On appeal from Superior Court of New Jersey, Law Division, Morris County, Indictment No. 03-07-0819.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 1, 2007
Before Judges Lintner and Graves.
A jury found defendant, Jeneri E. Arroyo-Hernandez, guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count one), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two). The victim, Kimberly,*fn1 was born on October 8, 1991, and she was twelve years old when she testified on September 15, 2004. Defendant was sentenced to a seven-year prison term on count one, subject to an eighty-five percent parole ineligibility period under the No Early Release Act, N.J.S.A. 2C:43-7.2. On count two, the court imposed a concurrent seven-year prison term.*fn2 Mandatory fines, penalties, and Megan's Law conditions were imposed as well.
On appeal, defendant presents the following arguments:
DEFENDANT-APPELLANT WAS DENIED A FAIR TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL; A REVERSAL IS REQUIRED.
A. COUNSEL SHOULD HAVE MADE A MOTION FOR A NEW TRIAL ARGUING THAT THE JURY VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.
B. DEFENSE COUNSEL FAILED TO OBJECT TO THE PROSECUTOR'S REMARKS DURING HIS SUMMATION WHICH WERE IMPROPER AND DENIED THE DEFENDANT A FAIR TRIAL; A REVERSAL IS WARRANTED.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S APPLICATION FOR A BILL OF PARTICULARS.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR DISCOVERY OF THE PRIOR TOUCHING OF THE VICTIM.
THE TRIAL COURT ERRED IN ITS TREATMENT OF THE FRESH COMPLAINT ISSUE.
IT WAS ERROR FOR THE TRIAL COURT TO DENY DEFENDANT'S MOTION TO ADMIT THE AFFIDAVIT OF THE VICTIM'S GRANDMOTHER INTO EVIDENCE.
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO DISMISS.
THE TRIAL COURT'S INSTRUCTIONS AS A WHOLE WERE IN ERROR (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND SHOULD BE REDUCED.
THE SENTENCE IMPOSED ON THE DEFENDANT IS UNCONSTITUTIONAL IN THAT IT EXCEEDS THE MAXIMUM SENTENCE AUTHORIZED BY THE JURY'S VERDICT.
Having reviewed the entire record, we affirm defendant's convictions, but remand for resentencing on count two.
In 2002, ten-year-old Kimberly resided in a two-bedroom apartment in Gillette with her mother, M.Z., father, E.Z., and infant sister, N.Z. The family had emigrated from Costa Rica in 2000.
On June 22, 2001, defendant, the husband of E.Z.'s niece, Leslie, emigrated from Costa Rica and resided with E.Z. and M.Z. in their apartment. On August 10, 2001, E.Z.'s mother, Rosa, brought Leslie and J.A., defendant and Leslie's three-year-old son, to join the rest of the family at the Gillette apartment. E.Z. and his family occupied one bedroom, while defendant and his family occupied the other.
At trial, Kimberly testified defendant inappropriately touched her four times. On the first occasion, Kimberly and J.A. were jumping on a bed in the apartment while defendant sat on the bed. According to Kimberly, she "was jumping in the bed and I was jumping with [J.A.] And like we were falling in the bed and like standing and then falling. And then like I fell one time and then he just like put his hand and he passed it by and he just pretend[ed] he didn't do it." Kimberly testified she assumed at the time that defendant touched her by accident.
Kimberly testified that during the second incident, she and J.A. were playing in a tent they had set up in the apartment. Kimberly stated defendant "was playing with us, too, and he was just grabbing our legs and all that stuff. And then I like felt it again. He passed his hand by my part again." Kimberly testified defendant also touched her breast and "pretended it was an accident . . . . and I was just like, okay, I'll just take it as an accident."
The third incident occurred on a Saturday after defendant, Kimberly, Leslie, J.A. and E.Z. returned from shopping. While Kimberly and J.A. were playing on the floor of the apartment, Kimberly claimed she "felt [defendant's] hand" once again. The fourth time defendant allegedly touched Kimberly occurred on March 31, 2002, while Kimberly, J.A. and defendant were playing hide-and-go-seek in the apartment. Kimberly testified defendant was searching for her and when he found her, "he started . . . tickling [her] and all that stuff." Kimberly stated, "he put his hand inside my pants this time . . . and he touched my vagina again. And this time I didn't think it was an accident because . . . he did it really clearly." According to Kimberly, defendant touched her for "[a]bout . . . four seconds."
Afterwards, defendant asked Kimberly if she wanted to go to the movies. At that point, Kimberly's father, E.Z., came home and Kimberly "gave him . . . a really big hug because [she] felt . . . really upset." E.Z. later testified that Kimberly's behavior seemed "different" because she does not usually hug and kiss him "[a]nd, all of a sudden, she sat next to [him] and she hugged [him]." At trial, Kimberly stated she asked her father if she could go to the movies and her father agreed. Kimberly testified that, although she "felt upset," she believed that going to the movies would "make [her] feel a little bit better." Despite Kimberly's testimony, her father testified that it was Leslie who asked for permission to take Kimberly to the movies and although Kimberly "did not want to go . . . . [he] insisted that she go." Thereafter, Kimberly went with defendant, Leslie, and J.A. to see the movie "E.T."
When she returned from the movie, Kimberly went to her room to sleep, but began to cry because she "felt like something was wrong." Kimberly's mother, M.Z., asked her what was wrong and Kimberly took her mother to the bathroom because she did not "want anyone to hear it." Kimberly then told her mother what had happened earlier that day. M.Z. relayed Kimberly's allegation to E.Z. who spoke with defendant about the incident. According to E.Z., defendant told him "he was playing with [Kimberly]." E.Z. told defendant he did not believe him, and he told defendant to move out of the apartment immediately. Three days later, Leslie and J.A. left the apartment as well.
M.Z. testified that E.Z. was going to call the police, but she told him not to because she loved J.A. and Leslie and "knew that [they] were going to be very upset and they were going to suffer a great deal." M.Z. stated that approximately four months after defendant and his family left the apartment, Kimberly saw defendant again when he brought E.Z.'s mother over for a visit. According to M.Z., Kimberly "began to be very nervous" and told M.Z. "that she was going to jump out of the window." Thereafter, M.Z. contacted a social worker to see if the social worker "could assign some psychologist to see [Kimberly]" without filing a complaint because M.Z. "was still thinking about Leslie and the little one." However, the social worker told M.Z. she had to file a complaint before they could help her with a psychologist.
On September 20, 2002, M.Z. took her daughter to the Deirdre O'Brien Child Advocacy Center in Morristown where they met with Detective Matthew Potter of the Morris County Prosecutor's Office as well as Investigator Jocelyn Ortiz from the Division of Youth and Family Services (DYFS). Detective Potter and Investigator Ortiz conducted a videotaped interview with Kimberly which was shown to the jury at trial. In the videotaped interview, Kimberly claimed defendant touched her four times. She stated that during the first three incidents she was playing with J.A. when defendant put his hand on her vagina above her clothing. She said that she did not tell her mother or father because she was afraid that they would be angry with ...