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State v. Kozarski

Decided: July 1, 1976.


Matthews, Lora and Morgan.

Per Curiam

[143 NJSuper Page 14] Defendant was tried to a jury and convicted of impairing the morals of a minor, specifically, committing an act of fellatio on an 11-year-old boy. Subsequent to the conviction the trial judge directed the filing of a second offender accusation pursuant to N.J.S.A. 2A:85-8, and defendant was referred to Menlo Park Diagnostic Center for evaluation pursuant to the Sex Offender Act, N.J.S.A. 2A:164-3, et seq. where he was found to be a repetitive,

compulsive offender within the meaning of the act, N.J.S.A. 2A:164-5. Defendant requested a hearing under State v. Horne , 56 N.J. 372 (1970), and moved to strike the second offender accusation and for disqualification of the trial judge. He further argued below that the enhanced punishment called for by the Habitual Offender Act conflicted with and was repugnant to the therapeutic goals of the Sex Offender Act and that the Habitual Offender Act was unconstitutional on its face as well as in its application to him.

After a hearing on defendant's Menlo Park classification as a repetitive, compulsive sexual offender, the trial judge ruled defendant's classification was well justified and met the burden of proof imposed upon the prosecution by State v. Horne, supra. He denied defendant's motion to disqualify himself because of his instruction to the prosecutor to file the second offender accusation. He further held that there was no showing of intentional and purposeful discrimination against defendant in the application of the Multiple Offender Act to him and that there was no real conflict between the invocation of that statute and a classification compelling sentencing as a compulsive, repetitive sex offender or in the two social policies enunciated by the Legislature in the two acts.

The trial judge found defendant guilty under the multiple offender accusation and sentenced him to a six-year maximum indeterminate sentence at the Rahway Diagnostic Center, a term twice the length of the term provided by statute as the penalty for the misdemeanor for which he was convicted. Following the filing of defendant's notice of appeal, the matter was remanded by order of this court for reconstruction of the trial record because of a fire which destroyed the original stenographic notes of the trial.

On appeal defendant contends that (1) his conviction for impairing the morals of a minor must be reversed and the matter remanded for a new trial because no record exists from which he can be given a meaningful appeal; (2) the admission of "fresh complaint" testimony of the victim's

mother was error requiring reversal of the conviction, and (3) it was reversable error for the trial judge to admit testimony of a prior act of fellatio which allegedly took place in Fairmount Park in Philadelphia several hours prior to the act here involved, and to fail to strike testimony by the victim that defendant proposed or suggested an act of anal intercourse.

Defendant and his counsel appeared before the trial judge at the reconstruction hearing. Although counsel's notes and those of the prosecutor and the trial judge were not comprehensive, the trial was brief and there was agreement as to the crucial issues in the case. There had been no objection to the trial judge's charge and the basic factual issue was credibility of the victim, defendant not having taken the stand.

We have reviewed the transcript of the reconstruction proceedings together with the settlement letter of the trial judge and are of the view the reconstructed record is clearly adequate for appeal purposes. Furthermore, verbatim transcripts of defendant's motions and the hearings relating to the issues raised as to the application of the Habitual Offender Act and the Sex Offender Act are available and before the court for use on the appeal. Defendant's right to due process has not been violated by the reconstructed record on appeal.

In the reconstruction transcript, all parties agreed that the trial judge allowed the victim's mother to testify that her boy told her of the incident two weeks after it occurred. Admission of this testimony was objected to by defendant on the ground that the passage of two weeks from the time of the incident to that of the report rendered the complaint testimony inadmissible. However, in light of the natural reluctance of an 11-year-old boy to divulge information of this type to his parents, and because he was "somewhat afraid," the time period involved was not such as to bring the statement beyond the comprehension of the rule. See e.g., State v. Hummel , 132 N.J. Super. 412 (App. Div.

1975), certif. den. 67 N.J. 102 (1975). Defendant also alleges for the first time on appeal that the "complaint" may not have been a complaint at all, but may have been elicited under questioning by the mother. Assuming this were true, the admission of the testimony would not rise to the level of plain error in view of the testimony of "fresh complaint" to Jimmy Kozarski, defendant's son and a friend and playmate of the victim, within a day or two of the ...

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