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State v. Krivacska

November 20, 2009

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
JAMES KRIVACSKA, DEFENDANT-APPELLANT.



On appeal from the Superior Court of New Jersey, Monmouth County, Law Division, Criminal Part, Indictment No. 96-02-0214.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 15, 2009

Before Judges Parrillo, Lihotz and Ashrafi.

Defendant James Krivacska appeals from an order of the Law Division denying his petition for post-conviction relief (PCR). We affirm.

Following joinder of his accusation and indictment, defendant was tried by a jury for sexual offenses against two thirteen-year-old mentally challenged boys, T.A. and M.B. He was convicted of one count of first-degree aggravated assault (M.B.), N.J.S.A. 2C:14-2a(2); two counts of second-degree child endangerment (T.A. and M.B.), N.J.S.A. 2C:24-4a; and two counts of third-degree aggravated criminal sexual contact, (T.A. and M.B.) N.J.S.A. 2C:14-3a. Defendant was acquitted of a second count of aggravated sexual assault (T.A.). He was sentenced to an aggregate twenty-six years imprisonment under the Sex Offender Act, N.J.S.A. 2C:47-1 to 10.

The facts comprising these offenses and their aftermath are taken from our previous decision affirming defendant's conviction, State v. Krivacska, 341 N.J. Super. 1 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, Krivacska v. New Jersey, 535 U.S. 1012, 122 S.Ct. 1594, 152 L.Ed. 2d 510 (2002):

Defendant, a licensed psychologist, was the clinical director of the Children's Center of Monmouth County, a school for individuals with special needs. The alleged victims, T.A. and M.B., were students at the school.

As clinical director of the Center, defendant had a wide range of responsibilities, including intervention and behavioral counseling and the development of programs and curricula. Defendant's counseling duties often required him to meet with students in private sessions.

In the Autumn of 1993, defendant moved to Building 4, which was known at the time as the "new" building. Defendant's office was perhaps slightly more isolated, but nevertheless was located in close proximity to a supervisor's office, the school store, the school kitchen, and staff and student bathrooms. The office was ground-level with windows looking out into the street. The door had a rectangular window, and a lever handle with an inside button which could be pushed to lock it from the inside.

During the school year 1993-1994, T.A. was a student in Naomi Azar's class in the new building. . . . T.A.'s IQ score was between fifty and sixty, approaching the lowest point that can be measured. At thirteen years old, T.A. was older than the students in his class and was maturing physically. On several occasions Azar noticed that T.A. had erections in class, causing him to become nervous and flustered and preventing him from being able to answer simple questions. The problem took on added urgency because in the Spring of that school year, Azar was informed that T.A. was moving to Miami, Florida where he was to be "mainstreamed" into the public school system. Azar referred T.A. to defendant for private counseling sessions.

T.A. would go to and return from defendant's office on his own. If he did not return in an appropriate amount of time, a teacher would go to defendant's office and bring him back. According to T.A.'s testimony, it was at these private sessions that defendant sexually assaulted him. T.A. testified that defendant commonly hung his jacket on the door, covering the rectangular window. T.A. would sit in a regular chair, while defendant would be seated in a chair with wheels. Defendant would instruct T.A. to pull his pants down to mid-thigh, place his hands on T.A.'s penis and "shake" it until T.A. ejaculated. On one occasion, defendant allegedly "put his mouth" on T.A.'s penis. On another, defendant stood with T.A. facing him and their penises touching. According to T.A., defendant would show him photographs depicting sexual organs, which he identified on cross-examination as the drawings in a pamphlet, A Kid's First Book About Sex. Defendant would explain to T.A. the sexual organs depicted in the pamphlet.

T.A. recounted that defendant asked him to visit at his house, noting that he did not have a wife or children. T.A. thought it "odd," however, and declined defendant's invitation. Defendant cautioned T.A. never to tell anyone what happened between them.

T.A. abided by that admonition until he moved to Florida. T.A. initially lived with his Aunt Jennifer. On weekends, T.A. would often visit with his Aunt Carol and his Uncle Clarence. Aunt Carol was employed as a psychiatric nurse. She was also the pastor of her church. It was her habit to ask "all the children" if anyone had touched them inappropriately, or "in a private part." Aunt Carol focused particularly on T.A. because she felt he was "vulnerable." T.A. regularly denied that anyone had touched his private parts.

In July 1994, Aunt Jennifer told Aunt Carol that T.A. had been masturbating frequently and "hard," so that his bed "shook." Aunt Jennifer was concerned that her own children might hear him. Aunt Carol spoke with Uncle Clarence, who responded that "boys do masturbate and play with themselves, but not as aggressive[ly]" as Aunt Jennifer had described. Aunt Carol and Uncle Clarence confronted T.A. about the subject.

T.A. testified that Aunt Carol repeatedly asked him whether anyone had touched his private parts. T.A. claimed that although he initially denied any such activity, he ultimately identified defendant as the perpetrator. According to T.A., "she finally got [it] out of me after she asked me [the same question] a hundred times."

Aunt Carol steadfastly denied that she or Clarence had told T.A. that God would be angry at him for masturbating. She also denied that she or Clarence told T.A. someone must have taught him to masturbate. According to Aunt Carol, she made it clear that masturbation was normal behavior, but that T.A. should engage in that activity only in the privacy of his room or in the shower. Because T.A. appeared nervous with Clarence in the room, Clarence decided at some point to excuse himself. Aunt Carol testified that she asked T.A. whether anyone had taught him to masturbate. After being assured that he would not get into trouble, T.A. identified defendant as the perpetrator.

After that initial disclosure, T.A. initiated several conversations with Aunt Carol, basically repeating what he had told her earlier. According to Aunt Carol, T.A. "would start talking about it when [the two] were together." T.A. told her that the incidents had occurred in a room which he described. Although initially, Aunt Carol "assumed" that T.A. was referring to a school auditorium, T.A. subsequently corrected himself and told her that "Dr. Jim would take him into the office." When Aunt Carol questioned him about the subject, T.A. denied that "there was any oral sex."

As a result of T.A.'s disclosures, Aunt Carol contacted Florida authorities. Detective Debra Blesso-Chiota of the Orange County Sheriff's Office interviewed T.A. at Aunt Jennifer's house on August 10, 1994. The interview was audiotaped. However, the tape was subsequently lost. The transcript of the interview discloses that T.A. generally repeated the allegations he had previously made to Aunt Carol. T.A. told Blesso-Chiota that defendant would show him sexually explicit photographs. According to T.A., he and defendant would "open their pants" and touch each other's private parts. T.A. noted that he and defendant would ejaculate, and clean off their hands with tissues. T.A. added one detail that he had not told Aunt Carol earlier. Specifically, T.A. said that on at least one occasion, defendant had "put his mouth on" T.A.'s penis. T.A. noted that he had been "too scared to tell [his] aunt."

T.A. apparently repeated these allegations in subsequent interviews with Detective Lonnie Mason of the Monmouth County Prosecutor's office. We have underscored the word "apparently," because these interviews were neither taped nor stenographically recorded. We add that these discussions occurred in the presence of several family members and an assistant prosecutor. T.A. repeated these allegations when questioned by the State's expert, Dr. Philip Witt. The latter interviews also were neither taped nor stenographically recorded.

T.A.'s interview with the defense's expert, Dr. Ralph Underwager, was videotaped. We have observed the tape.

T.A. appears extremely reluctant to describe his relationship with defendant. He says only that defendant engaged in "gross" activities after showing him pictures, and that he was frightened during these episodes. After a short break, T.A. appears more forthcoming in his description of the incidents, noting that he and defendant would touch each other's private parts and ejaculate.

The State and defense experts agreed that M.B.'s mental disabilities were more severe than T.A.'s. M.B.'s IQ was from 49 to the low 50's, placing him in the moderately retarded range. M.B.'s cognitive impairments are manifestations of a genetic disorder known as "Fragile X Syndrome." This condition presents a distinctive set of symptoms, including mental retardation, echolalia (repeating words or phrases as spoken by others), delayed echolalia (repeating words or phrases as spoken by others long after hearing them), and perseveration (fixating on words or phrases for lengthy periods). Persons afflicted with this syndrome tend to be quiescent when facing "confrontational questioning" in order to alleviate stress and anxiety. Moreover, their anxiety thresholds are lower than most people.

M.B. began attending the Center in February 1991, when he was thirteen years old. His classroom was in the "old" building. M.B. was physically and verbally aggressive and very easily agitated. He often "acted out" in the classroom as the result of overstimulation. M.B.'s parents were actively involved in M.B.'s education at the Center. M.B.'s father often conducted his business using an office at the school. On occasion, he would enter the classroom in an attempt to calm M.B.'s anxiety. M.B.'s mother served as a classroom assistant.

While M.B.'s classroom was in the old building, defendant would conduct private sessions with him in his office. In September 1993, M.B.'s class was moved to the new building. M.B. continued to spend time with defendant in defendant's new office, but less than before.

M.B. claimed that defendant sexually assaulted him during these private sessions. According to M.B., defendant would lock the office door, remove his jacket or sweater and hang it on a hook, thus obscuring the view of those in the hallway. M.B. testified that defendant and he touched each other's private parts. After they would ejaculate, defendant would put the "mess" in a paper bag and discard it in a wastepaper basket. M.B. recounted that on one occasion, defendant placed a "paper baggie" over his penis, and attempted to put his penis in M.B.'s "heinie." Defendant warned M.B. not to tell anyone.

During this period, M.B. would "cut up" his underwear when he came home from school. M.B. would also take showers immediately after he arrived home. According to M.B., he was "really angry" at defendant and wanted to "get [him] in trouble," but nevertheless did not apprise his parents of defendant's sexual misconduct.

M.B. kept defendant's secret for a long time. On December 30, 1994, M.B.'s grandmother, [J.O.], was baby-sitting for M.B. and his siblings. At approximately 11:00 p.m., [J.O.] found M.B. sitting in the dark, yelling into a toy microphone. [J.O.] described M.B.'s demeanor as "upset, mad [and] anxious." M.B. told [J.O.] he wanted to tell her something but was afraid she would "get mad at him." At that point, M.B. told [J.O.] about defendant's sexual abuse.

The next morning, [J.O.] told M.B.'s mother. M.B. repeated his allegations to his mother, and then to his father. Because of the holidays, M.B.'s parents were unable to contact the Monmouth County Prosecutor's Office until January 3, 1995, when they, [J.O.] and M.B. met with Detective Mason. Mason interviewed M.B., his parents, and his grandmother together for approximately one hour. Apparently, an assistant prosecutor and a representative from the Division of Youth and Family Services were also present. M.B. repeated his allegations during this interview. However, the "question and answer" session was not videotaped, audiotaped or otherwise recorded.

Mason then took a seven-page statement from M.B. The statement was typed as it was being taken. M.B.'s parents were present, and on several occasions interpreted M.B.'s responses. Experts for the prosecution and the defense agreed that Mason's questions were "leading" and "suggestive." He began by telling M.B. that his inquiry concerned "incidents that have occurred at the [Center] where you were touched by an individual known to you as Dr. Jim." After several preliminary questions, Mason asked M.B. about "incidents where you were touched by Dr. Jim." M.B. responded by saying that defendant touched his "heinie" and "played with [his] pee-pee." According to M.B., on one occasion defendant "tried to put his pee-pee in [his] heinie." M.B. related that defendant would lock the door by pushing the button in the door knob and cover the door window with his coat.

Like T.A., M.B. repeated these allegations in subsequent interviews. Dr. Underwager evaluated M.B. in April and September 1996. The interview was videotaped, and we have had the opportunity to view it. At the very inception of the interview, M.B. volunteered that defendant would lock the door to his office, hang his coat over the rectangular door window, and touch his "body parts" and "heinie." M.B. told Underwager that defendant had committed the same acts on T.A. and was "going to be put in jail for the rest of his life." M.B. did not mention touching defendant's penis. Nor did he allege that defendant attempted to have anal intercourse with him.

M.B.'s unrecorded interview with the State's expert, Dr. Witt, produced largely similar results. Witt described M.B. as "eager" to tell him about defendant's sexual acts. According to Witt, "with very little prompting, [M.B.] recounted" what occurred during his private sessions with defendant. M.B.'s description of the incidents was consistent with his earlier accounts. Unlike his interview with Underwager, however, M.B. described in detail defendant's attempt at anal intercourse.

Defendant did not testify at trial. However, the defense presented several witnesses who testified that they had free access to defendant's office. Azar testified that on the occasions when she had to get T.A. from defendant's office, she would "just walk in," whether or not she knocked first. She noted, however, that sometimes there was a sweater or suit jacket hanging over the window of the door. M.B.'s teacher, Diane Campbell, testified that M.B. always had to be accompanied to and from defendant's office. According to Campbell, she never found the office door locked. She would knock and be granted access immediately.

Defendant also elicited testimony about an incident in February 1991, when M.B. complained at school that his "heinie" hurt because his nine-year old cousin, [J.O.], had put his penis in M.B.'s rectum. The truth or falsity of this allegation was never clearly established. [J.O.] described an incident in 1990 when she noticed that [J.O.] and M.B. were in a bedroom with the door shut. Because the bedroom was very quiet, [J.O.] decided to investigate. She found the boys alone with their penises exposed. [J.O.] dismissed the incident because the children had been alone for only a short period of time. [Krivacska, supra, 341 N.J. Super. at 11-20 (footnote omitted).]

Defendant appealed his judgment of conviction arguing, among other things: (1) the coercive and suggestive interview techniques rendered the testimony of T.A. and M.B. unreliable and inadmissible; (2) the trial judge erred by admitting, and relying upon, Dr. Hall's expert testimony concerning the question of taint because Hall's methodology and conclusions were incorrect and invalid; (3) the grand jury proceedings were tainted by Detective Mason's inaccurate statement; (4) the trial judge erred in finding T.A. and M.B. competent to testify; (5) defendant's right to confrontation was denied because his attorney was not allowed to cross-examine T.A. and M.B. in the hearing to determine whether they were competent; (6) the judge abused his discretion by joining the accusation and the indictment and by failing to give an appropriate limiting instruction on the jury's use of "other crime" evidence, and (7) the out-of-court statements of T.A. and M.B. were erroneously admitted. Id. at 20.

We affirmed, finding on the issue of taint that the trial judge "faithfully adhered to [the] analytical framework" set forth in State v. Michaels, 136 N.J. 299 (1994), and that his ultimate factual findings and conclusions as to both victim-witnesses' competency to testify and the reliability of their statements were reasonably supported by the evidence. Krivacska, supra, 341 N.J. Super. at 27. As to the latter, we rejected defendant's contention that it was error to admit Dr. Hall's expert conclusion that T.A. and M.B. were reliable, finding her testimony: "(1) concerned a subject beyond the ken of the average person, (2) pertained to a field of inquiry that was sufficiently reliable, and (3) fell within the purview of the witness's expertise." Id. at 30 (citing State v. Kelly, 97 N.J. 178, 208 (1984)).

So too, we held that the trial judge properly exercised his discretion in determining that Dr. Witt was qualified to testify as an expert on the witnesses' competency. Id. at 33. Moreover, we found no violation of defendant's right to confrontation in partially barring him from questioning the child-victims at the pre-trial competency hearing. Id. at 34.

We reasoned that defense counsel was granted wide latitude to pursue this subject in his subsequent cross-examination of the victims and fully availed himself of that opportunity, in that his cross-examination was extensive and all relevant circumstances were placed before the jury. Id. at 34-35. Nor did we discern such a constitutional violation in the trial court's denial of defendant's pre-trial motion to examine the victims' confidential school records in connection with the issue of their competency to testify. Id. at 35.

We also found no clear abuse of discretion in the joinder of the accusation charging defendant with sexually abusing T.A. with the indictment charging him with sexually abusing M.B. for the purpose of trial, and the denial of defendant's severance motion. Id. at 37, 39-41. In connection therewith, we found that evidence of other acts would have been admissible in separate trials since the offenses against both victims - of the same or similar character, Rule 3:7-6; Rule 3:15-1(a) - "were relevant to a material issue in dispute, i.e., defendant's opportunity to commit acts of sexual abuse in his office." Id. at 41. Related thereto, we further held that the judge's failure to specifically instruct on the limited use of such "other crime" proofs was not plain error because the court's charge otherwise "clearly conveyed the principle that the jury was prohibited from considering the cumulative impact of the evidence of all the offenses in determining whether a particular charge had been proven . . . [and t]he jury faithfully complied with that instruction, acquitting the defendant of one of the charges." Id. at 43 (citations omitted).

Finally, we rejected defendant's contentions that the grand jury proceedings were tainted and that the victims' out-of-court statements were erroneously admitted. Id. at 44. As to the former, we held that any mistakes in presentation of testimony during the grand jury proceedings "were innocent ones, and clearly were not so serious as to warrant the draconian remedy of dismissal of the indictment." Ibid. (citations omitted).

As to the latter, we found:

Various witnesses testified with respect to the circumstances surrounding the alleged victims' ...


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