On appeal from the Superior Court of New Jersey, Law Division, Criminal Part, Bergen County, Indictment No. 06-08-1413.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: January 13, 2010
Before Judges Stern, Sabatino and J. N. Harris.
Defendant was convicted of second-degree sexual assault (as a lesser included offense on count one) by committing an act of sexual contact on a victim less than thirteen while being at least four years older than the victim, and of the same offense on count two, and of endangering the welfare of a child, and child abuse.*fn1 He received concurrent sentences on all counts, the aggregate totaling eight years, the specific terms imposed on counts one and two. An eighty-five percent parole ineligibility term was imposed under the No Early Release Act, N.J.S.A. 2C:43-7.2, on the second degree sexual assaults. Megan's Law, N.J.S.A. 2C:7-1 to -19, requirements, including parole supervision for life*fn2 were also imposed. On this appeal, defendant argues:
POINT I THE STATE ELICITED DETAILED "FRESH COMPLAINT" TESTIMONY, AND THE TRIAL COURT FAILED TO PROVIDE THE JURY WITH THE PROPER LIMITING INSTRUCTION AT THE TIME OF THE TESTIMONY, DENYING THE DEFENDANT HIS STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO DUE PROCESS OF LAW AND A FAIR TRIAL. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST., ART. I, ¶¶ 1, 9 AND 10.
POINT II THE PROSECUTOR COMMITTED MISCONDUCT DURING SUMMATION WHEN SHE BOLSTERED THE STATE'S CRITICAL WITNESS' TESTIMONY AND APPEALED TO JURORS' EMOTIONS. MOREOVER, THE JUDGE FAILED TO GIVE THE JURY A CURATIVE INSTRUCTION. U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 10.
POINT III THE ADMISSION OF V.M.'S SELECTIVELY RECORDED STATEMENT, WHICH HAD BEEN PRECEDED BY A DELIBERATELY UNRECORDED INTERROGATION, DEPRIVED V.M. OF A FAIR TRIAL. U.S. CONST. AMENDS. V, XIV; N.J. CONST., ART I, ¶ 1.
POINT IV THE TRIAL COURT FAILED TO INSTRUCT THE JURY HOW TO EVALUATE THE STATE'S EVIDENCE OF V.M.'S UNRECORDED INTERROGATION, THEREBY DEPRIVING HIM OF A FAIR TRIAL.
POINT V THE SENTENCE OF EIGHT YEARS' IMPRISONMENT SUBJECT TO THE NO EARLY RELASE ACT IS EXCESSIVE, UNDULY PUNITIVE, AND MUST THEREFORE BE REDUCED.
We reject these contentions and find that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2)
F.S., age six at the time of the incident, lived with his mother, P., her husband, and his younger brother. Defendant and his girlfriend, D., were their neighbors, and F.S. was a friend of defendant's son. "[F.S.] would go there to their house everyday." Defendant's girlfriend or her daughters would watch F.S. after school "all the time." D. was listed as an "emergency person" for F.S. at his school.
On Friday, February 24, 2006, F.S. became sick at school. F.S. testified that defendant picked him up and took him to defendant's home.
F.S. further testified that was lying down on the couch in defendant's living room when defendant came in and said that "he was going to lick my butt." F.S. said "no" and "got tired of saying no" despite the fact defendant promised to give F.S. a toy car or a toy motorcycle. Defendant "pulled down" F.S.'s pants, and licked the inside of his butt while F.S. was still lying on the couch. F.S. told defendant "[n]ever do that again." Defendant also took his (defendant's) penis out from his open zipper and put it "on" F.S.'s butt. F.S. further testified that defendant "took his teeth out on the top" but did not do anything with them.
F.S.'s mother picked him up from defendant's house between 3:00 and 4:00 in the afternoon. He did not exhibit illness or look very different than usual to her. Within two or three hours, F.S.'s father picked him up for the weekend. He returned home on Tuesday, February 28.
On the day of F.S's return, P. was sitting on a sofa in the family room and F.S. was eating cereal at a table next to the sofa. Moving to his mother's side on the couch, F.S. said "he had something to tell her," and proceeded to say that defendant "placed his tongue in his butt."*fn3 She asked F.S. to relate what had happened, and he said that he [defendant] placed his tongue in his butt and he had gone to the bathroom and he lie down on the sofa because he was tired and he was sleepy and [defendant] went there and rolled his pants down and he had placed his tongue in his butt and he said don't do that.
The mother further testified that F.S. said he told defendant not to do that and [defendant] replied allow me to do it because I'm going to give you a gift, a car and a motorcycle. And then he said not to do that. He didn't want him to do that and he did not care about a car or a motorcycle. And that he [defendant] continued to insist..... Then after that he took his dentures out and he bit his butt.
F.S. did not tell his mother anything else that happened that day, with the exception that while he remained on the sofa, defendant went upstairs to fix something, and that defendant "did not give him the car or the motorcycle."
After speaking to her husband, P. telephoned defendant's girlfriend D. and related what F.S. had told her. She then went to defendant's house, and sat down with defendant and D. Defendant denied that he had done anything. F.S. was then asked to join his mother at defendant's house where he repeated that defendant "had touched his butt and that he had placed his tongue in his butt." Defendant appeared "worried and nervous" to F.S.'s mother, who had known him well for several years. In response to questions by defendant and D., F.S. continued to maintain "[you] did that to me. I did not dream it. And it was the first time it happened."
While giving F.S. a bath that night his mother noticed "a small mark on his butt cheek," and asked him where the mark came from. He stated that "[defendant] had taken out his teeth and he had bit him." P. thereafter spoke with F.S.'s father, who told P. to "go to the police and file charges."
The Ridgefield Park Police Department contacted Diane Armbruster of the Sex Crimes and Child Abuse Squad of the Prosecutor's Office. Arrangements were made for F.S. to be interviewed at the Audrey Hepburn Children's House, "a medical center that caters to children that are victims of abuse, sexual or child abuse."
Detectives Armbruster and Cora Taylor met F.S. and his mother at the Audrey Hepburn House at 8:30 p.m. on March 1, 2006. Taylor, who was specially trained in conducting forensic interviews of abused children, interviewed F.S. Armbruster and Ridgefield Park Detective Albert Baker viewed the interview from a nearby room. The interview, which began at 9:00 p.m., lasted fifty minutes and was videotaped in its entirety. The tape was played for the jury.*fn4
At 3:15 p.m. on Friday March 3, 2006, Armbruster, Baker and Prosecutor's Office Detective Frank Cilento went to defendant's home to speak to him.*fn5 Since defendant was not at home at that time or when the officers returned an hour later, D. contacted defendant on his cell phone. Defendant "voluntarily" met the three officers at the Ridgefield Park Police Department at 5:30 p.m. Defendant agreed to accompany the officers to the Bergen County Prosecutor's Office in Paramus for an interview.
When they arrived in Paramus at approximately 6:00 p.m., Armbruster read defendant his Miranda*fn6 rights prior to interviewing him. Defendant had no questions about those rights. He acknowledged his understanding of each right by writing the word "yes" and his initials next to each right. Defendant signed the waiver form after Armbruster read it to him and he read it to himself. The form was completed at 6:07 p.m. and was signed by Armbruster and Baker.
Proceeding with the interview, defendant was first asked basic pedigree information. During the interview defendant was calm and polite; he never asked to stop the interview or for an attorney.
Defendant initially denied that he had licked and bit F.S.'s butt, but said that he had played a "dog game" with F.S. Defendant acknowledged that he bit F.S. on his arms and legs. When asked if he had pulled F.S.'s pants down, defendant stated that he did not know, and then denied doing so. When told that F.S. said that defendant took his "weiner" out and put it on his butt, defendant replied "[i]t could be maybe he felt it," and that "I think I had an erection." When asked if he in fact had an erection, defendant stated "I'm admitting, yes." Defendant stated that he was wearing loose gray shorts and a shirt. Asked whether his penis contacted F.S.'s buttocks, defendant replied, "[p]erhaps my penis rubbed against his butt."
Cilento, Armbruster's superior, watched the interview through a two-way mirror. When Cilento entered the interview room, Armbruster and Baker left and watched Cilento's five-minute conversation with defendant through the mirror.*fn7
After Cilento left, Armbruster re-entered, and defendant told her that he "lowered [F.S.'s] pants a little bit" and "licked [his] butt cheek." Continuing to respond to Ambruster's questions, defendant said that his penis slipped out, that he was on top of F.S., and that he "rubbed his penis in between [F.S.'s] buttocks but said he didn't intend to penetrate him." Armbruster testified that at this point during the interview, defendant apologized saying: "I know I did a mistake. I just want to apologize to everyone, everybody is hurt. I don't know what happened to me that day. I know I did something wrong."
Defendant agreed to give a stenographic statement as a backup to the video. Armbruster explained what a stenographic statement was, and reviewed the questions that she would ask defendant so that there would be no surprises.*fn8
Armbruster reminded defendant of his rights, showed him the executed Miranda form, and asked him if he understood that these rights were still in effect. In addition to a stenographic transcription, defendant's statement was also videotaped. Armbruster explained that at that time, the Attorney General's Office issued a new policy requiring the videotaping of a defendant's statement in cases involving first and second degree crimes. Armbruster and Cilento agreed that a stenographer should be present as a backup. Defendant's recorded statement began at 9:13 p.m. and concluded at 9:25 p.m.
On cross-examination, Armbruster acknowledged that defendant was questioned for approximately three hours before his statement was stenographically taken and videotaped. Armbruster generated her report of the ...