A.K., et al. v. KENNETH GEORGE-HARVEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1564-04T31564-04T3

A.K., Parent and Guardian

of S.D., Minor, and A.K.,

Individually, Y.W., Parent

and Guardian of A.W., Minor,

and Y.W., Individually,

Plaintiffs-Respondents,

v.

KENNETH GEORGE-HARVEY,

Defendant-Appellant

________________________________

J.F.R., Parent and Guardian of

I.F.R., Minor, and J.F.R.,

Individually,

Plaintiffs-Respondents,

v.

KENNETH GEORGE-HARVEY,

Defendant-Appellant.

___________________________________________________

 

Submitted March 22, 2006 - Decided May 1, 2006

Before Judges Wecker and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Ocean County, Docket Nos.

L-001139-03 and L-962-03.

Kenneth George-Harvey, appellant pro se.

Cooper Levenson April Niedelman & Wagenheim,

attorneys for respondents (Lewis B. April,

on the brief).

PER CURIAM

On April 25, 2002, when he was sixty-one years old, defendant Kenneth George-Harvey was charged with sexually assaulting and endangering the welfare of three young girls, who were ten years old. Following his arrest, defendant gave a taped statement to the police admitting his guilt. One of the investigating police officers summarized the contents of defendant's statement as follows:

The suspect described the victims as being "very mature." The suspect stated that he had exposed his penis and that [I.F.R.] and [S.D.] then touched his penis and testicles. The suspect stated that he could recall this occurring on two occasions. According to the suspect, he "half heartily" masturbate[d] in front of [I.F.R.] and [S.D.] and that he did ejaculate.

The suspect also stated that on one occasion that [A.W.] had "half heartily" touched his penis. The suspect did state that during that incident that his clothes were on.

Defendant was indicted by an Ocean County Grand Jury and, pursuant to a plea agreement, he pled guilty to three counts of second-degree sexual assault. At his plea hearing on December 9, 2002, defendant's testimony included the following:

THE COURT: Counts One, Two and Three are amended to charge the offenses in Seaside Park.

BY THE COURT:

Q. Were you in Seaside Park between April 12th and 15th, 2002?

A. Yes.

Q. And at that time did you have occasion to be in the presence of someone identified as A.W.?

A. Yes.

Q. Do you know who A.W. is?

A. Yes.

Q. And was A.W. less than 13 years of age at that particular time?

A. Yes.

THE COURT: And, factually.

MR. MOHEL [Defendant's Attorney]: Thank you.

EXAMINATION BY MR. MOHEL:

Q. And at that point in time, between April 12th and April 15th of 2002, did you commit an act of sexual contact between A.W. knowing she was under the age of 13?

A. Yes.

Q. And did you do that knowingly for the purpose of sexually arousing or sexually gratifying yourself or to humiliate or degrade her?

A. Yes.

THE COURT: May I just. Would you please factually indicate the area of the contact, the intimate part.

BY MR. MOHEL:

Q. And can you describe the contact, please, the part of the body that you were in contact with?

A. My penis.

Q. Count Two, Your Honor --

Well, in terms of that, did she touch you?

A. Yes.

BY THE COURT:

Q. You had her touch your penis. Is that what you did?

A. Yes.

Q. How do you plead to that charge?

A. Guilty.

Defendant provided similar testimony regarding I.F.R. and S.D., the other young girls he sexually assaulted. On April 4, 2003, defendant was sentenced in accordance with his plea agreement to a ten-year prison term with a consecutive three-year sentence for third-degree attempted bail jumping. The latter charge was based on the fact that prior to sentencing, defendant was arrested after he purchased an airline ticket to Brazil, and he admitted engaging "in a series of conduct in order to commit the crime of bail jumping" between March 3 and March 18, 2003.

Civil complaints were subsequently filed on April 3 and 24, 2003, on behalf of the three young victims who were sexually assaulted. Although he was served with the summons and complaint in each of these consolidated matters, defendant defaulted. Following a proof hearing to establish damages, the trial court entered an order on September 24, 2004, awarding compensatory damages in the amount of $150,000 and punitive damages in the amount of $50,000 to each of the victims.

On appeal, defendant makes the following arguments:

POINT I

PLAINTIFF/RESPONDENT[']S DEFAULT WAS IMPROPERLY ENLISTED AND THEREFORE NOT ENTERED IN COMPLIANCE TO R. 4:31-1 AS EXPLICITLY ROOTED.

POINT II

DEFENDANT/APPELLANT WAS DEPRIVED LEGAL AID BY BEING HELD IN SOLE CONFINEMENT FOR EIGHT WEEKS BECAUSE OF THE DEPARTMENT OF CORRECTIONS REGULATIONS AND HELD ACCOUNTABLE IN THIS ACTION FOR EVENTS BEYOND DEFENDANT/APPELLANT[']S DOMINANCE IN RESPONDING TO AGGRESSIVE LEGAL APPLICATIONS OF PLAINTIFF/RESPONDENTS.

POINT III

PLAINTIFF[']S/COUNSEL HAS MIS-LEAD [sic] THE DEFENDANT/APPELLANT BY BY [sic] AVAILING TO TRICKERY IN LEADING DEFENDANT TO RELY UPON MOTIONS SERVED UPON HIM AND LATER MAKE [sic] A DIFFERENT MOTION FILING WITH THE COURT A DAY BEFORE THE RETURN DATE.

POINT IV

THE LOWER COURT HAD DEPRIVED DEFENDANT/APPELLANT ALL APPEARANCES PURSUANT TO ANY MOTIONS FILED IN THIS CASE DESPITE THE REQUESTS MADE IN DEFENDANT/APPELLANT[']S MOTION PURSUANT TO RULE 1:6-6.

POINT V

THIS CIVIL ACTION WAS PRECLUDED FROM BEING BROUGHT FORTH AS DEFENDANT/APPELLANT[']S COUNSEL REPRESENTED THAT HIS PLEA INTO [sic] THE CRIMINAL ALLEGATION WAS CONDITIONAL AND THEREBY WAS THE INDUCEMENT COUNSEL REPRESENTED THAT HIS PLEA WOULD NOT BE OF EVIDENTIAL VALUE IN ANY CIVIL PROCEEDING.

POINT VI

BASED UPON THE CONFLICTING STATEMENTS OF THE PLAINTIFF/RESPONDENTS AND THE ALLEGED MINOR VICTIMS WARRANTS A FULL REMAND BECAUSE OF LACK OF CREDIBILITY INTO [sic] THE CLAIMS OF SEXUAL ASSAULT.

POINT VII

DEFENDANT/APPELLANT WAS DENIED HIS RIGHT TO DEFEND AGAINST LIABILITY/DAMAGES AND THAT ANY DAMAGES SUFFERED WERE AS A DIRECT RESULT OF THE [DYSFUNCTIONAL] LIVES PROVIDED TO THE MINORS BY THE MOTHERS AND LACK/ABSENCE OF PARENTAL GUIDANCE.

We have considered these arguments in light of the record and the applicable legal principles, and we have concluded that they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E). The findings of the trial court regarding damages are supported by substantial credible evidence contained in the record as a whole, Rova Farms Resort, Inc. v. Investors Insurance Co. of America, 65 N.J. 474, 483-84 (1974), and we affirm the default judgment substantially for the reasons expressed by Judge O'Brien.

Defendant has admitted his unlawful conduct on at least three separate occasions: (1) On April 25, 2002, in a taped statement given to police; (2) on December 9, 2002, when he gave a factual basis for his guilty pleas; and (3) on June 17, 2003, during his deposition. Despite these consistent and repetitive admissions, defendant now claims he has been "falsely incarcerated" based upon criminal charges "contrived" by plaintiffs, and he seeks to vacate the default judgment so that he may have "his day in court."

At his deposition, defendant acknowledged the transfer of funds to an account he maintained at the Barclays Bank in the Cayman Islands. This prompted an application, on notice to defendant, for the appointment of a receiver. Defendant did not oppose the application, and an order was entered on September 12, 2003, appointing Debra E. Parker, CPA, as "receiver of worldwide assets of defendant, Kenneth George-Harvey." Although defendant has, at various times, characterized himself as indigent and destitute, the receiver has secured in excess of $480,000, which is waiting to be distributed to the plaintiffs.

On February 6, 2004, the court entered an order allowing defendant to access the funds held by the receiver to pay for his legal fees and costs. The first paragraph of the order reads as follows: "Defendant, Kenneth George Harvey, shall be entitled to utilize funds currently held by the court appointed receiver, Debra E. Parker, C.P.A., to pay legal fees and costs related to his defense of this matter, provided the attorney has been retained pursuant to the provisions of this [o]rder." A copy of this order was served upon defendant by certified mail, but he has not sought legal representation.

In a letter dated June 14, 2004, Lewis April, the attorney for J.F.R., parent and natural guardian of I.F.R., advised defendant of his right to participate in a proof hearing to determine damages, either with or without a jury. In a subsequent letter to Judge O'Brien on July 1, 2004, April advised the court that plaintiffs were waiving their right to a jury trial regarding damages. April further advised the court that he had not received a response from defendant indicating whether he wished to participate in the proof hearing. A copy of April's letter to the court was sent to defendant, and on July 6, 2004, defendant sent a letter to the trial court indicating that he did not want to be present for the proof hearing:

In brief response to Lewis April, Esq., letter dated July 1, 2004, I am abdicating my arrival to any additional proceedings in connection to any damages proceedings, including any bench trial. And taking up I have not been afforded any moving papers by plaintiff[s]. As to any wrung [sic] damages. This is just a[n] interminable course of conduct you permit.

Secondly, you do what you want so your conduct does not become variable. And I will do what I have to and place my denomination in another court. All I request is a copy of the final judgment so my liberties will be addressed by justice and not a kangaroo court that you conduct. Thus permitting the plaintiff[s] to exploit you and the techniques of law.

Now and in the past you have rendered based upon your personal feelings decisions that were outrageous and tendentiousness [sic].

In another letter to the court dated August 24, 2004, defendant indicated that although he did not want to be present in court to personally participate in the damage proceedings, he did want "to file my proofs to negate those alleged damages . . . ." Notwithstanding his correspondence to the court confirming that he had no desire to be present for the proof hearing, defendant now claims the statements that the "alleged victims" gave to the police were "riveted with inconsistent accounts," and he asserts that he has been "denied his due process to defend."

During the proof hearing conducted on September 20, 2004, the trial court heard testimony from each of the three young victims and their mothers. In addition, the court found that Maddi-Jane Sobel, M.S.W., D.C.S.W., L.C.S.W. was qualified to provide expert testimony: "I recognize Ms. Sobel as an expert in the field of child sexual abuse, incest. She's been working at it clinically for 32 years now. She's testified some 400 times, mostly in Pennsylvania, but also in New Jersey. And from her C.V., she has a proper educational background." Ms. Sobel's thirty-four-page report was also admitted into evidence.

Following the testimonial hearing, the trial court made extensive findings of fact, which included the following:

I find myself here having to follow the instructions that I would typically give to a jury. I tell the jurors to listen to all the testimony. I tell them not to take notes, but obviously I take them. But I tell them to be fair and impartial. I tell them to weigh the demeanor -- weigh the credibility of witnesses who testify, observe their demeanor, and if you pay close attention, you'll be able to determine the facts from the evidence.

We've had extensive evidence. It's now twenty to four. We've been at this since, I guess, maybe nine-thirty we started. Maybe it was ten we started on the record. But at any rate, the first testimony that we had was the testimony of the victims themselves, 12, 13-year old girls. Each one of them was a little bit different, but at the same time, their testimony was the same. It was all credible, to me, and they were all impacted in different but same ways.

The trial court described Ms. Sobel's report as "very detailed" and "impressive." And the court accepted her opinion "that these children will likely suffer long-term psychologic[al] effects that emanate from the sexual abuse they experienced." The judge also found that Sobel's opinions regarding each of the children were corroborated by the children's mothers, who were credible witnesses, and it considered and rejected defendant's claim that he was being exploited:

I find [the mothers] to be credible and I find their demeanor to be good. And I find none of them are here, as Mr. Harvey would say, trying to get his money or trying to exploit him. He has a twisted view of the world, of himself, and of other people. But all the mothers basically told me the same thing.

The trial court concluded that each of the girls was equally damaged:

So having all the factual information, having the expert opinions, now what I have to do is I have to look at damages. I'll deal with compensatory damages first in this sexual abuse, assault and battery, negligence case. There's no doubt in my mind that the young ladies, all three of them, were damaged. And based on the testimony, I find they're really equally damaged. Obviously that's a ludicrous statement in the sense of [the] impact on each one is individual and different. Basically, it's the same. Ms. Sobel's report pretty much substantiates that. She doesn't paint it with a broad brush and say all three are identical. She segregates it out on an individual basis. But for purposes of apportioning a compensatory damage award, while all the young ladies have been impacted in a different way, I find they've probably been impacted equally. And I think the impact on their future lives -- because they were in this alone, but they were in it together, and I think whatever impact one child had probably rubbed off on the other, and vice-versa, to the point that I think they're all equally damaged.

In addition to awarding compensatory damages in the amount of $150,000 to each of the plaintiffs, the court also awarded $50,000 in punitive damages to each plaintiff. The trial court's reasons for awarding punitive damages, included the following:

So following the good advice that I give to jurors, I'm going to award punitive damages in this case of $50,000 for each of the three plaintiffs. There has to be some monetary penalty here. Obviously, the criminal penalties didn't work for Mr. Harvey, and I think taking in all of the factors and considering the heinousness of the sexual assault on these young girls, I think that's probably a fair award of punitive damages, applying the tests that I just set forth on the record.

It's bad enough that Mr. Harvey did what he did, but his follow-up makes it even worse, to attack the mothers in certifications and impugn their integrity, assert a conspiracy theory. And worst of all to assert this theory that, "I'm providing a service to these young girls," is outrageous. It's outrageous.

It is well settled that whether a defaulting defendant may participate in a proof hearing, and the extent of such participation is a matter of judicial discretion. Jugan v. Pollen, 253 N.J. Super. 123, 129 (App. Div. 1992). In this case, it is abundantly clear that defendant was afforded the opportunity to participate in the proof hearing, but he expressly declined to do so. We therefore conclude that defendant was not denied his right to confront his accusers. See A.B. v. Y.Z., 184 N.J. 599, 604 (2005) ("Although the right to confrontation is not applicable in civil proceedings, due process guarantees civil litigants a measure of confrontation.").

Based on our review of the record, we find no abuse of discretion or reversible error. The record fully supports the trial court's findings and conclusions, and we affirm substantially for the reasons expressed by Judge O'Brien in his comprehensive oral decision on September 20, 2004.

 
Affirmed.

(continued)

(continued)

13

A-1564-04T3

RECORD IMPOUNDED

May 1, 2006