STATE OF NEW JERSEY v. J.E.J.

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RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2478-06T4

STATE OF NEW JERSEY,

Plaintiff-Respondent,

vs.

J.E.J.,

Defendant-Appellant.

__________________________________

Submitted: February 10, 2010 - Decided: May 12, 2010

Before Judges Cuff, Payne and C.L. Miniman.

On appeal from the Superior Court of New
Jersey, Law Division, Morris County,
Indictment Nos. 03-03-0285 and 03-03-0385.

Yvonne Smith Segars, Public Defender,
attorney for appellant (Robert L. Sloan,
Assistant Deputy Public Defender, of counsel
and on the brief).

Robert A. Bianchi, Morris County Prosecutor,
attorney for respondent (Matheu D. Nunn,
Assistant Prosecutor, on the brief).

PER CURIAM

guilty of second degree
A jury found defendant J.E.J.

The victim is his step-daughter, who was eleven
sexual assault.

years old at the time defendant began to touch her

inappropriately. He is serving a seven-year term of

imprisonment subject to an 85% parole ineligibility term in

(NERA).1 The
accordance with the No Early Release Act

appropriate fines, penalties, assessments and fees were also

imposed.

Defendant married Charlotte2 in May 1996; her daughter Karen

was six years old. Defendant and Karen had a close father-

daughter relationship. Having known him since she was two years

old, Karen thought he was her biological father and did not

learn to the contrary until she was ten years old. Karen

testified, however, that their relationship changed when she

turned eleven years of age. At that time, defendant began to

touch her in inappropriate places. Charlotte also discovered a

letter written by defendant to Karen in which he professed his

love for her. Charlotte called the police.

At trial, Karen testified that defendant began "touching

[her] inner thigh, telling [her] stuff like, I love you, [and]

hugs that just weren't like before." She said that he usually

touched her inner thigh when the family was sitting in the

bedroom watching television together and that such behavior

occurred on more than fifteen occasions. A few times after

1 N.J.S.A. 2C:43-7.2.
2
We use fictitious names for defendant's wife and daughter to
preserve the confidentiality of the record.

A-2478-06T4
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defendant did this, he approached her and told her that "it was

okay that was just the way he felt for [her] and things like

that." He also told her that "he felt like [she] was telling

him, it was okay, and that he could show his feelings for [her]

and that there wasn't anything wrong with it."

Karen also testified that defendant's hugs became tighter

and more aggressive as if he was trying to make her stay with

him. She also recalled a particular instance when defendant

tried to "french kiss" her and she "just closed [her] mouth and

gritted [her] teeth to try to prevent his tongue from going

inside [her] mouth." On another occasion, defendant, wearing

only a towel and underwear, pulled Karen's sleeping bag off and

her pants fell. She stated that defendant told her he was not

trying to do anything, but he just wanted to touch her. This

made her uncomfortable, so she kicked him away, arose and backed

away from him. As a result of defendant's actions, Karen began

to fear being around him, but she never told her mother. She

was afraid it would affect her parents' relationship.

On July 21, 2002, while preparing to take Karen and the

other two children to meet defendant at a soccer game in the

park, Charlotte picked up a pair of defendant's pants and a

letter fell out of his wallet. The letter was written in

Spanish. She recognized defendant's handwriting and the paper

A-2478-06T4
3

he used. She had used the same paper a few days earlier. The

contents of the letter, as translated by Detective Robert

Meoqui, are as follows:

Nena3 forgive my conduct but this is not
strange for you. Because [] not speak to
you, not say good-bye, not give you the good
mornings, not play, not be by your side, not
kiss you, we didn't last the years this is
something stupid between a father and
daughter. I do this thinking that it is the
only path that I have in order not touch
you, not to kiss you. But I am mistaken all
this I need the only thing I achieve is to
have my spirit without life without desire
for anything. Without dreams as if I were
dead, in life.

For the first time in my life I am afraid.
A lot of fear. . . . Because each day I
need you very much this sentiment I have for
your mother and now with you. But with you
it is different because you are my daughter.
I cannot make love to you. I can't deceive
your mother with another woman or with you.

What I feel is love and not evil. Never am
I going to do something bad to you. The bad
thing is what I am doing. No speaking to
you, no greeting you, no kissing you, no
touching you. Because the truth is that I
want to want you. My little one, for me
there are three paths. 1) that you call the
police and put me in jail for sexual
harassment. 2) that you tell your mother
all of the truth so that she throws me out
of the house. 3) Accept my love
unconditionally until the law of God . . .
decides what to do with our lives. You will
grow up, become a beautiful woman, and get

3
"Nena" was the nickname the family used for Karen.

A-2478-06T4
4

married. I will continue with your mother
until the end of my life.

But for now accept that we need each other.
Because despite that you do not like that I
caress you. I know . . . In the bottom of
you[r] heart you also need me.

....

Nena at times I ask myself why I fell in
love with you, you being only a little girl
and over all you being my daughter. And I
find no answer. The only thing I know is
that for love there are no limits, there is
no age. Despite that you are hardly a
little girl, you have awakened the sentiment
of love. . . . Nena to leave. Always have
I looked for the wrong path, and the truth
is that I don't find it and don't go on and
tell me that the path is God. Because God
is love and he does not get involved in
those things.

Charlotte said she knew from the letter that something was

not right and was confused because she did not know what was

happening in her house with her daughter and the man to whom she

was married. Charlotte told the children about the letter and

questioned Karen. At first, Karen denied that there was any

misconduct, but then admitted that defendant had kissed her.

When Charlotte asked Karen how defendant had kissed her, she

responded, "the way he kisses you." With this disclosure,

Charlotte drove the children to the home of the family pastor.

After the pastor read the letter and spoke to Karen, Charlotte

and the pastor decided to call the police.

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Defendant testified at trial. He spoke about his marriage

and stated that he felt that his marriage became strained

because his wife became overcommitted to their church. He also

described an incident when he struck Karen because she entered

the bathroom to help her fourteen-year old male cousin. He

stated the letter to Karen was an apology for hitting her and a

way to organize his thoughts because his relationship with his

wife had been so poor since that incident.

Defendant also gave a non-sexual explanation for the

sleeping bag incident related by Karen. He said that he was

only trying to awaken her, and when he pulled her sleeping bag

off, her pants accidentally fell, too. He also maintained that

he never kissed Karen anywhere but on her head, except for one

occasion when he lightly touched her lips when he was kissing

her goodbye.

Defendant denied that any bodily touch was sexual in

nature. Defendant testified that he would always touch his

sons, as well as Karen, when they were watching television,

because that is what families do.

On appeal, defendant raises the following arguments:

POINT I

THE IMPROPER RESTRICTION OF CROSS-
EXAMINATION OF A CRUCIAL STATE'S WITNESS
(THE ALLEGED VICTIM'S MOTHER) CONCERNING A
PENDING CHARGE INFRINGED DEFENDANT'S RIGHT

A-2478-06T4
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TO CONFRONT WITNESSES AND PRESENT A DEFENSE
AND HIS RIGHT TO DUE PROCESS OF LAW AND A
FAIR TRIAL. U.S. CONST. AMENDS. VI, XIV;
N.J. CONST. (1947), ART. I, PARS. 1, 9, 10.

POINT II

THE PROSECUTOR'S CROSS-EXAMINATION OF
DEFENDANT, CONCERNING A JUDGE'S CONDITIONS
OF BAIL THAT PRECLUDED DEFENDANT'S CONTACT
WITH HIS FAMILY OR ANY CHILDREN, IMPROPERLY
SUGGESTED A PRE-TRIAL JUDICIAL DETERMINATION
OF DEFENDANT'S GUILT, IN VIOLATION OF
DEFENDANT'S RIGHT TO DUE PROCESS OF LAW AND
A FAIR TRIAL. U.S. CONST. AMEND. XIV; N.J.
CONST. (1947), ART. I, PARS. 1, 9, 10. (Not
Raised Below).

POINT III

DEFENDANT'S SENTENCE IS MANIFESTLY
EXCESSIVE.

Defendant argues that the trial judge improperly restricted

his cross-examination of Charlotte, thereby inhibiting his

effort to demonstrate her interest in obtaining a conviction.

To properly address this issue, we must review Charlotte's

testimony.

During her cross-examination, Charlotte related that the

Division of Youth and Family Services (DYFS) became involved

with her family. She admitted that once she reported

defendant's actions, DYFS threatened to remove Karen and her

other children from her custody if she refused to cooperate with

the investigation. The judge precluded any questions that may

have revealed that Charlotte had been charged with fourth degree

A-2478-06T4
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neglect pursuant to N.J.S.A. 9:6-3, and that she had

successfully completed Pretrial Intervention. The neglect

charge emanated from an incident in which Charlotte allowed the

children, including Karen, to be in defendant's presence

contrary to the conditions of his bail.

Defense counsel repeatedly stated that he had no intention

to pursue a line of questions that would prompt revelation that

she had allowed her children to be in defendant's presence in

violation of a bail condition and that the incident led to a

criminal charge. He insisted that he simply wanted to question

Charlotte to determine whether DYFS threatened removal of her

children.

The right to question a witness with respect to bias is

within the "broad discretion of the trial judge." State v.

Vaccaro,
142 N.J. Super. 167, 176 (App. Div.), certif. denied,

71 N.J. 518 (1976). Trial courts "'retain wide latitude . . .

to impose reasonable limits on . . . cross-examination based on

concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation

that is repetitive or only marginally relevant.'" State v.

Garron,
177 N.J. 147, 187 (2003) (quoting Delaware v. Van

Arsdall,
475 U.S. 673, 679,
106 S. Ct. 1431, 1435,
89 L. Ed. 2d 674, 683 (1986)). Therefore, a judge's decision with respect to

A-2478-06T4
8

appropriate matters for cross-examination should only be

overturned in the event of an abuse of discretion. State v.

Kemp,
195 N.J. 136, 149 (2009). Even if a judge abused his/her

discretion and committed an error, a trial determination should

not result in reversal of a conviction unless the error is

harmful. Id. at 149-50. Thus, an appellate court should

"'disregard any error or omission by the trial court unless it

is of such a nature as to have been clearly capable of producing

an unjust result. The same standard applies whether the error

was objected to below or whether the error was first claimed

upon appeal.'" Id. at 150 (quoting State v. Castagna,
187 N.J.
293, 312 (2006)).

A criminal defendant's Sixth Amendment right to cross-

examine and confront witnesses against him is absolute. See

Crawford v. Washington,
541 U.S. 36, 59,
124 S. Ct. 1354, 1369,

158 L. Ed. 2d 177, 197 (2004). During cross-examination, it is

wholly permissible for an attorney to impeach the credibility of

a testifying witness through evidence of a prior criminal

conviction. N.J.R.E. 609. It is also permissible to cross-

examine a witness with respect to bias, as "[i]t is

'fundamental' that a defendant has a right to explore evidence

tending to show that the State may have a 'hold' of some kind

over a witness, the mere existence of which might prompt the

A-2478-06T4
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individual to color his testimony in favor of the prosecution."

State v. Parsons,
341 N.J. Super. 448, 458 (App. Div. 2001)

(quoting State v. Holmes,
290 N.J. Super. 302, 312 (App. Div.

1996)). See also N.J.R.E. 607; State v. Gorrell,
297 N.J.

Super. 142, 149 (App. Div. 1996).

Because a defendant's right to confront witnesses against

him is so important, if a trial judge abuses his discretion in

restricting a defense attorney's cross-examination of a witness

with respect to his/her bias, it may be grounds for reversal.

See e.g., Van Arsdall, supra,
475 U.S. at 684,
106 S. Ct. at
1438,
89 L. Ed. 2d at 686-87; Parsons, supra,
341 N.J. Super. at
312. In Van Arsdall, supra, the Court set forth relevant

factors for determining whether such a restriction surpasses the

bounds of harmless error and warrants reversal: "the importance

of the witness' testimony in the prosecution's case, whether the

testimony was cumulative, the presence or absence of evidence

corroborating or contradicting the testimony of the witness on

material points, the extent of cross-examination otherwise

permitted, and, of course, the overall strength of the

prosecution's case."
475 U.S. at 684,
106 S. Ct. at 1438,
89 L. Ed. 2d at 686-87.

There have been numerous cases in this state where the

Court has reversed a conviction because the judge prohibited an

A-2478-06T4
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attorney from cross-examining a key witness about his/her bias.

The Supreme Court overturned a drug conviction because the State

failed to disclose that a witness, who corroborated the police's

versions of the drug transaction, was receiving treatment

State v. Spano,
69 N.J. 231,
mandated from a prior drug charge.

235-36 (1976). The Court found that "the conditional dismissal

of the criminal charge against [the witness] could have

motivated her to testify in support of the State's case" and

that the lack of ability to argue the same to the jury

prejudiced the case against the defendant. Id. at 234-35. In

Vaccaro, supra,
142 N.J. Super. 167, this court overturned the

defendant's conviction because the judge prohibited the cross-

examination of four individuals regarding the favorable

dispositions they received in exchange for testifying. The

court held that a defendant did not have to be prepared to show

an express or implied agreement between the witness and the

Id. at
State in order to impute bias during cross-examination.

176. We gave the following rationale for our decision:

Whether a witness actually received
favorable treatment is not a sine qua non to
appropriate cross-examination relating to
colorable bias of the witness toward the
State because of possible favorable
treatment in connection with criminal
charges. The test of propriety of questions
addressed to credibility is not necessarily
whether there was an arrangement to grant
the witness concessions. It is as relevant

A-2478-06T4
11

and significant for a defendant to
demonstrate the state of mind of the witness
based on his subjective reactions to the
favorable treatment he may have received or
may hope to receive in connection with his
own criminal involvement. State v. Taylor,

49 N.J. 440, 447-449 (1967); State v.
Curcio,
23 N.J. 521, 523-525 (1957); State
v. Blue,
124 N.J. Super. 276 (App. Div.
1973). This is a proper facet of proof
relevant to bias and motivation which may be
considered by the jury in assessing the
credit to be given to the witness and his
testimony.

[Id. at 175-76.]

In State v. Mazur,
158 N.J. Super. 89, 104 (App. Div.),

certif. denied,
78 N.J. 399 (1978), this court applied the

Vaccaro rationale and reversed a defendant's conviction when the

judge prevented cross-examination of a witness relating to the

prosecutor halting a fraud investigation in exchange for the

witness' testimony. The trial judge did allow the disclosure of

the prosecutor's actions in ceasing the investigation, but he

did not permit the defense attorney to expand upon the line of

at 104-05. In
questioning into the underlying facts. Id.

determining that reversal was warranted, this court reasoned as

follows:

The "essential facts" demonstrating
always be allowed into
prejudice must
evidence. It would be impossible to know the
strength of Cohn's possible bias if it could
not be determined what types of things the
investigation focused upon. These areas of
investigation are essential facts which the

A-2478-06T4
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trial judge should have allowed defendant to
develop.

Because the evidence against defendant
arose primarily from Cohn's testimony, we
conclude that the trial judge committed
reversible error by precluding defendant
from showing bias. While the jury was told
that Cohn received a promise of immunity
concerning the police "payoffs," thus
demonstrating bias to some degree, the jury
may well have considered this fact
insignificant, since Cohn during the period
in question was acting as a police agent
anyhow. Therefore, other factors which might
have shown Cohn to be biased toward the
State may have played a decisive role in the
jury's assessment of his credibility.

[Id. at 105 (citations omitted).]

Whether a defendant's ability to demonstrate the interest

of a witness to procure a particular result has been influenced

by an evidentiary ruling must be assessed in the context of the

particular trial. Kemp, supra,
195 N.J. at 149-50. Here, we

cannot hold that defendant suffered any prejudice. Charlotte

responded affirmatively when asked directly whether DYFS

threatened her continued custody of her children. Her response

to that question also included her knowledge that DYFS expected

her to cooperate in the investigation and prosecution.

The trial judge precluded any further exploration of this

topic, and we are satisfied that he did not err by doing so.

Charlotte did not always give concise and targeted answers to

questions posed by the prosecutor or defense counsel. She

A-2478-06T4
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tended to elaborate. Despite defense counsel's protestations to

the contrary, it is apparent from our review of the record that

any further questions on the topic of threats to the custody of

her children would have prompted a response about the criminal

charge against her. The trial judge undoubtedly had the same

fear.

Charlotte was an important witness because she

authenticated the letter defendant wrote. She was not, however,

a pivotal witness because she did not testify to any of the

underlying abuse. There were a number of ways the letter could

have been admitted into evidence, and defendant, himself,

admitted he wrote the letter. Although she was undoubtedly

important to the case, it cannot be said that defendant's

conviction rested upon her testimony. It is far more likely

that defendant's conviction rested upon the testimony of his

step-daughter Karen. She was the victim of the abuse and

testified to the specific instances of defendant's misconduct.

Moreover, the majority of the facts to which Charlotte testified

were corroborated by other witnesses, including the family

pastor, defendant, and a detective from the police department

who translated the letter. Defendant and Karen also testified

to the family background and the details of the marriage between

defendant and Charlotte.

A-2478-06T4
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Defendant argues for the first time on appeal that the

prosecutor should not have questioned defendant about the

conditions of his bail. In doing so, defendant now argues that

the prosecutor improperly suggested that there had been a pre-

trial determination of defendant's guilt. We disagree.

The prosecutor did question defendant about bail

conditions. The discussion consisted of three questions and

answers.

Q. What about after your arrest, didn't
a judge tell you, you couldn't return to
your home?

A. I could go to my home.

Q. You could go to your home after
your arrest? And didn't a judge tell you
[that you] weren't allowed back home?

A. No it wasn't a judge, it was there
at the prison, where they gave me a piece of
paper that said, I couldn't go back to the
house. And I couldn't go back to the house.
And I couldn't be around children under 16.

Q. Do you know that was the condition
of your bail set by a judge?

A. No.

These questions occurred during a portion of the cross-

examination of the marital difficulties between defendant and

Charlotte. Although the purpose of the questions is not

entirely clear, this line of questioning seems to be in response

to defendant's position that the charges were concocted to force

A-2478-06T4
15

him out of the house. There was no further mention of bail

conditions during cross-examination or in the prosecutor's

summation. Defendant did not object.

Under the circumstances, it does not appear that this

extremely limited inquiry was inappropriate or caused any

prejudice to defendant. Contrary to defendant's argument, this

issue is not controlled by the rule announced in State v.

Chenique-Puey,
145 N.J. 334, 343 (1996), which requires

severance of a criminal charge, an element of which is a prior

conviction. Moreover, by failing to object, defendant prevented

the trial judge from ruling on the relevance of the inquiry,

evaluating any prejudice caused to defendant by the inquiry, and

fashioning an appropriate instruction, if required. State v.

Williams,
113 N.J. 393, 452 n.14 (1988).

Finally, we are not persuaded that the seven-year term of

imprisonment is manifestly excessive. The term is subject to

NERA; therefore, he must serve eighty-five percent of the term

before he is eligible for parole.

Our review of the sentence is limited. We review the

record to determine if the judge followed the sentencing

guidelines, whether the aggravating and mitigating factors found

by the judge are supported by competent and credible evidence in

the record, and whether the application of the guidelines to the

A-2478-06T4
16

facts as found renders "the sentence clearly unreasonable as to

shock the judicial conscience." State v. Roth,
95 N.J. 334,

364-66 (1984).

The judge found three aggravating factors. He cited the

nature and circumstances of the offense, N.J.S.A. 2C:44-1a(1);

the harm to the victim, N.J.S.A. 2C:44-1a(2); and the need to

deter defendant and others, N.J.S.A. 2C:44-1a(9). The judge

also found as a mitigating factor the lack of prior criminal

involvement, N.J.S.A. 2C:44-1b(7). The judge must qualitatively

evaluate the factors, State v. Thomas,
356 N.J. Super. 299, 310

(App. Div. 2002), and must guard against "double-counting,"

State v. Jarbath,
114 N.J. 394, 404 (1989).

In his discussion of aggravating factor one, the judge

cited "the vulnerability of this victim who was less than 13

years of age when defendant took advantage of his position as

her stepfather and repeatedly engaged in acts of sexual contact

constituting sexual assault given her age at the time." As to

aggravating factor two, the judge reasoned that "she was

vulnerable to his advances and he violated a trusting

relationship that had been established by reason of his family

position." In discussing the need to deter defendant and

others, the judge recognized a need to specifically deter

A-2478-06T4
17

defendant citing once again the familial relationship and

Karen's vulnerability.

Sexual contact with a victim under the age of thirteen is

considered sexual assault and a second degree offense due to the

age of the victim. Defendant's step-daughter was eleven at the

time of the various acts of sexual contact. It is a close

question whether reliance on her age to invoke aggravating

factor one is an impermissible double count. Our review of the

judge's reasoning in its entirety, however, reveals more

emphasis on the familial relationship, the vulnerability of the

victim due to that relationship, and the fundamental violation

of trust committed by defendant. These are proper

considerations and indicate to us that we should not interfere

with this mid-range term for a second degree offense.

Affirmed.

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