STATE OF NEW JERSEY v. J.C.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2433-02T42433-02T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

J.C.,

Defendant-Appellant.

 

Submitted November 15, 2005 - Decided January 20, 2006

Before Judges Hoens and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 00-07-1509.

Yvonne Smith Segars, Public Defender, attorney for appellant (Stephen P. Hunter, Assistant Deputy Public Defender, of counsel and on the brief).

Jeffrey S. Blitz, Atlantic County Prosecutor, attorney for respondent (Courtney M. Silvern, Assistant County Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant J.C. was found guilty by a jury of second-degree aggravated assault, N.J.S.A. 2C:12-1b(1), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4. He was sentenced to concurrent eight-year terms to which the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, applied along with appropriate fees and penalties. On appeal, defendant raises only two arguments. First, he challenges the judge's order permitting Q.T., the child who was the victim of the acts for which defendant was indicted, to testify by closed circuit television. Second, he argues that the sentence imposed upon him was excessive. We affirm the order relating to the child's testimony and therefore the finding of guilt, but we remand for review of the sentence in light of recent Supreme Court guidance.

Because of the nature of the arguments advanced on appeal, we need only include a few salient facts. Defendant is the natural father of Q.T., a child born in 1992. Q.T. originally resided with her mother. There was evidence that Q.T. had been physically abused in that home, as a result of which she began to reside with defendant and his fiancée C.D. in 1998. In May 2000, when Q.T. was eight years old, school personnel discovered evidence of injuries caused by punishment that defendant had inflicted on her. Q.T. was hospitalized as a result of the injuries and was subsequently removed from defendant's care and placed in a foster home.

During her hospitalization, Q.T. reluctantly revealed the particulars of the punishments to Michael Davis, an investigator from the prosecutor's office. That information eventually led to defendant's indictment. When Davis met with Q.T. in August 2001, in preparation for her participation in the trial, she expressed to him that she was afraid of going to court, was fearful of the judge and was afraid of defendant. In particular, according to Davis, she said that she was afraid that defendant and C.D. would take her with them from the courthouse.

On November 2, 2001, the trial judge heard testimony and arguments on the State's motion for permission to conduct Q.T.'s trial testimony by closed circuit television. As a part of that proceeding, Q.T. testified, in camera, in the presence of the judge and counsel. She told the judge that she was afraid of defendant, that she feared being beaten by him again, that she did not want to see him again and that she was afraid that defendant might try to take her away. When asked whether she would be able to answer questions in defendant's presence, she first responded that she could not. After further questioning and after being assured that there would be police present to protect her, however, she said that she would be able to answer questions with defendant present, but that she would be scared.

The judge also heard the expert testimony of Dr. John Quintana, a psychologist. Dr. Quintana had been treating Q.T. in connection with the incidents for which defendant had been indicted, and had seen her approximately twice each month throughout the year prior to the hearing. He testified that Q.T. had expressed the same fears of defendant to him. He opined, based on his lengthy treatment of her, that she was emotionally fragile and that requiring her to testify in front of defendant would be traumatizing to her and would cause her to suffer severe emotional and mental distress. He further opined that although the child had made progress in her treatment, the risk of regression caused by being forced to testify in front of defendant was great. Finally, Dr. Quintana testified that although the risk would be less, even requiring her to testify in open court outside of the presence of defendant would create enough stress to cause her to suffer regression. He characterized the risk to her as highly likely.

In addressing this testimony, the judge considered the test established in State v. Crandall, 120 N.J. 649 (1990), and concluded that the State had demonstrated that the motion should be granted. In particular, he found that the offense was especially heinous both in severity and duration; that the child was susceptible to harm based on her prior mental condition; that defendant was a person in a position of authority over the child; that the conduct was ongoing in the sense of having occurred over a long period of time; that the child's expressions of fear of further harm implied that threats had been made; that defendant and the child were part of the same household; and that the child had been a victim of prior abuse. See id. at 663. He therefore granted the State's motion and permitted Q.T. to testify by closed circuit television.

On appeal, defendant argues that the judge violated his constitutional rights by refusing to require the child to testify in open court. Specifically, he asserts that because he offered to waive his right to be present in court during the child's testimony, the judge was without authority to refuse to require the child to testify in open court and thus erred in granting the State's motion. We find no merit in this argument, either based on the precedents cited or the record.

In Crandall, supra, the Court upheld the constitutionality of the statutory basis for permitting a child to testify by way of closed circuit television. See N.J.S.A. 2A:84A-32.4. As a part of that analysis, the Court noted that if a child's fear is only of defendant and not of the court or the jury, "the trial court should order the use of a procedure in which the child testifies outside the courtroom unless defendant requests that the child testify before the jury. In that event, defendant . . . could not be present in the courtroom during the child's testimony." Id. at 658. In Crandall, because the defendant had not requested that the child testify in open court in his absence, the issue defendant presents in this appeal was not directly addressed.

In considering defendant's argument that he had the right to force Q.T. to testify in open court by agreeing to waive his own presence, we need look no further for guidance than the decision of our Supreme Court in State v. Smith, 158 N.J. 376 (1999). There, the Court confronted the very argument that defendant raises here, namely, that his offer to waive his presence during the child's testimony made the use of closed circuit testimony inappropriate. We had found that argument convincing, see State v. Smith, 310 N.J. Super. 140, 144-45 (App. Div. 1998), and had reversed that defendant's conviction as a result. Our Supreme Court, however, disagreed, reversing our decision and rejecting the assertion that defendant's offer to waive his presence was dispositive. In so holding, the Court concluded that the resolution of the question rests on whether "the child's fear . . . prevent[s] the proper functioning of the truth-finding process, [regardless of] whether that fear derives from the presence of the defendant alone, or a combination of the presence of the defendant and the jury, or from the courtroom . . .." Smith, supra, 158 N.J. at 387.

Applying this analysis, we have recently concluded that a judge appropriately permitted a child who exhibited extreme fear to testify outside of the presence of the jury even if that fear resulted largely from a fear of defendant rather than of the courtroom or the jury. See State v. Delgado, 327 N.J. Super. 137, 143 (App. Div. 2000).

Our review of this record, particularly in light of Smith, compels us to reject defendant's assertions as without merit. The judge's findings and conclusions carefully addressed the factors established in Crandall. The record amply supports those factual findings. See State v. Locurto, 157 N.J. 463, 472 (1999). Moreover, the record also supports both his finding that the risk of severe harm to the child would be the same whether defendant was present in court or not, and his rejection of defendant's argument that the child should have been forced to testify in open court once he offered to waive his presence.

Defendant's second argument on appeal is that his sentence was excessive. We note in this regard only that defendant had no prior record of convictions and that the court's reliance on the two aggravating factors of risk of a further offense, N.J.S.A. 2C:44-1(a)(3), and the need to deter, N.J.S.A. 2C:44-1(a)(9), as outweighing the mitigating factor of that lack of a prior record, N.J.S.A. 2C:44-1(b)(7), requires that we remand for reconsideration. See State v. Natale, 184 N.J. 458 (2005) (Natale II); State v. Abdullah, 184 N.J. 497 (2005); State v. Franklin, 184 N.J. 516 (2005).

The conviction is affirmed, the matter is remanded only for reconsideration of the sentence in light of Natale.

 

Following the trial, defendant was also indicted for two counts of third-degree witness tampering, N.J.S.A. 2C:28-5a. That indictment was dismissed at the State's request at the time of defendant's sentencing on the two counts for which he had been found guilty by the jury.

(continued)

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8

A-2433-02T4

RECORD IMPOUNDED

January 20, 2006