The Appellate panel continued in relevant part: The indictment fully and clearly states the acts the State alleges constituted defendant’s criminal behavior. It also charges him with endangering the welfare of a child. Amendment of the indictment to lower the degree of the five counts alleging that crime to reflect the removal of the legal duty or assumption of responsibility element of the second-degree offenses does not impair defendant’s ability to defend himself.
With our holding today, we in no way intend to minimize the harm inflicted on a minor who is subjected to sexual contact by a physician during a medical examination. The physician-patient relationship is one of trust. That trust is particularly keen where a patient is a minor. Here, the victims’ parents allowed their children to submit to physical examinations by defendant on the understanding that any physical contact initiated by defendant would be medically necessary. A physician’s violation of that trust and engagement in sexual contact with a minor patient for his sexual gratification warrants criminal sanction. We are, however, bound by the Supreme Court’s interpretation of the elements of the various degrees of endangering the welfare of a child set forth in N.J.S.A. 2C:24-4(a)(1). Lake Valley Assocs., LLC v. Twp. of Pemberton (App. Div. 2010); State v. Hill, (App. Div. 1976). We are also bound by legislative judgment in determining the appropriate sanction for criminal acts.
Affirmed. The matter is remanded for amendment of the April 8, 2019 order to reflect amendment of the five counts of the indictment charging endangering the welfare of a child without dismissal of those counts and for further proceedings consistent with this opinion.
The penultimate paragraph may be a response to the recent trend of trial judges being criticized in the press for siding with defense arguments in cases involving children and sex offenses. A Monmouth County juvenile judge saw calls for him to be removed from the bench notwithstanding his sound application of the law regarding juvenile waivers to the facts of the case. See https://www.nytimes.com/2019/07/02/nyregion/judge-james-troiano-rape.html
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