cannot clarify the meaning
            of ambiguous language, we employ the canon
            of statutory construction that counsels
            courts to construe ambiguities in penal
            statutes in favor of defendant.

                                      16                                      A-0216-15T2
            [State v. Reiner, 180 N.J.                         307,    311-12
            (2004) (citations omitted).]

Although    D.M.     engaged      in    behavior        that     would       generally      be

considered sexual conduct with another child, the sexual contact

was exempted from criminal liability by a specific statute.

     The     State       argues        we     should        determine        that     sexual

penetration was proven in spite of the judge's findings to the

contrary.       The judge found an absence of sexual penetration in a

written     opinion      issued    two        weeks     after     the    trial        ended,

concluding that Zane's testimony was not sufficiently specific

or persuasive on this issue.                Three months later, when imposing

a disposition, he described his failure to find penetration as a

"humanitarian      gesture."           When       a   court    does    not     find    facts

legally sufficient to adjudicate the accused delinquent, that is

the end of the matter with respect to that charge.                             We cannot,

as the State here urges, change the original adjudication based

on   comments      the   court     made       in      the     course    of    imposing       a

disposition.       We are not fact-finders.                 See State ex re. J.P.F.,

supra,    368    N.J.    Super.    at       31.       The     judge    articulated        the

insufficiency of the evidence as to penetration.                         Whether he was

motivated to make this finding in part by mercy is not legally

relevant.       Double jeopardy prevents the State's appeal of a not-

delinquent finding in a juvenile trial.                         State in Interest of


                                       17                                           A-0216-15T2
J.O., 242 N.J. Super. 248, 253-54 (App. Div.), certif. denied,

122 N.J. 385 (1990).

    We need not reach the issue of whether                           the Legislature

intended a juvenile to be found delinquent for endangering the

welfare of another child under any circumstances.                              State in

Interest   of     A.B.,   328   N.J.        Super.     96,    97   (Ch.   Div.       2000)

(determining      that    juveniles          were      subject       to   the        child

endangerment      statute,      in        particular     with      respect      to     the

prohibition against distribution of child pornography, N.J.S.A.

2C:24-4(b)); see also In re Civil Commitment of R.F., 217 N.J.

152, 157-58 (2014) (affirming the denial of civil commitment as

a sexually violent predator of a juvenile who pled guilty in

adult court to endangering the welfare of a child after being

charged    with    first-degree       aggravated        sexual       assault    of     two

children aged twelve and thirteen); State ex rel. D.A., 385 N.J.

Super. 411, 414 (App. Div.), certif. denied, 188 N.J. 355 (2006)

(involving a juvenile who entered a guilty plea to endangering

the welfare of his six-year-old half-sister).

    Neither penetration nor coercion was found by the trial

judge.     The    Legislature        expressly       stated    its    intent     not    to

criminalize sexual contact between children less than four years

apart in age absent either penetration or coercion.                             We must

honor that Legislative expression.               To the extent that the child


                                     18                                         A-0216-15T2
endangerment    statute   might     nonetheless    be    thought   to   include

behavior   of   the   nature   found    by   the    judge    in    this    case,

ambiguity in the construction of the statute must be resolved in

favor of the juvenile both because the specific statute trumps

the general statute and because ambiguous criminal statutes must

be interpreted favorably to the accused.                See Robinson, supra,

217 N.J. at 609; Reiner, supra, 180 N.J. at 311-12.

    Reversed.




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