On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Ind. #673-4-98.
Before Judges A. A. Rodríguez, Collester and
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: October 17, 2000
In this appeal, we hold that penile penetration of the space between the labia majora or outer lips of the vulva constitutes "vaginal intercourse" within the meaning of N.J.S.A. 2C:14-2a(1). Following a jury trial, defendant, J.A., was convicted of first degree aggravated sexual assault on his daughter, who was then less than thirteen years old, N.J.S.A. 2C:14-2a(1); second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and fourth degree child abuse, N.J.S.A. 9:6-1. A report on examination at the Adult Diagnostic and Treatment Center, pursuant to N.J.S.A. 2C:47-2, indicated that defendant's conduct was not characterized by a pattern of repetitive, compulsive behavior. The judge merged all convictions and imposed an eighteen-year State Prison term with an eight-year period of parole ineligibility. We affirm the convictions and sentence.
The victim, "Nancy," is defendant's daughter.*fn1 She was born on June 20, 1987. When Nancy was five years old, defendant's wife moved to Massachusetts, leaving him to care for Nancy and her three-year old brother.
According to the State's proofs, on numerous occasions while Nancy was in the first and second grade, defendant molested her in their basement apartment. When the children would return from school, defendant would have his son take a nap in a separate room. He would place Nancy on some blankets that served as a bed and would pull down her pants. He would pull down his own pants and lay on top of her. Defendant would place his penis on top of Nancy's private parts and move from side to side. Although Nancy testified that defendant's penis was not between her legs and he never hurt her, the State's medical expert opined that at least the tip of the penis was placed just inside Nancy's labia majora.
Defendant threatened Nancy by telling her that he would throw her into the Hudson River if she ever told anybody about what he had done to her. Defendant showed her the spot where he would throw her in the river. Defendant also told Nancy that if anyone ever discovered that she had been sexually assaulted, she should say that one of his friends was responsible. Nancy, who was only six or seven at the time, believed her father's threats and never told anyone.
Sometime in August 1994, defendant brought Nancy and her brother to visit Cora, a family friend.*fn2 Defendant would bring his children for regular weekend visits to Cora's apartment in New York. In February 1995, defendant told Cora that he was experiencing financial difficulties and could no longer take care of the children. Although Cora was initially reluctant, she eventually allowed defendant, Nancy and her brother to move in with her. Soon thereafter, Cora filed a petition in New York's Family Court seeking custody of Nancy and her brother. Defendant consented. The Family Court awarded custody of the children to Cora. However, some months later, defendant changed his mind and sought to have custody returned to him. He was unsuccessful. Cora threw him out of her apartment.
At some point thereafter, Cora attempted to have custody of the children returned to defendant. However, the Family Court judge ordered Cora to maintain custody. That same month, defendant left with the children. He took them to live in a shelter. Upon discovering this, Cora removed the children from the shelter with police assistance and brought them back to live with her. Contemporaneously, Cora's uncle moved into her apartment. He lived with her and Nancy for a period of time.
When Nancy was eight years old, a routine physical examination revealed that she tested positive for chlamydia, a sexually transmitted infection. While Nancy was at Union Hospital for treatment of this infection, two social workers from the Administration for Children's Services investigated Cora and her home. During that investigation, Nancy revealed that she had been sexually molested. Initially, Nancy blamed the assault on one of her father's friends. Later, she admitted that her father had molested her repeatedly while they lived on Summit Avenue in Jersey City.
Two months later, Nancy came under the medical care of Linda Cahill, M.D. at Montefiore Medical Center. Thereafter, Cora brought Nancy to the Hudson County Prosecutor's Office to press a complaint against defendant. Investigator Richard Fiocco tape- recorded sworn statements from Nancy and Cora. Nancy told Fiocco that her father had sexually molested her while they lived in Jersey City. She was able to direct Fiocco to the location of the house where the molestations occurred, as well as identify the school she had attended at the time. Defendant was arrested and tried.
At trial, Lynn Taska, Ph. D., qualified as an expert in child sexual abuse accommodation syndrome. Dr. Taska is a clinical psychologist and a member of the faculty of the University of Medicine and Dentistry of New Jersey. She explained that the syndrome is marked by elements of secrecy, helplessness, entrapment and accommodation, delayed and unconvincing disclosure, and retraction and recantation. ...