STATE OF NEW JERSEY v. FREDERICK CUCOLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3599-03T23599-03T2

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

FREDERICK CUCOLO,

Defendant-Appellant.

______________________________________

 

Submitted December 6, 2006 - Decided May 25, 2007

Before Judges A. A. Rodr guez, Collester and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, 2002-11-3979.

Richard M. Roberts, attorney for appellant.

Paula T. Dow, Essex County Prosecutor, attorney for respondent (Debra G. Simms, Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

Defendant, Frederick Cucolo, was employed as a drug counselor for the Superior Court of New Jersey, Family Division and for the Municipal Court of Belleville. The State alleged that while so employed, he committed various acts of sexual assault and official misconduct on P.E. and C.J., whom he was counseling. P.E. was fifteen years old at the time. This is a second degree crime pursuant to N.J.S.A. 2C:14-2c(4). C.J. was eighteen years old, but she was on probation; therefore, defendant had supervisory or disciplinary power over her by virtue of his occupational status. This is a second degree crime pursuant to N.J.S.A. 2C:14-2c(2). Defendant was in his early fifties at the time.

Following a jury trial, defendant was convicted of nine counts of second degree sexual assault, N.J.S.A. 2C:14-2c(2) and (4); and two counts of second degree official misconduct, N.J.S.A. 2C:30-2a. He was acquitted of four counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(6); and two counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. At sentencing, the judge imposed seven concurrent seven-year terms and four consecutive seven-year terms with a two-year and 122-day parole disqualifier. Thus, the aggregate term is twenty-eight years with a nine-year and 122-day parole disqualifier. We affirm the convictions, but reverse and remand for resentencing.

At trial, P.E. described the various acts of sexual activity she engaged in with defendant. She also related that once she and defendant went out and defendant asked her to perform a lap dance for him. She imbibed alcohol at defendant's request. He taught her how to smoke a cigar. P.E. admitted that she used defendant in order to obtain money and that at no time did defendant force her to do anything she did not want to do. However, she was under the age of consent.

P.E. testified that at defendant's invitation, she lived with him from approximately June 2, 2001 until July 18, 2001, at which time he had asked her to leave because she refused to keep having sex with him.

P.E. used defendant's telephone while she was living there to call her friends. Defendant had given her permission, as long as she did not call her mother. When the prosecutor asked P.E. if she had seen telephone records of calls from defendant's house during the relevant period, defense counsel objected. He conceded that he knew that the State had subpoenaed defendant's telephone records. However, he had not received any information that P.E. had identified any of the numbers called from that telephone. Defense counsel argued that, had he known that P.E. would identify the calls as calls to her friends, "it would have changed the entire tenor of the defense," and his opening statement would have been "totally different." The judge ruled that there was no surprise because these were defendant's telephone records. Therefore, defendant had equal access to the records. Nonetheless, the judge granted defense counsel until the next day to examine the records before P.E. testified about them.

The next day, the prosecutor elicited from P.E. that she had reviewed the subpoenaed telephone records and had identified many calls that she had made from defendant's telephone to her friends between June 4, 2001 through June 29, 2001. Defense counsel made no objections to any of that testimony, nor did he complain that he had been unable to examine the records.

C.J. testified that she met defendant while she was detained at the Essex County Youth Detention Center. Some months later, C.J. came to see defendant. Defendant directed C.J. to an office. The two discussed a pamphlet relating to Alcoholics Anonymous. While going over the pamphlet, defendant told C.J. to wear something "nice and sexy" to dinner that night after the meeting. As C.J. prepared to leave, defendant asked her for a hug. She complied. During the hug, defendant began "grinding" himself against her. According to C.J., this was unexpected.

That night, the two met. Defendant drove C.J. to his house. The two sat on a couch and talked for about five minutes. Then they engaged in sexual intercourse. They never had dinner that night. Before driving C.J. home, defendant told her that he had enjoyed himself and that he wanted to see her again.

At trial, C.J. acknowledged that the sexual encounter between her and defendant was consensual, and that she was not drunk at the time. A couple of days later, C.J. told her father about her sexual encounter with defendant.

Defendant did not testify. His former girlfriend, Renesha Chambers, testified on his behalf. According to Chambers, she lived with defendant from October or November 1999 until July or August of 2001. Consequently, Chambers testified that P.E. did not live with defendant in June or July 2001.

Prior to trial, the Assistant Prosecutor sought permission to adduce evidence that defendant had made sexual comments to two other girls who had been assigned to him for counseling. Defense counsel objected. The judge ruled that the evidence was admissible to prove motive or plan, as permitted by N.J.R.E. 404(b). He noted that the evidence was probative of a material issue, namely, how "defendant was able to use his supervisory power to manipulate the victims into sexual relationships." The judge indicated that he would give an appropriate limiting charge when the time came.

At trial, K.P. testified for the State that, after she appeared in juvenile court for smoking marijuana when she was fourteen years old, defendant was assigned to be her drug counselor. He began picking her up in front of her house and taking her to his house, where they would eat and watch television. On one occasion, he asked her for a hug and kiss. She gave him a hug only. He once gave her money for cleaning his house. He also gave her $50 to get a pair of boots that she wanted. He once asked her to take her clothes off and put on a man's undershirt. She refused. She also refused his request that she be one of his "girlfriends." Defendant also asked K.P. about the sexual activities she engaged in with her boyfriend.

Following K.P.'s testimony, the judge gave a limiting instruction. The judge explained that the jury could not use the testimony as tending to show either that defendant was a bad person or had criminal propensities. Rather, the jury could consider the evidence only as it revealed defendant's ability to use his supervisory power to manipulate girls into sexual relationships.

L.T., age thirty-nine at the time of trial, had been assigned to defendant during her drug rehabilitation. When she would talk with him about her sex addiction, he would ask her to give explicit details about her liaisons. He would make lewd comments about her female roommate M.F. He would tell L.T. that the roommate had "nice tits" and a "nice ass," and that he would "like to fuck her."

M.F., age twenty-five at the time of trial, testified that defendant was also her counselor. According to M.F., defendant would compliment her on her "tits" and "ass" and would ask her to be his girlfriend. The remarks made her "uncomfortable." He offered her money. She refused. The judge repeated limiting instructions after L.T. and her roommates testified.

Carolyn Wilson, defendant's co-worker, testified that C.J. told her that she had sex with defendant. Defense counsel did not object to this testimony on either N.J.R.E. 404(b), or any other grounds. Norman Thibault, a therapist from Utah, testified that P.E. told him that she had sex with defendant. Again, defense counsel did not object.

On appeal, defendant challenges five trial court rulings and the conduct of the prosecutor. He contends:

NEW JERSEY RAPE SHIELD LAW SHOULD HAVE BEEN PIERCED TO ALLOW EVIDENCE OF ALLEGED VICTIM'S VENEREAL DISEASE CONDITION.

We disagree.

Defendant contends on appeal that the judge erred in applying the Rape Shield Law, codified at N.J.S.A. 2C:14-7, as a bar to admissibility of evidence about P.E.'s history of venereal disease. He argues that such evidence would have refuted P.E.'s claim that she had unprotected sex with defendant. According to defendant, he did not become infected.

The Rape Shield Law issue first arose prior to trial. Defendant indicated that he wanted to adduce proof that P.E. was promiscuous, in order to support the defense theory that she was the sexual aggressor and that defendant successfully "fought off" her advances. There was no argument then that P.E.'s sexual history should have been admitted to show that she had a venereal disease. The judge ruled that P.E.'s sexual history was "not material or crucial to the defendant's defense."

The issue arose again during trial, after P.E. testified that she had been using defendant to get money. Defense counsel reported to the judge that he had learned from discovery documents that P.E. had a history of using her body to get money from men. Defense counsel argued that he should be allowed to question P.E. about this, in order to show that she was not an "innocent" victim who had been corrupted by defendant. The judge again ruled that the Rape Shield Law precluded such inquiry because of the statutory nature of the offense, which rendered her own state of mind irrelevant.

On appeal, defendant urges the different theory that he never had sex with her. In other words, he wished to submit the evidence to show the jury his state of mind at the time, that "he never [even] considered sexual relations with her." He contends that "[b]ecause he was her rehabilitation counselor, he was fully cognizant of the litany of sexually transmitted-diseases that the accuser was inflicted with."

Because this issue is raised for the first time on appeal, it must be judged against the plain error standard, R. 2:10-2. Accordingly, we will only reverse on a ground not raised at trial if the appellant shows that the error was "clearly capable of producing an unjust result." State v. Macon, 57 N.J. 325, 337 (1971) (citing R. 2:10-2).

Defendant does not indicate how he learned of P.E.'s venereal disease. The State asserts in its brief that defendant found out about it "through sheer misadventure," because the information was privileged and should have never been released in discovery. In a separate contention, which we reject, defendant contends that P.E. waived the confidentiality of the records. We address this contention at page 11 of this opinion.

On the merits, defendant's application was correctly denied. The Rape Shield Law provides that, in prosecutions for various sex crimes, "evidence of the victim's previous sexual conduct shall not be admitted nor reference made to it in the presence of the jury except as provided in this section." N.J.S.A. 2C:14-7a. Prohibited evidence may be admitted under the following exceptions:

If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and highly material and meets the requirements of subsections c. and d. of this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim . . . .

[Ibid.]

The referenced subsection c. provides that, when the defendant seeks to admit evidence of a victim's prior sexual contact with someone other than the defendant, that evidence "shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease." N.J.S.A. 2C:14-7c. Subsection d. is not relevant to this case.

We note that defendant did not offer any evidence that he never contracted a venereal disease. He makes no proffer of proof on appeal. Even if his premise is accurate, that would not preclude his having had sex with P.E. Not every sexual encounter with a diseased person causes transmission of the disease. P.E. testified that defendant sometimes used "protection." Moreover, the fact that defendant had intercourse with P.E. was corroborated by his own witness, Chambers. Chambers confirmed P.E.'s testimony that defendant had a distinctive mole or birthmark on his penis. Judging this evidence against the Rape Shield Law standard, we conclude that defendant has failed to establish an exception pursuant to N.J.S.A. 2C:14-7a. The speculative arguments that he makes do not constitute "relevant and highly material" proofs, nor does it meet the requirements of subsection c. because it does not provide "the source of [venereal] disease." Ibid.

Defendant also contends that P.E. waived her psychiatrist-patient privilege. The judge decided this issue before trial. We note that defendant does not indicate when, how or why this privileged information was obtained. Nor does he indicated how or why P.E. waived its confidential nature. We, therefore, reject this argument.

Defendant also contends:

THE COURT BELOW ERRED IN DISMISSING [] SITTING [JUROR THREE] WITHOUT GOOD CAUSE.

We disagree.

Preliminarily, we note that defendant neglects to provide any citations to the transcript of the October 30, 2003 proceeding at which this problem arose and was disposed of by the judge. Thus, we would be justified in disregarding defendant's argument. Freeman v. State, 347 N.J. Super. 11, 32 (App. Div.), certif. denied, 172 N.J. 178 (2002); State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). Nonetheless, we will address the contention.

At the beginning of the October 30, 2003 session, the judge noted that during a recess in the prosecutor's summation the day before, there had been a power failure. This prompted the judge to dismiss the jury until the next day. Juror Three told the judge that she had a doctor's appointment the next morning. The judge asked if she could reschedule. According to the judge, Juror Three seemed "annoyed" and "became confrontational," commenting that he had delayed the trial the week before so that he could attend a family matter. Then Juror Three started apologizing to defense counsel. The judge found this "disconcerting."

The judge observed on the record that, during the prosecutor's summation, Juror Three was yawning "very exaggerated," "almost uncontrollably," and fanned herself with a magazine, as if she was hot. However, she did not take off the heavy jacket she was wearing. The judge then stated:

This woman has issues. I'm not sure what they are, but I'm not going to sit here like a potted plant and ignore it. So as I said, I don't know what her issues are, but for a combination of what was placed on the record last week and what I observed, I'm going to remove juror number three for cause.

Defense counsel objected. The judge added: "I don't think she's stable. . . . I have been doing this long enough, and my judicial gut tells me she is not a person that is capable of continuing on this case." He termed her actions "abnormal," "exaggerated," "distracting," "unnerving," and "intimidating."

Discharge of a juror during trial, but before deliberations is governed by R. 1:8-2(d)(1), which reads in part that "the court for good cause shown may excuse any [juror] from service provided the number of jurors is not reduced to less than 12 or 6 as the case may be . . . ." Thus, a trial judge has broad discretion in deciding whether a particular juror's continued presence would taint a defendant's constitutional right to an impartial jury. State v. R.D., 169 N.J. 551, 559-61 (2001). "A defendant is not entitled to any particular juror, but only to an impartial jury of 12 individuals." State v. Reevey, 159 N.J. Super. 130, 134 (App. Div.), certif. denied, 79 N.J. 471 (1978).

From our review of the record, we conclude that the judge clearly explained his reaction, citing both his observations of Juror Three's problematic behavior and his "gut" instinct, as informed by his years of experience. The juror candidly expressed her annoyance at the judge. At no time did the number of jurors fall below twelve. We find the judge had good cause to excuse the juror; therefore, there was no abuse of discretion in the dismissal of Juror Three.

Defendant also contends:

THE FAILURE OF THE COURT TO DISMISS A JUROR WHOSE DELIBERATION COULD POTENTIALLY BE TAINTED RESULTED IN THE FAILURE TO GIVE [DEFENDANT] A FAIR TRIAL.

We disagree.

Just before the prosecutor called P.E. to testify, Juror eight asked to speak to the judge. She reported that she recognized a woman seated next to P.E. from her church. The prosecutor indicated that the woman was not a witness, but was there "to support" P.E. The judge asked Juror eight if her judgment would be affected. She answered, "No. I just wanted to let you know." Defense counsel asked that Juror eight be excused because her knowing P.E.'s friend might cause her to be biased toward the State. The prosecutor conceded that "additional inquiry would be appropriate." On further questioning, Juror eight explained:

I don't know her that well. We attended church together about two years ago. I haven't seen her in two years. This past Sunday, I went to church and she happened to be there. She's not a member of the church, neither am I. We both just happened to be visiting.

Juror eight reaffirmed that the woman's presence would have no effect on her assessment of P.E.'s credibility.

The judge accepted Juror eight's representation and denied defense counsel's request to excuse her.

Defendant now argues that "the knowledge of a 'support' individual, a churchgoer, in the support of the State's key witness clearly could have had an impact on the credibility of said witness."

However, Juror eight never deliberated. She was chosen as one of the alternates. Apparently, both counsel agreed that Juror eight should be an alternate in order to allay any concerns about her possible bias. Thus, defense counsel ultimately obtained the relief he sought, and defendant could not have been prejudiced by Juror eight's sitting on the panel until just before deliberations.

Defendant also contends:

IT WAS IMPROPER AND FATALLY PREJUDICIAL TO ALLOW ADMISSION OF 404(b) EVIDENCE.

Defendant challenges the judge's decision to admit testimony about defendant's sexual misconduct involving other girls with whom he was working as a drug counselor. He insists that this evidence should have been excluded as prior-bad-acts evidence pursuant to N.J.R.E. 404(b). We are not persuaded.

Admissibility pursuant to N.J.R.E. 404(b) is gauged by the four-pronged test set forth in State v. Cofield, 127 N.J. 328, 338 (1992). That rule is as follows:

1. The evidence of the other crime must be admissible as relevant to a material issue;

2. It must be similar in kind and reasonably close in time to the offense charged;

3. The evidence of the other crime must be clear and convincing; and

4. The probative value of the evidence must not be outweighed by its apparent prejudice.

[Ibid. (quoting Abraham P. Ordover, Balancing The Presumptions of Guilt and Innocence: Rules 404(b), 608(b), And 609(a), 38 Emory L.J. 135, 160 (1989); see also State v. G.V., 162 N.J. 252 (2000).]

Once a judge decides that this test is met, it must give the jury a limiting instruction outlining the permitted and prohibited uses of the testimony. G.V., supra, 162 N.J. at 258; Cofield, supra, 127 N.J. at 341. A trial court's ruling on N.J.R.E. 404(b) evidence is entitled to deference on appeal, and it may be overturned only in the event of a clear abuse of the court's discretion. State v. Marrero, 148 N.J. 469, 483 (1997).

Normally, a trial court should conduct an N.J.R.E. 104(b) hearing to determine the admissibility of other-crime evidence. State v. Hernandez, 170 N.J. 106, 127 (2001). Here, defense counsel did not request one. On appeal, defendant does not complain of the omission of an N.J.R.E. 104(b) hearing. Defense counsel's failure to request a hearing could have been a strategic choice to challenge the testimony on cross-examination before the jury for the first time. Hence, defendant arguably should not be heard to dispute the evidence on appeal. See State v. Lassiter, 197 N.J. Super. 2, 9 (App. Div. 1984), certif. denied, 101 N.J. 215 (1985).

Defendant concedes that the judge's admission of L.T.'s and her roommate's testimony was "technically reasonable" and that defendant's comments were "extraordinarily inappropriate for an individual who is relied upon by the community to help teenagers with serious deficiencies." But, he argues that "it was extraordinarily suggestive of a propensity to commit a crime" and thus, tended to show that he "engaged in similar conduct on the occasion addressed by the trial."

However, that is always one consequence of prior-bad-acts evidence. State v. Stevens, 115 N.J. 289, 308 (1989). But, the effect is deemed an acceptable cost of evidence that otherwise is relevant to a material issue, as long as the prejudice is outweighed by the probative value. And our courts contemplate that a properly tailored limiting charge will be sufficient to avoid any improper use by the jury. Cofield, supra, 127 N.J. at 341.

Moreover, an element of the official misconduct charge was that defendant knew that his conduct was an unauthorized exercise of his official functions. N.J.S.A. 2C:30-2. Evidence that he had attempted sexual relationships with other patients was relevant to show a pattern of taking undue advantage of those in his charge, and to refute any suggestion that P.E. and C.J. might have misinterpreted his overtures. Hence, it was relevant to material issues, such as knowledge, motive, opportunity, intent, plan, and absence of mistake. For that reason, we conclude that the judge's ruling was well within his discretion.

Defendant also contends that:

PROSECUTION'S FAILURE TO ADEQUATELY SUPPLY DEFENDANT WITH TELEPHONE RECORDS AND PROFFER AS TO THE MEANING THEREOF TO POTENTIAL WITNESSES DEPRIVED THE DEFENDANT OF A FAIR TRIAL.

We disagree.

Defendant seeks a new trial because the prosecutor violated his continuing duty to provide discovery pursuant to R. 3:13-3(g).

Defendant argues that a cornerstone of his defense was that, contrary to P.E.'s testimony, she did not reside with him during parts of June and July 2001. On appeal, defendant complains that the late production of the telephone records was a violation of the prosecutor's continuing discovery duty, which he argues, "clearly and emphatically resulted in a trial by ambush."

P.E.'s identification of telephone numbers called from defendant's home was admissible. Defense counsel did not object when P.E. was ultimately allowed to testify. P.E. testified about the calls. The judge granted a short continuance to allow defense counsel to study the records. The only reasonable inference is that, by the time P.E. testified, counsel had examined the records and was no longer surprised by them. He cross-examined P.E. briefly about the calls, eliciting that she never told her boyfriend where she was calling from.

The drastic remedy of a new trial for an unintended discovery violation is unwarranted. Although defendant asserts that he would have changed his opening statement had he known about the records, he does not say how he would have changed it. As the judge observes, these were defendant's own telephone records. He was aware before trial that the State was in the process of subpoenaing the records. Hence, defendant could not have been surprised. Therefore, we conclude that the judge reasonably remedied the late discovery by allowing defense counsel time to review the records. This remedy seemed to satisfy defense counsel at the time.

Finally, defendant contends that:

THE COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES ON COUNT FIFTEEN OFFICIAL MISCONDUCT AND COUNT SEVENTEEN OFFICIAL MISCONDUCT.

We agree that a remand for re-sentencing is required.

Defendant does not challenge the finding of aggravating and mitigating factors, or the quantum of the base terms or the parole disqualifiers. He challenges only that the terms imposed on the counts charging official misconduct should not run consecutive to the terms imposed on the sexual assaults because they are essentially the same offense. In essence, he argues that it was the sexual assaults on P.E. and C.J. that constituted the official misconduct; therefore, a concurrent term on that offense should have been imposed instead. We agree and reject the judge's rationale that the official misconduct charges warranted consecutive terms as to the sexual assault on P.E. and C.J. because they involved "different crimes" and "their objectives were . . . predominantly independent of each other." We recognize that an official misconduct conviction implicates different public policy and requires different proof elements. However, those are the reasons why official misconduct convictions do not merge with the sexual assault convictions. Different considerations guide the decision of whether to impose concurrent or consecutive terms. These sets of offenses were not separate within the meaning of 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).

Therefore, we conclude that the appropriate sentence scheme here is to run all terms involving the sexual assaults on P.E. and the official misconduct flowing from such assaults concurrent to each other, but consecutive to the sexual assault on C.J. and the official misconduct flowing from such assault on C.J. The terms flowing from the offenses against C.J. should run concurrent with each other.

The convictions are affirmed. The sentences are reversed and remanded to the Law Division, Essex County, for the preparation of an amended judgment of conviction in accordance with this opinion.

Affirmed in part, reversed in part. We do not retain jurisdiction.

 

The brief erroneously cites the rule as N.J.R.E. 3:13-3(g).

(continued)

(continued)

21

A-3599-03T2

RECORD IMPOUNDED

May 25, 2007