STATE OF NEW JERSEY v. C.S.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7129-03T47129-03T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

C.S.,

Defendant-Appellant.

_______________________________

 

Submitted: October 11, 2006 - Decided October 27, 2006

Before Judges Coburn, Axelrad and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, 03-04-0541.

Yvonne Smith Segars, Public Defender, attorney for appellant (Shara D. Saget, Assistant Deputy Public Defender, of counsel and on the brief).

Joseph L. Bocchini, Jr., Mercer County Prosecutor, attorney for respondent (Ryan E. Boyle, Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

PER CURIAM

Tried to a jury, defendant C.S. was convicted of multiple acts of sexual assault against his daughter P.S. over a two-year period while she was between ages five and seven: the lesser-included offense of second-degree attempted aggravated sexual assault by anal penetration on January 26, 2003, N.J.S.A. 2C:14-2a(1) (count one); first-degree aggravated sexual assault by vaginal penetration on unspecified dates between September 2000 and January 25, 2003, N.J.S.A. 2C:14-2a(1) (count two); the lesser-included offense of second-degree attempted aggravated sexual assault by anal penetration on unspecified dates between September 2000 and January 25, 2003, N.J.S.A. 2C:14-2a(1) (count three); and second-degree endangering the welfare of a child from September 2000 to January 26, 2003, N.J.S.A. 2C:24-4 (count four). On June 11, 2004 defendant was sentenced. On reconsideration, on June 18, 2004, the judge re-sentenced defendant to a sixteen-year custodial term on count two, a consecutive six-year term on count one, and seven-year terms each on counts three and four to run concurrent to the term imposed on count two. An 85% period of parole ineligibility pursuant to the NERA was imposed on counts one, two and three.

On appeal, defendant asserts the following arguments through counsel:

POINT I

THE TRIAL COURT'S FAILURE TO RULE ON THE ADMISSIBILITY OF LETTERS WRITTEN BY P.S.'S MOTHER VIOLATED C.S.'S RIGHTS TO PRESENT A DEFENSE AND DUE PROCESS (Partially Raised Below).

POINT II

THE ADMISSION OF P.S.'S VIDEOTAPED STATEMENT DENIED C.S. HIS FEDERAL AND STATE CONSTITUTIONAL RIGHT TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. VI, XIV; N.J. CONST., ART. 1, 1 AND 10 (Not Raised Below).

POINT III

BECAUSE THE NERA SENTENCES ON COUNTS TWO AND THREE WERE IMPOSED WITHOUT THE JURY HAVING SPECIFICALLY FOUND THAT P.S. WAS SEXUALLY ASSAULTED ON OR AFTER JUNE 29, 2001, THE 85% PAROLE INELIGIBILITY PERIODS IMPOSED ARE ILLEGAL AND MUST BE VACATED.

POINT IV

DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE AND MUST ALSO BE REMANDED IN ACCORDANCE WITH THE DICTATES OF STATE V. NATALE, 184 N.J. 548 (2005).

A. The Sentence Imposed is Manifestly Excessive.

B. The Sentence Imposed is Unconstitutional.

In a pro se supplemental brief, defendant asserts the following arguments:

POINT I

Defendant's conviction should be reversed with prejudice because it is based on an indictment, trial and verdict, which came from improper interview techniques. These video taped statements were played for the grand jury and at trial and were allowed to be given to the jury during deliberations. (Not Raised Below).

POINT II

Court erred in allowing Jury to take video tape into jury deliberation room. This violated Court Rules and defendant's 6th and 14th Amendments of the United States Constitution. This further ameliorated any potential prejudice had by the jury because of the age of the alleged victim and nature of the alleged offense. (Not Raised Below).

POINT III

The defendant asserts that his rights to a Fair Trial, his right to Witness Confrontation and his right to Due Process were violated under the 6th and 14th Amendments of the Constitution of the United States and under Article 1 10 of the Constitution of the State of New Jersey. (Not Raised Below).

On leave granted, defendant asserts the following arguments in a second pro se supplemental brief:

ISSUE ONE

Trial Court error in not allowing the opinion of the Emergency Room attending Physician (Dr. Chaudri, M.D.) who examined the alleged victim and complete a full medical report of his findings, to be entered into the record of the trial to assist the trier of fact (THE JURY) in determining the truth of the issue before them at defendant's trial. This violated defendant's rights under the 6th & 14th Amendments of the U.S. Constitution, Article 1 10 of the N.J. Constitution, as well as, N.J.R.E. 701 and 702[4].

ISSUE TWO

Trial Court error in allowing flawed test results to be entered into evidence and the opinion of the State's expert witness (i.e., the State Police Crime lab report and Ms. Laura Tramontin). This evidence and the opinion of Ms. Tramontin were both based on erred data that did not [coincide] with the actual test results themselves. This is a violation of the 6th & 14th Amendments of the U.S. Constitution, Article 1 10 of the N.J. Constitution, 702[2] & [3], 703[2],[3], & [4],705[3] and 104(a).

ISSUE THREE

Defendant was illegally convicted of the lesser included offense of Attempted Aggravated Sexual Assault on counts 1 and 3 of his indictment and illegally charged with the same offense on count 2 of his indictment at the jury phase of his trial. This was in violation of the 6th and 14th Amendments of the United State Constitution and Article 1 8 and 10 of the Constitution of the State of New Jersey. N.J.S.A. 2C:1-8[12] and 2C:5-1a.

We affirm the convictions and remand for re-sentencing.

On January 27, 2003, defendant's then seven-year-old daughter P.S. participated in a Child Assault Prevention Program with her second-grade class. Afterwards, she confided in her teacher that she had been "touched in unsafe places" by her father. The teacher contacted P.S.'s mother, who came into school, and P.S. repeated the statement. That evening, P.S. and her mother went to the Child Advocacy Center of the Mercer County Prosecutor's Office. Detective Tracy McKeown conducted an approximately hour-long, videotaped interview of P.S. regarding the accusations she had made. During the interview, P.S. told Detective McKeown that the night before, while she was watching television in her parents' bedroom, defendant entered the room and touched her underneath her panties. P.S. told her that in the past, there were occasions when defendant would come into the bedroom she shared with her three siblings and lay on his side with his stomach against her back, pull down her underwear and attempt to assert his penis into her "back." Using anatomical pictures, P.S. showed the detective that her father had touched his "private part" to her "private parts." She further told the detective that these assaults began when she was approximately five years old.

Following the interview, Dr. Emron Chaudri examined P.S. at Robert Wood Johnson University Hospital, noting P.S. had a reddened area in her left vaginal vulva and on her labia, but found her hymen still intact. Dr. Chaudri also completed a sexual assault kit, which disclosed blood on P.S.'s vaginal and anal swabs. Based on P.S.'s allegations and the physical evidence, defendant was arrested.

The State presented the testimony of P.S.'s teacher, Detective McKeown, P.S., her mother S.S., the investigating officer, Dr. Chaudri, and the forensic scientist. Defendant testified on his behalf. When S.S. testified, she was questioned about letters defendant wrote to her and her daughter after he was arrested that were admitted into evidence without objection. The letters stated, in pertinent part:

February 19, 2003 . . . I [am] sorry for my part in all of this, but you do have a friend there with you that you can talk and open up to, and that's your mom.

Saturday, March 15, 2003 . . . I ask you to forgive me for the hurt I have placed in your life. I never meant for things to get out of hand like this. Please find it in yourself and your heart to ask God, Allah, and yourself, to forgive me and help our child through all of this. I love you, and I'm sorry for the pain I have caused you.

April 5, 2003 . . . [P.S.] sometimes things happen to us in our life that are not our fault. Even if we think they are. What happened was not your fault. You cannot think you messed up our family, because you didn't. I did. I was supposed to take care of you and be there when you needed help, and I was supposed to protect you even from me. What I did to you was wrong, and I should not have done it. You are my child, and I love you. I should not have hurt you. I had no right to do this to you or your brothers and sisters. I know all of you are hurting because I am not there. Sometimes mommy cries at night and you think you should not have told about what was going on. But you did the right thing, and I love you for it. Because daddy needs to see a doctor and get help for his problem. You did a very good thing because if you did not stop me, you might have gotten hurt real bad. And that would have been even worse. So all I can say is thank you for your help. You did a good job. Please don't feel bad.

April 7, 2003 . . . I also know why you may think and feel you are guilty of not being there for [P.S.] but it wasn't your fault. You had no control over what was going between her and I. Hell, you don't even know, so how could you blame yourself. . . . Just understand one thing, I never meant to hurt her or you. I never went in her. Or really ever tried to go up in her. I used to wonder why she would want me to come in her room and sleep with her and just hold her. Was it me or did I just think that she wanted it to happen, too? . . . There is so much I want and wish I could tell you, but I don't know how you would or could handle it. Besides I am afraid you might turn this letter and [P.S.'s] letters over to the DA.

S.S. further testified that she wrote letters to her husband in which she told him she loved him, talked about all of the children and how they were doing, and also told him that P.S. had written a letter about wanting to kill herself.

During his direct examination, defendant gave a full explanation that he had written the inculpatory letters to his wife and daughter in response to the letters S.S. had written to him. He repeatedly explained that he thoughtlessly shouldered all of the blame because he was concerned for the mental well-being of his wife, who had been blaming herself, and P.S., who had apparently written a letter that she was contemplating suicide. Defendant stated he "just wrote anything to ease their mind" and "took the blame" upon himself not because he was guilty, but only because he was concerned for the well-being of his family. We are satisfied the trial judge addressed and properly determined that S.S.'s letters to defendant were not admissible. The jury was provided a full explanation of the content of S.S.'s letters to her husband, and defendant provided a lengthy explanation, which apparently the jury did not find credible.

Nor do we find error, let alone plain error, in the admission of P.S.'s videotaped statement, which was played for the jury. The trial judge conducted an appropriate pretrial hearing pursuant to N.J.R.E. 104(a) to determine if the videotaped statement of P.S. was admissible under N.J.R.E. 803(c)(27) and heard the testimony of Detective Tracey McKeown, who had conducted the interview. The court, along with counsel, also viewed the tape and verified the transcript was correct. The court considered and made specific findings as to the factors contained in State v. Delgado, 327 N.J. Super. 137, 147 (App. Div. 2000), for determining whether the videotaped statement of an alleged victim of child abuse should be considered trustworthy, and found the videotaped statement trustworthy and admissible under N.J.R.E. 803(c)(27). The court further concluded that the probative value of the statement was not outweighed by the risk of undue prejudice to defendant, N.J.R.E. 403, and defendant cites no evidence to contradict that finding.

Moreover, defendant's right of confrontation under Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177, 124 S. Ct. 1354 (2004) was not violated because the victim testified at trial and was subject to cross-examination. Defendant also had a full opportunity to cross-examine Detective McKeown, who conducted the interview. In addition, there is no provision in the Rules of Evidence that a videotaped statement may only be admitted if the victim is unavailable or cannot recall the substance of the allegations. See N.J.R.E. 803(c)(27)(c) (a statement by a child under the age of twelve relating to a sexual offense is admissible if it is trustworthy and either the child testifies at the proceeding or the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse).

The balance of the arguments asserted by defendant in his pro se briefs are without merit and do not warrant further discussion in a written opinion. R. 2:11-3(e)(2).

Turning to defendant's sentence, the trial court found aggravating factors two, three and nine, and mitigating factor seven. The State concedes a remand is mandated on count two under State v. Natale, 184 N.J. 458, 496 (2005) (Natale II), as the sixteen-year sentence is one year above the former presumptive term for a first-degree offense. We are satisfied, however, that the trial court appropriately imposed a consecutive, rather than concurrent term, for the conviction on the first count. The convictions were for separate acts of abuse, which included different types of abuse (vaginal penetration and attempted anal penetration), at various times. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

The second-count conviction for aggravated sexual assault by vaginal penetration and the third-count conviction for attempted aggravated sexual assault by anal penetration were for acts committed by defendant "on unspecified dates between September of 2000 and January 25, 2003." The court imposed an 85% parole disqualifier under the NERA on both counts. Defendant contends the NERA disqualifier must be vacated because the jury did not determine whether the specific acts charged occurred after June 29, 2001, nor did the jury determine whether any acts committed before that date were "with the use or threat of physical force." We agree.

Prior to the June 29, 2001 amendment to the NERA, N.J.S.A. 2C:43-7.2, in order for a court to impose the 85% period of parole ineligibility, a defendant had to be convicted of a "violent crime" of the first or second degree. See Assembly Appropriations Committee, Statement to Assembly Bill No. 3201, L. 2001, c. 129. A "violent crime" included an aggravated sexual assault or sexual assault in which the defendant used, or threatened the use of physical force. Ibid.; see also State v. Marinez, 370 N.J. Super. 49, 56-57 (2004). The statute was amended to specifically list those crimes to which NERA must be applied, including aggravated sexual assault. L. 2001, c. 129. As "criminal legislation is to have prospective effect," in order for the NERA parole ineligibility to be automatically applied to a conviction for aggravated sexual assault, the act had to occur after the above amendment became effective, i.e., June 29, 2001. State v. Parolin, 171 N.J. 223, 233 (2002). Otherwise, if the specific acts charged occurred prior to that date, the jury had to find beyond a reasonable doubt that the defendant used or threatened the use of physical force in order for the court to apply the NERA. The indictment charged defendant with committing the acts on "unspecified dates" between September of 2000 and January 2003, and no express determination was made by the jury as to the date of the acts of vaginal penetration or attempted anal penetration, or that they were performed with the use or threat of physical force. We are not persuaded by the State's broad-brush argument that defendant's conduct should be brought into the second eighteen-month period, which would make NERA automatic, under a "continuous course of conduct" theory. Accordingly, there was no legal basis for the imposition of a parole disqualifier under the NERA on the second and third counts.

Convictions affirmed. The Judgment of Conviction is vacated as to all counts, and the matter is remanded for resentencing consistent with Natale II, with no NERA parole disqualifier applicable to counts two and three. The judge is not bound by the sentences previously imposed, providing the aggregate term does not exceed that initially imposed. See State v. Rodriquez, 97 N.J. 263 (1984).

 

Although defendant argues that he was prejudiced by the court allowing the jurors to take the videotape into deliberations with them, the transcript does not show that the jury ever asked to view the tape.

(continued)

(continued)

13

A-7129-03T4

RECORD IMPOUNDED

October 27, 2006