On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment Nos. 03-10-1075; 05-11-1223.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff, Fisher and Baxter.
A jury found defendant guilty of three offenses: first degree aggravated sexual assault, second degree sexual assault, and second degree endangering the welfare of a child. The victim was the daughter of defendant's paramour. After her initial disclosures, the victim recanted. The trial judge allowed the State to call defendant's initially-retained attorney to explain the circumstances of a recorded interview with the victim at her home. We hold that the trial judge did not err in allowing the State to call defendant's initial attorney as a witness, and that a series of questions posed by the State to the victim, the initially-retained attorney, and the private investigator did not compromise the attorney-client privilege.
Between 1998 and 2001, Anna*fn1 lived in a series of apartments with her mother, her brother, and defendant. At times, defendant's father and two sons lived with them. When defendant's wife arrived from the Dominican Republic, defendant lived with her and their sons but maintained his romantic relationship with Anna's mother. During this period of time, Anna was between five and eleven years old.
In mid-June 2003, Anna disclosed to her mother that defendant had sexually abused her over the course of two years. She informed her mother that defendant touched her, performed oral sex and had her perform oral sex, and had her watch a pornographic movie. All of these acts occurred while her mother worked, her brother was visiting his father, and defendant was watching her in her mother's absence. Anna explained that she did not inform her mother earlier because defendant had told her that if she told her mother or anyone else, her mother would be incarcerated and she would not see her brother ever again. Anna was between nine and eleven years old when defendant sexually assaulted her.
The day following the disclosure, Anna's mother took her to the prosecutor's office. Anna gave a statement, she received a medical examination, and the Division of Youth and Family Services (DYFS) commenced an investigation. Over the next six weeks, her home was in tumult. Her mother cried all of the time. She was overwhelmed by the realization that defendant had assaulted her daughter, that her daughter had been a sexual assault victim, and that she might lose custody of her daughter. At the end of July 2003, Anna told her mother that her accusation was false. At trial she testified that she just wanted to stop feeling anxious and to stop her mother's crying.
Anna's mother called defendant the next day. He, in turn called his attorney and arranged for Anna and her mother to talk to his attorney. In August, defendant drove Anna and her mother to the office of his attorney, Rodrigo Sanchez. When they arrived, Sanchez had arranged for two attorneys with whom he shared space to speak to Anna. They did. Neither Sanchez nor defendant were present at this interview. Defendant drove Anna and her mother home after the interview.
The attorneys advised Sanchez that Anna informed them that her accusations were not true. Neither attorney took notes of this interview nor made a videotape or tape recording of the interview. Therefore, Sanchez arranged for a private investigator to meet him at Anna's home to conduct an interview with the girl.
On August 6 or 7, Sanchez arrived at Anna's home before Maria Palumbo, the private investigator. Initially, Sanchez waited for her on the porch but then entered the house. Anna's mother escorted him into a living room where he sat with Anna and her mother while they awaited Palumbo's arrival. Sanchez admitted he was alone in the living room with Anna for a matter of minutes. According to Sanchez, he asked Anna's mother for a glass of water, she left the room and returned in minutes with the water. Anna testified that she was alone with Sanchez for almost an hour.
According to Anna, Sanchez told her during this time that defendant would go to jail for twenty years and that defendant missed her, loved her, did not want to go away, and was sorry.
The questions posed by the prosecutor and Anna's responses follow:
Q: And when he talked to you alone, did he tell you anything?
A: He told me -- he ask me if I still love [defendant].
Q: What did you tell him?
A: Then he told me that if I don't want to see him go away, to tell the prosecutor I was lying and that ...