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State of New Jersey

May 16, 2011

STATE OF NEW JERSEY
IN THE INTEREST OF A.F.



On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Union County, Docket No. FJ-20-2354-05.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2011

Before Judges Lisa and Reisner.

Defendant A.F. appeals from a March 2, 2007 adjudication of juvenile delinquency for acts which, if committed by an adult, would constitute aggravated sexual assault, N.J.S.A. 2C:14-2a(1), and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He was sentenced to three years probation, to include sex offender counseling and registration. We affirm.

I

On this appeal, defendant argues the following point concerning the admissibility of other crimes evidence:

THE ADMISSION OF OTHER-CRIMES EVIDENCE AGAINST DEFENDANT -- INCLUDING HEARSAY EVIDENCE THAT DEFENDANT HAD SEX WITH ANOTHER SIBLING AND EVIDENCE OF A CONSPIRATORIAL RELATIONSHIP WITH OTHER SIBLINGS PROMOTING SEXUAL ACTIVITY -- WAS IMPROPER, THEREBY REQUIRING A NEW TRIAL.

The issue arose in this context. Defendant Angelo F., Jr., was accused of molesting his sister, Paula H.*fn1 , who was five years younger than he was. Paula contended that these acts took place from the time she was six years old until she was eleven. Although Paula told her mother, when she was eleven, that defendant had touched her inappropriately, she waited until she was sixteen before reporting that he had actually raped her.

Before the trial, the State gave notice that it intended to introduce evidence of defendant's alleged bad acts with respect to other siblings. When the defense objected, the State amended the juvenile delinquency complaint to charge defendant with endangering the welfare of several of his other siblings or step-siblings, Mark H., Joel F., and David F. The defense then filed a motion to sever the trial of those additional charges from the trial concerning defendant's conduct with respect to Paula.

The charges with respect to the other children involved showing them pornography, sometimes when Paula was present, encouraging them to masturbate, and having sex with other people in the household in front of these children. On the motion to sever, the State argued that these other bad acts were relevant to show that, although defendant and Paula lived in a crowded household, it was still feasible for defendant to commit sexual acts with her without the parents finding out about it. The State also argued that these other incidents helped to explain why Paula took so long to make a complaint. The State further contended that since Paula was present during some of these incidents, and they formed the basis for charges of endangering her welfare as well, she would need to testify about them even if the trials were not severed. The State also asserted that, with respect to the allegations of sexual contact with Paula, the other sexual acts tended to show that defendant's contact with her was for the purpose of sexual gratification. Applying the four-prong test set forth in State v. Cofield, 127 N.J. 328, 338 (1992), the trial judge accepted the State's arguments, in an oral opinion placed on the record on November 3, 2006.

II

This was the trial evidence. Paula testified that when she was six years old, she lived with her parents Sally H. and Angelo F., Sr.*fn2 , her two sisters, Sarah F. and Tracy H., her older brothers Angelo F., Jr. (defendant), and Mark H., and her two younger brothers David F. and Joel F. According to Paula, these nine people lived in a three-bedroom house in which the parents had one bedroom and Sarah had the second bedroom to herself. All of the other six children occupied the third bedroom, in which there were two sets of bunk beds. According to Paula, during the week the children were frequently at home without ...


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