i'd like to reserve two minutes of rebuttal thank you no problem at all the court should reverse the single member non presidential board decision here under this court's decision and lay out because you know i think and i just don't i just get ially different from the statute that we're looking at at here in the pennsylvania statute refers to knowingly endangers the welfare of a child by violating its unity of care whereas the new jersey statute says sexual conduct which would impair or deep outs the morals of the child and it seems to me that there's a difference there can you can you speak to that well i would want to mention he got up my point i think isn't that the new jersey excuse me the pennsylvania statute is actually stronger if care and it it right isn't that with the languages yes but the what the language again the judge you know you get the language specifically says in the dangers the welfare of a trial in other words you have to look statute with respect to new jersey statute supreme court case allows the statute to be violated rather sets a standard with respect to harm as capacity as a matter of plain language capacity we submit is not the same thing as a big likelihood you you brought up the hackett case and the hacky case does say no that the statute says would and that the issue is a likely event but but the happy case also discusses the predecessor statue new jersey statute to a ninety six dollars dash three and noted that that statute had the language tends to  is not reasonable probability would i submit is not even it's not even necessarily likely but if you look at the habit but have it in addressing what would give me hackett said the word would isn't that different from just merely has the capacity to as inly at the at particular languages in the context of actual harm not being required i submit that if you look at hackett it the only language that we have from the new jersey courts as to what would it mean your honor i suppose if you look at the very st page of the hacker decision it says we hold the based on the testimony offered a jury could conclude beyond a also says very clearly the question and hackett was looking at actual harm versus likelihood of harm and said the question is not whether the victims of the alleged endangered absolutely had their morals impaired the question is whether the act your sexual conduct was conduct that likely would impair or devout the morals of a child in the community decision reported decision ryan interpreted that and giving that the prosecutions he makes clear that it's only capacity similarly the most recent reported new jersey supreme court mclean which we cite an artery fox in terms of capacity now i think it's an i understand your r s reading of this but but i think we have a situation in which at the very least and i think it's just capacity but even if it's something in between we have to we have to draw a line here with respect to what particular likelihood we're talking about what the definition of particular likelihood and that we have at the extreme  where the in the in the sorry matter of hard case we have something that we have a statute where it is clear reasonable probability of harm in for gozo we have from the th circuit  we have may i would submit that at the very least when a new jersey statute you might say who i disagree that the that the interpretation of the statute is ambiguous that it that unambiguously which i submit it does not here do unambiguously require a particular likelihood of harm and if you read the new jersey case law if you read and even if you read hackett is ambiguous on that point which i don't think you should if you hackett is ambiguous on a point we haven't crossed the line to show a particular likelihood but that's what particular likelihood i submit is just one element of the other element is there half there has to be a particular cleveland of harm and the new jersey portion of the new jersey statute under which my client was convicted that parades harm out in other words you take a look at to see twenty four asked for a one it talks it talks in terms of any other person who engages in conduct or who causes harm is described in this paragraph well he was convicted only under the conduct not causes harm in other words we jersey separates out new jersey separates out harm from the provision of endangering statute under which he was convicted so even if i lose on not does not require harm it's it's it's it's it's it's segregated out and again what does the new jersey statute require that mr mosley it's it  stucco under which by client was convicted was not was not the harm truth at that that's the distinction here leon says you have to have a particular likelihood of particular likelihood of harm even is harm not a court not according to the new church how do jersey define defines the statute i mean this statute for example take the facts of hackett can be violated by someone standing naked in front of his naked in front of his window in your window naked causes harm i have what i'm what i'm what i'm saying judge merrick it is that is that new jersey makes a distinction here and and new jersey makes a distinction between departing morals and heart and that's not the provision under which he was convicted but if i can just getting back to two particular likelihood we do not have here a situation in which there is a requirement you prove a reasonable probability of harm that's that's that's the under that's and that or a forum we have something that i would submit is at most ambiguous into what you must prove i bryant and mclean all say capacity and capacities simply not as a matter of a plain english well same way but let's let's just be clear i mean mclean was talking about a different statute there was no there mclean and then brian brian wasn't focused on whether a defendant acts that was focused on whether a defendant actually needs to know that his conduct would impair origen fouts the morals and that was so that case was not really on the meaning of the statute it was more focused on the knowledge of the defendant in the case but it but it but it's summarized the requirements for can can conviction under again presidential decision requirements for conviction and it limited it is limited to capacity and bryant but bryant was not a new jersey supreme court case not it was a television decision which certainly has president certainly has presidential value the he was convicted under a one is that correct yes crackdown or and so and that says to gauge the sexual conduct which was imperative botch the morals of the child eight to which he wasn't convicted under is any person having a legal duty for care of a child who has assumed his or or who has assumed responsibility who causes the child or is there that was the last all the holding is the thing that is the decision that comes out as the law that sets the precedent for that particular coup or we hope that based on the testimony offered a jury could include beyond reasonable doubt that hacke conduct had the capacity to impair or the botch and then just the and then a couple pages a few pages later talks about potential effect that it may have on the morals of the child and then botch the morals of a child is heightening the proof required of the element truth of the actual impairing or the botching is not required and then it goes the word would signals the future  supreme court of new jersey makes very clear in the hackett decision and that's part of the holding is that the harming of the morals is not related to the actual victim at issue a that's not the inquiry to convict the n korea is related to an average child in that community so that's why that's why the court sort of explains and passing and using the phrase tends to or has the capacity to because it's referencing that averaged out in the community and not whether there actually was that harming of the morals of the actual victim in the specific case so i think that's why the new jersey courts have used that language in general and another part of hackett is that they were explaining the difference between the prior version of the statute which used the phrase tends to event so here you have the the language saying that she's heard you have a likely event that's needing in reference to the average child in the community therefore the statute requires a likelihood that average child in the community would have their when you say we hold follows as you're holding and then five pages later it looks like it could be they're trying to in effect gives an allergy to what is an interpretation oh sort of in the back of the session the supreme court of new jersey was saying that would actually mean sort of this capacity to something that's less but here that's not what they did they said that would mean the same thing as the prior tends to language and then because it relates to the average in the community that's why the court sort of as sort can says has the capacity to attend school because there was confusion particularly in this case about whether the harm to the morals has to relate to the actual victim or to the average child in the community so the holding of happiness focused on saying that the harm has to go to the average child in the community so that's why it sort of uses that other language capacity to to clarify that even though the statute says wood which implies that the morals of the actual victim had to be harmed wouldn't it be more in your favor if the holding said before we hold that based on the testimony of  is because the whole entire holding was clarifying that it's not the actual victim so i guess that would have been an easier plot for us to pull out and cite when hackett is properly understood in context it's very clear that the reason why they use that capacity to language is because of the holdings so the focus is on an average child in the community and not the actual victim which may be the court just because that's what it's ambiguous slightly right and in hackett they are saying you don't have to show that the actual child who was the victim was hard right correct was when you don't have to show actual harm of this particular victim you have to show that the conduct at issue here would divide the morals of the average child in the community rights correct your honor and that was actually the litigation and hackett so that's why the court was clarifying that issue of what exactly what means because there was confusion about that issue so that's i think why we have the court using that general capacity to our tents to language just to sort of clarify that points in our courts like bryant pulled out and cite a mclean but even in the bryant case which is a lower court new jersey case there they also cite the likely language so in that bryant decision they say that you know the term word means that refers to a likely effect so here petition is trying to say that that's that brian so that somehow the harm is not likely but the likelihood of harm to the child that rises above conduct that creates only the bare potential for non serious in my problem is when i look at that holding in hackett it talks about in effect the potential for serious harm and requires something more than that's why i'm having a problem with d and there they explicitly include the types of conduct that are at issue here so as again how do you distinguish way out for me in the conduct in the context of this case right so the out involved welfare it explicitly said could threaten but here you have the term work in the new jersey statute and you have new jersey precedent from the highest court of the supreme court's holding that that requires a likelihood of injury to the average child and that a state statute which covers conduct that could threaten a child is not a categorical you know what i'm saying is that's my problem how do i get over that right what i think a major part of it is that the out it also involves welfare so it didn't end it in the dirt in the new jersey statute to harm a specified it impairs a busman's the morals of a child and allow the pennsylvania stuff you just said use the term welfare which you know that sort of jersey interpretation of the statute if you do you with it if you didn't have to hack it only if you were without the language you have to describe in the word impairing or botching the morals of a child and that falls into a trap and makes this case very much like the trouble in hackett is you then have language after the holding appears to take a different tack i'm saying if you don't have that extra language doesn't this case fit right with the layout of virtually become not a fit under the category approach saying it would harm that average child so the prosecutor has to actually prove that the average child would actually be harmed it's just that because it's the average child it's all sort of a radical rest of proving  that the actual victim in this case would be harmed so what is still a defendant a trend that's essentially what the hackett case held is that you know what the means would but it just relates to the sort of theoretical average child's so that's i think the key distinction here wasn't allowed there wasn't sort of that that it was just could threaten and then the term welfare is much more open ended than here the nature of the statute saying there is going to be harm it's just that you analyze the average has to be shown and then the impact is sort of the appearing at the bottom of the morals but here it doesn't really make a difference because the board's definition of child abuse neglect or abandonment encompasses both sexual conduct and harming the morals of the child so you know both aspects of the nature of the statute fall into or categorically match the board's definition of child abuse neglect and abandonment so to ask that sort of the harm definitely is included within the board's definition and this court has already deferred to that so it doesn't matter that this here was an unpublished single member decision as petitioner archives thank you this is the stance that the new jersey statute mentions sexual conduct specifically relevance to us in trying to distinguish the rd degree that because the statute uses the phrase or the conduct or causes harm that there's sort of these two types of conduct but i mean that's not necessarily have the new jersey court has interpreted the statute  goal of the statute makes much more sense because it lessens the prosecution's burden in that regard and focuses more generically upon what could or could what could happen so i would submit that capacity which is introduced as the holding of that as the holding of the case is really what the court was focusing upon under under these circumstances and that should that certainly should require a particular likelihood which i do not think even reading hackett which i would submit even reading hackett as it is ambiguous does that so under these circumstances i would submit the case is governed by