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State v. Kuske

Decided: March 25, 1970.


Conford, Collester and Kolovsky. The opinion of the court was delivered by Conford, P.J.A.D.


This is an appeal from a conviction of the defendant January 11, 1968 on two counts of an indictment charging, respectively, incest and sodomy with his 17-year-old daughter. These events are alleged to have occurred in July 1963.

The delay between the time of the commission of the alleged offenses and the trial is accounted for by these facts. Shortly after defendant's arrest he waived indictment and trial and pleaded guilty to an accusation on these charges, beginning the service of a sentence thereon under the Sex Offender Act. But thereafter he was successful in this court in vacating the conviction on a post-conviction petition based upon alleged lack of understanding of the charge at the time of the plea and the failure of the sentencing judge to apprise defendant of his rights in the manner required by the rules of court.

We have presently not only to decide the appeal but also three motions which have been filed by defendant pro se.

These are (1) for release on nominal bail; (2) to "settle the record," based upon the contention that there are various omissions and alterations in the transcript of the trial, and (3) to remove assigned counsel and designate a substitute on the ground that Kenneth Javerbaum, who has been handling defendant's appeal for the Public Defender's Office, is not representing the defendant adequately.

Since we affirm the conviction, the motion for nominal bail is moot. The other motions will be dealt with after treating the merits of the appeal.

To understand the factual background of this case reference must be made to the history of defendant's relationship with his family prior to the events of July 1963. Defendant was married and had four children, including the complaining witness. Shortly after moving from North Carolina to Denver, Colorado, in the early 1950's, defendant was separated from his family. The complaining witness, Carolyn Kuske D , was then six years of age. Defendant did not see any of the family again until the early summer of 1963, when the girl was 17. He visited her at that time in Denver, where she was living alone. She was then under the supervision of the juvenile court authorities of Colorado for some reason not reflected by this record. After the visit defendant arranged with the Colorado authorities to have the girl released in his custody. The plan was for her to stay with his widowed mother, who lived on a farm in Millville, N.J. On the same farm but in a separate nearby house lived defendant's brother and sister-in-law and their young children.

Defendant came east before his daughter did and sent her a plane ticket. She was met by the defendant in Philadelphia July 15 or 17, 1963. He placed her in a hotel in Philadelphia for a few days and then brought her to his mother's home in Millville, where they both stayed for several days.

Close attention must be paid to the testimony as to the dates of occurrence of the offenses charged because of the controversy over the validity of the amendment of the indictment,

originally charging that the offenses occurred on the "24th day of July, 1963," to read that they took place on "divers dates in the month of July, 1963." Carolyn, who by the time of the trial was 23, married, with a child, and living in California, testified: "It was towards the end of July and we had sexual intercourse." She did not indicate on direct examination that this act took place more than once. The intercourse was alleged to have occurred in her bedroom in the grandmother's house when the grandmother was away. She also testified that on one specific occasion there was an act of sodomy between her and defendant. On both direct and cross-examination she was unable to specify the time of these occurrences other than that they transpired in the latter part of July. On at least two occasions during the further course of direct examination the questions of the prosecutor were framed in terms of "an act of intercourse."

On cross-examination of Carolyn, however, it was brought out by defendant that sexual intercourse occurred twice in the grandmother's house and once in a parked car in the nearby woods. The witness could not remember if the second act occurred on a different day from the first but stated that it was "probably" another day. The State adduced testimony by defendant's sister-in-law and brother. They had taken the girl with them on a family vacation to Cape May, leaving July 28 and returning August 3. Mrs. Ann Kuske, the sister-in-law, testified that the girl told her during the vacation, somewhat hesitantly, that she had something to tell her which she was ashamed of, and that after they returned from the vacation, defendant having left the area to work on a ship, the girl told her what had happened.

Mrs. Kuske also testified that during the few days defendant and Carolyn were on the farm together defendant "acted towards her like a lover instead of a father" and that she "felt there was something wrong" between them even before Carolyn revealed the specifics. These observations were supported by testimony of defendant's brother. The girl

later showed the Kuskes letters defendant had sent her after leaving the farm which tended to confirm what she had disclosed. (As to the letters, more infra). The Kuskes then brought the girl to the police with a complaint leading to defendant's arrest on these charges.

Defendant testified that he spent a few days in his mother's house at the same time that his daughter was there, and that on July 21 he left Millville and went to New York to register for a seaman's job at his union hall. He obtained a job on July 23 on a vessel moored at Port Elizabeth and stayed on that ship, which made a trip to Puerto Rico, until its return on August 2, 1963. He offered a union certificate in evidence certifying that the dates of the trip were July 23-August 2. A representative of the Sea-Land Company, owner of the ship, testified that the company's records showed that defendant was hired July 23 and was actually on board ship at Port Elizabeth at least beginning 8 A.M. on July 24 and thereafter until the return of the vessel on August 2.

Defendant denied that he had ever committed any sex act at any time with his daughter. He testified that prior to his trial, and while confined in the Vroom Building of the State Hospital at Trenton in 1967, he had been administered a series of electro-shock treatments which had badly interfered with his memory so that he could remember some things but not others.


The first ground of appeal is that the amendment of the indictment, on motion of the State granted at the outset of the trial, is invalid in changing the specification of the dates of the offenses charged from July 24, 1963 to "divers dates in the month of July 1963." Defendant contends that under State v. Grothmann , 13 N.J. 90 (1953), and State v. Sing Lee , 94 N.J.L. 266 (E. & A. 1920), the effect of this amendment ...

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