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State v. Krivacska

April 23, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES J. KRIVACSKA, DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Monmouth County, 96-02-0214.

Before Judges Baime, Carchman and Lintner.

The opinion of the court was delivered by: Baime, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 14, 2001

Following a protracted trial, a jury found defendant guilty of one count of aggravated sexual assault (N.J.S.A. 2C:14-2a(2)), two counts of second degree endangering the welfare of a child (N.J.S.A. 2C:24-4a), and two counts of aggravated criminal sexual contact (N.J.S.A. 2C:14-3a). Defendant was acquitted of a second count of aggravated sexual assault. The trial court sentenced defendant to twenty-six years imprisonment under the Sex Offender Act (N.J.S.A. 2C:47-1 to -10). Defendant appeals. We affirm.

I.

Defendant, a licensed psychologist, was the clinical director of the Children's Center of Monmouth County, a school for individuals with special needs. The alleged victims, T.A. and M.B., were students at the school. The charges and resulting convictions stemmed from allegations that defendant sexually abused T.A. and M.B. under the guise of providing treatment for their mental and emotional infirmities. The allegations were contained in an indictment which charged defendant with sexually abusing M.B., and an accusation which charged defendant with sexually abusing T.A. The charges were consolidated for the purpose of trial. Our description of the facts is taken from the voluminous trial and motion hearing transcripts.

As clinical director of the Center, defendant had a wide range of responsibilities, including intervention and behavioral counseling and the development of programs and curricula. Defendant's counseling duties often required him to meet with students in private sessions. From 1990 to September 1993, defendant's office was located in Building 5, which was known generally as the "old" building. This office was next to that of the school's director, George Scheer, and across the main entrance foyer from the office of their secretary, Arlene Kelly. Defendant's office door had a rectangular window and could not be locked because the key had been lost. Many witnesses testified that this was a highly trafficked area.

In the Autumn of 1993, defendant moved to Building 4, which was known at the time as the "new" building. Defendant's office was perhaps slightly more isolated, but nevertheless was located in close proximity to a supervisor's office, the school store, the school kitchen, and staff and student bathrooms. The office was ground-level with windows looking out into the street. The door had a rectangular window, and a lever handle with an inside button which could be pushed to lock it from the inside.

During the school year 1993-1994, T.A. was a student in Naomi Azar's class in the new building. We will describe T.A.'s mental deficits in detail later in this opinion. It is enough to note here that T.A.'s IQ score was between fifty and sixty, approaching the lowest point that can be measured. At thirteen years old, T.A. was older than the students in his class and was maturing physically. On several occasions Azar noticed that T.A. had erections in class, causing him to become nervous and flustered and preventing him from being able to answer simple questions. The problem took on added urgency because in the Spring of that school year, Azar was informed that T.A. was moving to Miami, Florida where he was to be "mainstreamed" into the public school system. Azar referred T.A. to defendant for private counseling sessions.

T.A. would go to and return from defendant's office on his own. If he did not return in an appropriate amount of time, a teacher would go to defendant's office and bring him back. According to T.A.'s testimony, it was at these private sessions that defendant sexually assaulted him. T.A. testified that defendant commonly hung his jacket on the door, covering the rectangular window. T.A. would sit in a regular chair, while defendant would be seated in a chair with wheels. Defendant would instruct T.A. to pull his pants down to mid-thigh, place his hands on T.A.'s penis and "shake" it until T.A. ejaculated. On one occasion, defendant allegedly "put his mouth" on T.A.'s penis. On another, defendant stood with T.A. facing him and their penises touching. According to T.A., defendant would show him photographs depicting sexual organs, which he identified on cross-examination as the drawings in a pamphlet, A Kid's First Book About Sex. Defendant would explain to T.A. the sexual organs depicted in the pamphlet.

T.A. recounted that defendant asked him to visit at his house, noting that he did not have a wife or children. T.A. thought it "odd," however, and declined defendant's invitation. Defendant cautioned T.A. never to tell anyone what happened between them.

T.A. abided by that admonition until he moved to Florida. T.A. initially lived with his Aunt Jennifer. On weekends, T.A. would often visit with his Aunt Carol*fn1 and his Uncle Clarence. Aunt Carol was employed as a psychiatric nurse. She was also the pastor of her church. It was her habit to ask "all the children" if anyone had touched them inappropriately, or "in a private part." Aunt Carol focused particularly on T.A. because she felt he was "vulnerable." T.A. regularly denied that anyone had touched his private parts.

In July 1994, Aunt Jennifer told Aunt Carol that T.A. had been masturbating frequently and "hard," so that his bed "shook." Aunt Jennifer was concerned that her own children might hear him. Aunt Carol spoke with Uncle Clarence, who responded that "boys do masturbate and play with themselves, but not as aggressive[ly]" as Aunt Jennifer had described. Aunt Carol and Uncle Clarence confronted T.A. about the subject.

Contrary to the statement of facts in defendant's brief, the accounts of that discussion offered by T.A. and Aunt Carol markedly differ. Defendant's recitation is taken primarily from his attorney's cross-examination of T.A. in which T.A. gave essentially one word responses to defense counsel's questions. The character of that cross-examination speaks for itself. We thus quote verbatim from the trial transcript:

Q: I see, okay. So then your Aunt Carol Ruth came to you and told you that it wasn't good that you were playing with your penis, right?

A: Yes.

Q: And it wasn't good that you were making this stuff come out of it, right?

A: Yes.

Q: And is she also the one that told you that you shouldn't do that any more?

A: Yes.

Q: And that God doesn't like it?

A: Yes.

Q: Did she tell you that because you were doing that that God was angry at you?

A: Yes. And that was bad.

Q: And that was bad?

A: Yes.

Q: And that because you were doing this you were going to get in trouble, is that right?

A: Yes. Not in much trouble.

Q: Not in much trouble?

A: Yes.

Q: Did she say that, not in much trouble. Why do you say not in much trouble?

A: Because I didn't do nothing to get in trouble.

Q: Because – well, didn't you say that God didn't like it because you were playing with your penis?

A: Yes.

Q: Okay. And that you would get in trouble for playing with your penis, isn't that right?

A: Yes.

Q: Okay. So did she also say to you that somebody must have taught you how to do this? You remember her saying that?

A: Yes.

Q: She told you that?

A: She asked me did anybody do this to you before?

Q: Let's just back up for a minute.

A: Okay.

Q: She wanted – isn't it true that she wanted to know where you learned to do this?

A: Yes.

Q: She said that somebody had to teach you to do ...


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