On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0386.
The opinion of the court was delivered by: Per Curaim
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Waugh and St. John.
Defendant J.R. appeals from his conviction on one count of second-degree sexual assault, contrary to N.J.S.A. 2C:14- 2(c)(1), and one count of fourth-degree criminal sexual conduct, contrary to N.J.S.A. 2C:14-3(b).*fn1 We affirm.
Defendant is the father of Wanda,*fn2 who was born in Honduras. When Wanda was three years old, defendant moved to the United States. Wanda remained in Honduras with her mother. After the move, defendant and Wanda spoke occasionally via telephone, at most once a month.
When Wanda was a teenager, she and defendant began discussing the possibility of Wanda moving to America. As she grew older, Wanda was reluctant to make such a move because she had three daughters whom she did not want to leave behind in Honduras. Nevertheless, Wanda eventually decided to move to the United States so that she could eventually give her children a better future.
Wanda came to the United States lawfully in September 2007, when she was twenty-six. At that time, Wanda's children did not have the necessary documents and were not able to come with her.
After she arrived in this country, Wanda lived with defendant and his wife in Elizabeth.
At the time of the alleged offenses, defendant lived in a two-bedroom apartment. One bedroom was occupied by him and his wife, and the other by a friend of defendant. Wanda slept in the living room.
On September 12, the day after Wanda's arrival, defendant made sexual advances to her, which she rebuffed. Wanda testified that, from September 13 to November 16, defendant sexually assaulted her on a daily basis while his wife and friend were at work. According to Wanda's testimony, defendant physically restrained her during the assaults, and also threatened to kill her and to take away the documentation she needed to stay in the United States if she told anyone. Wanda testified that, on one occasion, defendant sexually assaulted her late at night while his wife was asleep in the bedroom. On another occasion, defendant took Wanda to a hotel where he sexually assaulted her.
Approximately one week after she arrived in the United States, Wanda contacted her mother in Hondouras and told her that defendant had sexually assaulted her. Wanda's mother then contacted her cousin to arrange for Wanda to move in with him.
He also lived in Elizabeth. However, Wanda's mother did not disclose the sexual assaults to the cousin.
The cousin called Wanda approximately two weeks later and the two met. Because the two did not know each other, Wanda did not initially tell her cousin that defendant had sexually assaulted her. The cousin and Wanda continued to meet on the weekends, but Wanda still did not feel sufficiently comfortable with him to disclose the sexual assaults.
On November 16, after defendant told Wanda to leave his apartment, she moved into the apartment rented by her cousin and his wife. Defendant subsequently contacted Wanda in an effort to convince her to move back to his apartment, but she refused. However, on November 20, Wanda went to defendant's apartment to gather her belongings, relying on defendant's assurances that his wife would also be there. Wanda testified that defendant was alone in the apartment when she arrived, and that he sexually assaulted her.
Defendant had previously arranged for Wanda's green card to be sent to his home. Wanda contacted defendant a few days following the November 20 assault to see if it had arrived. Around that time, Wanda also spoke with defendant regarding the sexual assaults because she did not "want to have problems with him." They agreed that the sexual assaults "should be a part of the past and that [they] should move on." Their relationship improved after reaching that agreement.
On December 7, Wanda and defendant met to gather documents that she needed to obtain her green card. That same day, the cousin suggested that they invite defendant over for dinner because it was defendant's birthday. Later that night, defendant and several friends came to the cousin's apartment to celebrate.
During the party, defendant became drunk. Wanda took him to a bedroom so he could rest. While in the bedroom, defendant attempted to kiss Wanda and shoved her into a closet when she resisted. At that point, the cousin came into the room and Wanda ran to the bathroom. Defendant left after the cousin told him to leave.
However, Defendant attempted to get back into the apartment when Wanda opened the door for another guest. He attacked Wanda, but the cousin was able to pull him away and again told defendant to leave. The cousin called the police because Wanda was afraid defendant would return. While waiting for the police to arrive, Wanda told the cousin for the first time that defendant had been sexually assaulting her.
When the police arrived, they asked the cousin to call and instruct defendant to come back to the apartment. The police arrested defendant after he returned.
Defendant was indicted on May 2, 2008. He was tried before a jury over the course of four days during May and June 2009. The State offered testimony consistent with the facts stated above at trial.
Defendant testified at trial, denying all of Wanda's allegations. He also disputed the events related to his birthday party. Defendant claimed that after Wanda lost money in a card game at the party, she insulted him and jumped on him. According to defendant, the cousin pulled Wanda away from him. Defendant's wife testified on his behalf. She did not witness anything to suggest that defendant and Wanda had any kind of sexual relationship, although they constantly argued about Wanda's children coming to the United States. She also testified that she worked two jobs and did not know where defendant and Wanda were while she was at work. Defendant's wife did not attend the December 7 party. The wife's daughter testified on defendant's behalf, asserting that Wanda's cousin told her that Wanda had asked him to lie to the police so they would arrest defendant.
The jury found defendant guilty of sexual assault and criminal sexual contact. On December 4, the trial judge sentenced defendant to a term of imprisonment of eight years, subject to the No Early Release Act, N.J.S.A. 2C:43-7.2, for the sexual assault, and to one year of imprisonment, to be served consecutively, for the criminal sexual contact. The judge ordered parole supervision for life, registration under Megan's Law, and imposed required fines and penalties.
Defendant raises the following issues ...