On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 03-12-02324.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall, and Messano.
A jury convicted defendant of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a); two counts of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. The trial court sentenced defendant to an aggregate twenty years in prison, with a seven-year period of parole ineligibility. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we have concluded that we are constrained to reverse defendant's convictions and remand for a new trial.
Defendant's victim was his daughter, H., who had lived with him since she was approximately three years old. At the time of defendant's trial in 2006, she was twenty years old but no longer residing with him. In late 2002, she approached her stepmother (her father had remarried in 2002) and her mother and reported to both of them that defendant had sexually abused her, starting when she was twelve years old. She said the abuse occurred repeatedly in the apartment she and her father shared in the Bronx, New York. She said she decided to reveal the abuse when she learned that her stepmother was pregnant and was expecting a baby girl. Eventually she decided to report the matter to the authorities, and her mother accompanied her to the prosecutor's office in the Bronx, where she gave a detailed statement. She included in her recitation to the New York authorities that her father had, on two occasions, taken her to a hotel in Fort Lee and abused her there. The New York authorities informed her that they did not have jurisdiction over any acts that may have occurred in New Jersey and that she would have to deal with the New Jersey authorities with respect to that conduct.
Defendant was charged in New York with a variety of offenses, and in June 2003, he entered a negotiated plea of guilty to one count of first-degree sexual abuse and admitted engaging in sexual intercourse with H. He was sentenced to six months incarceration and was released from custody shortly after the date of his sentencing.
After defendant plead guilty in New York but before sentencing, H. approached the Bergen County Prosecutor's Office to report the two instances in which she said her father had brought her to a hotel in Fort Lee and sexually assaulted her. After defendant was sentenced in New York, he was then arrested and prosecuted for these offenses. Defendant admitted the conduct in New York but denied ever assaulting H. in New Jersey. The theory of his defense was that H. was disappointed at the light sentence defendant received in New York and came to New Jersey to seek a greater punishment for defendant.
Defendant raises the following arguments on appeal:
THE TRIAL COURT ERRED IN USING THE DISCREDITED CONCEPT OF RES GESTAE TO ADMIT EVIDENCE THAT OVER A FOUR-YEAR PERIOD OF TIME, M.O. REPEATEDLY COMMITTED ACTS OF SEXUAL ASSAULT AGAINST HIS DAUGHTER IN NEW YORK STATE. AT A MINIMUM, EVIDENCE OF THE NEW YORK ABUSE SHOULD HAVE BEEN LIMITED TO THE DISCREET [sic] PERIOD OF TIME DURING WHICH THE NEW JERSEY CRIMES WERE ALLEGED TO HAVE OCCURRED (Not Raised Below)
EVEN IF EVIDENCE OF THE NEW YORK ABUSE WAS PROPERLY ADMITTED, THE JUDGE'S INSTRUCTION ON THE PERMISSIBLE USES OF THIS EVIDENCE ...