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State v. E.M.

May 29, 2007

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



On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 04-07-1374-I.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 14, 2007

Before Judges Lintner and S.L. Reisner.

Defendant E.M.*fn1 appeals from his conviction for second-degree sexual assault, N.J.S.A. 2C:14-2c(4); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and two counts of third-degree endangering the welfare of a child liability for conduct of another, N.J.S.A. 2C:24-4a and N.J.S.A. 2C:2-6. He also appeals from his sentence of eight years in prison.*fn2

I.

These are the most pertinent facts that emerged from the trial testimony. Following a hearing under N.J.R.E. 104, a school guidance counselor was permitted to testify to a fresh complaint made to her by P.B. The counselor testified very briefly that a student, P.B., came into her office crying and upset and told the counselor that she had been sexually assaulted the past weekend. The counselor brought P.B. to speak with a police officer assigned to the school.

Detective Kot, from the county sex assault victim assistance (SAVA) unit, testified that the police investigation focused on defendant E.M. and a co-defendant, M.G. According to Kot, after waiving his Miranda*fn3 rights, E.M. gave police a statement in which he admitted that he and M.G. invited two teenage sisters out to the movies. However, instead of going to the movies, the group wound up drinking alcohol in M.G.'s car and going to a motel room. E.M. told police that while in the car he saw the two sisters, C.M. and P.B., "kissing each other and doing stuff with each other but he told them to stop." E.M. admitted that he rented the motel room for the group. He admitted sitting on a bed with P.B. and "touch[ing] her waist with his hands. That's all." Kot's testimony also established that E.M. was born in 1975 and thus he was twenty-eight years old at the time of the incident in 2003.

In speaking with E.M., the police also learned that the other adult involved in the incident was M.G., who happened to be one of Kot's co-workers in the SAVA unit. She also testified that M.G.'s step-father was an assistant prosecutor who later became her supervisor. According to Kot and Detective Wagner, the Attorney General's Office participated with Wagner, a SAVA investigator, in interviewing M.G., after which the Attorney General took over the handling of the matter, because of the conflict of interest situation. Wagner was cross-examined at length concerning the propriety of the interview of M.G.

According to R.M., the father of one of the victims and the step-father of the other, E.M. was his co-worker and a family friend. On the night of the incident, E.M. called and "told me that he was taking my kids to the movies." R.M. later learned of his daughter and step-daughter's complaint to the police. R.M. admitted that he discussed with the prosecutor the proposed plea bargain with M.G., and was told that "it was a very weak case against [M.G.]" and a plea deal was needed to obtain his testimony against E.M. The prosecutor did not tell him that M.G. was accused of having one of the girls perform fellatio on him. The point of the cross-examination was to demonstrate that the prosecution extended undue favorable treatment to M.G., because of employment and family connections, and that a concerted attempt was made to give M.G. a lenient plea bargain and to place blame on E.M.

Following another N.J.R.E. 104 hearing, P.B.'s older sister, C.B., was permitted to testify briefly to fresh complaint evidence. She testified that on the morning after the alleged incident, P.B., who appeared to be on the verge of tears, told C.B. that she went out the night before with E.M. and that something of a sexual nature had happened between them.

After C.B. testified, the judge advised the jury to bear in mind that the guidance counselor and C.B. had testified as to what P.B. told them but that this testimony was admitted "for a limited purpose" that would be discussed with them in more detail later in the case.

The State also presented testimony from the manager of the Westview Motel, who testified that all customers who register at the motel must show identification. She testified that E.M. signed a registration card when he rented a motel room on November 15, 2003, at 12:41 a.m. She identified his passport number on the card and testified that it was ...


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