Before Judges King, Kleiner and P.G. Levy.
The opinion of the court was delivered by: P.G. Levy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 8, 1999
On appeal from the Superior Court of New Jersey, Law Division, Hudson County.
Defendant was convicted of two counts of sexual assault in violation of N.J.S.A. 2C:14-2b, two counts of child abuse in violation of N.J.S.A. 9:6-1 and N.J.S.A. 9:6-3 and two counts of endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a. *fn1 He was sentenced to two consecutive seven-year terms of incarceration for the two sexual assault convictions, and the child abuse and endangering convictions were merged into the sexual assault convictions; appropriate statutory fines and penalties were assessed.
In 1996, T.S. and C.P. spent occasional time at the home of defendant and his live-in girlfriend, S.H. During this time, both girls slept overnight and were entrusted to the care and protection of defendant and S.H. Neither, however, was directly related to either defendant or S.H. Each girl testified at trial that she was sexually assaulted by defendant on multiple occasions during the time in question. The jury gave credence to this testimony and found defendant guilty of sexually assaulting both girls. At the time of the assaults, T.S. was twelve years old and C.P. was seven years old. Periodically T.S. was left alone with defendant. T.S. described three different instances of sexual abuse. Eventually, T.S. revealed the course of abuse to her adopted sister, G.L., though she did not reveal any specifics of the assaults at that time. G.L. encouraged T.S. to tell her mother, which she eventually did. The second victim, C.P. related her story of abuse before T.S. did, and this led to the discovery of defendant's abuse of T.S.
At trial, C.P. testified via closed-circuit television over defense counsel's objections. Additionally, also over defense counsel's objections, the trial court allowed the jury to hear a taped statement C.P. had given to the police shortly after informing her mother of these assaults. C.P. recounted two instances of abuse.
The police took statements from both T.S. and C.P. shortly after they told their mothers about these assaults. The police also interviewed defendant and he admitted there may have been contact, but protested that any such contact was unintentional. Other than those protests, the parties essentially agreed most of the incidents occurred. At trial, defendant argued the interviewing officer "bullied" him into making those statements. Defendant presented S.H. and his son as witnesses. Both S.H. and defendant's son claimed defendant could not have committed these offenses, he never lied to them and he never engaged in this type of activity. Obviously the jury believed the girls and did not believe the defendant as it convicted him of sexual assault.
On appeal, defendant contends the trial judge erred "in permitting C.P. to testify out of the presence of defendant" and "in allowing the jury to hear C.P.'s taped statement." He also claims the sentence was excessive and his trial attorney provided ineffective assistance, thus denying him a fair trial.
C.P. reacted adversely when brought into the courtroom to testify as to the course of abuse which she was forced to endure. She was so upset at the prospect of testifying in open court that the judge held a hearing to determine whether testimony via closed circuit television was appropriate. After hearing this testimony and observing the child-witness, the trial judge ruled that, to protect her emotional well-being, the juvenile would testify via closed-circuit television away from the courtroom.
In prosecutions for sexual assaults and child abuse, a juvenile victim may testify outside the courtroom via video-link. N.J.S.A. 2A:84A-32.4. Our courts and the United States Supreme Court have addressed how this impinges on a defendant's right to confrontation. State v. Crandall, 120 N.J. 649 (1990); Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). New Jersey's statute has consistently been upheld as constitutional and not violative of defendant's right to confront witnesses, and a further discussion of this point would have no precedential value. R. 2:11-3(e)(2); State v. Smith, 158 N.J. 376, 384-85 (1999).
There are procedural safeguards and requirements which must be met in applying N.J.S.A. 2A:84A-32.4 and we now address defendant's claims that those safeguards were not met. Defendant claims the trial judge erred (1) in allowing closed-circuit testimony without finding the child was suffering from "severe emotional or mental distress" if required to testify in open court; (2) allowing the juvenile to testify outside the presence of the jury, since she wasn't afraid of the jury or the courtroom; (3) not sua sponte informing defendant of his right to request the child testify in front of the jury if he was removed from the courtroom during the proceedings; and (4) in failing to make specific findings as to the impact on spectators.
The trial judge is required to make findings concerning each of the sources of distress for a juvenile witness. Crandall, supra, 120 N.J. at 657. Here the judge properly found that the child would be too fearful to provide accurate testimony if she were forced to testify in open court; indeed, the child even refused to testify in open court. The judge's findings and the juvenile's reactions were sufficient to meet the statutory criteria. C.P. was clearly extremely upset at the prospect of testifying in the courtroom, indicating that both ...