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State v. J.I.

December 18, 2008


On appeal from Superior Court of New Jersey, Law Division, Union County, No. 03-07-635I.

Per curiam.



Submitted September 29, 2008

Before Judges Wefing, Parker and LeWinn.

Tried to a jury, defendant was convicted of one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), a crime of the first degree; one count of sexual assault, N.J.S.A. 2C:14-2(b), a crime of the second degree; and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4(a), a crime of the second degree. At sentencing, the trial court merged the second-degree sexual assault conviction into the first-degree aggravated sexual assault conviction and sentenced defendant to fifteen years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2. It also sentenced defendant to a consecutive seven-year term, with no period of parole ineligibility, for the endangering conviction. Fines and penalties were assessed, and defendant was directed to comply with the provisions of Megan's Law. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant's victim was his daughter V. In March 2003, when V. was five years old, she was watching television with her grandmother, Z. Z. thought the program had sexual content that was inappropriate for a child, and she reached for the remote control to change the channel. V. stopped her and told her grandmother not to change the channel, adding, "My daddy does that to me." Z. questioned her granddaughter, and V. explained in detail her father's conduct towards her. When V.'s mother S. (Z.'s daughter) returned, Z. told her what V. had told Z. S. questioned her daughter, and V. explained what her father had done.

V. had been born in New Jersey, and sometime after her birth the family had moved to Florida and then to Georgia, before returning to New Jersey. In telling her mother what had happened, V. distinguished between incidents which had occurred "in the big house," that is, in Georgia, and those which had occurred in "the new house," that is, in New Jersey. At the time she revealed the abuse, V.'s parents were separated and S., V., her sister T. and her half-brother C. were all living with S.'s sister's family, and Z., in Elizabeth.

The following day, V., her mother and her grandmother went to the police and reported what had occurred. V. was interviewed on videotape by Detective Mary McKinlay of the Child Advocacy Center of the prosecutor's office. She repeated what she had told her grandmother and mother and, using anatomically correct dolls, demonstrated what defendant had done to her.

In June 2003 V. was again interviewed on videotape. The purpose of this second interview was to clarify the time frame of when the abusive acts occurred and where they occurred. V. could not provide an address but did identify pictures of the house in Georgia and the house in New Jersey in which she was abused.

In July 2003 defendant was indicted for one count each of aggravated sexual assault, sexual assault and endangering the welfare of a child. The indictment placed the acts as having occurred between June 3, 2002, and February 17, 2003, in Elizabeth. Defendant was released on bail, one of the conditions of which was that he have no contact with V.

Some time after V. reported this abuse, S. moved the family from Z.'s home in Elizabeth to another residence in Roselle, which had been purchased by S.'s sister. S. also permitted defendant to return to the family, contrary to one of the conditions of his bail. S. also told the children not to tell anyone that defendant was living there. If anyone visited, defendant would hide.

Defendant and S. pressured V. to recant her allegations.

S. repeatedly told V. that she had to say that defendant had not done anything to her "because then we're gonna to lose daddy." Eventually, S. took V. to the prosecutor's office where she was again interviewed on videotape. This time, V. told the detectives that her previous statement had been a lie, that defendant had not done anything to her and that she had dreamt everything.

Z. was suspicious that defendant had returned to the family because S. would not permit Z. to visit. In July 2004, she asked her own sister to drive her to the house in Roselle, picking a day when she knew S. would not be home. She took with her the key to the house and a camera. She approached the house, leaving her sister in the car with the camera. She put the key in the door when defendant opened it. He walked out and Z.'s sister snapped a series of pictures of him leaving.

V. and her sister were in the house and told Z. they were scheduled to return to Georgia in three days. Z. and her sister took the children to the nearest office of the Division of Youth and Family Services ("DYFS") and explained the situation. As a result of DYFS's involvement, custody of V. and T. was transferred to Z. Defendant, S. and C. moved to Georgia.

After several months in Georgia, S. evidently had second thoughts about what she had done to her daughter. She returned to New Jersey and went to the prosecutor's office. She said she had lied about V. recanting her allegations and admitted that V. had always maintained that defendant had abused her.

During the course of the trial, V., who was then seven years old, testified to abuse at the hands of defendant that had occurred in Georgia as well as in New Jersey. Defendant objected to this testimony as inadmissible under N.J.R.E. 404(b). The trial court admitted it as res gestae. As we ...

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