On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-02-0186.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 23, 2010
Before Judges Grall, Messano and LeWinn.
Defendant T.K. appeals from a final judgment of conviction and sentence. A jury found defendant guilty of first-degree aggravated sexual assault of a child less than thirteen years old, N.J.S.A. 2C:14-2a(1); second-degree sexual assault based on an act of sexual conduct with a child less than thirteen years old, N.J.S.A. 2C:14-2b; and second-degree endangering the welfare of a child by engaging in sexual conduct that would impair or debauch the morals of a child under the age of sixteen and to whom defendant had a legal duty of care, N.J.S.A. 2C:24-4a.
The trial judge denied defendant's motion for a new trial and sentenced him to concurrent terms of imprisonment, which are all subject to periods of parole ineligibility and supervision required by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and "Megan's Law," N.J.S.A. 2C:7-1 to 2C:7-19: a seventeen-year term for aggravated sexual assault; an eight-year term for sexual assault; and an eight-year term for endangering. On each count, the judge imposed the mandatory $100 VCCB assessment, $75 SNSF assessment and $800 SANE fine. The judge also imposed the mandatory $100 sexual assault fine on counts one and two, pursuant to N.J.S.A. 2C:43-3.7, penalties pursuant to N.J.S.A. 2C:14-10 in the amount of $2000 for the first-degree conviction and $1000 for each of the second-degree convictions, and a $30 LEOTEF penalty.
The victim of defendant's crimes is his daughter, S.Y. She was born in Indonesia in the summer of 1989, and she and her mother immigrated to this country to join defendant in 1996. At trial, S.Y. described an incident of intercourse in 1996, and acts of digital penetration, cunnilingus and intentional touching of intimate parts that took place on various occasions between 1996 and 2002. The abuse had ended when her family moved from an apartment in Edison that they shared with other family members to Colonia. S.Y. had talked about the abuse to two friends when she was thirteen or fourteen and to her boyfriend in May 2005. They had known each other since December 2004 and been dating since April 2005, and he had met members of her family and gone to church with them.
S.Y. told her boyfriend about the abuse over the telephone. S.Y. sounded upset because her voice was quivering. Her boyfriend asked why. S.Y. told him she had been raped, and eventually she explained that it was by her father and described what he had done and when. The boyfriend testified about the conversation at trial but did not discuss the conduct S.Y. described. As time went on, S.Y. started "breaking down" in her boyfriend's presence and telling him it was "really bothering" her. He suggested she speak to her mother, but she did not.
Her father had told her that her mother would hate her if she knew about what she was doing with her father, and he had told S.Y. that if he had not married her mother he would have married S.Y.
S.Y. did not tell an adult about the abuse until November 2005, when she approached her health education teacher after a lesson on acquaintance rape. S.Y. passed the teacher a note requesting the phone number for a rape crisis center. The teacher informed a guidance counselor. The counselor spoke to S.Y., gave her the phone number, contacted S.Y.'s mother and advised the Division of Youth and Family Services.
An investigator from the prosecutor's office and two detectives from the Edison Township Police Department went to defendant's home at about 12:15 a.m. on November 19, 2005. Defendant was sleeping and the officers asked someone present to wake him up. The officers told defendant they needed to speak to him at police headquarters. Communicating with them in the English language, defendant was cooperative, calm and agreed to go. En route, they did not question him.
The officers spoke to defendant in a conference room at police headquarters after the investigator read him the advisements required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966). Defendant did not express or demonstrate any difficulty communicating in English and did not ask for an interpreter. At 1:08 a.m., defendant initialed and signed a form acknowledging his understanding and waiver of his Miranda rights. During a pre-interview session that followed, the officers took information on his background and education, advised him of the allegations against him and heard what he had to say about his daughter's claims. The remainder of the interview was tape-recorded starting at 1:34 a.m.; the investigator turned the recorder on in front of defendant. The recording includes defendant's acknowledgement of his prior receipt of Miranda warnings, his signature and initials on the form, and his profession that he understood the advisements the investigator reiterated at the outset of the recorded interview. At the conclusion of a pre-trial hearing on defendant's motion to suppress his statements, the judge concluded the State met its burden of demonstrating compliance with Miranda and defendant's knowing, voluntary and intelligent waiver of his rights. Accordingly, the recording was played for the jury at trial.
Under oath during that recorded interview, defendant admitted that he touched his daughter's vagina, his "fingers just sliding there"; thought his finger went into her vagina more than once; touched her vagina with his penis "just a little bit"; and kissed her breasts and vagina. He explained that he had done these things more than once and stopped four or five years before the interview because he "corrected" his "mistake," "confess[ed] to God," and asked for strength to "fight this," which is "like a demon thing." He also told the investigator that he asked himself, "How come I do this?" He remarked that he had done this to "[his own] flesh and blood" and "keep[s] fighting" what he does not want to do. During the interview, he also said his wife was working and he was watching the children when these things happened. He estimated that the incidents occurred about four times a year and ended before he moved his family to Colonia in 2002.
At trial, defendant denied the truth of the recorded statements he made at police headquarters. He testified that he lied because he and his family were in this country on a grant of political asylum due to religious persecution of Christians in their homeland. As he explained it, when he gave the statement to the police, he believed S.Y. would be in trouble and deported if he contradicted her allegations. Out of concern for what would happen to S.Y. if she were deported, he responded in the affirmative when the officers confronted him with her allegations. He said that when he elaborated and volunteered additional information, he did that to make his false admissions seem more credible.
The defense of denial was accompanied by an assertion of recent fabrication motivated by S.Y.'s anger at her father. The defense presented evidence to suggest that S.Y. was angered by her father's efforts to have her comply with his rules for her behavior.
His rules related to appropriate attire, use of make-up and dating. Defendant gave the jurors his opinion on S.Y.'s reasons for falsely accusing him. He said, "Perhaps she was upset because I found pictures of her wearing a low-cut blouse and mini skirt, yes." He added, "And she got upset, perhaps, because at that time I told her, when I was angry at her and I was arguing with her, that if she doesn't want to follow my rules or this rule, she could get ...