On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0462.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves and Messano.
Following a jury trial, defendant W.L.J. was convicted of first degree aggravated sexual assault on a victim less than thirteen years old, N.J.S.A. 2C:14-2(a)(1); second degree sexual assault, N.J.S.A. 2C:14-2(b); and second degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The judge sentenced defendant to an aggregate term of imprisonment of ten years in prison, with an eighty-five percent parole disqualifier under the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2, together with five years of parole supervision as well as the required registration and supervision under Megan's Law. N.J.S.A. 2C:7-1 to -11. Defendant appeals. We affirm the judgment of conviction but defer defendant's claims as to ineffective assistance of counsel to a petition for post-conviction relief.
These are the facts adduced at trial. Defendant and L.J., both Haitian immigrants, were married in 1998, when L.J.'s daughter, Y.J., was four-and-a-half years old. L.J. and defendant had a daughter together, W.J. Y.J. called her step-father "Poppy." The relationship between L.J. and defendant was "rocky" according to defendant's cousin, Florcy, who lived with the family in 1999-2000. L.J. conceded that she and her husband did not get along, and that the children sometimes saw defendant physically hurt her. L.J. was also aware that defendant maintained two girlfriends during his marriage, and L.J. knew the women's names, addresses, cell phone numbers and license plate numbers. L.J. also claimed to have spoken to the girlfriends on the telephone.
The family lived in a house in Roselle, but in August 2005, they sold the house, planning to move to Georgia for a fresh start. Until the move to Georgia could be accomplished, the parties moved to another house in New Jersey to live with friends. The $121,000 proceeds from the sale of their house were placed in a joint account. According to L.J., defendant took some money out of the account, prompting her to remove $121,000 from the account on September 5 or 6, 2005. Defendant then moved out of their temporary residence with friends and filed for divorce in October 2005.
According to L.J., sometime in 2004, Y.J. came to her and said, "When Poppy is kissing me he tries to kiss my tongue."
L.J. advised Y.J. to tell defendant not to kiss her that way, but Y.J. wanted her mother to talk to him. When L.J. relayed the conversation to defendant about a week later, he said that Y.J. was "crazy." However, in a statement given by L.J. to the prosecutor's office on December 14, 2005, L.J. said that the conversation between her and Y.J. happened "in the summer [of 2005] while I was waiting to do my closing for my house." When she spoke to defendant about it, he saw nothing wrong with it but agreed not to do it again. When challenged as to the actual time of this conversation, L.J. insisted that it was made in 2004. When again confronted with her previous statement that the conversation occurred in the summer of 2005, L.J. said she made a mistake because she was upset, or maybe the person "working on the computer" made an error. She then admitted that she could not remember when Y.J. made the statement about Poppy kissing her, but thought maybe it was about a year before the house was sold.
Y.J. said nothing more about defendant until December 2005, when, on December 8, 2005, Y.J., her mother and W.J. were driving to church. According to L.J., Y.J. said she had something to tell her mother, but did not want to discuss it in front of her sister. When L.J. persisted, Y.J. said, "Remember when I told you that Poppy was kissing me?" When L.J. agreed, Y.J. said that after that, defendant came to school, took her to the basement of their home, beat her on the mouth and said, "If you ever repeat to . . . anybody else what I did to you I will kill you."
The next day, December 9, 2005, L.J. appeared in court in her matrimonial action and was ordered to put $99,000 she had taken from the marital account into an attorney trust account. She returned only $40,000 of the money.
A few days later, on December 12, 2005, L.J. took both her daughters to her friend Bethy's house. While alone, Y.J. told Bethy that defendant had been touching her. Bethy told L.J., who called Y.J.'s doctor, who told her to take Y.J. to Trinitas Hospital. Y.J. was examined by pediatrician Rajyalakshmi Vadali, who noted that Y.J. was menstruating. Vadali found no lesions or tears or other signs of sexual assault, despite Y.J.'s claim that her stepfather had inserted his penis into her vagina.
Vadali notified the police, and on December 14, 2005, Detective Walter Johnson of the Union County Prosecutor's Office took statements from Y.J. and L.J. He described Y.J. as "sullen" and "withdrawn," and she cried when she gave her statement. L.J. was "distraught" and was "hysterically crying" during her interview.
Y.J., who was fourteen years old at the time of trial, informed the jury that beginning in September 2004, when she was eleven years old, she would be called to come to the school office at lunchtime, where defendant was waiting. When she left school with him, he informed her that a teacher had called and said she was misbehaving. Then he would take her to the basement of their house and hit her with a belt on her arms, legs and back until she agreed to do her school work. Defendant would then tell her to take off her pants and he would take off his own pants. He touched her breasts with his hands and then put his penis in her vagina, which "hurted." Y.J. cleaned up "white stuff" afterward. Then defendant would take her back to school. Y.J. claimed this occurred on at least nine occasions between September 2004 and August 2005.
Y.J. also recalled an incident that occurred in September 2004, when defendant took her to Toys R Us for a late birthday present (her birthday was August 30). After buying Y.J. a video game, defendant drove her to a motel near Chuck E. Cheese and a restaurant called Tiffany's, where he put his penis in her vagina, again producing "white stuff."
Y.J. indicated that she had seen defendant hit her mother with his hand, and once, her mother threw a lamp at him. She denied that anyone told her to make these accusations against defendant.
Defendant was arrested, and the police interviewed him.*fn1
During the interview, defendant claimed that he had a "very
good" relationship with Y.J. Her teachers called him (never her
mother) and reported various instances of Y.J.'s misconduct in school.
For example, they reported that Y.J. did not do her
homework, did not behave, made noise, talked to other students or did
not listen to the teacher. He recalled that one teacher, Mr. Perrone,
called him on his cell phone "many times." When he received the phone
calls, sometimes he went to the school, where he went to the office to
see Y.J. and the principal. Sometimes, after signing Y.J. out of
school, he picked her up at lunch and took her home to talk to her
about school issues. He admitted that sometimes he spanked her with a
belt on her hands as discipline during these incidents but denied
sexually abusing her or taking her to a motel. He mentioned that L.J.
took money from the sale of their house and put it in her own account.
He also suggested that Y.J. was lying. After Johnson inquired as to
the motel, defendant discontinued the interview.
At the recommendation of Trinitas, on December 22, 2005, Y.J. went to the Dorothy B. Hersch Child Protection Center, where she talked to Linda Shaw, M.D., a pediatrician with expertise in child sexual abuse. Shaw met with Y.J. alone but did not examine her because Y.J. said she had been examined and tested at Trinitas. Y.J. told Shaw that there had been penile contact with her genital area by an adult male and that she was experiencing sadness, anger, trouble sleeping and bad dreams. Shaw referred Y.J. to counseling.
At the request of the prosecutor's office, Shaw performed a physical examination of Y.J. in January 2007. The doctor found no evidence of sores, bumps, discharge or irritation to indicate sexual abuse. However, "[p]enetration doesn't, necessarily, leave anything for a physician to identify on an examination." Shaw stated that it is "unusual" to find any injury indicative of sexual abuse in a child of Y.J.'s age because generally, genitalia are sexually mature, and specifically, Y.J.'s genitalia were mature.
Thomas Perrone, who was Y.J.'s teacher for two years, challenged defendant's claims regarding his interaction with the school. He testified that Y.J. was not a disruptive student, and he never called her parents concerning her behavior. He did contact her parents about her school work, but he did not recall ever speaking to defendant. He never asked her parents to pick her up from school. Similarly, two other teachers indicated that Y.J. was never disruptive in school, and the teachers never sought immediate parental intervention. One teacher, Barbara Becker, said she called home four times about schoolwork matters, but got no response, and she never met with defendant.
Racquel White, Y.J.'s music teacher, said Y.J. presented no behavioral problems, and White never asked the parents to come to the school immediately. She called home only to report that Y.J. repeatedly forgot her flute. White's classroom was next to the office, and she recalled seeing defendant "a good amount of times." After learning of the allegations against defendant, White recalled one occasion when Y.J. left school at lunchtime and returned in the afternoon. The teacher did note that in 2004-2005, Y.J. was always "sad and always mopey." When she asked Y.J. about her family, she replied, "you just don't know." However, Y.J. never mentioned a sexual assault to White.
Barbara Ann DeMarco, the principal of Y.J.'s school, observed that Y.J. was "extremely well behaved." DeMarco never asked for any immediate parental involvement for behavior issues, but Y.J. "was struggling" academically. DeMarco met with both parents only once, when Y.J. failed to do a book report. DeMarco explained that the school had a sign-in/sign-out sheet that the parents were supposed to sign when they retrieved their children during school hours, but it was possible to circumvent the rule during lunchtime when the children were outside by telling the outside aide that the child had already been signed out. The sign-in/sign-out sheet revealed that Y.J. was signed out only once during 2004-2005, on December 23, 2004. DeMarco stated, "Apparently, that is her father's signature." She then admitted that the signature was illegible, and she was speculating as to the signer. L.J. came to the school one day "hysterical[ly] crying" and told DeMarco of the allegations against defendant. DeMarco did not remember the date of that incident but thought it was January. DeMarco also noted that conferences between the Child Study Team and L.J. were held in December and January, and the reports of those meetings made no mention of the sexual abuse allegations. If L.J. had mentioned abuse to a teacher, it would not be placed in the report, but the teacher would have to report it to the authorities.
Upon investigation, Johnson determined that no records from Toys R Us or the Garden State Motel were retained to corroborate Y.J.'s story about the abuse at the motel on the day defendant took her to Toys R Us.
Locombe, defendant's cousin who once lived with the family, was "very close" to L.J. Locombe conceded that L.J. was a "very jealous person" and repeatedly told her that if she and defendant did not stay together, he would "end up in jail or back to Haiti" as L.J. would "get back at" him. E.P.L., one of defendant's girlfriends, indicated that on the day defendant was arrested, she called L.J. and asked what she had done to him.
L.J. replied, "If I can't have W.J., no one else will have him. Everybody lose [sic]."
On appeal, defendant raises the following issues:
THE TRIAL COURT SUA SPONTE SHOULD HAVE EXERCISED ITS DISCRETION ALLOWED BY RULE 30:20-1 [sic] TO SET ASIDE THE VERDICT OF ...