STATE OF NEW JERSEY v. V.F.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0746-04T5746-04T5

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

V.F.,

Defendant-Appellant.

_______________________________________

 

Submitted November 16, 2005 - Decided

Before Judges Conley, Winkelstein and Sabatino.

On Appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 03-04-1495.

Dell'Italia, Affinito & Santola, attorneys for appellant (John P. Dell'Italia, of counsel and on the brief).

Peter C. Harvey, Attorney General, attorney for respondent (Steven A. Yomtov, Deputy Attorney General, of counsel and on the brief).

PER CURIAM

Defendant V.F. appeals his conviction of multiple counts of sexual contact with his eighth-grade daughter. We find no merit in defendant's contentions on appeal, and thus affirm.

The central facts are as follows. J.F., the daughter of defendant, was born in Haiti in April 1987. In 1997, when she was almost ten-years-old, she left her mother in Haiti and came to the United States to live with relatives in New Jersey. She stayed with an aunt and uncle until August 1999, when her stepmother died. Thereafter, she and a half-brother came to live with defendant.

According to J.F.'s trial testimony, the sexual touching incidents began after the death of J.F.'s stepmother, when J.F. was thirteen or fourteen years of age and residing with defendant. The incidents repeated over a period of about two years. Eventually defendant became violent with J.F. when she resisted him, and he threatened to kill her. The threat induced J.F. to reveal the defendant's abuse to another relative, her "aunt" (actually a cousin's mother).

Thereafter, the aunt brought J.F. to Sister P.H., the former principal of J.F.'s grammar school. J.F. related the defendant's wrongdoing to the nun, who, in turn, reported it to the Division of Youth and Family Services (DYFS). DYFS then notified the police.

At trial J.F. testified about her father's repeated sexual acts. Sister P.H. also was called by the State as a "fresh-complaint" witness, to relate the circumstances of J.F. approaching her at school and reporting the abuse. The physical proofs in evidence included DNA test results, which confirmed the presence of defendant's semen on a burgundy skirt owned by J.F.

Defendant testified in his own behalf and denied any improper touching of J.F. He contended that he was framed by the aunt, alleging that the aunt had forced him to have sex and then had wiped up his semen with J.F.'s clothing.

Defendant's principal argument on appeal is that the trial court erred in admitting the fresh-complaint proofs from Sister P.H. We find no such error.

As an uncodified hearsay exception, the fresh-complaint rule allows, among other things, the State to introduce a sexual victim's out-of-court revelation of such conduct to a confidante shortly after the conduct occurs. The fresh-complaint testimony negates a defense inference that the alleged offense must have been contrived because the victim did not promptly tell anyone about it. State v. Hill, 121 N.J. 150, 163 (1990).

Here, defendant argues that J.F.'s alleged fresh-complaint to Sister P.H. was improperly admitted because it was not spontaneous and voluntary. The record shows otherwise. Although defendant claims that the aunt caused his daughter to go to Sister P.H., that claim is contradicted by J.F.'s insistence on cross-examination, that she, and not her aunt, decided to meet with the nun.

Ordinarily a victim would have personal knowledge of her own motivations and of what led her to confide in a third party. Here, the proofs reflect that J.F. had a trusting rapport with Sister P.H. The trial judge had an ample basis to find that J.F. willingly and spontaneously sought out the nun for aid and comfort.

Defendant complains that the trial judge failed to hold N.J.R.E. 104 hearing before allowing the jury to hear Sister P.H.'s testimony. But defendant never asked for such a hearing. The circumstantial indicia of the close relationship between the nun and the victim sufficed to support the admission of the testimony without a hearing. The law does not impose upon trial judges a per se obligation to conduct a full-blown N.J.R.E. 104 hearing in every fresh-complaint case. Cf. Kemp v. State, 174 N.J. 412, 428 (2002)(holding that a N.J.R.E. 104 hearing is preferred, but not always required, when a trial judge evaluates the admissibility of scientific expert testimony).

We also reject defendant's related contention under N.J.R.E. 403 that the State's presentation of Sister P.H.'s testimony was overly prejudicial. Her testimony was probative and not cumulative. She hewed to the boundaries of allowable fresh-complaint proofs, and did not editorialize or opine about the merits of what J.F. had reported to her. We uphold the trial judge's discretion in allowing the testimony, notwithstanding the witness' status as a member of a religious order.

As a second basis for appeal, defendant notes that some portions of the trial transcript are missing, and he claims that the case should be sent back to reconstruct the transcript. We disagree. We can glean from the existing transcript all of the evidence necessary to decide the key issues, and to be satisfied that there was ample credible proof in the record to support the verdict. No remand is required. Accord State v. Paduani, 307 N.J. Super. 134, 142 (App. Div. 1998)(gaps in the trial record do not automatically require a remand where defendant fails to show sufficient prejudice).

Lastly, defendant contends that he was deprived of the effective assistance of counsel as the result of various actions and inactions of his trial attorney. Among other things, defendant complains that his attorney failed to call certain witnesses, failed to conduct sufficient pretrial investigations, and inadequately cross-examined J.F. and other prosecution witnesses.

We do not grant relief on these claims. They largely concern matters of trial strategy, which are presumptively reposed within the judgment of trial counsel. State v. Perry, 124 N.J. 128, 153 (1991). A proper evaluation of these criticisms would require us to go beyond the record on this appeal. State v. Preciose, 129 N.J. 451, 460 (1992). Indeed, we note that defendant attempted to present to us an affidavit of S.F., defendant's brother and the aunt's former husband, who allegedly would have buttressed defendant's theory that he was the target of a set-up by the aunt. That stricken affidavit, and any other germane proofs of trial counsel's alleged shortcomings, may be properly considered in a future application for post-conviction relief. Accordingly, we deny the ineffective assistance claim at this time, without prejudice to a future PCR application by defendant.

 
The Law Division judgment is affirmed.

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A-0746-04T5

RECORD IMPOUNDED

December 6, 2005