On appeal from Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 02-10-1330.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 8, 2008
Before Judges Lisa, Sapp-Peterson, and Alvarez.
Found guilty by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), defendant Carlos Rivera appeals his conviction and his resulting seven-year sentence. We affirm.
Defendant was convicted of both counts of Passaic County Grand Jury Indictment No. 02-10-1330. The trial court found that defendant committed the offenses prior to the amendment to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, effective on June 29, 2001, which made the sexual assault of a minor a predicate offense. The court, therefore, did not sentence defendant to a NERA term of parole ineligibility or parole supervision. The sentence was imposed subject to Megan's Law, N.J.S.A. 2C:7-1 to -21, and appropriate fines and penalties were assessed. The court also conducted pre-trial hearings on the admissibility of various hearsay statements, which included a videotape of the child and the testimony of the child's mother, both admitted pursuant to N.J.R.E. 803(c)(27).
C.S., born July 9, 1997, attended a pre-school/daycare in Paterson five days a week beginning when he was three and one-half years old. Defendant was hired as a substitute classroom aide at the pre-school in September 2000, was later promoted to a teacher's aide, and then to an assistant teacher.
Eileen Biamonte was the lead teacher for the four-year old students when, in September 2001, C.S. joined the class.
Initially, Biamonte's aide was a "Ms. Roselda," but Biamonte requested that defendant replace her because Biamonte believed that the classroom would benefit from a more experienced individual. Biamonte had previously worked with defendant for seven or eight months.
Since his arrival at the school, teachers at the school circulated rumors about defendant's allegedly inappropriate conduct with the children, such as rubbing students' backs as they fell asleep at naptime. Because of these rumors, Maryann Mirko, the chief executive officer of the corporation that ran the pre-school, advised defendant to protect himself by making sure that any physical contact he had with the children was in the full view of others. According to Mirko, classroom cots were placed so that they would be visible from classroom windows.
In late June 2002, Mildred Worth replaced Biamonte. During Worth's lunch break, the children would nap and defendant was left in charge of the classroom. According to Worth, C.S.'s cot was placed along an outer wall of the classroom in a somewhat isolated location. Although the classroom interior was visible from windows that could be viewed from a hallway and another classroom, C.S.'s cot could not be readily observed.
Worth also testified that defendant and C.S. were inseparable. On one particular day, she noticed that after "water play," defendant rubbed moisturizing lotion on C.S.'s legs. A few days later, she saw defendant wiping between C.S.'s toes with some cotton balls. She did not see defendant engage in this behavior with any other child. Worth also thought that she saw defendant looking down at C.S.'s body at a time when his bathing suit was pulled away. Worth was so concerned by her observations that she contacted Adrianne Fulcher, the director of the pre-school, and Mirko, to complain. She was asked to put the concerns in writing.
Mirko testified that when she attempted to discuss these concerns with Worth, Worth was in the midst of medical problems that caused her to be in and out of the hospital and, therefore, inaccessible. In addition, Mirko claimed to be on the verge of firing Worth because of her extended absences and because she was "an angry person" and "wasn't credible." Worth spent only eight to twelve days in the classroom with defendant before leaving the school.
V.M., C.S.'s grandmother, who frequently took the child to school, disapproved of defendant's showing C.S. "too much attention." She also objected to C.S. being allowed to play with dolls. The grandmother complained to Fulcher that defendant held C.S.'s hand when the class went for walks, that defendant rubbed the child's back before he went to sleep, and that he was not an appropriate male role model for the children. Because the grandmother was not the only person who expressed concerns about defendant's conduct, Fulcher began to observe the classroom more closely.
In June and July 2002, defendant called C.S.'s mother, L.M., on four occasions because C.S. was having tantrums at naptime. After the last of the phone calls, L.M. picked C.S. up early from school and asked her child why he was misbehaving.
C.S. said that he did not want to be in school.
During this same time frame, L.M. witnessed a nine-year-old neighborhood boy being sexually inappropriate with C.S. and reported this to police. C.S. was taken to the county Child Advocacy Center, where he was interviewed about the incident by Francine Raguso, a child interview specialist. C.S. did not mention defendant ...