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State v. Delvecchio

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


July 26, 2010

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
BENJAMIN E. DELVECCHIO, DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 06-01-00024.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 2, 2010

Before Judges Wefing and Messano.

Defendant was indicted on one count of aggravated sexual assault under N.J.S.A. 2C:14-2a(7) ("[t]he victim is one whom the actor knew or should have known was physically helpless, mentally defective or mentally incapacitated"), a crime of the first degree, and one count of sexual assault, N.J.S.A. 2C:14- 2c(1), a crime of the second degree. Tried to a jury, defendant was acquitted of the first charge but convicted of the second. The trial court sentenced defendant to six years in prison, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act. Defendant has appealed. After reviewing the record in light of the contentions advanced on appeal, we affirm.

Defendant was charged with assaulting K.B., who was twenty years old at the time. She attended college and worked part-time as a bartender. Defendant and his cousin came to K.B.'s workplace on the evening of October 18, 2005. Defendant and K.B. recognized each other from having previously worked at the same restaurant although they did not know each other, and the three began talking. K.B.'s shift ended at 8:00 p.m., and defendant invited her to go with him and his cousin to another bar, Uncle Vinnie's, where, he said, he knew someone who would be willing to serve alcohol to K.B. She agreed.

K.B. drove her car to a nearby Dunkin' Donuts and parked it there and then got into defendant's car and accompanied defendant and his cousin to Uncle Vinnie's. During the course of the evening, K.B. drank approximately three beers and seven shots of alcohol. She also had something to eat. At one point during the evening, a friend of K.B.'s, Samantha, who lived nearby, joined them at Uncle Vinnie's. At around ll:00 p.m. defendant and K.B. walked Samantha home and then returned to Uncle Vinnie's together. She left Uncle Vinnie's around midnight, with defendant and his cousin.

She did not remember much of the drive. She did recall being in defendant's bedroom and being uncomfortable with the situation. She asked defendant to drive her back to her car and he agreed. She recalled being in defendant's car and defendant grabbing her leg; she asked him to let her go, and she then sent a text message, after which she blacked out. She awoke to find defendant putting on his shirt and buttoning his pants; she asked what had happened, and he did not answer. She said she was going to the police, and he asked her not to. She then said she wanted to go home, and defendant drove back to the Dunkin' Donuts parking lot to get her car.

When they arrived there, K.B. realized she had lost her cell phone, and she told defendant she needed it. He then drove her back to his home. He went in, retrieved her cell phone and came back to the car and gave it to her. He then drove her back to her car. She got in her car and drove home, where she became sick and went to bed.

She went to school the following day but felt uncomfortable and experienced flashbacks of events of the night before. She talked to a friend of hers, who urged her to contact the police. She did so, and related her story. The police took her to the hospital for examination, which revealed a tiny laceration at the bottom of her genital area and swelling in the area of her cervix. There was testimony the laceration and swelling were consistent with sexual trauma. When K.B. was at the hospital, a blood sample was drawn. In light of the passage of time, no alcohol was detected. There was evidence that based upon the amount of alcohol K.B. consumed during the evening, she would have had a blood alcohol level of at least 0.188%.

K.B.'s cell phone was examined, and it showed that K.B. had, during the course of the evening, sent a number of text messages. One of her friends testified that he spoke with her by telephone between 12:15 a.m. and 12:30 a.m., and she sounded intoxicated. He also said he received a text message from her around 1:30 a.m. saying, "Help."

The police questioned defendant. He recounted the events of the evening. He said he took K.B. back to his house because he felt that she was too intoxicated to drive. He said she was in and out of consciousness. He said he started to rub her back and admitted that he pulled her pants down. The tape of this interview was not entirely clear, and the prosecution and the defense differed over whether during the interview defendant admitted or denied that he penetrated K.B. digitally.

The defense at trial was that K.B. had consented to whatever activity occurred. Defendant did not testify at trial.

As part of his pre-trial preparation, defendant retained the services of Richard Saferstein, Ph.D. Dr. Saferstein reviewed a quantity of material, including K.B.'s cell phone records which indicated that she had sent a significant quantity of text messages between 11:37 p.m. and 1:33 a.m. Dr. Saferstein submitted a report which concluded in the following manner:

This activity [text messaging] is not consistent with someone in a state of "extreme confusion" and having "impaired intellectual functioning" and "difficulty with motor performance." Also, at the blood alcohol concentration of 0.188%, an individual can be expected to experience a meaningful reduction in short-term memory; thus, impairing one's ability to accurately recall and reflect upon events occurring during the period of intoxication. Obviously, under the circumstances, [K.B.'s] frequent text messaging activities required a high degree of manual dexterity, along with the application of critical judgments, normal perception, and the use of reasonable cognitive functions. This activity is inconsistent with an individual who would have been "physically helpless" at the time of the alleged incident and who would have been unconscious or physically helpless to flee or physically unable to communicate an unwillingness to engage in sexual activity.

The State filed a pre-trial motion to preclude Dr. Saferstein's testimony. The trial court granted this motion, ruling that the opinion Dr. Saferstein expressed in that report was a net opinion and that any testimony based on that report would be inadmissible at trial. Accordingly, Dr. Saferstein prepared a second report, which included a detailed description of text messaging. This report concluded with the following statements.

Text messaging as described above combines a complex array of physical and mental activities, requiring fine motor skills and intelligent decision making, all of which are known to be adversely affected by alcohol. There would be difficulty in hand-to-eye coordination which would be needed to send text messages as set out above.

Based upon the foregoing information and analysis, it is my opinion to a reasonable degree of scientific certainty that it is unlikely that K.B. had a blood alcohol reading of 0.188% at the time she sent the numerous text messages and made and received the phone calls.

This second report of Dr. Saferstein did not contain the mention of the impact of alcohol upon memory that had been contained in his original report.

Defendant makes the following contentions on appeal:

A. THE COURT IMPROPERLY LIMITED THE CROSS EXAMINATION OF THE ALLEGED VICTIM PURSUANT TO THE RAPE SHIELD LAW (N.J.S.A. 2C:14-7)

B. THE COURT IMPROPERLY PROHIBITED EXPERT TESTIMONY REGARDING THE EFFECT OF ALCOHOL ON THE MEMORY OF THE ALLEGED VICTIM

A.

At the time of this incident, K.B. was involved in a serious relationship with her boyfriend and approximately two months after the incident, she became pregnant through him. At trial, defendant sought to cross-examine K.B. about this relationship and her pregnancy. He contended that K.B. had made up the story about a sexual assault because her boyfriend would be jealous if he learned that she had consented to sexual activity with someone else. The trial court refused to permit this cross-examination, ruling it was precluded by the rape shield law. Defendant contends the trial court erred in this ruling. We do not agree.

N.J.S.A. 2C:14-7c provides that in sexual assault cases "evidence of [the victim's] previous sexual conduct with persons other than the defendant . . . shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease." The purpose behind the statute is to protect the privacy rights of victims of sexual assaults, State v. Schnabel, 196 N.J. 116, 128 (2008), and to encourage victims to report sexual abuse. State v. Budis, 125 N.J. 519, 528-29 (1991).

While the clear language of the statute precludes evidence of sexual conduct with someone other than the defendant, "evidence that is relevant and necessary to prove the defense of consent is not excluded under the Shield Statute." State v. Garron, 177 N.J. 147, 173 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004). Thus in Garron, the Court reversed defendant's conviction for aggravated sexual assault, concluding the trial court improperly precluded him from introducing evidence that the victim had, over five years, flirted with the defendant and given him sexual invitations.

Id. at 176.

To determine whether such evidence is admissible, the trial court should look to (1) whether the evidence is relevant to the defense presented at trial and (2) if it is relevant, whether the probative value of that evidence outweighs its prejudicial effect. Budis, supra, 125 N.J. at 532. Defendant contends the evidence is relevant to show K.B.'s motivation to lie about having consented to engage in sexual activity with defendant. Defendant's claim of relevance is not immediately clear to us, however. If K.B. had not reported the incident to the police, or if K.B. had not told her boyfriend of the incident, we are uncertain as to how he would have learned of it and thus become jealous.

In addition, our review is limited by the state of the record presented to us, which includes only defendant's moving papers and the trial court's subsequent order denying the motion. Although we infer from that order that defendant's motion was argued orally, we have not been supplied with a transcript of that argument, and we thus cannot determine whether defendant distinguished before the trial court between evidence that K.B. subsequently became pregnant and evidence that she was involved in a serious relationship with her boyfriend.

In his motion papers, defendant relied upon State v. Garron, supra, to support his contention that he should be allowed to cross-examine K.B. with respect to both her pregnancy and her relationship. We agree that Garron, supra, which dealt with evidence of the prior conduct of the alleged victim toward the defendant, provides no support for cross-examining the alleged victim with respect to her conduct with another individual.

B.

Defendant's second argument relates to two rulings by the trial court which restricted testimony with respect to the effect alcohol may have had on K.B.'s memory. The State presented the testimony of Mary Elizabeth McLaughlin, a forensic scientist at the State Police laboratory in Hamilton, to explain to the jury that blood drawn when K.B. was examined at the hospital the following day did not show the presence of alcohol in light of the time that had elapsed between K.B.'s last drink and the blood test.

The defense elicited on cross-examination that she had extrapolated a blood alcohol level of 0.188% for K.B. She agreed that the effect of such a blood alcohol level on an individual would be loss of judgment, and loss of some coordination as well as the ability of the individual to recall what had occurred. When defense counsel sought to cross-examine Ms. McLaughlin on the question whether K.B.'s memory of the night in question was affected by her alcohol consumption, the trial court sustained the State's objection. Defendant argues this ruling improperly limited his defense. We disagree.

"Cross-examination is generally limited to the scope of direct examination." State v. Loftin, 146 N.J. 295, 344 (1996) (citing N.J.R.E. 611(b)). Determining the proper scope of cross-examination rests in the sound discretion of the trial court. Glenpointe Assocs. v. Twp. of Teaneck, 241 N.J. Super. 37, 54 (App. Div.), certif. denied, 122 N.J. 391 (1990). We see no abuse of the trial court's discretion in its ruling on this issue.

We have noted earlier in this opinion the two reports issued by Dr. Saferstein, and that in his first report he stated that someone with a blood alcohol level of 0.188% would have an impaired memory while in his second report, he did not address the question of the effect of alcohol upon memory. When Dr. Saferstein testified at trial, the prosecution objected to Dr. Saferstein expressing any opinion with respect to the effect of alcohol on K.B.'s ability to recall the events of that night. The trial court sustained that objection, and permitted Dr. Saferstein to testify solely on the question of the effect of alcohol upon an individual's ability to text message. The trial court would not permit him to testify on the effect of alcohol upon memory. Defendant argues this restriction was improper and denied him a fair trial. Again, we disagree.

The prosecution was entitled to anticipate that at trial Dr. Saferstein would testify on the subject matter of his second report, which was silent on the question of memory. There was no abuse of the court's discretion in upholding the State's objection.

We question, moreover, whether the effect of alcohol consumption upon memory is "so esoteric that jurors of common judgment and experience" would require expert testimony to address the issue. Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982). See also State v. Hackett, 166 N.J. 66, 83 (2001). We note, in addition, that there was no dispute at trial that K.B.'s memory of the events of that night was, in fact, impaired. She herself said so, and the prosecution commented upon that in summation as well. Thus, the exclusion of Dr. Saferstein's testimony with respect to the interplay between alcohol and memory provides no basis to reverse defendant's conviction.

Affirmed.

20100726

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