On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-03-0247.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: February 14, 2008
Before Judges Cuff, Lisa and Simonelli.
A jury found defendant R.C. guilty of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Count One); second degree sexual assault, N.J.S.A. 2C:14-2b (Count Two); and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three). Defendant was sentenced to a fifteen-year term of imprisonment on Count One, a concurrent five-year term of imprisonment subject to an 85% NERA*fn1 parole ineligibility term on Count Two, and a concurrent four-year term of imprisonment on Count Three. The appropriate assessments and penalties were also imposed.
The victim was defendant's niece, D.R. At the time of the acts giving rise to defendant's conviction, D.R. was seven to nine years old. Defendant's wife is the sister of D.R.'s mother. Both families lived in the same town.
D.R. lived with her mother, stepfather, two sisters and a brother in a small apartment. One evening after her stepfather and siblings had left the dinner table, D.R. disclosed her uncle's actions to her mother. Just before she made her disclosure, D.R. and her mother had been discussing her upcoming First Communion.
E.B., D.R.'s mother, recalled having a conversation with D.R. on October 7, 2002. During their conversation about the upcoming Communion ceremony, D.R. asked E.B. whether she had to say everything because God obviously knew good and bad. Then D.R. asked her mother why defendant turns his head to kiss D.R. on the lips when D.R. wants to kiss him on the cheek. E.B. was concerned, so she asked D.R. additional questions. At this point in the conversation, E.B. testified that D.R. was nervous, frightened, and crying.
E.B. asked D.R. whether defendant had ever touched her private parts and D.R. answered affirmatively. D.R. proceeded to tell her mother that she had something else to tell her, but it was something very ugly, and D.R. wanted to know if E.B. would punish her if she disclosed it. After reassuring D.R. that she would not be punished, D.R. told her that defendant had told her to take down her underpants, that defendant had taken down his pants and asked D.R. to touch his private parts. E.B. testified that she did not want to ask D.R. anything else because her daughter was crying. E.B. told D.R. everything would be all right and she put D.R. to bed.
After this conversation, E.B. told her husband of the conversation with D.R. E.B. called her sister, who came over that night. The next morning E.B. went to D.R.'s school to talk to the counselor, who called the prosecutor.
On cross-examination, E.B. admitted that the Division of Youth and Family Services (DYFS) had investigated the family in the past based on an allegation of neglect. E.B. explained that on several occasions three of her children had not been picked up from school because there had been a miscommunication over who was picking them up. She also vehemently denied having a romantic relationship with defendant at anytime.
D.R. was twelve at the time she testified at trial. She was asked whether there are parts of your body which nobody is supposed to touch, and responded, "Your chest, your private part and your behind." She identified defendant as the man who touched those parts on her. D.R. testified that defendant had touched her private part with his hand and with his private part while she was at her aunt's house.
D.R. testified that she was seven or eight when defendant touched her private part. She related, "I was sleeping. My aunt was at work. It was night, and I was laying on one side of the bed, he was laying on the other, and then -- then that's when it happened. It was night." D.R. testified that this occurred once, but she did not remember whether he touched her over or under her clothes.
D.R. was eight or nine when defendant touched her private with his private. D.R. testified that she had been sleeping on one side of the bed and defendant was sleeping on the other side of the bed. Then D.R. felt defendant moving and then "he turned around and his private part went in mine." D.R. did not know how defendant's private part got into hers and defendant did not say anything to her at this time. She testified that her clothes were "[u]p to my knees." She also stated that it did not feel good.
D.R. described a third incident stating, "I was playing a game on the computer and then he called me, and I went into the room, and his shorts were down." At this time defendant told D.R. to touch his private part, but she refused to do so. D.R. also testified that she did not like it when defendant's lips touched her, which happened sometimes at night when they were sleeping.
Finally, D.R. testified that she told her mother about these incidents after everyone had finished dinner. D.R. testified that she had asked her mother a question and her mother had asked why she was asking that question. D.R. went into the bathroom after that and when she came out she was crying. Her mother wanted to know why she was crying and D.R. proceeded to tell her mother everything. When she was asked why she had ...