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State v. Marquez

May 26, 2009


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 99-05-1619.

Per curiam.



Submitted March 5, 2009

Before Judges Carchman and Sabatino.

Following a jury trial, defendant Angelo Marquez was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a; second-degree sexual assault, N.J.S.A. 2C:14-2c; and third-degree endangering the welfare of a child, N.J.S.A. 2C:24- 4a.

On September 28, 2001, Judge Lario sentenced defendant to an aggregate term of twenty-four years with twelve years of parole ineligibility to be served at the Adult Diagnostic and Treatment Center at Avenel, together with applicable fines and penalties. Defendant was also sentenced to lifetime supervision, N.J.S.A. 2C:43-6.4, and was required to register as a sex offender, N.J.S.A. 2C:7-1 ("Megan's Law").

We affirmed defendant's convictions, and the Supreme Court denied defendant's petition for certification. See State v. Marquez, No. A-4078-01T4 (App. Div. Feb. 4, 2004) (slip. op. at 8), certif. denied, 180 N.J. 357 (2004). On June 29, 2005 defendant filed a motion for post-conviction relief (PCR). Following argument, the PCR was denied. This appeal followed. We restate the facts as we described them in our earlier opinion:

The convictions were premised upon the State's evidence from which the jury obviously found that defendant sexually molested M.O., the daughter of his girlfriend, from the time she was ten years old until she was sixteen. We need not recite all of the details. Suffice it to say that the evidence showed that M.O. first met defendant when she was nine years old after she, her sister and her mother moved into an apartment in Camden. Defendant lived in the apartment above theirs and was a friend of M.O.'s mother. He spent time with the family and sometimes took care of M.O., taking her to the movies and other events. The incidents of molestation began in July 1992 and occurred once or twice a month. They involved fondling and intercourse and occurred either in the apartments or at defendant's place of work, a jewelry store. They continued until M.O. ran away from home when she was sixteen.

Over the years, M.O.'s appearance and behavior deteriorated. As a result of her behavior, M.O. began attending the Alternative School, a school for children with behavioral problems. There she met Priscilla Sanchez, a student mentor, to whom she revealed in early 1997 that she was being abused. She, however, did not then disclose the details or the abuser because she was afraid Sanchez would tell her mother and her mother "would have got in trouble or something." Through Sanchez, however, M.O. met Reverend Yvonne Martinez, to whom, in April 1998, she fully revealed the sexual molestations by defendant. At Martinez's suggestion, M.O. then told her mother, who did not believe her. M.O. attempted suicide as a result of which she was in a hospital and then a crisis center. Thereafter, she stayed with Martinez for a while and unsuccessfully tried moving back with her mother. Her mother eventually took her to the police. She was then placed in several counseling facilities, encountered DYFS' involvement and, at the time of trial, was staying with the Sanchez family.

Throughout these events, M.O. spoke with many different people from DYFS, the Prosecutor's Office and the police. She acknowledged during the trial she may have told different versions of the abuses. She also admitted withholding details and lying to the police. Further, the specific details of the sexual abuses varied. However, her trial testimony that they occurred did not waiver. She was, moreover, able to fully describe a birth mark on defendant's upper thigh that could only be seen when defendant was wearing his underwear. In fact, defendant has such a birth mark.

Evidence supporting M.O.'s claims came from a pediatrician who has specialized in the field of child abuse for twenty years. After examining M.O., the doctor concluded that although he found no physical evidence to indicate sexual assault, the size of M.O.'s vaginal opening was consistent with having had intercourse with an adult male because it was larger than many children her age. He saw no significance in the lack of physical injury upon examination since most individuals who experience sexual contact do not actually suffer from any injuries associated with intercourse. But he related M.O.'s complaints of burning upon urination after molestation, and opined that they were consistent with disurea, an irritation caused to the tissues of the genitalia.

The jury also heard from a clinical child psychologist regarding the "Child Abuse Accommodation Syndrome" (Syndrome). She explained that there are five parts to the Syndrome - secrecy, helplessness, entrapment, accommodation, and recantation or retraction. The Syndrome explained much of M.O.'s behavior. The expert stressed, however, that the Syndrome was not a diagnostic tool and that not every abused child exhibits all five traits. Further, she correctly told the jury that the five traits should not be considered a checklist to determine whether ...

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