STATE OF NEW JERSEY v. T.K

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2437-07T42437-07T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

T.K.,

Defendant-Appellant.

_____________________________________

 

Submitted February 23, 2010 - Decided

Before Judges Grall, Messano and LeWinn.

On appeal from Superior Court of New

Jersey, Law Division, Middlesex County,

Indictment No. 06-02-0186.

Yvonne Smith Segars, Public Defender,

attorney for appellant (Gilbert G. Miller,

Designated Counsel, on the brief).

Bruce J. Kaplan, Middlesex County Prosecutor, attorney for respondent (Joie Piderit, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant T.K. appeals from a final judgment of conviction and sentence. A jury found defendant guilty of first-degree aggravated sexual assault of a child less than thirteen years old, N.J.S.A. 2C:14-2a(1); second-degree sexual assault based on an act of sexual conduct with a child less than thirteen years old, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of a child under the age of sixteen and to whom defendant had a legal duty of care, N.J.S.A. 2C:24-4a.

The trial judge denied defendant's motion for a new trial and sentenced him to concurrent terms of imprisonment, which are all subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and "Megan's Law," N.J.S.A. 2C:7-1 to 2C:7-19: a seventeen-year term for aggravated sexual assault; an eight-year term for sexual assault; and an eight-year term for endangering. On each count, the judge imposed the mandatory $100 VCCB assessment, $75 SNSF assessment and $800 SANE fine. The judge also imposed the mandatory $100 sexual assault fine on counts one and two, pursuant to N.J.S.A. 2C:43-3.7, penalties pursuant to N.J.S.A. 2C:14-10 in the amount of $2000 for the first-degree conviction and $1000 for each of the second-degree convictions, and a $30 LEOTEF penalty.

The victim of defendant's crimes is his daughter, S.Y. She was born in Indonesia in the summer of 1989, and she and her mother immigrated to this country to join defendant in 1996. At trial, S.Y. described an incident of intercourse in 1996, and acts of digital penetration, cunnilingus and intentional touching of intimate parts that took place on various occasions between 1996 and 2002. The abuse had ended when her family moved from an apartment in Edison that they shared with other family members to Colonia. S.Y. had talked about the abuse to two friends when she was thirteen or fourteen and to her boyfriend in May 2005. They had known each other since December 2004 and been dating since April 2005, and he had met members of her family and gone to church with them.

S.Y. told her boyfriend about the abuse over the telephone. S.Y. sounded upset because her voice was quivering. Her boyfriend asked why. S.Y. told him she had been raped, and eventually she explained that it was by her father and described what he had done and when. The boyfriend testified about the conversation at trial but did not discuss the conduct S.Y. described. As time went on, S.Y. started "breaking down" in her boyfriend's presence and telling him it was "really bothering" her. He suggested she speak to her mother, but she did not. Her father had told her that her mother would hate her if she knew about what she was doing with her father, and he had told S.Y. that if he had not married her mother he would have married S.Y.

S.Y. did not tell an adult about the abuse until November 2005, when she approached her health education teacher after a lesson on acquaintance rape. S.Y. passed the teacher a note requesting the phone number for a rape crisis center. The teacher informed a guidance counselor. The counselor spoke to S.Y., gave her the phone number, contacted S.Y.'s mother and advised the Division of Youth and Family Services.

An investigator from the prosecutor's office and two detectives from the Edison Township Police Department went to defendant's home at about 12:15 a.m. on November 19, 2005. Defendant was sleeping and the officers asked someone present to wake him up. The officers told defendant they needed to speak to him at police headquarters. Communicating with them in the English language, defendant was cooperative, calm and agreed to go. En route, they did not question him.

The officers spoke to defendant in a conference room at police headquarters after the investigator read him the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). Defendant did not express or demonstrate any difficulty communicating in English and did not ask for an interpreter. At 1:08 a.m., defendant initialed and signed a form acknowledging his understanding and waiver of his Miranda rights. During a pre-interview session that followed, the officers took information on his background and education, advised him of the allegations against him and heard what he had to say about his daughter's claims. The remainder of the interview was tape-recorded starting at 1:34 a.m.; the investigator turned the recorder on in front of defendant. The recording includes defendant's acknowledgement of his prior receipt of Miranda warnings, his signature and initials on the form, and his profession that he understood the advisements the investigator reiterated at the outset of the recorded interview. At the conclusion of a pre-trial hearing on defendant's motion to suppress his statements, the judge concluded the State met its burden of demonstrating compliance with Miranda and defendant's knowing, voluntary and intelligent waiver of his rights. Accordingly, the recording was played for the jury at trial.

Under oath during that recorded interview, defendant admitted that he touched his daughter's vagina, his "fingers just sliding there"; thought his finger went into her vagina more than once; touched her vagina with his penis "just a little bit"; and kissed her breasts and vagina. He explained that he had done these things more than once and stopped four or five years before the interview because he "corrected" his "mistake," "confess[ed] to God," and asked for strength to "fight this," which is "like a demon thing[]." He also told the investigator that he asked himself, "How come I do this?" He remarked that he had done this to "[his own] flesh and blood" and "keep[s] fighting" what he does not want to do. During the interview, he also said his wife was working and he was watching the children when these things happened. He estimated that the incidents occurred about four times a year and ended before he moved his family to Colonia in 2002.

At trial, defendant denied the truth of the recorded statements he made at police headquarters. He testified that he lied because he and his family were in this country on a grant of political asylum due to religious persecution of Christians in their homeland. As he explained it, when he gave the statement to the police, he believed S.Y. would be in trouble and deported if he contradicted her allegations. Out of concern for what would happen to S.Y. if she were deported, he responded in the affirmative when the officers confronted him with her allegations. He said that when he elaborated and volunteered additional information, he did that to make his false admissions seem more credible.

The defense of denial was accompanied by an assertion of recent fabrication motivated by S.Y.'s anger at her father. The defense presented evidence to suggest that S.Y. was angered by her father's efforts to have her comply with his rules for her behavior.

His rules related to appropriate attire, use of make-up and dating. Defendant gave the jurors his opinion on S.Y.'s reasons for falsely accusing him. He said, "Perhaps she was upset because I found pictures of her wearing a low-cut blouse and mini skirt, yes." He added, "And she got upset, perhaps, because at that time I told her, when I was angry at her and I was arguing with her, that if she doesn't want to follow my rules or this rule, she could get out of the house. And I also force[d] her to break up with her boyfriend, and I do not want to see his face again."

In addition, the defense presented witnesses who testified about S.Y.'s defiant behavior and her reputation for fabrication and lying. At trial, the defense also confronted S.Y. with a 2004 diary entry in which she wrote that she was glad she was still a virgin. She explained that an adult had told her that a person who was raped was still a virgin. S.Y. was also cross-examined about her daily arguments with her father, her view of him as verbally abusive to her, his telling her he hated her, inconsistencies in her various statements, nightmares she reported while hospitalized, her parents' attitude toward her boyfriend, and her violations of their rules about going out at night and wearing short skirts and low-cut blouses.

On appeal defendant raises these issues:

I. THE TRIAL COURT'S DENIAL OF DEFENDANT'S

REQUEST THAT HE TESTIFY DIRECTLY TO THE JURY INSTEAD OF THROUGH THE MEDIUM OF A COURT APPOINTED INDONESIAN INTERPRETER AND ITS FAILURE TO DETERMINE THE QUALIFICATIONS OF THE INTERPRETER IMPERMISSIBLY IMPINGED UPON DEFENDANT'S CONSTITUTIONAL RIGHTS TO TESTIFY ON HIS OWN BEHALF AND TO AN OPPORTUNITY TO PRESENT A COMPLETE DEFENSE AND WAS CONTRARY TO STATE LAW.

II. THE COURT'S PRECLUSION OF EVIDENCE THAT

S.Y. POSSESSED A CD CONTAINING IMAGES OF S.Y. AND [HER BOYFRIEND] ENGAGING IN SEXUAL ACTIVITY AND SAVED PHOTOGRAPHIC EROTIC IMAGES OF HERSELF ON A DIGITAL CAMERA AND HER COMPUTER VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE AND HIS RIGHT TO EFFECTIVE CROSS-EXAMINATION. (Partially Raised Below).

III. THE COURT ERRONEOUSLY PRECLUDED

DEFENDANT FROM ADDUCING EVIDENCE THAT HE, [HIS WIFE] AND S.Y. WERE NOT UNITED STATES CITIZENS, THEREBY DEPRIVING DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO A MEANINGFUL OPPORTUNITY TO PRESENT A COMPLETE DEFENSE.

IV. THE TRIAL COURT ERRONEOUSLY PERMITTED

[S.Y.'S BOYFRIEND] TO TESTIFY THAT S.Y. MADE A FRESH COMPLAINT TO HIM AND S.Y. TO TESTIFY THAT SHE HAD EARLIER MADE FRESH COMPLAINTS TO TWO OTHER PERSONS. (Not Raised Below).

V. THE TRIAL COURT ERRONEOUSLY FAILED TO

SUPPRESS DEFENDANT'S STATEMENT AT THE POLICE STATION.

VI. DEFENDANT'S SENTENCE IS MANIFESTLY

EXCESSIVE.

In the remainder of this opinion, we address these issues in the order defendant has presented them.

I

Defendant has two different claims relevant to the use of an interpreter. One claim is that the interpreter was not qualified. The other is the judge erred by requiring defendant to present his testimony through the interpreter because that ruling limited his right to present a complete defense. We reject both claims.

Defense counsel asked the court to provide an interpreter. The judge initially arranged for two court-certified interpreters with the purpose of allowing them to relieve one another. During jury selection, one of those interpreters was excused because of difficulties in fulfilling his responsibility. The difficulties were apparent to the court clerk and to the interpreter. The interpreter himself advised his supervisor that he was not satisfied that he was doing a thorough job. After discussing the issue with counsel and with their consent, the judge addressed the problem by starting the jury selection process anew, albeit with the panel that was seated. Thereafter, jury selection was completed and trial continued with the second interpreter. There is no dispute that the interpreter was certified and had experience with interpreting at trial.

On appeal, defense counsel suggests that the second interpreter's performance was also deficient. After considering every passage of the transcript to which defense counsel cites, we find no evidence of anything other than careful diligence on the part of the interpreter. When the interpreter did not hear what was said or required repetition of a question posed, the interpreter so indicated. Those requests were few and far between and not in any way suggestive of inadequacy that would undermine defendant's exercise of his rights at trial or otherwise affect the fairness of the trial. State v. Guzman, 313 N.J. Super. 363, 379 (App. Div.), certif. denied, 156 N.J. 424 (1998).

Defendant's second claim relates to the trial judge's denial of his request to testify without an interpreter. Although defense counsel had requested the interpreter prior to trial, the request to have defendant testify without the assistance of the interpreter was not made until defendant was called to the stand. Defense counsel explained, "He speaks some English. It's just that he misses certain Indonesian is his first language, and he misses certain things. But he was interviewed by the police officers in English, and I want the jury to see him speak English. And I think [it's] important. I think it's critical." Defense counsel cited no authority for his request; he simply told the judge that another judge had permitted him to use this tactic in a different trial. He explained that if defendant had difficulty, the interpreter could be asked to translate as necessary. The judge concluded that there was no justification and there was a potential for a major problem to arise if defendant dispensed with the services of an interpreter and trial proceeded as defense counsel suggested.

"The decision as to whether an interpreter is required i.e., as to whether a witness' natural mode of communication is unintelligible is a matter primarily entrusted to the sound discretion of the trial court." In re R.R., 79 N.J. 97, 117 (1979). This court will not disturb the trial court's determination "on appeal unless an abuse of discretion is manifest." Ibid. Considering the basis for defense counsel's request, we see no such abuse here. Defendant's attorney wanted to demonstrate defendant's lack of ability to communicate in English in order to undermine the value of defendant's recorded confession. But evidence of defendant's ability to comprehend and speak English at the time of the police interview was already before the jurors; the colloquy between defendant and the officer during the interview was recorded and played for the jury. Thus, we cannot conclude that the judge's ruling was a manifest abuse of discretion.

II

Defendant also contends that his conviction should be reversed because the judge refused to allow him to elicit testimony about S.Y.'s sexual activity with her boyfriend to demonstrate a source of knowledge about human sexuality other than her contacts with defendant and her motive to falsely accuse defendant.

The evidence was precluded pursuant to the Rape Shield Law, N.J.S.A. 2C:14-7. Because there was no evidence of pregnancy, semen or disease, and consent was not at issue due to S.Y.'s age, none of the exceptions to N.J.S.A. 2C:14-7 applied.

We recognize that in the case of a young child, evidence of abuse by another may have value in rebuttal of the natural inference that a child would not be able to describe the alleged sexual conduct but for knowledge gleaned from the act of abuse. State v. Budis, 125 N.J. 519, 533-34 (1991). Here, however, S.Y. was about seventeen years old when she testified at trial. The evidence was that she did not report the conduct to an adult until she was about fourteen years old and that she made the report at the end of a health class addressing abusive sexual conduct. The jurors had also heard S.Y. and her boyfriend, who was four years older than she, testify that they had a dating relationship when she first reported sexual abuse. Under these circumstances, we cannot conclude that the exclusion of the evidence was error or inconsistent with the rule developed in Budis for cases in which the source of a young child's knowledge of human sexuality warrants explanation based on the child's involvement in sexual activity with others.

On appeal, defendant also argues that the evidence of S.Y.'s sexual activity was relevant to establish her motive to fabricate her accusations against her father. We fail to see a nexus or a basis for concluding that additional evidence of motive could have changed the outcome of this trial. There was extensive testimony about S.Y.'s motive arising from her father's efforts to bring her conduct and comportment into conformity with his standards. Compromising photographs would have been cumulative and of no perceptible value.

III

Defendant is not entitled to reversal of his conviction based on the presentation of fresh complaint evidence. This claim is based on the testimony of S.Y.'s boyfriend and S.Y.'s testimony that she told two friends about her father's conduct before telling her boyfriend.

There was no objection to the evidence. The State sought approval to admit testimony by S.Y.'s boyfriend prior to trial, and at the conclusion of a hearing on its admissibility, defense counsel said he had no objection to its admission. Similarly, defense counsel did not object when S.Y., during her testimony at trial and without prior notice to the defense, mentioned that she had also told two friends about her father's abuse. Later, the judge raised the issue out of the presence of the jury. After outlining the options, defense counsel asked the judge not to strike the testimony. He noted that he intended to comment on S.Y.'s disclosure in summation and could not do that if the judge directed the jury to disregard the evidence.

It appears that the doctrine of invited error might well be applied to bar these objections. See New Jersey Div. of Youth and Family Servs. v. M.C., 201 N.J. 328, 340-41 (2010). In any event, we have considered the merits and find no error and certainly none capable of raising a doubt about the convictions. R. 2:10-2.

Admission of this testimony was consistent with the governing legal principles. The defense claimed recent fabrication; accordingly, the State could present fresh complaint evidence to rebut that claim and the natural inference arising from S.Y.'s delay in reporting the abuse. State v. Hill, 121 N.J. 150, 151-52 (1990). The testimony given was brief and lacked potentially prejudicial details reiterating or supplementing S.Y.'s trial testimony about defendant's conduct. Id. at 170. S.Y. volunteered the information to friends and did not disclose it in response to questions posed by someone who suspected her father was abusing her. Id. at 151-52, 170. Moreover, S.Y. was quite young when the abuse commenced and when it ended; given that circumstance, there was sufficient temporal proximity between the abuse and her disclosures to warrant submission to the jury as evidence of reasonably prompt complaints, the probative value of which was for the jurors to decide. State v. Bethune, 121 N.J. 137, 143-44 (1990); State v. Hummel, 132 N.J. Super. 412, 422-23 (App. Div.), certif. denied, 67 N.J. 102 (1975). Finally, the jurors were given thorough and accurate direction on the limited purpose of the fresh complaint testimony and factors they should consider in assessing its probative value. Bethune, supra, 121 N.J. at 147-48. For all of those reasons, we find no merit in the arguments presented in support of the issue raised in Point III.

IV

The issue raised in Point IV is not supported by the record. Defendant was not precluded from explaining his immigration status and its relevance to his defense. As is apparent from the discussion of the evidence set forth above, defendant testified at length about his family's reasons for immigrating and his fears about S.Y.'s deportation that led him to falsely implicate himself in these crimes.

V

With respect to defendant's objection to the admission of his recorded statement to the police, we affirm substantially for the reasons stated by the judge in the oral decision rendered on May 10, 2006. The judge's determination is supported by a proper application of the legal principles to factual findings that are adequately supported by the record. State v. Locurto, 157 N.J. 463, 471 (1999). Accordingly, we reject defendant's claim that the judge erred by admitting the tape recording of his interview at police headquarters.

VI

Defendant contends that his sentence is manifestly excessive. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When a trial judge has "exercise[d] discretion in accordance with the principles set forth in the Code and defined by [the Supreme Court]," we may not disturb a sentence. State v. Bieniek, 200 N.J. 601, 607-08 (2010) (internal quotations omitted).

Given the limited scope of our review, the arguments presented in support of defendant's claim of excessiveness of sentence lack sufficient merit to warrant more than brief comment in a written opinion. R. 2:11-3(e)(2). The judge did not misapprehend or misapply the statutory factors, the factual findings underlying the judge's conclusions on the relevant aggravating and mitigating factors are supported by the record, and the terms of the ordinary concurrent sentences are within the permissible range for each of these crimes. Given the multiple criminal acts over an extended period of time, the judicial conscience is not shocked. Accordingly, we affirm the sentences of imprisonment.

Defendant also objects to the fines, penalties, assessments and fees imposed. The judge found that defendant's criminal conduct ended at a date in 2001; the judge did not, and indeed on this record could not, specify a date on which the last act occurred in 2001.

Defendant argues, correctly, that his punishment includes financial sanctions that were imposed pursuant to laws enacted after he committed his crimes and that the sanctions must be vacated as violative of constitutional principles barring ex post facto punishment. We agree. See State v. Chapman, 187 N.J. Super. 474, 477-78 (App. Div. 1982).

N.J.S.A. 2C:14-10 was adopted as L. 2005, c. 73, 1, effective April 26, 2005. The $4000 in fines imposed pursuant to N.J.S.A. 2C:14-10 must be vacated.

N.J.S.A. 2C:43-3.7 was adopted as L. 2002, c. 34, 51, effective July 1, 2002. The $200 in fines imposed pursuant to N.J.S.A. 2C:43-3.7 must be vacated.

N.J.S.A. 2C:43-3.6 was adopted as L. 2001, c. 81, 11, effective May 4, 2001. As there is no finding that defendant committed the crimes after that date, the $2400 in penalties imposed pursuant to N.J.S.A. 2C:43-3.6 must be vacated.

Defendant's objection to the VCCB assessments imposed requires no comment beyond a citation to this court's decision in State v. J.F., 262 N.J. Super. 539, 542 (App. Div. 1993).

 
Affirmed in part; reversed in part and remanded for issuance of an amended judgment of conviction that does not include the penalties imposed pursuant to statutes enacted after these crimes were committed.

(continued)

(continued)

19

A-2437-07T4

RECORD IMPOUNDED

July 26, 2010