On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 05-11-1630.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 24, 2009
Before Judges Grall and Ashrafi.
Defendant Juan Paulino appeals from a final judgment of conviction and sentence. The grand jurors alleged that the conduct charged in each of the six counts of the indictment occurred between February 1, 2002 and July 8, 2004, in the home of the victim, A.B. Judgment of acquittal on counts five and six was entered at the close of the State's case, but the jury found defendant guilty of two counts of first-degree aggravated assault by penetration of a child under the age of thirteen, N.J.S.A. 2C:14-2a(1) (counts one and three), and two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two and four). After merging the convictions, the judge imposed sentence on counts one and three - concurrent eighteen-year terms of imprisonment subject to parole ineligibility and parole supervision terms required by the No Early Release Act, N.J.S.A. 2C:43-7.2.
For the reasons set forth below, we affirm the convictions but remand for correction of the judgment of conviction, which misstates defendant's convictions and includes monetary assessments for the convictions that were merged.
In February 2002, A.B. and her mother J.B. moved to an apartment in West New York. A.B. was three years old at the time. They shared the apartment with A.S., a friend of defendant. Defendant was their landlord, and he is thirty years older than A.B.
J.B. considered defendant a friend. He visited her home once or twice a week, and he played with A.B. and read her stories in her bedroom. In J.B.'s view, defendant and A.B. also had a friendly relationship. The child had never exhibited fear in defendant's presence and, on occasion, asked whether defendant was coming to visit. Although J.B. said she never left defendant alone with A.B., once, when she was doing laundry in the basement, she left A.B. there with defendant while she went upstairs to get something. And, when defendant read stories to A.B. in her bedroom, J.B. watched television in the living room.
On July 8, 2004, just after J.B. came home from work, A.B. announced that "Juan touched [her] butt." J.B., who had been intimate with defendant, did not report A.B.'s complaint.
On July 9, 2004, A.B.'s father, R.B., picked the child up from daycare for his scheduled weekend parenting time, which commenced every week on Friday afternoon and ended on Saturday evening. R.B. had to go to work and planned to have A.B. stay at his mother's home that night, as she frequently did. That evening, A.B. and her grandmother, D.M., played cards. During the game, A.B. told her grandmother that "Juan had touched her 'peepee.'" Assuming "Juan" was a child who attended day care with A.B., D.M. asked A.B. if she had told her teacher. A.B. said no and explained that "Juan" was her mother's friend. When D.M asked A.B. if she had told her mother, the child said she had but her mother did not believe her.
A.B.'s grandmother asked what had happened, and A.B. described two incidents. Defendant once took her to a bathroom in the basement, removed her pants and "touched her peepee real hard like he was pushing a button"; he did the same thing when he was reading to her in her bedroom.
A.B.'s grandfather was not in the room for this conversation, and her grandmother asked the child to tell "poppy." D.M. called J.B., who indicated that she did not believe the child. D.M. then called her son, who left work and went to his mother's home. When R.B. arrived, he assured A.B. that she could tell him anything, and he would not get mad at her. Speaking about "Juan," A.B. told her father that "somebody had touched her."
After listening to A.B., R.B. called J.B. The next day, he asked J.B. for defendant's address, but he did not call the police because he was considering "tak[ing] the law in[to his] own hands." On Sunday July 11, however, R.B. reported his daughter's complaint to the police.
On Monday July 12, Detective Victoria Regal of the Hudson County Prosecutor's Office, Sexual Assault Victim's Unit, interviewed A.B. Although the detective spoke to A.B.'s father and grandmother before interviewing A.B., she did not speak to A.B. until they were in a room equipped for recording images and sound during interviews. The recording was played at trial.
Detective Regal began the interview by asking the child her name and age. The detective turned to a blank easel, drew a picture of the face of a girl and asked A.B. to spell her first name. A.B. said she wanted to draw a picture of her "grandma," but the detective said they would start with A.B.'s house. Drawing while they talked, the detective asked A.B. who lived with her. The child named her grandmothers, her mother and A.S. She said her father lived in Bayonne.
The detective then showed A.B. a drawing of a female child, and as the detective pointed she asked A.B. to name various parts of the anatomy. A.B. identified hair, eyes and mouth but did not know what to call the pubic or anal areas. The detective suggested terms that could be used and asked A.B. to select the ones she wanted to use. A.B. selected "peepee" and "bottom."
As the detective repeated the process with a drawing of a male, A.B. interrupted to tell the detective that she had skipped the "nose" when they were labeling the girl's features.
When asked about touches she liked such as hugs and tickles, A.B. said she liked hugs from Mommy, Grandma and Daddy and being tickled by Daddy. When asked if there were "any places that she did not like to be touched," she said, on her "peepee" and "bottom."
The detective asked A.B. if anyone had ever touched her on her peepee or bottom. A.B. said, "yes." When the detective asked who, A.B. said, "Juan." When asked how many times Juan had touched her peepee, A.B. said "one time" and in the basement bathroom of her house. "Mommy was downstairs washing rags," but "went upstairs for more soap," and "that's when he did that." After "Mommy left," defendant "turned off the lights" and touched her peepee, on her skin, not over her clothes.
A.B. also told the detective that "[defendant] did it again" upstairs in the bedroom, while he was reading her a story and when he finished the story. He touched her "very hard," "went through," and "pushed." Using anatomically correct dolls, A.B. arranged them to show their respective positions in the bathroom and bedroom, and she showed how defendant removed her pants. Although A.B. had selected the word "bottom" to use when shown the drawing, when giving the detective a narrative of what had happened A.B. used the word "butt." She said that defendant had pushed "hard . . . all the way in" and that her mother was home but "watching her show."
A.B. responded "no," when asked if defendant had touched her with any other part of his body, touched her anywhere else or touched her in locations other than the basement bathroom or the bedroom.
As the detective was ending the interview, A.B. interrupted and informed the officer the male doll she had selected was not right. She said, "Juan is not like this, he is white." As she spoke, A.B. walked to the cabinet from which the detective had earlier taken the dolls, selected another and said, Juan "is like him."
The same day, Dr. Pelliccia, a medical doctor with expertise in child abuse, examined A.B. Dr. Pelliccia found a partial transection of A.B.'s hymen, the location of which in the doctor's opinion was consistent with digital penetration.
A.B. testified at trial. While she was unable to provide a date, she recalled what she was wearing on the day that defendant touched her "peepee" in the basement bathroom, which felt "not good," and she testified that her mother was upstairs at the time. A.B. indicated that defendant had read books to her in her bedroom. She did not recall whether defendant did anything else in the bedroom, but she testified that her mother was watching television when she and defendant were in the bedroom. She could not say how she got to the basement, whom she next told about the abuse after telling her mother or what topic her parents argued about when they "fighted." There were no other questions posed by defense counsel to which A.B. could not respond.
R.B.'s testimony about his conversation with A.B. was given over defense counsel's objection. The prosecutor asked R.B. what his conversation with A.B. was about. In response to that objection, the judge told R.B. he could tell the jurors the topic without saying what was said. R.B. said, "The topic is that [A.B.] told me somebody had touched her." Defense counsel objected, and the prosecutor instructed R.B. that he was "just asking who it was about, not what." R.B. responded, "Oh who was it about? It was about a Juan."
Ziomara Perez Betances was the only witness presented by the defense. According to Betances, J.B. told her that she had never left A.B. alone with defendant and that the things others "were saying" could not have happened. Betances acknowledged, however, that J.B. had mentioned that she once left A.B. in the basement with defendant while she went upstairs to get something.
During the State's closing argument, the prosecutor replayed portions of A.B's video-recorded interview with Detective Regal. The deliberating jurors asked the court if they could see again the portion of that video in which A.B. identified parts of the human anatomy; the court arranged for a replay of that segment of the interview in the courtroom.
On appeal defendant's counsel raises the following issues:
I. PERMITTING THE JURY TO HEAR A.B.'S HEARSAY STATEMENTS AS RECOUNTED BY THE FATHER, MOTHER, AND DETECTIVE REGAL, AS WELL AS PERMITTING THE JURY TO VIEW THE VIDEOTAPED INTERVIEW OF THE CHILD THREE TIMES, EXCEEDED N.J.R.E. 803(c)(27) AND VIOLATED DEFENDANT'S RIGHT TO ...