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State ex rel D.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 2, 2009

STATE OF NEW JERSEY IN THE INTEREST OF D.M., A JUVENILE.

On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Passaic County, Docket No. FJ-16-207-088.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 14, 2009

Before Judges Rodríguez and Yannotti.

D.M., a fifteen-year-old male, was adjudicated a juvenile delinquent for engaging in conduct, which if committed by an adult would constitute first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1). The judge initially imposed a three-year custodial sentence, however, the judge suspended the custodial sentence and placed D.M. on two years probation, conditioned on counseling, Megan's Law requirements, school attendance, curfew and seventy-five hours of community service. Two months later, after the judge received a violation of probation complaint, the judge imposed a two-year custodial term and vacated the probationary term.

The proofs revealed that on July 14, 2007, D.M. and his five-year-old male cousin, R.G., who refers to D.M. as "DeeDee," were in the latter's apartment. D.M. lives with his mother. D.M.'s mother asked the boys to help carry the groceries to her apartment. Thereafter, D.M.'s mother left the boys watching T.V. and she returned to R.G.'s apartment. D.M. and R.G. remained in D.M.'s bedroom.

From this point their stories diverge. According to D.M., R.G. was on the bed watching a pornographic movie. D.M. turned off the television. R.G. grabbed D.M. by the genitals. D.M. pushed R.G. towards the bed and left to take a shower. After taking a shower, D.M. told R.G. to leave the bedroom. D.M. put on a tank top and shorts. The two boys then left the apartment via the fire escape and D.M. went to a friend's party. D.M. stayed at the party talking to a girl and R.G. returned to the downstairs apartment.

D.M. later went to his cousin's apartment, where he heard R.G. ask his mother if he could go to the party. When the mother answered no, R.G. started crying. D.M. left.

R.G.'s mother testified that when R.G. came downstairs, R.G. asked her if he could take a shower. R.G.'s mother found the request unusual. She asked him why he wanted to take a shower. R.G. stated he wanted to tell his mother two things, "[t]he first thing was R.G. and D.M. watched nasty movies and the second thing was I sucked Dee-Dee's [penis] and Dee-Dee suck[ed] my [penis]."

D.M. returned to R.G.'s apartment and was confronted by his uncle, who asked if something happened with R.G. D.M. asked the uncle what he had done. The uncle hit D.M. and D.M.'s grandmother called the police. The police transported D.M. to the youth detention center.

R.G.'s mother took him to the hospital, where an examination was conducted. The examiner revealed no evidence of penetration.

Prior to trial, the judge conducted an evidentiary hearing, pursuant to N.J.R.E. 104(a) and 803(c)(27), to determine the admissibility of a videotaped statement of R.G., conducted by Passaic County Prosecutor's Child Interview Specialist, Francine Raguso.

Raguso interviewed R.G. two weeks after the alleged incident at the Child Advocacy Center. R.G. was accompanied by his mother. Raguso asked R.G.'s mother to tell him that she would be talking with him and it was really important that he tell her the truth. Raguso testified that she did not ask R.G. if he knew the difference between a truth and a lie because research showed it was not beneficial to interviewing. Raguso also testified that she did not provide any examples of a truth or lie scenario.

The judge found, after hearing Raguso's testimony and reviewing R.G.'s videotaped statements, that the nature of the questioning was not unduly suggestive and R.G.'s statements were spontaneous and consistent. The judge held that R.G.'s videotaped statements possessed the indicia of trustworthiness and R.G. was competent at the time of the hearsay statements. The judge admitted the videotaped statement into evidence.

On appeal, defendant contends:

THE COURT ERRED IN ADMITTING INTO EVIDENCE THE VIDEOTAPED INTERVIEW OF R.G. DURING THE 104[a] HEARING AS IT DID NOT MEET THE THRESHOLD REQUIREMENT OF NEW JERSEY RULE OF EVIDENCE 803(c)(27).

We disagree. The judge's evidentiary decision is reviewed pursuant to the abuse of discretion standard. State v. Erazo, 126 N.J. 112, 131 (1991). We must grant the evidentiary rulings of trial judges substantial deference on review. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000). The decision of the trial court must stand unless it is shown that the trial court's "finding was so wide of the mark that a manifest denial of justice resulted." State v. Carter, 91 N.J. 86, 106 (1982).

The judge's evidentiary decision did not constitute an abuse of discretion. The record at trial provides substantial, credible evidence that R.G.'s videotaped statements met the standards for admissibility as set forth in N.J.R.E. 803(c)(27). The judge determined during the N.J.R.E. 104(a) hearing that Raguso's interview techniques were not unduly suggestive. Moreover, the consistency of R.G.'s answers led the judge to conclude that R.G.'s statements were trustworthy and reliable.

On appeal, defendant also contends:

THE COURT IMPOSED A MANIFESTLY EXCESSIVE SENTENCE.

We disagree.

Here, the judge found one aggravating factor set by N.J.S.A. 2A:4A-44a(1), i.e., (g) the need for deterring the juvenile and others from violating the law. The judge found two mitigating factors set by N.J.S.A. 2A:4A-44a(2), i.e., (h) juvenile has no history of prior delinquency or has led a law-abiding life for a substantial period of time before the commission of the present act; (k) juvenile is likely to respond affirmatively to non-custodial treatment. The judge found mitigating factor (h) despite juvenile's prior disorderly persons offense. In addition, the judge properly recognized that the presumptive custodial term did not apply because D.M. was a juvenile. D.M.'s behavior during his pre-trial psychological review and the seriousness of the offense, however, led the judge to conclude that a non-custodial sentence would be inappropriate.

We are satisfied that the sentence initially imposed here is not manifestly excessive or unduly punitive, does not represent an abuse of the court's sentencing discretion, and does not shock the judicial conscience in light of the seriousness of the offense. State v. Roth, 95 N.J. 363-65 (1984).

On appeal, defendant further contends:

THE COURT VIOLATED D[.]M[.]'S CONSTITUTIONAL RIGHTS UNDER THE FIFTH AND EIGHT AMENDMENTS BY REVOKING THE PROBATIONARY TERM AND RE [-]SENTENCING DM TO CUSTODIAL TERM BASED SOLELY UPON DM'S RELUCTANCE TO ADMIT GUILT.

We disagree.

Subsequent to sentencing, D.M.'s counsel requested permission for D.M. to attend counseling with a provider other than Clearview Psychotherapy. Clearview was willing to provide counseling despite D.M.'s denial of responsibility. The judge accommodated D.M.'s request and approved treatment from a different provider, Dr. Dennis Raddabaugh. D.M., however, refused to attend counseling, resulting in a violation of probation.

The judge held that as a result of D.M.'s non-compliance with counseling and D.M.'s reported lack of amenability to counseling, re-sentencing was necessary. At re-sentencing, D.M. indicated that he was now willing to undergo counseling. The judge rejected this request finding that D.M. has continued to demonstrate a lack of amenability toward treatment. The judge further noted that even with D.M.'s failure to attend out-patient treatment with Dr. Raddabaugh, the court arranged for an interview sex offender treatment at the Pinelands Residential Program. D.M. was found to be unsuitable for the program.

Thus, the judge imposed a two-year custodial term instead of the suspended three-year term previously imposed and vacated the probationary term.

We reject D.M.'s contentions that his Fifth Amendment privilege against self-incrimination was violated. The judge's disposition conditioned on sex offender counseling was reasonable in light of the serious nature of the delinquency adjudication and the juvenile justice system's emphasis on rehabilitation. N.J.S.A. 2A:4A-21b, d; Interest of S.T., 273 N.J. Super. 436, 443 (App. Div. 1994). D.M. misconstrues the nature of the counseling condition of his probation. D.M.'s compliance with treatment was not contingent on him admitting guilt or expressing remorse. D.M.'s failure to enroll in or attend treatment with Dr. Raddabaugh led the judge to determine that D.M. demonstrated a lack of amenability toward treatment.

Affirmed.

20091102

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