On appeal from the Superior Court of New Jersey, Law Division, Monmouth County.
Michels, O'Brien and Skillman. The opinion of the court was delivered by Michels, P.J.A.D.
[219 NJSuper Page 454] Tried to a jury, defendant John Thomas Cusick was found guilty of: (1) sexual assault by committing an act of sexual contact upon R.S., age eight, a crime of the second degree, in violation of N.J.S.A. 2C:14-2b (Second Count); (2) aggravated sexual assault by committing an act of sexual penetration upon R.S., a crime of the first degree, in violation of N.J.S.A. 2C:14-2a (Third Count); (3) sexual assault by committing an act of sexual contact upon R.S., a crime of the second degree, in violation of N.J.S.A. 2C:14-2b (Fourth Count), and (4) endangering the welfare of a child, a crime of the third degree, in violation of N.J.S.A. 2C:24-4a (Fifth Count). After merging defendant's convictions for sexual assault (Fourth Count) and endangering the welfare of a child (Fifth Count) with his conviction for aggravated sexual assault (Third Count), the trial court committed defendant to the custody of the Commissioner of the Department of Corrections for 20 years with a ten-year period of parole ineligibility for the aggravated sexual assault. In addition, defendant was sentenced to a concurrent term of ten years with a concurrent five-year period of parole ineligibility for the sexual assault (Second Count). Finally, defendant was assessed penalties totaling $100, payable to the Violent Crimes Compensation Board. This appeal followed.
Defendant seeks: (1) a reversal of his convictions for aggravated sexual assault (Third Count), sexual assault (Fourth Count) and endangering the welfare of a child (Fifth Count) and the entry of a judgment of dismissal; (2) a reversal and a remand for a new trial with respect to the sexual assault (Second Count), or, alternatively, (3) 274 days jail credit against his sentences. The grounds on which he seeks this relief are set forth in his brief as follows:
POINT I THE TRIAL COURT'S FAILURE TO GRANT DEFENDANT ACCESS TO THE FILES MAINTAINED BY THE DIVISION OF YOUTH AND FAMILY SERVICES CONCERNING THE COMPLAINANT DENIED DEFENDANT HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO CONFRONT WITNESSES AGAINST HIM AND TO A FAIR TRIAL
POINT II THE TRIAL JUDGE COMMITTED REVERSIBLE ERROR BY ADMITTING EVIDENCE OF UNRELATED PRIOR SEXUAL ASSAULTS BY DEFENDANT
POINT III THE TRIAL COURT'S ADMISSION OF AN ALLEGED STATEMENT BY THE DEFENDANT CONSTITUTED REVERSIBLE ERROR
POINT IV THE INDICTMENT WAS SO BROADLY DRAWN THAT IT DENIED DEFENDANT DUE PROCESS (Not Raised Below)
POINT V THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO ALLOW THE DEFENDANT TO CALL THE PROSECUTOR AS A WITNESS
POINT VI DEFENDANT WAS ERRONEOUSLY DENIED 128 DAYS JAIL CREDIT
We have carefully considered these contentions and all of the arguments advanced by defendant in support of them and find that, with the exceptions discussed hereinafter, they are clearly without merit. R. 2:11-3(e)(2). Further comment with respect to some of the other issues raised is also appropriate.
Defendant contends that the failure to grant him access to the files on R.S. maintained by the Division of Youth and Family Services (DYFS) and the Arthur Brisbane Child Treatment Center (Brisbane) denied him his federal and state constitutional rights to confront witnesses against him and to a fair trial. Essentially, defendant claims that he "was denied the
tools necessary to effectively cross-examine the State's chief witness, [R.S.]."
Defense counsel subpoenaed the records concerning R.S. from both DYFS and Brisbane. DYFS had also counseled R.S. on the previous occasion that defendant had molested her and, thus, had information pertaining to both instances of abuse. Brisbane, where R.S. was living at the time of the trial, only had records concerning the most recent complaint of sexual molestation. A Deputy Attorney General representing both DYFS and Brisbane appeared before the trial court to explain that the subpoena could not be complied with because turning over the records which defendant sought was prohibited by statute. The provision governing disclosure of the DYFS records is N.J.S.A. 9:6-8.10a, which provides in pertinent part:
a. All records of child abuse reports made pursuant to section 3 of P.L.1971, c. 437 (C. 9:6-8.10), all information obtained by the Division of Youth and Family Services in investigating such reports including reports received pursuant to section 20 of P.L.1974, c. 119 (C. 9:6-8.40), and all reports of findings forwarded to the central registry pursuant to section 4 of P.L.1971, c. 437 (C. 9:6-8.11) shall be kept confidential and may be disclosed only under the circumstances expressly authorized under subsection b. herein.
b. The division may release the records and reports referred to in subsection a., or parts thereof, to: . . .
(6) A court, upon its finding that access to such records may be necessary for determination of an issue before the court, and such records may be disclosed by the court in whole or in part to the law guardian, attorney or other appropriate person upon a finding that such further disclosure is necessary for determination of an issue before the court.
The provision governing disclosure of the Brisbane records is N.J.S.A. 30:4-24.3, which states that:
All certificates, applications, records, and reports made pursuant to the provisions of this Title and directly or indirectly identifying any individual presently or formerly receiving services in a noncorrectional institution under this Title, or for whom services in a noncorrectional institution shall be sought under this act shall be kept confidential and shall not be disclosed by any person, except insofar as: . . .
(3) a court may direct, upon its determination that disclosure is necessary for the conduct of proceedings before it and that failure to make such disclosure would be contrary to the public interest.
The trial court found that access to the DYFS and Brisbane records may be necessary for the determination of the issue of credibility. Thus, all of the records which had been brought to court were turned over to the trial court which reviewed them in chambers. The trial court noted that although some of the DYFS reports from the most recent episode of alleged abuse had been provided to the defense through discovery, neither defendant nor the State had seen the DYFS and Brisbane records that the trial court had examined. The DYFS file, approximately three inches thick and consisting of "little notes, little scratch sheets and that sort of thing" was deemed too voluminous to describe in detail for the record. However, the trial court identified the Brisbane file as a three-leaf folder which is divided into subsections entitled "physician's orders, physician's records, assessments, assessment update, treatment plan progress notes, clinical, education, consultation." Some of the sections had entries, some did not.
In essence, the trial court held that: (1) disclosure of the records is not essential to the resolution of any issue before the court, nor was disclosure necessary for the conduct of the proceedings, and (2) most, if not all, of the information contained in the records could be obtained from other sources through diligent investigation. In reaching this conclusion the trial court stated:
I have reviewed all of these and suffice it to say there is nothing in this Court's opinion in any of those reports that in this Court's opinion is necessary to be disclosed to the defense for the conduct of this ...