STATE OF NEW JERSEY v. JOSEPH A. RANDONE

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

STATE OF NEW JERSEY,

Plaintiff-Respondent,

v.

JOSEPH A. RANDONE,

Defendant-Appellant.

________________________________

June 17, 2014

 

Argued June 4, 2014 Decided

 

Before Judges Fuentes, Fasciale and Haas.

 

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-04-0646.

 

Peter Blum, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Mr. Blum, of counsel and on the brief).

 

Catherine A. Foddai, Senior Assistant Prosecutor, argued the cause for respondent (John L. Molinelli, Bergen County Prosecutor, attorney; Ms. Foddai, of counsel and on the brief).

 

Defendant filed pro se supplemental briefs.

 

PER CURIAM

Defendant Joseph A. Randone appeals from his convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2b; five counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and second-degree kidnapping, N.J.S.A. 2C:13-1b. We affirm the convictions but remand for re-sentencing.

In April 2010, defendant was charged with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Counts One and Three); six counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Counts Two, Four, and Seven through Ten); second-degree burglary, N.J.S.A. 2C:18-2a(1) (Count Five); and first-degree kidnapping, N.J.S.A. 2C:13-1b (Count Six). Counts One through Four and Counts Six and Seven related to crimes against D.C., who was twelve and thirteen years old at the time of the events at issue. Counts Eight through Ten were for endangerment against D.C.'s siblings B.R., R.R., and D.F. A judge and jury tried defendant over a period of five days in December 2011. We discern the following facts from the evidence adduced at the trial.

D.C. lived with her mother, her mother's boyfriend (the "boyfriend"), and four of her siblings. Defendant is the boyfriend's brother. D.C.'s mother drank excessively and used corporal punishment as a means of disciplining D.C. Defendant at first appeared kind and caring toward D.C. and her siblings. He took them on outings and bought them clothing and other items. D.C. stayed overnight at defendant's apartment approximately every other weekend, always accompanied by one of her siblings.

However, defendant's seeming acts of kindness concealed a sinister motive. Based on D.C.'s testimony, defendant continually sexually abused her when she was twelve and thirteen years old. D.C. testified that on more than five occasions, defendant put his penis in her vagina. She stated that defendant beat her several times and threatened to hurt her. Despite the clear criminally abusive nature of defendant's actions, D.C. testified that at times, she felt like defendant's girlfriend, and that he gave her a diamond ring. Although defendant sought at one point to obtain legal custody of D.C., she told staff from the Division of Youth and Family Services1 (DYFS) that she did not want to live with defendant.

In October 2008, Detective Barbara Stio interviewed D.C. A pediatrician also examined her for signs of sexual abuse. Although she was sexually involved with defendant at the time of the interview, D.C. testified that she denied being sexually abused because she was afraid.

On December 12, 2009, the children were home without the mother or the boyfriend. According to D.C., defendant banged on the front door of D.C.'s house, then broke into the house. He demanded the money he had spent trying to obtain custody of D.C. and the cell phone he had given her. He stabbed D.C. in the face, sprayed D.C. and her sisters with an eye irritant, and demanded that D.C. accompany him. The mother and the boyfriend arrived, learned what had happened, and found D.C. and defendant. Police officers apprehended defendant. Emergency medical technicians testified that they treated D.C. and two of her sisters for eye irritation; D.C. was also treated for a "through and through" puncture wound to her cheek.

Detective Michael Latona testified that he spoke with D.C. at the police station where D.C. revealed that defendant had sexually assaulted her. Latona also searched defendant's apartment and found letters from D.C. to defendant. D.C. testified on direct examination that she wrote letters to defendant and gave him her journal.

On cross-examination, defense counsel asked D.C. about the content of these letters, in an attempt to impeach D.C.'s testimony that defendant abused her and that her mother did not hit her in the face. At this point, the assistant prosecutor requested to be heard at sidebar; the assistant prosecutor objected to defense counsel's use of documents that had not been given to the State prior to the start of the trial during the discovery period. Defense counsel responded that he "didn't intend to use them until [D.C.] denied having said the things that she said." Defense counsel also argued that the assistant prosecutor must have been aware of the writings because D.C. referred to them on direct examination. He assumed "that we would not have to use [the writings] because [D.C.] would testify consistent with what she wrote." Without reading the documents, the trial judge ruled that defense counsel committed a discovery violation and could not use the writings to impeach D.C.2

Defense counsel sought to present the testimony of Dr. Eileen Laufer, the pediatrician who examined D.C. in October 2008, as an expert witness in field of child sexual abuse. At the N.J.R.E. 104 hearing to determine the witness' qualifications pursuant to N.J.R.E. 702, Dr. Laufer testified that she conducted an external genital examination to determine whether D.C. had been sexually abused, observed that D.C.'s hymen was intact and that "there [were] no lacerations, tears," and concluded that there was no evidence of sexual abuse. Dr. Laufer stated that she was not board-certified in gynecology or child abuse; did not know the preferred method of examination for determining whether there was sexual abuse; and did not know whether certain circumstances would have made the examination more or less likely to reveal injury. She repeatedly admitted that she was not an expert in this field. The judge denied defense counsel's motion to qualify this witness as an expert witness in the field of child sexual abuse.

The jury found defendant guilty of Counts One, Two, Four, Seven, Eight, and Nine, second-degree sexual assault on Count Three, and second-degree kidnapping on Count Six. On June 15, 2012, the judge sentenced defendant to an aggregate sixty-year term of imprisonment.3

On appeal, defendant raises the following points:

POINT I

 

THE COURT DEPRIVED [DEFENDANT] OF DUE PROCESS AND THE RIGHT TO PRESENT A DEFENSE BY PRECLUDING DEFENSE COUNSEL FROM IMPEACHING COMPLAINANT D.C. WITH HER LETTERS AND JOURNAL. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARAS. 1, 10.

 

A. Defense Counsel Did Not Violate Discovery Rules Before Trial Because the Law Permitted Him to Withhold D.C.'s Writings When He Did Not Intend to Use Them; Because D.C.'s Gushing Portrayal of [DEFENDANT] Could Have Been Interpreted as Suggesting that [DEFENDANT] had Groomed D.C. for a Sexual Relationship; and Because this Portrayal Only Became Exculpatory Once D.C. Claimed at Trial that the Sex Had Happened in an Atmosphere of Intimidation.

 

B. Even if a Discovery Violation Occurred, Preclusion Was an Extreme and Improper Remedy Because of the Prejudice to [DEFENDANT]'s Case; Because Prejudice to the Prosecution Could Have Been Alleviated by a Continuance to Investigate D.C.'s Writings; and Because Defense Counsel Had Acted Under a Good Faith View of the Law.

 

POINT II

 

THE COURT DEPRIVED [DEFENDANT] OF DUE PROCESS AND THE RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE TESTIMONY OF A QUALIFIED PEDIATRICIAN WHO HAD EXAMINED D.C.'S GENITALS AND FOUND NO EVIDENCE OF SEXUAL CONTACT MERELY BECAUSE THE PEDIATRICIAN DID NOT SPECIALIZE IN GYNECOLOGY. U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I. PARAS. 1, 10.

 

POINT III

 

[DEFENDANT] SHOULD BE RESENTENCED.

 

A. The Sentencing Court Improperly Failed to Merge the Child Endangerment Counts (Counts Two and Four) into the Sex Offense Counts (Counts One and Three) Where They Were Based on the Same Acts.

 

B. The Sentencing Court Illegally Applied [the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2] to the Conviction for Sexual Assault Under [N.J.S.A.] 2C:14-2c(4) (Count Three).

 

C. The Sentencing Court Improperly Failed to Consider The Yarbough[4] Guidelines Before Imposing an Extended Term Plus Four Consecutive Maximum Sentences, Aggregating Sixty Years.

 

D. Various Mistakes on the Written Judgment Should Be Corrected.

 

Defendant raises the following points in his pro se supplemental brief:

Point I

 

Defense Evidence of Dr. Eileen Laufer.

 

Point II

 

Sexual Assault and Child Endangerment during and/or between November 1st 2008 and December 1st 2009 (Count 3 & 4).

 

Point III

 

On the charge of Burglary (Count 5).

 

Point IV

 

The defendant is [allowed] to introduce evidence of similar prior criminal accusations to the crime charged.

 

Point V

 

The [loss] of the emergency 911 call is a violation of Due Process to the defendant.

 

Defendant argues the following points in his revised pro se supplemental brief:

Point I

 

The Court Acted Unreasonably by Disqualifying Dr. Eileen Laufer's Testimonial Evidence, which Deprived the Defendant the Right to Present A Defense.

 

Point II

 

The Defendant will Call Upon the Experts of the State, Division of Youth and Family Services and [their] Expertise to Aid Dr. Eileen Laufer's Testimony (Refer Point I).

 

Point III

 

The Grand Jury of the State of New Jersey, for the County of Bergen, Upon [Their] Oath and within Jurisdiction of this Court Presents that Joseph A. Randone during and/or between October 1st 2008 to January 7th 2009 performed an Act of Sexual Penetration and Engaged in Sexual Conduct (Count 1 & 2 Indictment).

 

Point IV

 

Sexual Assault (N.J.S.A. 2C:14-2[a]) and Endangerment of a Child (N.J.S.A. 2C:24-4a) during and/or Between November 1st 2008 to December 1st 2009 (Count 3 & 4).

 

Point V

 

In Order for a Court to Dismiss or Make A Change to an Indictment, it must be on the Clearest and Plainest Grounds.

 

Point VI

 

The Indictment charged the Defendant with a crime of Burglary in the Second-Degree (N.J.S.A. 2C:18-2[b]).

 

Point VII

 

The Court Deprived the Defendant of Proving a Legitimate Trial issue by the Exclusion of the other Crime, Wrong, or Acts (404B).

 

Point VIII

 

Search by Officers was not Improper and that it was a General Exploratory Search for Evidence of Guilt.

 

Point IX

 

The defendant has the Right to question the Admissibility of identification evidence.

 

Point X

 

The Grand Jurors upon [their] oaths, do present that Joseph A. Randone on December 12, 2009, in the City of Garfield, in the County of Bergen, and within the Jurisdiction of this Court, aforesaid did unlawfully enter the structure at 166 Lincoln Place, 2nd Floor with the purpose to commit an offense therein; and in the course of committing the offense purposely, Knowingly, or Recklessly inflicted bodily injury to D.C[.] and/or E.C[.] and/or B.R[.] contrary to the provision of [N.J.S.A.] 2C:18-2b(1) and against the peace of this State, the government and dignity of the same.

 

I.

We conclude that precluding defense counsel from using D.C.'s writings did not constitute reversible error. Because defendant objected to the preclusion of the writings, the harmful error standard applies. We must disregard any error unless it was "clearly capable of producing an unjust result." R. 2:10-2.

The reciprocal discovery provision, in pertinent part, requires a defendant to provide the State with "written statements . . . made by any witnesses whom the State may call as a witness at trial." R. 3:13-3(b)(2)(D). If a defendant does not intend to use a written statement at trial, however, the defendant is not obligated to produce it. State v. Williams, 80 N.J. 472, 481 (1979). Requiring disclosure under such circumstances would "infringe on a defendant's constitutional right to the effective assistance of counsel because of the chilling effect it would have on defense investigation." Id. at 478. Here, unlike in Williams, the writings were not clearly inculpatory. See id. at 478-79. Defense counsel made a "mid-stream" decision to use the writings after the assistant prosecutor completed direct examination and defense counsel knew how the State would present the case. See id. at 482. As a result, we agree with the judge's determination that defense counsel violated the reciprocal discovery rule.

Rule 3:13-3(f) provides that when a party violates the reciprocal discovery rule, the court "may order such party to permit the discovery of materials not previously disclosed, grant a continuance or delay during trial, or prohibit the party from introducing in evidence the material not disclosed, or it may enter such other order as it deems appropriate." Judges have "broad discretion" in determining what sanctions to impose for discovery violations. State v. Scherzer, 301 N.J. Super. 363, 417 (App. Div.), certif. denied, 151 N.J. 466 (1997).

Here, the judge erred in two respects. First, the judge did not take the time to read the documents to determine how material the statements reflected therein were to defendant's right to confront the key witness in the case with information that could have impeached her credibility. Second, the judge should have considered the lesser sanction of permitting the prosecutor additional time to review the documents to prepare for the possibility of rehabilitating the witness' credibility. That being said, we decline to reverse defendant's conviction because these errors did not have the capacity of depriving defendant of his constitutional right to a fair trial.

Defense counsel was able to elicit testimony from D.C. similar to that contained in the writings, including that: D.C.'s mother hit her frequently; D.C. was sometimes afraid of her mother; defendant treated D.C. well and was "more like a father than [the boyfriend]"; D.C. told her mother that she liked defendant and wanted to go to his apartment; D.C.'s mother told her to lie to the police and DYFS about the mother's drinking; and D.C. told DYFS staff that her mother drank and hit D.C. Latona also testified about the content of the writings, stating that "[s]ome of them were cards, some of them were letters stating [D.C.'s] love for [defendant]." He characterized the letters as "odd," but stated that there was nothing negative about defendant in the letters that would lead him to believe that defendant was sexually assaulting D.C. Simply stated, the record does not reveal grounds to sustain a finding of reversible error.

II.

Defendant argues that the trial judge abused his discretion by refusing to qualify Dr. Laufer as an expert witness. We disagree.

We accord substantial deference to a trial court's decision on whether to qualify an individual as an expert. State v. Jenewicz, 193 N.J. 440, 455 (2008). We review such decisions for abuse of discretion and only "reverse[] for 'manifest error and injustice.'" Ibid. (citation omitted).

Under N.J.R.E. 702, "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise." When determining whether a witness is qualified, "a court should simply be satisfied that the expert has a basis in knowledge, skill, education, training, or experience to be able to form an opinion that can aid the jury on a subject that is beyond its ken." Jenewicz, supra, 193 N.J. at 455.

Here, Dr. Laufer repeatedly testified that she was not an expert in gynecology or child sexual abuse, and she was unable to answer many of the assistant prosecutor's questions about sexual abuse examination methodology. Therefore, we conclude that the judge did not abuse his discretion in refusing to permit her to testify as an expert for the defense.

III.

Defendant argues that (1) the judge erred in not merging the convictions for endangering the welfare of D.C. (Counts Two and Four) into the convictions for aggravated sexual assault based on the same acts against D.C. (Counts One and Three, respectively); (2) the judge did not conduct a sufficient Yarbough analysis to impose consecutive sentences; (3) NERA should not have been applied to Count Three; and (4) the judgment of conviction contained several errors. We remand for re-sentencing.

We defer to trial judges' sentencing decisions and do not disturb such decisions unless (1) the judge did not adhere to the sentencing guidelines; (2) the findings regarding the statutory aggravating and mitigating factors were not based on competent, credible evidence; or (3) under the facts of the case, the sentence was "clearly unreasonable so as to shock the judicial conscience." State v. Roth, 95 N.J. 334, 364-65 (1984).

A.

When determining whether to merge convictions, a court should adopt a flexible approach and focus on "the elements of the crime, the Legislature's intent in enacting the statutes, and the specific facts of each case." State v. Dillihay, 127 N.J. 42, 47 (1992). Convictions for endangering the welfare of a child should be merged into convictions for aggravated sexual assault when "the record suggests no basis for the endangering conviction beyond the sexual assault." State v. Still, 257 N.J. Super. 255, 259 (App. Div. 1992). Our Supreme Court has recognized a separate basis for the endangering conviction where there is a "violation of the duty that a parent owes to a child," State v. Miller, 108 N.J. 112, 118-19 (1987), or a violation of a "supervisory relationship," State v. D.R., 109 N.J. 348, 353, 377 (1988).

Here, the convictions for endangering were based on the same acts as the convictions for aggravated sexual assault and sexual assault. The judge charged the jury that "the State alleges that the sexual conduct committed by the defendant in these two counts, Count Two and Count Four, it consists of the penile-vaginal penetration . . . that allegedly they contend he had with the young lady." As a result, the judge should have merged Counts Two and Four into Counts One and Three.

Although D.C. testified that the sexual assaults occurred more than five times, there is no indication as to whether the jury found that there were multiple instances of first-degree aggravated sexual assault or second-degree sexual assault. The jury only had to find one such occurrence to find defendant guilty on Counts One and Two and one occurrence to find defendant guilty on Counts Three and Four. Also, although D.C. testified that the mother sent her and her siblings to stay at defendant's apartment, there was no factual finding as to whether there was a supervisory relationship. The jury found defendant guilty of third-degree endangering, and a duty for the care of the child is not an element of the offense.

B.

The Court in Yarbough set forth the following guidelines:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;
 
(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;
 
(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

 

(a) the crimes and their objectives were predominantly independent of each other;
 
(b) the crimes involved separate acts of violence or threats of violence;
 
(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;
 
(d) any of the crimes involved multiple victims;
 
(e) the convictions for which the sentences are to be imposed are numerous;

 
(4) there should be no double counting of aggravating factors;
 
(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense.

 

[Yarbough, supra, 100 N.J. at 643-44 (footnote omitted).5]

Usually, if a sentencing court does not explain its reasoning for imposing consecutive sentences, a remand is necessary. State v. Miller, 205 N.J. 109, 129 (2011). But a reviewing court can affirm a sentence where it is "possible to 'readily deduce' the judge's reasoning." Id. at 129-30 (quoting State v. Bieniek, 200 N.J. 601, 609 (2010)).

Here, the judge did not separately state the reasons for imposing consecutive sentences and did not make sufficient "detailed, relevant findings." Id. at 130. Therefore, the record is not "clear enough to avoid doubt as to the facts and principles the court considered and how it meant to apply them." Ibid.

C.

We therefore remand and direct the judge to merge Counts Two and Four into Counts One and Three, respectively, and to conduct a Yarbough analysis to determine whether consecutive sentences are appropriate. Also, the sentencing court should note that: (1) on Count Three, defendant was convicted of second-degree sexual assault, not first-degree aggravated sexual assault; (2) on Count Six, defendant was convicted of second-degree kidnapping, not first-degree kidnapping; (3) only Counts One and Six are subject to NERA; and (4) the period of parole ineligibility under NERA only applies to the sentences imposed on Counts One and Six. We conclude that defendant's remaining arguments are "without sufficient merit to warrant discussion in a written opinion." R. 2:11-3(e)(2).

Affirmed as to the convictions, remanded for re-sentencing.

1 Effective June 29, 2012, the New Jersey Division of Youth and Family Services was renamed the Division of Child Protection and Permanency. L. 2012, c. 16.

2 On June 15, 2012, defense counsel moved for a new trial, arguing that defendant was prejudiced by this ruling. The judge denied the motion the same day. Defendant's notice of appeal indicates that he is appealing from his conviction and from an order entered on June 27, 2012 denying his motion for a new trial. There is no June 27, 2012 order in the record, and defendant does not address this order in his brief.

3 The judge sentenced defendant to a thirty-year extended term on Count One; ten-year consecutive sentences on Counts Three and Six; five-year consecutive sentences on Counts Eight and Nine; and five-year concurrent sentences on Counts Two, Four, and Seven.

4 State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S. Ct. 1193, 89 L. Ed. 2d 308 (1986).

5 The Court set forth a sixth item to consider but it was superseded by statute. See N.J.S.A. 2C:44-5a.