February 25, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Ind. No. 03-06-00881.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 11, 2007
Before Judges Yannotti and LeWinn.
On June 27, 2003, defendant was indicted for sexual assault upon S.Z., a child less than thirteen years old (second degree), N.J.S.A. 2C:14-2(b), and for endangering the welfare of a child (third degree), N.J.S.A. 2C:24-4(a). A jury convicted defendant on both charges. Defendant was thereafter sentenced on count one to an extended term of seventeen years with an eight-year parole ineligibility period, and on count two to a concurrent term of five years with a two-and-a-half-year parole ineligibility period. Pursuant to N.J.S.A. 2C:47-1 to -3, defendant was ordered to serve this sentence at the Adult Diagnostic and Treatment Center (ADTC) based upon the court's determination, after a hearing, that defendant's conduct was characterized by a pattern of repetitive and compulsive behavior and he would be amendable to treatment.
Defendant appeals his convictions and sentence, and raises the following arguments:
THE ADMISSION OF THE VIDEOTAPED HEARSAY STATEMENT OF S.Z. CONSTITUTED REVERSIBLE ERROR
ADMISSION OF S.Z.'S HEARSAY STATEMENT ALLEGEDLY MADE TO HIS MOTHER CONSTITUTED REVERSIBLE [ERROR]
THE COURT COMMITTED REVERSIBLE ERROR IN NOT ORDERING A STATE V. MICHAELS TAINT HEARING
THE INDICTMENT SHOULD HAVE BEEN DISMISSED AT THE CLOSE OF THE STATE'S PROOFS FOR FAILURE TO MEET CONSTITUTIONAL NOTICE REQUIREMENTS TO THE DEFENDANT OF CHARGES AGAINST HIM
THE JURY VERDICT CONSTITUTED A MISCARRIAGE OF JUSTICE
THE SENTENCE WAS ILLEGAL AND EXCESSIVE AS THE COURT'S DETERMINATION THAT DEFENDANT WAS A REPETITIVE, COMPULSIVE SEX OFFENDER WAS NOT SUPPORTED BY SUFFICIENT CREDIBLE EVIDENCE, THE COURT VIOLATED DEFENDANT'S SIXTH AMENDMENT RIGHTS IN SENTENCING HIM TO AN EXTENDED TERM
DEFENDANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
For the reasons that follow, we conclude that defendant's arguments are without merit, with the exception of his contention that he is entitled to be re-sentenced pursuant to State v. Pierce, 188 N.J. 155 (2006).
S.Z. is defendant's nephew; his date of birth is February 10, 1992. The charges were based upon S.Z.'s claim that, sometime between February 10, 1997 and February 10, 1998, defendant sexually molested him at the home of defendant's parents in Monroe Township. S.Z.'s parents had recently divorced, and S.Z.'s father (defendant's brother) had court-ordered supervised parenting time with S.Z. and his younger son, R.Z., at the paternal grandparents' home. Defendant lived in Edison at that time, but he would visit his parents' home sometimes when the children were there.
The first time S.Z. made any allegation against defendant was on September 20, 2002, during a conversation with his mother. As a result of that conversation, S.Z.'s mother called the police. On September 25, 2002, S.Z. gave a videotaped statement to Rajesh Chopra, an investigator with the Middlesex County Prosecutor's Office.
Defendant contends that the trial judge erred by admitting S.Z.'s oral statement to his mother as well as his videotaped statement to Rajesh Chopra, an investigator with the Middlesex County Prosecutor's Office. Because we conclude the trial judge properly ruled these statements admissible under N.J.R.E. 803(C)(27), we disagree.
The trial judge held a preliminary hearing on defendant's motion to suppress both of S.Z.'s statements. At that hearing, Chopra testified that, during the videotaped interview, S.Z. told him that he was at his grandparents' home at the time of the incident for supervised parenting time with his father. S.Z. said that defendant did not live there, but he would visit from time to time.
S.Z. told Chopra that, during one such visit, defendant took him into the bathroom and told the child to pull down his pants and underwear. At first S.Z. resisted, but then defendant told him he was a policeman and S.Z. complied. Defendant then started touching S.Z.'s penis and "butt," squeezing them and "putting his hands all over them." S.Z. stated that he felt "kind of grossed out, weird[.]" The incident ended when either his grandmother or his grandfather (he could not recall) knocked on the bathroom door to tell S.Z. his favorite television show was on. At that point, defendant told S.Z. to put his clothes back on.
S.Z. told Chopra this happened only one time. He also told Chopra his father had done similar things to him in the bathroom of the grandparents' home; the first time was when he was two years old.
At the end of the interview, Chopra asked S.Z. if he had made up anything he told him. S.Z. replied: "No. It might be wrong, but it could be right. . . . I kind of remember it pretty unclearly, but it might be wrong." Chopra then asked him, "Well, which one, your uncle or your dad?" S.Z. replied: "I know my uncle did it. I'm seventy-five percent, eighty-five percent that my dad did it. So I'm pretty sure he did it, but like a little bit of me says maybe he didn't[.]" When Chopra asked S.Z. if he was "positive" his uncle molested him, S.Z. replied, "Yes[.]"
The mother then testified that on September 20, 2002, she "sat the boys down to tell them [she] had just found out some information about their uncle." She testified that she had learned the information from an FBI website on the Internet that listed defendant as "wanted" in connection with a federal charge of enticing a minor over the Internet for sexual purposes.*fn1 She told the children that defendant "had a sickness, and it was called pedophilia. And what it meant was that he touched boys inappropriately[.]"
Neither son asked any questions, but S.Z. said, "Mom, I remember something, but I don't know if it's real or not." She replied that he should not "worry if it's real," but just tell her what he remembered and they would "take it from there." S.Z. then described what he remembered occurring in the bathroom of his grandparents' home when he was five years old. When his mother asked him why he did not say anything sooner, S.Z. replied that defendant "said it was called hush-hush and he wasn't allowed to tell."
The trial judge denied defendant's motion to suppress both of S.Z.'s statements. Defendant explicitly conceded the admissibility of S.Z.'s statement to Investigator Chopra at the conclusion of Chopra's testimony in the suppression hearing. However, in his ruling, the trial judge found the two statements to be "pretty much intertwined" and, therefore, addressed his analysis and conclusions to both of them.
The judge rendered a lengthy, comprehensive decision in support of his ruling that both of S.Z.'s statements were admissible under the "tender years" hearsay exception codified at N.J.R.E. 803(c)(27). He expressly addressed the so-called "reliability factors" identified in N.J.R.E. 803(c)(27)(b), finding that "on the basis of the time, content and circumstances of the statement[s] there [was] a probability that the statement[s were] trustworthy[.]" We concur with those findings and conclusions, adding only the following.
Defendant's reliance on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed. 2d 177 (2004), is misplaced. To the extent the Crawford decision partially overruled Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed. 2d 597 (1980), that result does not, as defendant claims, "necessarily render the New Jersey 'tender years' exception unconstitutional on its face." The Crawford Court overruled that part of Roberts which "condition[ed] the admissibility of all hearsay evidence on whether it falls under a 'firmly rooted hearsay exception' or bears 'particularized guarantees of trustworthiness.'"
Crawford, supra, 541 U.S. at 60, 124 S.Ct. at 1369, 158 L.Ed. 2d at 198 (quoting Roberts, supra, 448 U.S. at 66, 100 S.Ct. at 2539, 65 L.Ed. 2d at 608).
The Court rejected such a test because it "allows a jury to hear evidence, untested by the adversary process, based on a mere judicial determination of reliability." Crawford, supra, 541 U.S. at 62, 124 S.Ct. at 1370, 158 L.Ed. 2d at 199. The Court concluded: "Where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is the one the Constitution actually prescribes: confrontation." Id. at 68-69, 124 S.Ct. at 1374, 158 L.Ed. 2d at 203. Therefore, the Sixth Amendment confrontation clause bars admission of testimonial statements of witnesses who do not appear at trial unless they are unavailable to testify at trial and the defendant has had a prior opportunity to cross-examine them.
Recognizing this constitutional imperative, the trial judge here specifically characterized his ruling on the admissibility of the two statements as "a preliminary indication . . . subject to the child's testimony at trial." S.Z. testified at trial and was subject to cross-examination. Defendant thereby exercised his constitutional right to confront and test the reliability of S.Z.'s testimony, including the child's two prior statements.
Thus, the trial court's resolution of this issue was entirely consistent with Crawford v. Washington.
Defendant next argues that the judge erred by failing to conduct a "taint" hearing pursuant to State v. Michaels, 136 N.J. 299 (1994). This argument was not raised at trial and, therefore, must be considered as plain error. The focus thus becomes whether the failure to have such a hearing was "clearly capable of producing an unjust result[.]" R. 2:10-2. The "possibility" that an error led to an unjust result "must be real, one sufficient to raise a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
Defendant received the functional equivalent of a taint hearing through the preliminary hearing on the admissibility of S.Z.'s statements. The two key individuals in whose presence those statements were made testified and were subject to cross-examination. After hearing that testimony and viewing the videotape, the trial judge concluded that S.Z.'s statements were not the product of undue influence, coaching or any other improper element.
In Michaels, supra, 136 N.J. at 309, our Supreme Court identified "factors that can undermine the neutrality of an interview and create undue suggestiveness" regarding a child's statements concerning sexual abuse. Included among such factors are "a lack of investigatory independence, the pursuit by the interviewer of a preconceived notion of what has happened to the child, the use of leading questions, and a lack of control for outside influences on the child's statements, such as previous conversations with parents or peers." Ibid.
These concerns were addressed, directly and conclusively, by the trial judge's rulings on defendant's motion to suppress S.Z.'s statements. The judge found that S.Z.'s statement to his mother was made in their home, and there was "no indication that the boy was placed under any kind of stressful condition. . . . [The mother] didn't badger [him]. She did not compel [him] to provide any information. [S.Z.] simply after hearing his mother describe his uncle's sickness volunteered that this incident had taken place."
Regarding S.Z.'s statement to Chopra, the judge concluded that the child was not "fabricating or making up his story." He found the investigator used open ended questions and appropriately used anatomical drawings.
The judge concluded, with respect to both statements:
And so this is not a case where the Court could ever conclude that either [S.Z.]'s mother or Investigator Chopra could have supplied him with details that he ultimately adopted. And I think that's really the test here, whether this is about what [S.Z.] remembers or whether it's about what some adult has suggested to him. . . . I do not find that his recollection of this incident was so tainted by adult questioning or otherwise tainted that it would suggest that it was unreliable.
These conclusions contain findings as to the specific issue of taint that defendant now raises on appeal. Under the circumstances, we conclude the trial judge adequately addressed the interests implicated in Michaels, namely that a child's statements regarding sexual abuse be closely scrutinized for reliability and freedom from taint. Thus, defendant's argument fails to present an "error or omission . . . clearly capable of producing an unjust result[.]" R. 2:10-2.
We turn to defendant's arguments that the indictment should have been dismissed on motion at the end of the State's case for failure to meet constitutional notice requirements,*fn2 and that the verdict was a miscarriage of justice.
S.Z. testified that he was five years old at the time of the incident. Given his date of birth of February 10, 1992, that testimony put the timeframe directly within the one-year period identified in the indictment. In any event, defendant himself stated that he only visited his parents' home on three occasions during the one-year time period noted in the indictment. Therefore, he was clearly in a position to determine those specific dates in order to ascertain whether any of them coincided with his nephew's presence for supervised parenting time at the paternal grandparents' home.
Moreover, our courts recognize, in cases involving child victims of sexual assaults, that children "cannot recall precise dates or even approximate times the way a normal adult can." State v. K.A.W., 104 N.J. 112, 118 (1986). Because the "precise date on which the offense of sexual assault occurs is not a legal constituent of the crime, the date need not be set forth in the complaint[.]" Id. at 120. In balancing the "competing interests" of the State in prosecuting those who sexually assault children and of a defendant in receiving fair notice, a trial court should consider factors such as "the length of the alleged period of time in relation to the number of individual criminal acts alleged; the passage of time between the alleged period for the crime and defendant's arrest; the duration between the date of the indictment and the alleged offense; and the ability of the victim . . . to particularize the date and time of the alleged transaction or offense."
[Id. at 122 (quoting People v. Morris, 61 N.Y.2d 290, 296, 473 N.Y.S.2d 769, 773, 461 N.E.2d 1256, 1260 (1984)).]
However, our Supreme Court does not "insist on adherence to any particular formula. Rather, what is required is an especially diligent scrutiny of the facts of the incident as they may be disclosed." Ibid.
Here, considering that defendant improperly waited until the end of the State's evidence to bring this motion, the trial judge had the advantage of "scrutin[izing] the facts of the incident" through the testimony of witnesses. Under the totality of circumstances, we cannot say that the judge's ruling on this motion constituted an error "clearly capable of producing an unjust result[.]" R. 2:10-2.
Defendant failed to move for a new trial based on a claim that the verdict was against the weight of the evidence. Therefore, his argument that the jury verdict was a miscarriage of justice is procedurally barred from consideration on appeal.
R. 2:10-1; State v. Saunders, 302 N.J. Super. 509, 524 (App. Div.), certif. denied, 151 N.J. 470 (1997). However, even considering the substance of this claim, we find it without merit. "Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced." State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied 134 N.J. 476 (1993). We find no such evidence in this record.
Defendant argues that the trial court erred in ordering him to serve his sentence at the ADTC, following a so-called "Horne hearing."*fn3 At that hearing the State presented the testimony of Dr. Jeffrey Singer, a licensed psychologist who specializes in conducting evaluations to assist courts in determining whether a convicted sex offender's custodial sentence should be served at the ADTC. N.J.S.A. 2C:47-3(b).
Dr. Singer identified the battery of tests administered to defendant. The doctor stated that the purpose of those tests, which include two self-report questionnaires on sexuality and an objective personality assessment inventory, is "to rule out the possibility that the instant offense was either due to intellectual deficiency, gross neuropsychological organically based impairment or biologically based mental illness such as . . . command hallucinations[.]"
Based upon those tests, along with his interview of defendant and review of his records, Dr. Singer rendered an opinion, within a reasonable degree of psychological certainty, that defendant's "pattern of sexual offending is repetitive and compulsive." Dr. Singer based his opinion as to repetitiveness upon the fact that the instant offense constitutes defendant's fourth conviction for having "inappropriate contact with minor males," and his third conviction "that is explicitly of a sexual nature." Defendant's pre-sentence investigation report bears out these findings.
Dr. Singer's opinion as to compulsivity was based on the fact that defendant had "previously had a course of psychotherapy aimed at avoiding further sex offenses back in 1998 stemming from the endangering the welfare of a child conviction. He [has] had sanctions in the past, and yet in spite of that was unable to avoid situations where he would sexually offend against minors." Dr. Singer also noted that defendant tended to "minimize the sexual element" of his prior offenses; he concluded that defendant "certainly has the psychological resources to benefit from treatment."
At defendant's sentencing hearing, the trial judge rendered his ruling on the "Horne hearing." The judge found that the State had met its burden of proving defendant's eligibility to be sentenced as a sex offender under the statute. The State's burden in these matters is by a preponderance of the evidence. State v. Howard, 110 N.J. 113, 126 (1988).
Defendant's own discussion of the meaning of "repetitive" and "compulsive" supports the trial judge's conclusion. As we recently recognized, these are "common words with meanings that may be well-understood by persons of ordinary intelligence. As such, they provide fair notice to individuals, such as defendant, as to when a court may sentence a defendant to the ADTC[.]" State v. N.G., 381 N.J. Super. 352, 363 (App. Div. 2005). As noted above, Dr. Singer based his conclusion on his review of defendant's prior history and pre-sentence report, his interview with defendant, and the tests he administered.
Therefore, we find completely devoid of merit defendant's argument that Dr. Singer "failed to support his conclusions on reliable evidence [of] generally accepted standards by the relevant community of experts, i.e., psychiatrists and psychologists in this State."
Based on Dr. Singer's uncontradicted expert testimony, we conclude that the record fully supports the judge's decision to require defendant to serve his sentence at the ADTC.
Defendant next argues that he was denied the effective assistance of trial counsel. He points to the following errors and/or omissions as indicia of that claim: (1) the failure to request a "taint hearing" pursuant to State v. Michaels, supra; (2) the failure to conduct an adequate cross-examination of S.Z. and his mother; (3) allowing the jury to hear the mother's testimony that defendant was a pedophile; and (4) the failure to retain an expert to refute the State's motion to have him confined to the ADTC.
We are generally reluctant to entertain ineffective assistance of counsel claims on direct appeal "because such claims involve allegations and evidence that lie outside the trial record." State v. Preciose, 129 N.J. 451, 460 (1992). Only when "the trial itself provides an adequately developed record upon which to evaluate defendant's claims" may an appellate court consider the issue on direct appeal. State v. Castagna, 187 N.J. 293, 313 (2006).
We conclude defendant has raised claims that implicate strategy decisions and other evidence that lie outside this trial record. Therefore, we are unable to give meaningful review and consideration to this issue on direct appeal. Defendant is free to pursue these claims through appropriate post-conviction relief proceedings. R. 3:22-1 to -12.
Finally, we address defendant's claim that he was erroneously sentenced to an extended term. As the State itself concedes, a remand is necessary to afford the trial court the opportunity to re-sentence defendant pursuant to the requirements of State v. Pierce, which was decided after defendant was sentenced in this case, but while his appeal was pending.
In Pierce, the Supreme Court set forth the procedure trial courts must follow upon the State's application to sentence a defendant to an extended term of imprisonment as a persistent offender, pursuant to N.J.S.A. 2C:44-3(a). First, the court must review defendant's record of prior criminal convictions to ensure he is statutorily eligible for such sentencing. If eligible, that defendant is then subject to a range of sentences that "starts at the minimum of the ordinary-term range and ends at the maximum of the extended-term range." 188 N.J. at 169. The court must decide on the appropriate sentence within that range, by finding and weighing the balance of aggravating and mitigating factors.
The trial judge heavily emphasized the need to deter defendant as justification for "a lengthy prison sentence." This factor led the trial judge to impose an extended term of seventeen years on the first count of the indictment. The judge did not consider or address defendant's appropriate sentence within the expanded range available for persistent offenders. Therefore, defendant is entitled to a remand "for reconsideration of the appropriate sentence . . . within the expanded range of sentences available from the bottom of the ordinary-term to the top of the extended-term range." Id. at 171.
We affirm defendant's convictions. We remand this matter for re-sentencing in accordance with State v. Pierce, supra.