On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-05-0721.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 16, 2009
Before Judges Reisner, Yannotti and Chambers.
Defendant was charged by a Passaic County grand jury with aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(2)(c) (count one); sexual assault, contrary to N.J.S.A. 2C:14-2(c)(4) (count two); endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a) (count three); and aggravated criminal sexual contact, contrary to N.J.S.A. 2C:14-3(a) and 2C:14-2(a)(2)(c) (count four). Defendant was tried before a jury and found guilty on all charges.
At sentencing, the trial court merged counts two and four with count one and imposed a ten-year term of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also imposed a consecutive, five-year sentence on count three.
Defendant appeals from the judgment of conviction entered by the trial court on June 17, 2008. For the reasons that follow, we affirm defendant's convictions and the sentence imposed on count one, but remand for re-sentencing on count three and for further review of the award of jail credits.
We briefly summarize the relevant facts. On January 1, 2005, at approximately 4:00 a.m., J.C. spoke with D.L., his former girlfriend. She told him that defendant, who is her stepfather, had sexually abused her. According to J.C., D.L. was "hysterical" and "crying a lot." On January 12, 2005, Passaic County Prosecutor's Office (PCPO) received a referral from the Division of Youth and Family Services (DYFS), which indicated that D.L. was being sexually abused by her stepfather.
Donna Gade (Gade), the supervisor of the PCPO's Special Victims Unit, immediately commenced an investigation. Later that evening, Gade and other detectives from her unit went to defendant's home. Gade was met by G.R., who is D.L.'s mother and defendant's wife. Gade informed G.R. that the PCPO had received information regarding a "family problem." G.R. told Gade that defendant was not at home.
G.R. contacted defendant and he returned home about fifteen or twenty minutes later. Gade met defendant outside of the house and said that she was interested in speaking with him regarding a "family problem[.]" Gade asked defendant if he would accompany the detectives to the prosecutor's office. Defendant agreed. G.R. also agreed to go with D.L. to the prosecutor's office. Gade transported G.R. and D.L. Defendant rode with other detectives in another car. They arrived at the prosecutor's office around 11:00 p.m.
At the PCPO, defendant was placed in the polygraph room. D.L. and G.R. were placed in separate rooms. Gade interviewed D.L. She said that on two separate occasions, defendant had penetrated her vagina with his fingers and his penis. D.L. said that, after these two incidents, defendant stopped touching her in a sexual manner.
Sometime between 12:27 a.m. and 1:40 a.m., D.L.'s statement was typed. D.L. reviewed the statement and placed her initials on the top and bottom of each page. D.L. then signed and swore to the truthfulness of her statement before Detective Matthew Gallup (Gallup). At approximately 2:10 a.m., after D.L. signed her written statement, Gade took defendant to an interview room for questioning. Defendant was not handcuffed and Gade was not armed.
Gade provided defendant with Miranda*fn1 warnings, using the PCPO's Miranda rights and waiver form. Gade read each right to defendant and asked defendant if he understood what she said. Defendant replied that he understood and placed his initials after each right listed on the form, indicating his understanding of his rights. He also signed the "waiver of rights" portion of the form.
Gade then interviewed defendant. Defendant answered Gade's preliminary questions and she said that he was "very comfortable." Gade then informed defendant that she had learned that defendant had engaged in inappropriate conduct with D.L.
According to Gade, defendant was "very shocked" and denied that anything inappropriate had occurred. Defendant said that he would never do anything to hurt D.L. and she was like his "own child."
Gade told defendant that D.L. said that defendant had sex with her. Gade testified that, at first, defendant "was shocked." After sitting for a while and thinking, defendant told Gade that "yeah, you know, I do remember a time when I did have sex with her." Defendant stated that he had been drunk, came home, went to D.L.'s room, crawled into D.L.'s bed and had sex with D.L.
Defendant agreed to provide Gade with a written statement. Gade left the room and returned with an individual who typed defendant's responses to her questions. Gade also videotaped defendant's statement. In his statement, defendant acknowledged that he had sexual relations with D.L. twice.
Defendant stated that, on both occasions, he placed his fingers and penis in D.L.'s vagina. Gade asked defendant how she treated him that evening and he said Gade treated him "with kindness and care." After defendant's statement was taken, it was printed and given to defendant for review. Defendant placed his initials on the top of bottom of each page and signed at the end. Gade and Gallup signed the statement as witnesses.
At the trial, D.L. testified that the statement she gave to the investigators was false. She said that she was in love with J.C. at the time and defendant and G.R. did not approve of the relationship. D.L. stated that if she could not be with J.C., she would claim that defendant sexually abused her so that defendant and her mother could not "be together."
Defendant also testified at trial. He said that on January 12, 2005, he left work at around 5:00 or 5:30 p.m. and went to a "social club." Defendant drank two beers and two "shots" of gin. Defendant left the club about thirty to forty-five minutes later, went to his home and returned to the club to play with a band. Defendant said that he drank four more drinks and a "couple of shots[.]"
Defendant left the club around 10:00 or 10:15 p.m. As defendant was leaving, he received a phone call from G.R., who said that someone was at their house looking for him. Defendant returned home at approximately 10:15 or 10:30 p.m. A police car was in the driveway. He said that one of the police officers grabbed him and told him to put his hands against the wall. The officers patted him down and put him into the police vehicle. Defendant asserted that he did not have an opportunity to refuse to get into the car.
Defendant further testified that he was taken to the prosecutor's office, placed in a room and told to wait there. The door to the room was locked, but he was allowed to leave the room to go to the bathroom. Defendant said that he was kept in the room for about two or two-and-a-half hours and then taken to another room.
Defendant also said that he was "tired" and "tipsy" and tried to "keep [his] cool[.]" According to defendant, Gade entered the room and told him to sign a paper. Defendant believed the paper was the Miranda form. Defendant stated that he did not remember if he understood his rights because he had never seen a form like that before.
Defendant additionally testified that Gade told him that D.L. had provided a statement indicating that defendant had sex with her. Defendant denied the allegations but Gade kept repeating the details "over and over again[.]" He said that Gade told him that he had to tell her what she wanted to hear "because that's the only way we can all go home." Defendant testified that he was "tired" and "just wanted to go home." He stated that he eventually told Gade "what she wanted to hear[.]"
As stated previously, defendant was convicted of aggravated sexual assault, sexual assault, endangering the welfare of a child and aggravated criminal sexual contact. Defendant thereafter filed a motion for a new trial, arguing that the jury's verdict was against the weight of the evidence. On June 17, 2008, the trial court denied the motion and defendant was sentenced.
On appeal, defendant raises the following issues for our consideration:
DEFENDANT'S CONFESSION WAS THE PRODUCT OF AN ILLEGAL ARREST AND WAS NOT VOLUNTARY.
A. Defendant Was Unlawfully Arrested At His Home.
B. Defendant's Arrest Was Not Supported by Probable Cause.
C. Defendant's Confession Was Not Sufficiently Attenuated To Purge the Taint Of The Illegal Arrest.
D. Defendant's Confession Was Not Voluntarily, Knowingly and ...