STATE OF NEW JERSEY v. ANGEL GAUD

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NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1642-08T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

ANGEL GAUD,

Defendant-Appellant.

__________________________________

Submitted January 6, 2010 - Decided April 15, 2010

Before Judges Sabatino and J. N. Harris.

On appeal from the Superior Court of New
Jersey, Law Division, Union County,
Indictment No. 07-06-0496.

Yvonne Smith Segars, Public Defender,
attorney for appellant (John A. Albright,
Designated Counsel, of counsel and on the
brief).

Anne Milgram, Attorney General, attorney for
respondent (Natalie A. Schmid Drummond,
Deputy Attorney General, of counsel and on
the brief).

PER CURIAM

After a jury trial, defendant Angel Gaud was found guilty

of third-degree aggravated criminal sexual contact, N.J.S.A.

2C:14-3a; fourth-degree criminal sexual contact, N.J.S.A. 2C:14-

3b; third-degree burglary, N.J.S.A. 2C:18-2; and simple assault,

N.J.S.A. 2C:12-1a. Defendant was acquitted of certain more

severe offenses that had been charged in the indictment,

including first-degree aggravated sexual assault, and several

second-degree offenses. At sentencing, the trial court merged

the burglary and fourth-degree sexual contact conviction into

the conviction for third-degree aggravated criminal sexual

contact. It imposed a three-year prison term, along with

Megan's Law registration obligations and parole supervision for

life, pursuant to N.J.S.A. 2C:7-2 and N.J.S.A. 2C:43-6.4, plus

various fines and penalties.

Defendant now appeals, alleging that the trial judge erred

in precluding his trial counsel from cross-examining the victim

about certain accusations that she had made about him to the

police after the wrongful sexual contact and burglary had

occurred. Defendant also argues that his sentence was excessive

and that the judge should have applied a presumption of non-

incarceration. For the reasons stated in this opinion,

defendant's arguments are unpersuasive and we accordingly

sustain his convictions and sentence.

According to the State's proofs at trial, the underlying

offenses arose out of defendant's retaliatory acts as a jealous

ex-lover. The testimony reflects that defendant and the victim,

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Z.N., had an eleven-year dating relationship and two children

together. At the time of the charged offenses, they were

separated and Z.N. apparently had an outstanding domestic

violence restraining order against defendant.

On the morning in question, December 23, 2006, Z.N.

received a telephone call at her apartment at approximately 7:30

a.m., with the caller ID indicating that the call was coming

from defendant. When Z.N. answered the call, she did not

receive an audible response from the caller. Z.N. hung up and

immediately called the defendant's cell phone number. According

to her testimony, he picked up the call but did not speak. Z.N.

had gone to dinner with her new boyfriend the previous night,

and the two of them had spent the night together at her

apartment.

About five or ten minutes after the telephone call,

defendant arrived at Z.N.'s apartment door. He broke the

security chain on the door to get inside. Z.N.'s new boyfriend

had left earlier and she was alone in the apartment. At that

point, defendant grabbed Z.N.'s wrists and dragged her into the

bedroom. He then accused her of having sex with another man,

inserting his finger into her vagina to try to confirm his

allegations. Defendant then started to suffocate Z.N. but a

neighbor from across the hall interceded, knocking on Z.N.'s

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door and holding a knife. Z.N. escaped into the neighbor's

apartment and defendant left the scene.

Z.N. was taken to the hospital but declined to have the

police have her tested for rape later that day. She returned to

the hospital the next day and was treated for injuries to her

lower back and a contusion on her lip.

Defendant was subsequently indicted and charged with the

previously-noted offenses. The case was tried before a jury for

three days in February 2008.

The State presented three witnesses in its case-in-chief:

one of the two Elizabeth Police Department officers dispatched

to the scene on the day in question; Z.N., the victim; and the

neighbor who intervened to stop the attack. The police officer

testified as to the condition of the apartment after he and his

partner were called to the scene. He noted the broken chain

lock on the door of Z.N.'s apartment and Z.N.'s distraught

attitude. Z.N. recounted the events leading up to and including

defendant's forced entry into her apartment and the physical

attack.

The State also presented testimony from Z.N.'s next-door

neighbor, who stated that she had heard Z.N.'s door slam,

followed by the sounds of people inside her apartment "dragging

furniture" and fighting. The neighbor specifically heard Z.N.

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"begging someone to leave her alone," and muffled screams. The

neighbor knocked on Z.N.'s door, but returned to her apartment

after no one answered the door. When the screaming and sounds

of apparent begging continued a few minutes later, the neighbor

grabbed a kitchen knife and again knocked on Z.N.'s door. When

the door opened, Z.N. escaped from defendant and ran into the

neighbor's apartment. According to the neighbor, defendant

pointed to Z.N. and said, "you already know." The neighbor

testified that defendant then left, and she attended to Z.N.,

who was crying and had finger marks on her cheek.

Defendant testified in his own behalf. He claimed that he

had called Z.N. on her cell phone at 7:30 a.m. on December 23,

because neither he nor their two children knew her whereabouts.

Defendant stated that he then went to Z.N.'s apartment and

observed a man leaving the premises. He then knocked on the

door, and Z.N. let him inside, where the two of them allegedly

had an argument "in a normal tone of voice," with "no

aggression." Defendant denied that he touched Z.N., noting that

he had surgery on his right arm two days before for an ingrown

hair. He specifically denied that any violence took place. He

stated that he saw Z.N.'s neighbor as he was leaving the

apartment and that he saw Z.N. leave her apartment, seconds

after he did, and go into the neighbor's unit.

A-1642-08T4
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In its rebuttal case, the State presented testimony from

the eleven-year-old daughter of Z.N. and defendant. She

testified that she had slept at her cousin's house on the night

before the incident, and that defendant had called her

thereafter and told her that her mother had been sleeping with

another man. She also noticed that the chain was broken on the

door to her mother's apartment when she returned there the

following day. The State also presented testimony from a

sergeant from the County Prosecutor's office. The sergeant

testified that she had obtained Z.N.'s telephone records, which

showed that calls had been placed from defendant's phone to

Z.N.'s residential phone at 7:30 a.m. and again at 7:32 a.m. on

December 23, 2006, and that a call had been thereafter placed

from Z.N.'s phone to defendant's cell phone at 7:33 a.m.

Following summations and the jury charge, neither of which

is challenged on appeal, the jury deliberated and returned its

verdict. The court imposed sentence five months later.

On appeal, defendant raises the following points for our

consideration:

POINT I

THE TRIAL COURT ERRED IN PRECLUDING
DEFENDANT FROM CROSS-EXAMINING THE VICTIM-
WITNESS ABOUT AN INVESTIGATION, CONDUCTED BY
THE ELIZABETH POLICE DEPARTMENT, INTO
ACCUSATIONS MADE BY THE VICTIM-WITNESS
AGAINST DEFENDANT, IN VIOLATION OF

A-1642-08T4
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DEFENDANT'S SIXTH AMENDMENT RIGHT TO
CONFRONT WITNESSES AGAINST HIM.

A. The Trial Court Erred In Failing To
Conduct An Admissibility Hearing Pursuant To
N.J.R.E.
104 And N.J.R.E. 608(b), To
Determine Whether The Prior Accusations
Charging Defendant With Criminal Conduct
Were Actually Made By The Victim-Witness,
And Whether Those Accusations Were False And
Therefore Admissible For Impeachment
Purposes.

B. The Trial Court Abused Its Discretion
By Precluding Cross-Examination Of The
Regarding Prior
State's Victim-Witness
Accusations She Had Made To The Elizabeth
Police Department Involving The Defendant
Because This Evidence Was Admissible Under
N.J.R.E. 404(b).

POINT II

THE THREE-YEAR STATE PRISON TERM IMPOSED BY
THE COURT WAS MANIFESTLY EXCESSIVE AND AN
ABUSE OF THE COURT'S DISCRETION, AND THE
RECORD DOES NOT SUPPORT THE COURT'S FINDING
THAT THE DEFENDANT WAS NOT ENTITLED TO THE
PRESUMPTION OF NON-IMPRISONMENT.

II.

Defendant argues that the trial court erred in several

respects in curtailing defense counsel's cross-examination of

Z.N. In particular, defense counsel wished to cross-examine

Z.N. about three distinct accusations that she had made about

defendant following her encounter with him at her apartment on

the morning of December 23, 2006. All three accusations were

A-1642-08T4
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included in a January 2, 2007 investigation report of the

Elizabeth Police Department.

First, according to the police report, Z.N. claimed that

defendant was making harassing calls to her relatives in the

Dominican Republic, although she did not know the extent of

those conversations. Second, Z.N. told the police that she

herself had received two phone calls from defendant, from either

a pay phone or a blocked phone number, following the incident.

She reported that he never spoke during these calls and hung up

when she told him that she knew it was him calling. Finally,

Z.N. alleged that, on December 30, 2006, a week after the attack

at her apartment, she had found her locked car unlocked when she

returned to it in the parking lot. She accused defendant of

opening the car door with his key.

Defendant's trial counsel contended that all three of these

accusations by Z.N. were "baseless." He sought to cross-examine

Z.N. about them in order to impeach her credibility, essentially

in an effort to support the defense theme that Z.N. had acted

against defendant out of spite, and that she had either

exaggerated or fabricated the instant accusations of burglary

and of sexual assault.

Defendant's trial counsel specifically invoked N.J.R.E.

404(b), which allows the admission of evidence of other prior

A-1642-08T4
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acts or wrongs, not for purposes of proving a character trait

but for showing certain factors such as a person's state of

N.J.R.E. 404(b). Specifically, defense counsel
mind. See

argued to the trial judge that the three accusations in the

police report provided "an indication that the alleged victim is

making accusations about [defendant] which are baseless and of

which she has[,] in two instances[,] no knowledge whatsoever but

yet she feels that he is somehow either stalking her, harassing

her[,] or trying to somehow do her harm." Counsel urged that

the proffered evidence shows Z.N.'s alleged "motive to try to

hurt my client [defendant]," which counsel tied to the defense's

claim that "she had warned him [defendant] in effect that she

would retaliate against him and hurt him for having[,] in

effect[,] cheated on her with other women . . . [.]"

The prosecutor opposed the cross-examination of the victim

concerning the three accusations. He emphasized that there was

"no evidence whatsoever that any one of those accusations is

actually false." The prosecutor further argued that the alleged

acts by defendant, which were the subject of the three

accusations, were dissimilar from the offenses charged in the

indictment. He also argued that the accusations' probative value

in potentially undermining the victim's credibility was

outweighed by undue prejudice to the State and would confuse the

A-1642-08T4
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jury. Hence, under N.J.R.E. 403, the proposed cross-examination

should not be allowed.

The prosecutor pointed out to the trial judge that in State

v. Guenther,
181 N.J. 129 (2004), the Supreme Court authorized

the use of false-accusation evidence to impeach a crime victim's

credibility under a different evidence provision, N.J.R.E. 608,

but only in "limited circumstances and under very strict

controls." Id. at 154. In Guenther, the Court disapproved of

the risk of a "sideshow trial" if the admission of such

impeachment evidence were not "strictly regulated." Id. at 155.

The Court authorized such proofs only where "the admission of

prior false accusation evidence is central to deciding a case

that hinges on the credibility of a victim-witness." Ibid.

(emphasis added). In response to the N.J.R.E. 608 argument,

defendant's trial counsel stated that he was not alleging that

Z.N.'s three contentions to the police were "false accusations,"

but rather that they were "baseless."

After carefully considering these arguments and the

applicable law, the trial judge denied defendant's request to

cross-examine Z.N. about the three post-incident accusations.

The judge agreed with the prosecutor, using the phraseology of

the Supreme Court in Guenther, that allowing interrogation into

those three separate matters would turn the examination into a

A-1642-08T4
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"sideshow." The judge further concluded that the defense

counsel had not shown that the three accusations alleged conduct

by defendant similar to the crimes alleged in the indictment.

Given the lack of similarity, the judge found the three alleged

incidents inadmissible under N.J.R.E. 404(b), as construed in

State v. Cofield,
127 N.J. 328, 337-38 (1992). The judge also

found that the victim's accusations, which were not claimed or

shown to be false, did not satisfy the standards of N.J.R.E. 608

and Guenther. Finally, the judge determined that the asserted

probative value of the evidence was not "worth the time and

effort that would go into such a sideshow," thereby implicitly

applying the exclusionary factors of N.J.R.E. 403.

On appeal, defendant contends that the trial court should

have permitted the proposed line of cross-examination, and that

foreclosing it not only violated the Rules of Evidence but also

defendant's right of confrontation under the Confrontation

Clause. Defendant contends that, at a minimum, the trial judge

should have conducted an evidentiary hearing concerning the

three accusations under N.J.R.E. 104, outside of the jury's

presence, before deeming the proofs inadmissible. We disagree.

Defendant's confrontation claim is readily dispelled by the

In Guenther, the Court
Supreme Court's analysis in Guenther.

recognized the limited right of defense counsel to cross-examine

A-1642-08T4
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victims about "central" issues of prior false accusations, but

only under the Rules of Evidence, specifically N.J.R.E. 608.

The Court specifically eschewed reliance upon the Confrontation

Clause of the Sixth Amendment to the United States Constitution,

or upon the New Jersey Constitution's cognate provision at

article I, paragraph 10. Guenther, supra,
181 N.J. 147-51. In

fact, the Court observed that "[u]ndoubtedly, the Confrontation

Clause was not intended to sweep aside all evidence rules

regulating the manner in which a witness is impeached with

Id. at 150.
regard to general credibility."

We likewise discern no reason in the present case to

elevate defendant's claim to one of constitutional magnitude.

Moreover, even if we were required to address the argument on a

constitutional level, the impeachment proofs that were excluded

here were simply too attenuated to compel their admission as a

matter of constitutional right.

As a matter of codified evidence law, we are likewise

satisfied that the trial judge did not abuse his discretion in

disallowing the proposed cross-examination. Where a trial judge

has excluded evidence that is apt to mislead or confuse jurors

or create undue prejudice, appellate courts will uphold such

rulings unless there is a "clear error of judgment." State v.

A-1642-08T4
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DiFrisco,
137 N.J. 434, 496-97 (1994), cert. denied,
516 U.S. 1129,
116 S. Ct. 949,
133 L. Ed. 2d 873 (1996).

The alleged telephone calls to the victim's relatives and

to the victim herself, as well as the car-opening incident, are

not sufficiently similar to the violent acts charged in the

indictment to fit within the limited scope of cross-examination

There is no proof that the accusations
authorized by Guenther.

were false, or, for that matter, were "baseless." All we know

from the record is that Z.N. made the accusations within a week

after she was allegedly attacked. Even if untrue, they shed

very little illumination upon the truth or falsity of Z.N.'s

account of the violent attack itself. The trial judge had a

reasoned basis for not allowing the defense to delve into those

matters, and for characterizing them as a sideshow.

Lastly, we do not find that an evidentiary hearing was

required in the present circumstances, notwithstanding the

language within N.J.R.E. 608 indicating that such false-

accusation evidence is admissible only "[i]f the judge

preliminarily determines, by a hearing pursuant to [N.J.R.E.]

104(a), that the witness knowingly made the prior false

accusation." N.J.R.E. 608(b). We do not read N.J.R.E. 608 to

require an evidentiary hearing in all cases where a claim of

false accusation is raised, no matter how attenuated the proofs

A-1642-08T4
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may be. Defense counsel proffered no counter-proofs indicating

that the three accusations were actually false, or that Z.N. had

"knowingly" reported falsehoods. In fact, defense counsel

expressly declined to characterize the accusations to the court

as "false."

In sum, the trial court's evidentiary ruling was

reasonable, and we detect no reason to set aside defendant's

conviction. The conviction is therefore affirmed.

III.

We briefly turn to defendant's argument that his three-year

custodial sentence was excessive and that the trial judge

improperly deprived him of a statutory presumption against

incarceration on a third-degree sexual offense under N.J.S.A.

2C:44-1e. The presumption is inapplicable here because: (1)

defendant had a past prior conviction for contempt and he did

not establish that he was found guilty of contempt without

counsel or without waiving his right to the assistance of

counsel, see State v. Regan,
209 N.J. Super. 596, 606 (App. Div.

1986); and (2) the judge found defendant was a danger to the

public by virtue of the nature of his wrongful conduct. See

N.J.S.A. 2C:44-1e (providing an exception to the presumption of

non-incarceration where such a finding is made).

A-1642-08T4
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We also are not persuaded that the sentence was excessive.

The judge imposed the minimum custodial sentence for a third-

See N.J.S.A. 2C:43-6b(3). The judge reasonably
degree crime.

weighed the pertinent aggravating and mitigating factors, and we

detect no manifest injustice to warrant interfering with the

trial judge's assessment. See State v. Bieniek,
200 N.J. 601,

612 (2010) (admonishing appellate judges to refrain from

"second-guessing" the discretion of sentencing judges); see also

State v. Roth,
95 N.J. 334, 365 (1984).

Affirmed.

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