STATE OF NEW JERSEY v. JOEL ALVAREZ

(NOTE: The status of this decision is .)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5112-06T45112-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOEL ALVAREZ,

Defendant-Appellant.

_______________________________

 

Submitted: January 22, 2009 - Decided:

Before Judges C.L. Miniman, Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 04-02-0100.

Yvonne Smith Segars, Public Defender, attor ney for appellant (Monique Moyse, Designated Counsel, on the brief).

James F. Avigliano, Passaic County Prosecu tor, attorney for respondent (Keith E. Hoff man, Senior Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant Joel Alvarez appeals from a February 2, 2007, judg ment of conviction for second-degree sexual assault and third-degree endangering the welfare of a child and imposition of sentence thereon. We affirm both the conviction and the sentence imposed.

In August 2003, defendant was living with his girlfriend, J.V.'s mother (the mother); her four children, including J.V., the ten-year-old victim; defendant's niece; and the mother's close friend and her friend's son. The niece, who was in her third trimester of pregnancy, had been living in Pennsylvania with her cousin but asked defen dant if she could stay with him. Defendant had once provided shelter to her several years earlier when he was living with his deceased wife, during a period when his niece was taking drugs and involved in prostitution. He again agreed, and persuaded the mother to allow his niece to stay. According to the mother, the niece was a poor houseguest who slept most of the day, talked on the phone most of the night, and did little to help out.

At around 5:30 p.m. on August 20, 2003, the mother told defendant's niece that having her live with them "wasn't working it out," it "was too crowded," and she should leave. The mother testified, as did the defendant, that she offered to help the niece find an apart ment, whereupon the niece grew angry. How ever, according to the mother, "[e]verything was fine" later that night. The niece testified the mother asked her to leave, but it was her idea to voluntarily move after the incidents in question.

That night, due to "disgustingly hot" weather, most of the occupants had a "camp out" and slept together in the living room where there was an air conditioner. At around 11:30 p.m., the mother put a blanket over the doorway and brought a mattress into the living room, where there were also two sofas. Appar ently, this was not uncommon because they had done it before during similar circumstances. The mother testified that at this point, the children went to sleep and "it was just the adults "chit chatting." It was [defendant, his niece], and me." When the adults went to bed, defendant slept on the mattress next to the mother. The niece was on the larger sofa next to the win dow. One of the mother's sons slept on the mattress next to her and her other two sons slept on the other sofa. J.V. moved between one of the sofas and the mattress, on the other side of defendant.

At trial, the niece testified that she was uncomfortable and unable to sleep due to being pregnant. At some point during the night, J.V. bumped her and drew her attention. When the niece turned, she saw defendant's hands go underneath J.V.'s blanket, followed by his head. She observed "a lot of hand movements underneath the blanket, and . . . heard . . . a suck ing noise." The movement and noise coincided with the air con ditioner's compressor, which was on an energy saver cycle; when the air conditioner turned off, J.V. got off the floor and went to the smaller sofa.

Defendant got up, lit a cigarette at the stove, and then went to the bathroom. The niece went outside to the porch and tried to call her boyfriend, but when she could not get through to him, called her cousin Brenda. Defendant testified that when he came back into the room, he asked his niece if she was "all right" because she was pregnant. She responded that she was, and defendant lay back down on the mattress, hugged and kissed the mother, and went back to sleep.

The next morning, August 21, 2003, defendant and the mother got up around 5:30 a.m. to get dressed and ready for work. The niece waited on the sofa, apparently pretending to sleep until they left, which was around 6:15 a.m. Defendant's niece testi fied that she then awakened J.V. and took her to the kitchen to ask her what happened the previous night. According to the niece, J.V. was nervous and fidgeted at first, but the niece told J.V. that she saw what happened the previous night and "don't worry about it, because it happened to me when I was lit tle." Then, J.V. told her that defendant had touched her, pointing to her breasts and vagina. When the niece asked her specifically what happened, J.V. said that defendant had put his mouth on her breast. The niece then told J.V. that it was not her fault and that she was going to call her mother.

J.V.'s version of the events at trial differed. She testi fied that the niece woke her at 6:30 a.m. and began insisting that something happened the night before. When J.V. did not respond, the niece followed her around the house, at which point J.V. said "yes, whatever . . . with an attitude, so she knew it didn't really happen." J.V. testified that she told the niece that defendant touched her to get the niece "to shut up, because I didn't like her." J.V. agreed at trial that defendant's niece then called her mother on her cell phone.

The niece testified that she called the mother and asked if defendant was next to her. When she responded yes, the niece asked her to come home immediately, but not to tell defendant why or bring him. The niece testified that defendant called her back to ask if she had called the mother; she responded no because she "didn't want him to know anything." Defendant could not remember the specifics, but testified he may have called his niece because he was concerned about her pregnancy. In any case, the mother told him that it was his niece on the phone, and both defendant and the mother returned to the house.

At this point, the niece's testimony again differed from that of defendant and the mother. According to the niece, when defendant and the mother arrived, she prompted J.V. to tell her mother what happened. J.V. was nervous, so the niece began telling her mother what J.V. related to her. However, once the niece began relating the alleged events, J.V. began to speak and told her mother everything that happened. At this point, defen dant starting yelling and "freaking out." He told her "to call the cops," which his niece did. When the Clifton police arrived, they took defendant into the kitchen "because he was a little bit mad," and asked the niece questions about the incident in the living room.

Conversely, the mother testified that when they arrived, the niece was "acting pissed" and was "panicky." Defendant stated that there was a lot of commotion and yelling, and that although his niece kept pushing J.V. to tell her mother what happened, J.V. was "halfway asleep" on the couch with her blan ket and never said anything in her presence. The mother testi fied that J.V. told her that the niece "kept telling her she saw what happened last night" and then "proceeded to tell J.V. that [defendant] had touched her." She further testified that J.V. told her initially nothing happened, then said some thing did happen, and then once again said that nothing hap pened. Accord ing to her testimony, defendant was "in a state of shock," but told his niece to call the police. Defendant then voluntarily went with the police to the police station. His niece, J.V. and her mother initially went to the police station, but then went to the Passaic County Child Advocacy Cen ter so J.V. could be interviewed about the incident in a less intimidating setting.

Lieutenant James Beatrice, who at the time of the incident was a sergeant assigned to the Special Victim's Unit in the Prosecutor's Office, testified that on August 21, 2003, he received a phone call from the local police with a "fresh com plaint" involving a juvenile. Beatrice testified that he arranged for J.V., her mother, and defendant's niece to be transported to the Child Advocacy Center in Paterson, and for defendant to be brought to the Prosecutor's Office.

When defendant arrived, he was taken to an interview room on the sixth floor, which was about ten by fifteen feet in dimension. The door was secured from the outside, but Beatrice did not recall whether defendant was handcuffed. Beatrice and another detective, after securing their weapons outside the room in a "gun box," advised defendant of his Miranda rights. Defen dant indicated that he understood his rights, wanted to speak with the detectives, and signed a waiver.

According to Beatrice, defendant initially denied that he had ever touched J.V. the previous night or that anything had occurred sexually. Beatrice testified that defendant told him that "he didn't need to touch . . . J.V. [because] he had [her mother] for that purpose." After receiving a phone call from the Child Advocacy Center, Beatrice changed his line of ques tioning and offered the alternate hypothesis that J.V. had been the sexual aggressor. Beatrice testified that defendant immedi ately "nodded his head up and down in an affirmative manner" and

then explained that at some point J.V. was on the couch, had gotten off the couch, and laid right next to him while he was on the mattress with [her mother]. She then began to put her legs on top of his legs. He explained that he went to move her legs, and in doing so, accidentally grazed her rear end. When he grazed her rear end, she grabbed his hand and placed it on her vagina.

Beatrice testified defendant also explained that "upon J.V. grabbing his hand and placing it on her vagina, he became pissed, and she began to breathe heavy. At some point, he removed his hand and turned over." J.V. then got up and went back to the couch, and he got up to have a cigarette. Beatrice then called in a secretary, who brought a laptop into the room and created a typewritten statement, which defendant reviewed, corrected, initialed, and signed. Beatrice then read the report to the jury.

Defendant testified that the interview happened differ ently. According to his testimony, defendant denied everything until Beatrice threatened to take away the mother's chil dren. Defendant then told the detectives "you can't do that. That would kill her." Defendant testified that he only changed his explanation and agreed that J.V. was the sexual aggressor because he "didn't want her to lose her kids." At trial, he denied that J.V. ever grabbed his hand or that his hand grazed her buttocks, and that the statement he gave to the police was not true with respect to contact between J.V. and himself.

While defendant was being questioned by the Special Victims Unit, J.V., her mother, and defendant's niece arrived at the Child Advocacy Center in Paterson. Upon arrival, Giselle Henri quez, a child interview specialist who was assigned to investi gate the case, met with the mother to determine if J.V. had any special needs. Satisfied that J.V. had no developmental prob lems that would cause concern, Henriquez escorted J.V. to the second-floor interview room which was set up with video equip ment. A tape of the interview was admitted into evidence and played before the jury at trial and again upon their request during deliberations.

During the interview, J.V. described her vagina as her "pri vate," her breasts as her "titties," and her nipples as "bump[s]." She told Henriquez that defendant had touched her that night "in bad ways" "under the shorts." J.V. described the touch as both inside and "on the skin" of her private, and that it felt bad. She stated that he also used his mouth to touch her breasts and that his niece "saw it all."

When Henriquez asked if the previous night had been the first time defendant had done this, J.V. stated that it was the second time. She stated that the first time was "a few days, I think, or a few weeks" earlier, and that defendant "did the same exact thing the first time." She then described the "first" incident, which was similar to what happened on the night of August 20, 2003. However, J.V. stated that during the first time, defendant also put his mouth on her vagina and also put her foot "near his private part." She told Henriquez that she did not tell anyone about the first time because she was afraid she might get grounded. J.V. also told Henriquez that when her mother came home and she told her that defendant "kept on touch ing me in bad ways," her mother initially froze, but then as they were in transit to the Child Advocacy Center said "I don't believe you, cause [sic] [he] wouldn't do that to you." J.V. con cluded the interview by telling Henriquez that she trusted her and that if something like this happened again, she could also tell her mother or the niece, as she trusted them as well.

Defendant was charged on February 5, 2004, with first-degree aggravated sexual assault contrary to N.J.S.A. 2C:14-2(a)(1) (first count); second-degree sexual assault contrary to N.J.S.A. 2C:14-2(b) (second count); and third-degree endangering the welfare of a child contrary to N.J.S.A. 2C:24-4(a) (third count). After the judge denied defendant's pretrial motions, the matter was tried to a jury, which convicted defendant of the crimes charged in the second and third counts, acquitting him of the crime charged in the first count. The judge sentenced defendant on February 2, 2007, to a five-year custodial sentence subject to NERA and community supervision for life under Megan's Law on the second count and a three-year concurrent custodial sentence on the third count. He also imposed appropriate fines and penalties. This appeal was filed on May 8, 2007.

Defendant raises the following issues on appeal:

POINT ONE - THE ALLEGATION THAT MR. ALVAREZ HAD SEXUALLY ASSAULTED J.V. ON A PRIOR OCCA SION WAS SUBJECT TO THE REQUIREMENTS OF N.J.R.E. 404(b) AND ITS ADMISSION INTO EVI DENCE DEPRIVED MR. ALVAREZ OF A FAIR TRIAL.

POINT TWO - THE TRIAL COURT ABUSED ITS DIS CRETION AND VIOLATED MR. ALVAREZ'S RIGHT TO A FAIR TRIAL BY RE-PLAYING A VIDEOTAPE OF J.V.'S PRETRIAL INTERVIEW DURING JURY DELIBERATIONS. (NOT RAISED BELOW)

POINT THREE - THE ALLEGATION THAT MR. ALVA REZ HAD TAMPERED WITH A WITNESS WAS SUBJECT TO THE REQUIREMENTS OF N.J.R.E. 404(b), AND ITS ADMISSION INTO EVIDENCE DEPRIVED MR. ALVAREZ OF A FAIR TRIAL.

POINT FOUR - THE COURT'S IMPROPER ADMISSION OF HEARSAY EVIDENCE VIOLATED MR. ALVAREZ'S RIGHT TO DUE PROCESS AS GUARANTEED BY THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION AND ART. 1 PAR. 1 OF THE NEW JERSEY CONSTITUTION.

POINT FIVE - THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF FAIR COMMENT BY IMPROPERLY BOLSTERING THE CREDIBILITY OF A POLICE WITNESS. (NOT RAISED BELOW)

After carefully reviewing the record in the light of the written arguments advanced by the parties, we conclude that some of defendant's arguments "are without sufficient merit to war rant discussion in a written opinion." R. 2:11-3(e)(2). Those arguments are advised in Points I, III, IV, and V. We make only the following brief comments.

As to Point I, in child sexual abuse cases, the Supreme Court has recognized that "because the precise date on which the offense of sexual assault occurs is not a legal constituent of the crime, the date need not be set forth in the complaint." State in re K.A.W., 104 N.J. 112, 120 (1986) (citing State v. Davis, 6 N.J. Super. 162, 164 (App. Div. 1950)). Here, the date alleged in the indictment was August 2003. The second act occurred on August 20-21, 2003, and the first act occurred "a few days . . . or a few weeks" earlier. Thus, both acts were within the scope of the indictment and there was no error in permitting evidence of the first act to be adduced at trial.

As to Point III, defendant contacted the niece sometime after August 2003 and tried to persuade her not to go to court to testify against him. The judge permitted her to testify to this witness-tampering as consciousness of guilt admissible under N.J.R.E. 404(b). Evidentiary decisions are firmly within the purview of the trial judge and are reviewed for abuse of discretion. State v. Marrero, 148 N.J. 469, 505 (1997).

Res gestae evidence is analyzed under N.J.R.E. 404(b), State v. Williams, 190 N.J. 114, 129 (2007), and is thus sub ject to a Cofield analysis, less the requirement that the acts be "similar in kind and reasonably close in time." See State v. Burden, 393 N.J. Super. 159, 171-72 (App. Div. 2007) (quoting Williams, supra, 190 N.J. at 131), certif. denied, 196 N.J. 344 (2008). Guided by the Supreme Court's decision in Williams, we have explained that where "evidence is highly relevant to [a defendant's] consciousness of guilt . . . '[t]he evidence's use for state of mind evidence is permitted under Rule 404(b) and any prejudicial concern about predisposition is outweighed by the probative value of the evi dence.'" Id. at 172 (quoting Williams, supra, 190 N.J. at 133). We find no abuse of discretion here.

As to Point IV, defendant argues that the judge erred under the "tender years" exception to the hearsay rule found in N.J.R.E. 803(c)(27) by admitting the niece's hearsay testimony regarding J.V.'s statements as to what he did because the state ments were not trustworthy. However, the judge conducted a N.J.R.E. 104(a) hearing to determine whether the statement was sufficiently trustworthy to permit its receipt into evidence, and in doing so considered "'the totality of the circumstances' that surrounded the making of the statement." Biunno, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 803(c)(27) (2009). New Jersey courts have consistently held that N.J.R.E. 803(c)(27) "requires a trial court to make a preliminary finding that an out-of-court statement is sufficiently reliable based on the 'time, content and circumstances of the statement and then decide if the statement is trustworthy.'" State v. Smith, 158 N.J. 376, 389 (1999) (quoting State v. D.G., 157 N.J. 112, 128 (1999)). The judge did so in this case and, again, we find no abuse of discretion in his determination.

Finally, as to Point V, defendant urges that the prosecu tor improperly bolstered Lt. Beatrice's credibility during his summation. He made no objection to the summation at the time. In considering whether prosecutorial misconduct is prejudicial and denied defendant a fair trial, we will consider "'whether defense counsel made a timely and proper objection, whether the remark was withdrawn promptly, and whether the court ordered the remarks stricken from the record and instructed the jury to dis regard them.'" State v. Marshall, 123 N.J. 1, 153 (1991), (quoting State v. Ramseur, 106 N.J. 123, 322-23 (1987)). "Gen erally, if no objection was made to the improper remarks, the remarks will not be deemed prejudicial," because a failure to timely object indicates that trial counsel did not consider the remarks prejudicial when made and a failure to timely object deprives the trial court of an opportunity to cure. State v. Timmende quas, 161 N.J. 515, 576 (1999).

A prosecutor is entitled to respond to a defendant's attempt to discredit a State's witness, and generally remarks made to that end are harmless. State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993); see State v. DiPaglia, 64 N.J. 288, 297 (1974) (prosecutor's com ments may be vigorous and forceful but must stay within bounds of due process and fair play). Here, the defense summation was provocative and the prosecutor merely addressed the defendant's closing argument in equal measure when he argued that Beatrice received no benefit from his testimony. We are satisfied that the remarks were not prejudicial and defendant had a fair trial.

As to defendant's concern in Point II with the replay dur ing the jury's deliberations of the videotape of J.V.'s state ment, he made no objection to this replay at the time. As a result, we review the issue for plain error clearly capable of producing an unjust result. R. 2:10-2; State v. Macon, 57 N.J. 325, 336 (1971) (possibility of injustice "must be real [and] sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached").

Defendant argues that the trial court committed reversible error in allowing the jury to view, in open court, the video taped interview that took place on August 21, 2003, at the Child Advocacy Center during its deliberations without a limiting instruction or other safeguards. The decision to allow a read back of testimony during trial is firmly within the trial judge's discretion. State v. Wilson, 165 N.J. 657, 660 (2000); State v. Wilkerson, 60 N.J. 452, 460 (1972). "It is well-established that 'the reading of all or part of testimony of one or more witnesses at trial, criminal or civil, at the specific request of the jury during their deliberations is discretionary with the trial court.'" Wilson, supra, 165 N.J. at 660 (quoting State v. Wolf, 44 N.J. 176, 185 (1965)). Therefore, "ordinarily a judge should accede to a jury's request to have testimony read back to it." State v. Middleton, 299 N.J. Super. 22, 31 (App. Div. 1997).

Playing back video recordings during jury deliberations, how ever, may pose special problems. We have urged caution when deciding whether to allow a video playback. State v. Burr, 392 N.J. Super. 538, 575 (App. Div. 2007), aff'd as modified, 195 N.J. 119 (2008); State v. Michaels, 264 N.J. Super. 579, 644 (App. Div. 1993), aff'd, 136 N.J. 299 (1994). After the parties filed their briefs, the Supreme Court modified our decision in Burr regard ing this precise issue. Burr, supra, 195 N.J. at 133-34.

The Burr Court noted that the trial judge should first inquire if the jury is seeking something they cannot receive from an impartial read back. Id. at 133 (citing with approval factors listed in Michaels, supra, 264 N.J. Super. at 644-45). If so, the trial court should exercise discretion and balance the need for the playback against possible prejudice to the defense. Ibid. The Court noted that generally "once an exhibit has been admitted into evidence, the jury may access it during deliberations" subject to the judge's instructions. Id. at 133-34. A videotaped pretrial statement, however, is

significantly different from a demonstrative exhibit. Although it is evidence, it is also testimony. It is, in effect, a hybrid of the two. Unlike a demonstrative exhibit, the videotape contains hearsay statements offered for the truth of the matter asserted. Moreover, the videotape is power ful evidence for the jury to see again, if it is not placed into context . . . . The danger posed is that the jury may unfairly emphasize . . . videotaped statements over other testimony presented at trial, including . . . cross-examination.

[Id. at 134.]

The Court then held that "in the future, if a request is made by a jury to replay a videotaped pretrial interview that has been introduced into evidence, the precautionary procedures adopted in Michaels must apply to the videotaped out-of-court statements." Ibid. (footnoted omitted).

In this case, the judge did not ask the jury if they were seeking something in the videotape not available via a read back of transcribed testimony, id. at 133, but they clearly were because J.V. had recanted at trial, unlike the victim in Burr. Thus, the inquiry was unnecessary and the Burr Court clearly stated that the precautionary procedures adopted in Michaels must be applied "in the future," id. at 134 (emphasis added). This matter was tried even before our decision in Michaels. We have reviewed the videotape and conclude that its content does not raise any of the concerns we expressed in Michaels and, therefore, find no "plain error clearly capable of producing an unjust result," Rule 2:10-2, that would require a reversal of this conviction.

 
Affirmed.

Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

No Early Release Act, N.J.S.A. 2C:43-7.2.

State v. Cofield, 127 N.J. 328, 338 (1992).

(continued)

(continued)

19

A-5112-06T4

RECORD IMPOUNDED

June 1, 2009