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State v. T.E.

July 03, 2001

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
T.E., DEFENDANT-APPELLANT.



On appeal from Superior Court of New Jersey, Law Division, Essex County, 98-7-3197-I.

Before Judges Havey, Wefing and Lisa.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 21, 2001

In this case we consider whether it is permissible for an adult support person to sit in close proximity to a young sexual abuse victim while testifying before a jury. We conclude such a procedure is permissible upon a showing of substantial need, with appropriate safeguards imposed, and with a cautionary instruction given.

Tried to a jury, defendant was convicted of the following offenses committed against his four-year-old daughter, B.E.: first-degree aggravated sexual assault by vaginal penetration in violation of N.J.S.A. 2C:14-2a(1) (count one), first-degree aggravated sexual assault by anal penetration in violation of N.J.S.A. 2C:14-2a(1) (count two), second-degree sexual assault in violation of N.J.S.A. 2C:14-2b (count three), and second-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4 (count four). He was sentenced on counts one and two to concurrent terms of imprisonment of eighteen years with a nine year parole disqualifier. On count three, he was sentenced to nine years imprisonment with a four-and-one-half year parole disqualifier, concurrent to counts one and two.

On count four, he was sentenced to seven years imprisonment, consecutive to counts one, two and three. Therefore, his aggregate sentence was twenty-five years imprisonment with a nine year parole disqualifier. Appropriate monetary sanctions were imposed, and defendant was specially sentenced to community supervision for life.

On appeal, defendant raises the following arguments:

POINT I

THE TRIAL COURT COMMITTED PLAIN ERROR AND DEPRIVED THE DEFENDANT OF A FAIR TRIAL BY PERMITTING THE TRIAL PROSECUTOR TO ADMINISTER TO HIS WITNESS AN OATH TO TELL THE TRUTH (NOT RAISED BELOW)

POINT II

THE PROSECUTOR'S USE OF B.E. DURING THE TRIAL PROVOKED SUCH UNDUE SYMPATHY FOR HER AND SUCH ANTIPATHY FOR THE DEFENDANT THAT THE TRUTH FINDING FUNCTION OF THE JURY WAS DISTORTED (RAISED IN PART BELOW)

POINT III

THE COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR BY PERMITTING MS. PATEL TO SIT NEXT TO B.E. DURING HER IN-COURT TESTIMONY

POINT IV

THE COURT ERRED IN ADMITTING B.E.'S "TENDER YEARS" HEARSAY STATEMENT MADE TO INVESTIGATOR GREGORY BECAUSE THE INVESTIGATIVE TECHNIQUES EMPLOYED RENDERED THE STATEMENT UNRELIABLE

POINT V

DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL AT THE CONCLUSION OF THE STATE'S CASE ON THE CHARGE OF AGGRAVATED SEXUAL ASSAULT UPON B.E. BY ANAL PENETRATION ON COUNT TWO SHOULD HAVE BEEN GRANTED

POINT VI

THE IMPOSITION OF AN AGGREGATE SENTENCE OF TWENTY-FIVE (25) YEARS WITH NINE (9) YEARS OF PAROLE INELIGIBILITY WAS EXCESSIVE AND WAS AN ABUSE OF THE COURT'S DISCRETION

(A)

THE COURT ABUSED ITS DISCRETION BY IMPOSING SENTENCES ON DEFENDANT'S CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT (COUNTS ONE AND TWO) AND SEXUAL ASSAULT (COUNT THREE) THAT WERE IN EXCESS OF THE PRESUMPTIVE SENTENCES

(B)

DEFENDANT'S CONVICTION FOR SEXUAL ASSAULT (COUNT THREE) SHOULD HAVE BEEN MERGED INTO DEFENDANT'S CONVICTIONS FOR AGGRAVATED SEXUAL ASSAULT (COUNTS ONE AND TWO)

(C)

IMPOSING NINE (9) YEARS OF PAROLE INELIGIBILITY ON DEFENDANT'S CONVICTION FOR AGGRAVATED SEXUAL ASSAULT WAS EXCESSIVE AND AN ABUSE OF THE COURT'S DISCRETION

(D)

THE COURT ABUSED ITS DISCRETION BY RUNNING THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION FOR ENDANGERING (COUNT FOUR) CONSECUTIVE TO DEFENDANT'S CONVICTIONS FOR ...


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