STATE OF NEW JERSEY v. A.N.C.

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NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3229-03T43229-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

A.N.C.,

Defendant-Appellant.

________________________________

 

Argued October 31, 2005 - Decided November 18, 2005

Before Judges Lintner, Parrillo and Holston, Jr.

On appeal from a final judgment of the Superior

Court of New Jersey, Law Division, Bergen County, Indictment No. S-1216-94.

Edgar F. Devine, Jr., Designated Counsel, argued

the cause for appellant (Yvonne Smith Segars, Public Defender, attorney; Mr. Devine, of counsel and on the brief).

Carol M. Henderson, Assistant Attorney General,

argued the cause for respondent (Peter C. Harvey, Attorney General of the State of New Jersey, attorney; Ms. Henderson, of counsel and on the brief).

PER CURIAM

Defendant, A.N.C., appeals from the order denying his second petition for post-conviction relief (PCR). We affirm.

Tried by a jury, defendant was found guilty on four counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one, two, three and five); on three counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (counts seven, eight and nine); and of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count eleven). The victim was defendant's daughter, B.C., who was a ten-year-old when defendant's course of conduct began on February 14, 1992, and a twelve-year-old when she reported the incidents in May 1994.

Defendant was sentenced on January 17, 1997, to three consecutive seventeen-year terms of imprisonment on the first-degree aggravated sexual assault convictions contained in counts one, two and three. The first-degree aggravated assault conviction on count five was merged into the conviction on count three. On each of defendant's second-degree convictions on counts seven, eight, nine and eleven, the court imposed seven-year terms of imprisonment, concurrent with each other and concurrent with the first-degree sentences given. The trial judge found defendant to be a repetitive and compulsive offender and ordered community supervision for life pursuant to N.J.S.A. 2C:43-6.4, as well as all other conditions relating to registration and notification of release of sex offenders, pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -11. Applicable mandatory fines and penalties were also imposed.

Defendant appealed, and in an unreported opinion, we affirmed his convictions and the sentences imposed. See State v. A.N.C., No. A-3595-96T2 (App. Div. Feb. 26, 1998).

On April 25, 2000, defendant filed a timely pro se petition for post-conviction relief, which was denied by Judge John Conte, who presided over defendant's criminal trial and sentenced him. On appeal from the denial of his PCR petition, defendant advanced several issues, two of which for the first time, since they were never raised in the PCR petition. One of these concerned defendant's claim that during his interrogation he had properly invoked his right to remain silent, which should have precluded further questioning. Defendant's other new claim was that the evidence did not support his conviction on the count two charge of digital penetration. Because these "issues

. . . were not raised" in defendant's petition and, hence, not addressed in the trial court where a proper record for review could have been developed, "we decline[d] to consider them[]" on appeal. State v. A.N.C., No. A-4564-00T4 (App. Div. Jan. 7, 2003) (slip op. at 9). We added, however:

The two issues we have discussed should properly be the subject of a separate petition for post-conviction relief, which would allow them to be fully considered by the trial court. Since counsel designated by the Office of Public Defender has raised these two issues on this appeal, defendant should be afforded representation if he elects to file a second petition for post-conviction relief.

[Id. at 12.]

Consequently, defendant filed a second PCR petition on March 20, 2003, raising these same two issues plus the contextually-related claim of ineffective assistance of counsel. Although filed beyond the five-year time bar of Rule 3:22-12, and although the issues could reasonably have been raised previously, Rule 3:22-4, Judge Conte, the PCR judge, nevertheless reached the substance of the claims, finding them all to be without merit. He concluded:

Defendant has taken his remark ["No, I say --"] completely out of context and erroneously concludes that he made a request to cease questioning. First, his stenographic statement clearly indicates he gave a voluntary, intelligent, knowing waiver of his Miranda rights after Detective Saavedra translated into Spanish his request to question defendant about the sexual abuse. Although, the record does not indicate whether defendant, in response to the question, gave an affirmative verbal or nonverbal response, Judge Harris found Detective Saavedra's testimony at the pretrial motion to be credible while defendant's testimony was incredulous.

Second, Judge Harris found defendant's testimony that he believed the paperwork he completed was a request for an attorney incredulous as well. In fact, at the pretrial motion, defendant could not recall whether he asked for an attorney. Indeed there is no request to speak to an attorney nor is there any assertion of his right to remain silent. The officer[']ns repeated questions had been asked prior to the stenographer's appearance to record the conversation. When the officers requested to ask defendant new questions that were not asked before, defendant agreed to continue talking.

This is contrary to defendant's characterization of his statement and is clear evidence that defendant did not assert his Miranda rights.

Next, defendant argues the State failed to establish at trial that the conduct alleged in count two of the indictment actually occurred in New Jersey. Specifically, defendant argues the State failed to prove the alleged sexual abuse actually occurred within New Jersey. He also argues that he did not "penetrate" the victim's vagina within the meaning of New Jersey Statutes 2C:14-1c.

. . . .

In this case, both the victim and defendant stated the first encounter occurred in New York. Defendant stated in his confession that there were more incidents which occurred in New Jersey. He specifically identified the second floor offices of the Data Universal building in Teaneck as the location where the assaults occurred. Throughout his entire written confession, defendant referred to the offices on the second floor. Defendant admitted to touching the victim's clitoris in the same room.

. . . .

Secondly, defendant argues that the touching of the clitoris with a finger does not constitute "sexual penetration" within the meaning of the statute . . . .

. . . .

Defendant's argument is a distinction without a difference. A digital touching of one's clitoris is clearly within the definition of "vaginal intercourse" as the clitoris is embedded within the labia and is intimately associated with the vagina. Defendant failed to recognize that the statute must be interpreted to effectuate the Legislature's intent. State v. Ferencsik, 326 N.J. Super. 228, 231 (App. Div. 1999). The essence of the offense is the outrage to the person and feelings of the female. [State v.] J.A., 337 N.J. Super. [114,] 120 [(App. Div. 2001)] citing Model Penal Code, Section 207.4.

There is no cognizable reason why the Legislature should distinguish digital and penile penetration in the context of sexual assault and require a different type of penetration when an actor uses a finger to commit the act. Both acts are extremely invasive and are committed with the same intent, motive and malice. Certainly, the J.A. court intended digital penetration of the outer vaginal lips and a touching of the clitoris to fall within its broad definition of sexual penetration.

. . . .

Based on the foregoing reasons, it is clear defendant was not denied effective counsel.

On appeal, defendant argues:

I. DEFENDANT'S RESPONSE THAT HE WISHED TO STOP THE INTERROGATION SHOULD HAVE TRIGGERED A CESSATION OF QUESTIONING, WHICH COULD NOT HAVE RESUMED WITHOUT A FRESH AND EFFECTIVE RE-READING OF HIS RIGHTS.

II. ONE OF THE FIRST-DEGREE CRIMES DEFENDANT WAS CONVICTED OF LACKED PROOF OF ITS COMMISSION IN NEW JERSEY, AS SPECIFIED IN THE INDICTMENT AND AS NECESSARY TO GIVE THE LAW DIVISION JURISDICTION.

III. A FURTHER GROUND TO REVERSE DEFENDANT'S CONVICTION ON COUNT 2 IS THAT THERE WAS NO PENETRATION OF THE VAGINA AS IS REQUIRED BY THE CLEAR TERMS OF THE STATUTE FOR A DIGITAL TOUCHING TO BE A FIRST-DEGREE CRIME.

IV. NO PROCEDURAL BARS APPLY TO THIS PETITION.

V. COUNSEL BELOW RENDERED INEFFECTIVE ASSISTANCE ON THE ISSUES SPECIFIED HEREIN SUCH THAT THEIR DEFICIENT PERFORMANCE CERTAINLY AFFECTED THE OUTCOME OF DEFENDANT'S TRIAL, APPEAL AND FIRST PCR.

We reject defendant's arguments substantially for the reasons set forth in Judge Conte's comprehensive oral opinion of July 7, 2003. We add only the following comments.

I.

Defendant's first argument must be placed in its proper factual context. Defendant was arrested at 7:15 p.m. on May 11, 1994, shortly after B.C. revealed that her father had sexually abused her when she had accompanied him to an office cleaning job in Teaneck. At 7:30 p.m., Investigator Alex Saavedra from the Bergen County Prosecutor's Office, who was certified as a bilingual police officer, read defendant his Miranda rights from a Spanish-language Miranda form. Defendant acknowledged that he understood his rights, wrote "si" after each of the five questions, and signed the form.

Defendant, whose native language was Spanish, spoke with Saavedra in both English and Spanish, initially denying and then admitting the allegations against him. After defendant spoke for about two hours, a stenographic transcribed statement was taken at 9:30 p.m. Saavedra, who was speaking English, showed defendant the Miranda form that he had signed. Defendant acknowledged that he had read and signed the Miranda form. When asked whether he wished to continue speaking, defendant responded "No, I say --", whereupon Saavedra, concerned that defendant was having difficulty comprehending the questions in English, asked some clarifying questions in Spanish to ensure defendant truly understood. Saavedra then asked defendant:

Do you wish to continue to speak to us about these issues and these questions that we've already asked you? In other words, some of it maybe to repeat the questions that we've asked in the pre-statement interview. Actually it will be -- all be a repetition of what we spoke about,

okay?

Although the statement does not indicate that defendant responded, Saavedra states:

For the record, I asked [defendant], I explained to him for clarification that we would be repeating the pre-statement interview questions and that -- and asked him whether he wished to continue to speak to us having his rights in mind and he said that he will continue to speak.

Defendant now contends that he asserted his right to remain silent, and further questioning should have ceased. We disagree. Our Supreme Court has held that when the police initiate questioning in a custodial setting after obtaining a waiver of defendant's Miranda rights, and the defendant "assert[s] [his] right to remain silent," a statement obtained thereafter by further questioning initiated by the police is inadmissible unless the police first "readminister the Miranda warnings." State v. Hartley, 103 N.J. 252, 256 (1986). Moreover, "a request to terminate an interrogation must be honored 'however ambiguous.'" State v. Bey, 112 N.J. 45, 64 (1988) (quoting State v. Kennedy, 97 N.J. 278, 288 (1984)).

[W]here a suspect makes a statement which arguably amounts to an assertion of his Miranda rights and the interrogating agent recognizes that the statement is susceptible of that construction, his questioning with regard to the crime he is investigating should immediately cease and he should then inquire of the suspect as to the correct interpretation of the statement.

[State v. Wright, 97 N.J. 113, 120 n 4 (1984) (alteration in original) (quoting State v. Fussell, 174 N.J. Super. 14, 21 (App. Div. 1980)).]

In other words, if the interrogator is "unsure whether a defendant is asserting his right to silence, [he or she] must either stop the interrogation completely or 'ask only questions narrowly directed to determining whether [the] defendant was willing to continue.'" State v. Harvey, 151 N.J. 117, 221 (1997) (quoting State v. Johnson, 120 N.J. 263, 284 (1990)),

cert. denied sub nom., Harvey v. N.J., 528 U.S. 1085, 120 S. Ct. 811, 145 L. Ed. 2d 683 (2000).

We are satisfied not only that defendant never asserted his right to silence, but also that Investigator Saavedra properly ascertained whether defendant wished to continue speaking. Saavedra's questions after defendant remarked "No, I say --" were narrowly tailored and designed to clarify whether defendant intended to invoke his Miranda rights. Indeed, defendant's singular remark seemed to indicate that he may be having some difficulty understanding the questions in English, and that, as Saavedra reasonably believed, defendant actually "just wanted to say what happened," since he had to be told to wait until certain procedures were done before he said anything. Moreover, at the Miranda hearing, defendant never testified that he told the police that he wanted to remain silent. Quite the opposite, he said he wanted to talk, and his actions from his arrest to the conclusion of the transcribed statement several hours later corroborate that fact. Simply put, the record clearly demonstrates defendant never invoked his Miranda rights.

II.

Defendant next contends that there was insufficient evidence of digital penetration in New Jersey to support his conviction on count two for first-degree aggravated sexual assault. Count two reads:

AND the Grand Jurors aforesaid, upon their oaths aforesaid, do further PRESENT that [A.N.C.], on or about during and between February 24, 1992 and December 31, 1993, in the Township of Teaneck, in the County of Bergen aforesaid, and within the jurisdiction of this Court, did commit aggravated sexual assault upon B.C., date of birth, February 24, 1982, by performing an act of sexual penetration, to wit: inserting his finger into the vagina of the victim, the victim being less than thirteen years of age; contrary to the provisions of N.J.S.A. 2C:14-2a(1), and against the peace of this State, the Government and dignity of the same.

[Emphasis added.]

Our review of the record demonstrates there is sufficient evidence from which a "reasonable jury could find guilt of th[is] charge beyond a reasonable doubt." State v. Reyes, 50 N.J. 454, 458-59 (1967).

In the first place, the victim stated that defendant inserted his finger into her vagina while they were in an office building in the State of New York, and "[t]hat was the first time it happened[,]" suggesting that the same type of sexual abuse had also occurred in New Jersey since most, if not all, other incidents described by B.C. happened in this State. Thus, from this evidence alone, and giving the State the benefit of all its favorable inferences, the conviction on count two was warranted. Reyes, supra, 50 N.J. at 459.

However, there is even more proof. Defendant himself admitted that an incident took place in New Jersey wherein he rubbed the outside of B.C.'s vagina and touched her clitoris. He also confessed to having "t[aught] her something about what sex is [all] about[.]" Nevertheless, as to his admissions, he contends "that the touching of the clitoris with a finger does not constitute penetration under [N.J.S.A.] 2C:14-1c." We disagree.

Sexual penetration is defined as:

vaginal intercourse, cunnilingus, fellatio or anal intercourse between persons or insertion of the hand, finger or object into the anus or vagina either by the actor or upon the actor's instruction.

[N.J.S.A. 2C:14-1c.]

"The depth of insertion shall not be relevant as to the question of commission of the crime." Ibid. "The degree of penetration is irrelevant . . . . However, actual penetration is required; touching of the outside will not suffice." Cannel, New Jersey Criminal Code Annotated, comment 3 on N.J.S.A. 2C:14-1c (2004); see also State v. Gallagher, 286 N.J. Super. 1, 15 (App. Div. 1995), certif. denied, 146 N.J. 569 (1996).

We are satisfied that the touching described by defendant is sufficient to satisfy the penetration requirement in N.J.S.A. 2C:14-2a(1). See State v. J.A., 337 N.J. Super. 114, 120-21 (App. Div.) (holding that "penetration of the space between the labia majora or outer lips" is sufficient), certif. denied, 169 N.J. 606 (2001); State v. Fraction, 206 N.J. Super. 532, 535-36 (App. Div. 1985) (holding that "by definition cunnilingus, or licking the labia, constitutes a form of 'sexual penetration'[,] . . . [although] the actor's tongue is not inserted into the vagina"), certif. denied, 104 N.J. 434 (1986); State ex rel. S.M., 284 N.J. Super. 611, 617 (App. Div. 1995) (holding that "fellatio constitutes a form of 'sexual penetration' . . . notwithstanding the fact that the victim's penis does not enter the actor's mouth. Placement of the . . . mouth . . . [and] penis is sufficient to prove a violation").

III.

Lastly, defendant argues ineffective assistance of trial, appellate and former PCR counsel for not raising the two issues we have just rejected. Accordingly, we reject this final claim as well.

It is virtually axiomatic that in order for defendant to obtain relief based on ineffective assistance grounds, he is obliged to show not only the particular manner in which counsel's performance was deficient, but also that the deficiency prejudiced his right to a fair trial. See, e.g., Strickland v. Washington, 466 U.S. 668, 694, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d 674, 693, reh'g denied, 467 U.S. 1267, 104 S. Ct. 3562, 82 L. Ed. 2d 864 (1984); State v. Fritz, 105 N.J. 42, 58 (1987). We are persuaded that the alleged deficiencies here clearly fail to meet either the performance or prejudice prong of the Strickland test.

 
Affirmed.

(continued)

(continued)

14

A-3229-03T4

RECORD IMPOUNDED

November 18, 2005

 


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