On appeal from the Superior Court of New Jersey, Law Division, Middlesex County.
Approved for Publication October 31, 1997.
Before Judges Long, Stern and Kimmelman. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
The State appeals, pursuant to leave granted, from portions of an order of the Law Division entered on March 12, 1997, "recusing Assistant Prosecutor Peter Hamerslag from prosecuting the case of M.M.K. as the alleged victim" and severing the counts of the indictment relating to M.M.K. from those relating to victim M.A.R. We reverse the order disqualifying the prosecutor and remand for further proceedings on the issue of severance.
The background for this appeal is taken from the grand jury transcript of August 29, 1995 and material before the trial court on defendant's motion to sever and his motion "for an order dismissing the indictment and other relief" including an order recusing Hamerslag "from prosecuting this case predicated upon his being a factual witness." At the grand jury hearing both M.M.K. and M.A.R. testified, and M.M.K.'s prior 1993 grand jury testimony was read to the grand jurors by the Edison Police Lieutenant who investigated the matter and appeared as a witness at both grand jury presentations.
In February 1990, the Division of Youth and Family Services ("DYFS") received information that defendant was having sex with M.M.K. who was born on April 29, 1977. At the time, M.M.K. was twelve years old and defendant was forty. The DYFS investigation was subsequently suspended because M.M.K. and defendant both denied any sexual relationship. Approximately one year later DYFS received new information that defendant was engaging in sexual activity with M.M.K. Another investigation ensued but, like the first, it ended without the filing of proceedings, essentially for the same reasons.
On August 27, 1991, M.M.K.'s mother reported to the Edison Police Department that defendant, her ex-boyfriend, admitted to her that he had been having sex with M.M.K. In response, the police initiated an investigation. Both M.M.K. and defendant again denied having any sexual contact with the other. Both attributed the mother's allegation to defendant's recent break-up with her and his planned marriage to another woman. Accordingly, the police investigation was closed without the filing of charges.
However, in June 1992 after seeing an Oprah Winfrey show about adults who had been sexually molested when they were children, M.M.K. told her new boyfriend, close girlfriend and then her mother about her sexual relationship with defendant. The mother again contacted the police. Interviews confirmed the conversations and M.M.K. gave the police details about her sexual relationship with defendant. According to later reports, however, her story at that time was incomplete.
M.M.K. first met defendant when she was eleven years old. M.M.K. was a friend of defendant's daughter, and M.M.K. frequently spent time at defendant's home. One day in 1988 when M.M.K. visited defendant's house, defendant invited M.M.K. to his bedroom to watch television while his daughter left the house. Defendant offered M.M.K. a pillow, started tickling her, and then "pulled [her] on top of him." M.M.K. pushed defendant away and sat up. Defendant then kissed her on the lips. M.M.K. said "no" in response and the incident was interrupted by the entry of defendant's daughter.
On a subsequent occasion shortly thereafter, defendant "grabbed" M.M.K.'s "butt" and within a month of the first incident defendant began to "fondle" M.M.K.'s breasts and vaginal area, both over and underneath her clothing. Eventually, defendant began inserting his fingers into M.M.K.'s vagina. These incidents occurred at both the defendant's and M.M.K.'s respective homes, usually when nobody else was home. The sexual conduct between defendant and M.M.K. included oral sex. Defendant also attempted to have vaginal intercourse with M.M.K. At first he was unsuccessful, but ultimately that occurred at age thirteen.
In May 1990, M.M.K. started dating a boyfriend, and the sexual activity with defendant ceased because she "wasn't around as much." In the nearly two years of sexual contact that defendant had with M.M.K., there was some sort of sexual activity occurring between them on a daily basis.
In August 1991, M.M.K. and her boyfriend split up, and the sexual activity between defendant and M.M.K. resumed. Their relationship included sexual intercourse, and defendant took M.M.K. to hotels about once a week to have sex. However, in May 1992 M.M.K. started dating another boy ...