The Appellate Division continued in relevant part: To accept the State’s theory that a caretaker’s assault of a protected person constitutes neglect, abandonment, desertion, or a failure to act, we would have to twist the Legislature’s words beyond their plain meaning. Our role, however, is to construe, not distort. As the Supreme Court has explained, a court’s role is not to “rewrite a plainly-written enactment of the Legislature or presume that the Legislature intended something other than that expressed by way of the plain language.” O’Connell v. State (2002). Statutes must instead be interpreted to “discern and effectuate” the legislative intent. Murray v. Plainfield Rescue Squad, (2012). This requires consideration of the statute’s plain language, which is best understood when its words are given “their ordinary meaning and significance.” DiProspero v. Penn (2005).
In giving the verbs found in N.J.S.A. 2C:24-8(a) their ordinary meaning and significance, there is no doubt they do not encompass a caretaker’s physical assault of the elderly person. This is not to suggest that our criminal code permits or condones what is alleged here. When the Legislature enacted N.J.S.A. 2C:24-8(a) it obviously understood that it did not need to criminalize a caretaker’s assault of an elderly or disabled person because it had already done so. See N.J.S.A. 2C:12-1.
The State’s theory was limited to its claim that defendant’s alleged assault of Irene constituted the violation of N.J.S.A. 2C:24-8(a) charged in the indictment when the prosecutor argued that “striking an elderly person by itself by its very nature is neglect.” We reject this and conclude that the assault alleged here cannot constitute a violation of N.J.S.A. 2C:24-8(a), and that the evidence presented at trial lacked support for a charge that defendant “abandoned or unreasonably neglected to do or failed to permit to be done any act necessary for the physical or mental health of” Irene.
The State, perhaps now recognizing the limits of N.J.S.A. 2C:24-8(a), attempts to recast the theory it presented to the jury. For the first time on appeal, the State argues that the assault was a mere “factual predicate” to its theory that defendant’s failure to take Irene for medical care the night of their argument constituted a gross deviation from the standard of care. Beyond the fact that this argument is not now cognizable because it was not raised in the trial court, State v. Robinson (2009), and because the argument is not consistent with the State’s theory at trial and it would be unfair to defendant to now view the evidence in this new incarnation, State v. Witt (2015), there is simply no evidence in the record that Irene required medical attention that night; in fact, there was no dispute that the plan was to take Irene to a medical appointment the morning she walked out of the apartment.
The State’s belated argument about the failure to seek medical care will likely be used to prosecute similar fact patterns with the elderly neglect statute in the future. An alternative argument that the State could make is that assaulting a child constitutes abuse and neglect under New Jersey’s endangering the welfare of a child statute.
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