On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 99-08-1429C.
The opinion of the court was delivered by: Grall, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 12, 2006
Before Judges Skillman, Holston Jr. and Grall.
Defendant Hector A. Velasquez appeals from a final judgment of conviction and sentence. The State cross appeals and contends that defendant's sentence is illegal.
For reasons stated in Part I of this decision, we conclude that defendant was improperly burdened with an adverse inference based upon his failure to produce a witness. We hold that before authorizing this adverse inference against a defendant in a criminal trial, a court must evaluate the importance of the expected testimony in light of the State's burden of persuasion and any defense asserted. We also hold that unless a defendant in a criminal case has injected an issue such as an alibi or asserted a separate defense, the inference should not be authorized. Finally, we hold that when a court instructs the jury that it may draw the adverse inference, the court must explain its limited significance.
In Part II of this decision, we consider whether a defendant may be sentenced to an extended term for sexual assault or criminal sexual contact, pursuant to N.J.S.A. 2C:44-3g, if the indictment does not allege the facts essential to imposition of that term. We conclude that the indictment must allege the factual predicates.
The grand jurors for Atlantic County returned a nine-count indictment charging defendant with crimes against K.T. and C.M. The grand jurors alleged that the crimes were committed in June 1999, when K.T. was twelve years old, C.M. was fifteen and defendant was twenty-nine. Tried to a jury, defendant was convicted of the following crimes against K.T.: first-degree aggravated sexual assault involving penetration of a child under the age of thirteen, N.J.S.A. 2C:14-2a(1) (count one); sexual assault by sexual contact with a child under the age of thirteen, N.J.S.A. 2C:14-2b (count two); second-degree endangering, N.J.S.A. 2C:24-4a (count three); fourth-degree child abuse, N.J.S.A. 9:6-3 (count four); fourth-degree sexual contact involving physical force or coercion, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1) (count five). In addition, defendant was convicted of the following crimes against C.M.: second-degree sexual assault involving sexual penetration of a child who is at least thirteen but younger than sixteen by a person at least four years older than the child, N.J.S.A. 2C:14-2c(4) (count six); fourth-degree child abuse, N.J.S.A. 9:6-3 (count seven); third-degree endangering, N.J.S.A. 2C:24-4a (count eight), and fourth-degree criminal sexual contact involving physical force or coercion, N.J.S.A. 2C:14-3b and N.J.S.A. 2C:14-2c(1) (count nine). Following his conviction, defendant was evaluated and found ineligible for sentencing as a repetitive and compulsive sex offender pursuant to N.J.S.A. 2C:47-1 to -3.
Defendant's motion for a new trial was denied. The court granted the State's motion for extended terms of incarceration for aggravated sexual assault and sexual assault, pursuant to N.J.S.A. 2C:44-3g, and terms of parole ineligibility and parole supervision in accordance with the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2 (as adopted by L. 1997, c. 117, § 2).
The judge merged defendant's convictions for all crimes against K.T. into his conviction for first-degree aggravated sexual assault and his convictions for all crimes against C.M. into his conviction for second-degree sexual assault. The judge sentenced defendant to an extended term of twenty years for first-degree aggravated sexual assault and a consecutive term of ten years for second-degree sexual assault. Both sentences include NERA terms of parole ineligibility and parole supervision. The judge also imposed a term of community supervision and notified defendant of his obligations to register as a sex offender as required by N.J.S.A. 2C:43-6.4. See N.J.S.A. 2C:7-1 to -11. In addition, the judge assessed appropriate fines, assessments and monetary penalties and required defendant to submit to DNA testing. Defendant filed a notice of appeal in April 2002; the appeal was dismissed on December 2, 2004, and reinstated on April 14, 2005.
Prior to 1997, K.T. lived with her brother and mother, L.E., in New York. L.E.'s mother, her sister, Marta, and Marta's husband lived in the same neighborhood. In late 1996 or early 1997, L.E. moved to Atlantic County to work in a casino. K.T. stayed in New York with her mother's family. In 1997, after L.E. had been away for about one year, K.T. joined her mother in Atlantic County. In October 1997 L.E. gave birth to K.V., who is defendant's child.
L.E. believed in the spiritual world. She talked to K.T. about her beliefs. When they lived in New York, L.E. took K.T. with her when she met with others of the same faith. In 1999 K.T. believed that "saints," who are deceased persons, enter the bodies of living persons who have a "gift." These saints know the future and the problems of the "gifted" ones they inhabit and can help the "gifted" with anything.
In June 1999 K.T. was twelve years old and about to complete the sixth grade. Defendant was twenty-nine and working in a casino in Atlantic City. He lived with L.E. and her family at times and at other times with another woman and their child.
According to K.T., defendant had "sex" with her five times, or fewer, in June 1999. They did "it" on the floor of her mother's bedroom when she was not at home. Defendant put material over K.T.'s eyes. When K.T. cried because "it" hurt, defendant told her to breath in and out. Using slang, K.T. explained what she meant; defendant penetrated her, withdrew, ejaculated on her body and rubbed the "white sticky" discharge, which he said was a "blessing," on her belly. He also touched her breasts. K.T. did "it" because something bad would happen to her or her little sister if she did not.
C.M. is the older sister of one of K.T.'s friends and classmates. According to C.M., defendant had intercourse with her in June 1999, when she was fifteen years old. She went to K.T.'s house because she believed that defendant could do something to prevent her family from sending her back to the Dominican Republic. Defendant was in L.E.'s bedroom. Someone, C.M. could not recall who, gave her something to drink. Defendant told K.T. and K.V. to leave the room, and he closed the door behind them. At defendant's direction, C.M. wrote something in a book. After she did that, defendant took liquid and leaves and put them around her body. He also cut a piece of her hair and put the lock into a white towel. He told C.M. to take her clothes off. When she took off some but not all of her clothing, defendant told her that they "had to finish what [they] had started, and if not, something was going to happen."
C.M. did not know whether defendant meant something would happen to her or someone in her family. She removed the rest of her clothing. Defendant disrobed, tied material around her eyes and told her to lie on the floor. He attempted to penetrate her, but she pushed him away. Defendant persisted, penetrated her, withdrew and ejaculated into the towel after rubbing himself.
Defendant warned C.M. that if she told anyone about what they had done something bad would happen. C.M. did not tell K.T. and could not recall whether she told her sister.
On July 12, 1999, K.T. told her mother about "Neto," defendant's dead uncle who lived inside of him. L.E. called the police, and they interviewed K.T. K.T.'s statement, which consisted of questions asked and answers given, was typed. K.T. and L.E. signed K.T.'s statement. The account of defendant's sexual conduct with K.T. that is set forth above is based on that statement. K.T. also gave the police C.M.'s name.
When asked why she told her mother about defendant and Neto on July 12 and not before, K.T. said that she saw defendant that day and he told her that she must see him on July 13. He said that "dead people do bad things" on the thirteenth. He also threatened to show L.E. a paper on which K.T. had written something about a boy she liked.
On the night of July 12, L.E. called her sister Marta. Marta and her husband left New York and drove to L.E.'s home in Atlantic County. They arrived just after midnight. Marta had never seen her sister more upset. She and her husband stayed with L.E. and her children that night.
On the morning of July 13, Marta saw defendant pass in front of L.E.'s home and enter the house through a side window.
L.E. was upstairs. Marta's husband told defendant he should not be in the house. In response, defendant declared that K.T. was lying. He said he had three daughters and had not and would not do the things that K.T. said he had done. L.E. did not go downstairs to speak to defendant; she threw his boots to him.
Defendant helped himself to an orange, which he cut and ate in the kitchen. Marta was in the kitchen. Although defendant did not point the knife at her or speak to her, Marta felt threatened. Defendant left.
Later that day, C.M. accompanied the police to L.E.'s home. They recovered a bottle that contained liquid and leaves. According to C.M., the bottle looked like the one defendant used when she was in the room with him.
On that same day, L.E. and Marta took K.T. to the emergency room. An external examination and testing for pregnancy and venereal disease disclosed nothing other than a minor abrasion, which the doctor concluded could have been caused by anything, including K.T.'s clothing. A member of the emergency room staff, who testified at the request of the defense, described L.E. as supportive of her daughter and concerned about the implications of K.T.'s accusation for K.T.'s future and her own.
Ten days later, Dr. Lowen, who examines and treats children who are suspected victims of abuse, examined K.T. Using a Q-tip to permit her to view K.T.'s hymen, rather than a speculum which would permit her to see farther into the child's vagina and cervix, Dr. Lowen observed three well-healed transections. A portion of Dr. Lowen's examination was recorded on camera. The doctor inadvertently turned off the instrument before she observed the transections. As a consequence, images of the transections were not preserved. In the doctor's opinion, the transections were indicative of penetrating vaginal trauma that was caused by either a straddle injury or sexual activity.
Defendant's expert, Dr. Papperman, criticized Dr. Lowen for failing to record the transections. In Dr. Papperman's opinion, the location of the transections reported by Dr. Lowen was not consistent with the sexual activity K.T. had described. Dr. Papperman also found fault with Dr. Lowen's decision to use a Qtip rather than a speculum to facilitate the internal examination. He contended that it was possible that an examination that permitted observation farther into the child's vagina could have permitted a doctor to rule out intercourse based upon the size of the passage.
Defendant's trial commenced on September 18, 2001. C.M. testified, and her testimony is summarized above. K.T. also testified. She acknowledged that she had said all of the things that were included in the July 12, 1999 statement she gave the police, but she asserted that her statement was a lie. Because of K.T.'s recantation, her July 12 statement was read to the jury.
Evidence concerning the events between K.T.'s initial allegation and her testimony at trial was adduced as relevant to the reasons for K.T.'s recantation. A description of that evidence follows.
After the initial investigation, L.E. took K.T. to New York to live with her sister Marta and Marta's husband. L.E. returned to Atlantic County and her job. K.T.'s aunt and uncle treated her well, talked to her and ate dinner with her - "like a family."
In December 1999 L.E. contacted the office of defendant's attorney. Although L.E. was not a client, the attorney's legal assistant spoke to her as many as ten to fifteen ...