NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 15, 2012
On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 07-09-0852.
Caruso & Diaz, LLC, attorneys for appellant (John D. Caruso, on the brief).
Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Meredith L. Balo, Assistant Prosecutor, of counsel and on the brief).
Before Judges Espinosa and Guadagno.
Defendant Jorge Castro appeals from his convictions for aggravated sexual assault and other offenses arising from an incident involving N.M., with whom he had an on-again, off-again relationship for approximately four years. For the reasons that follow, we affirm.
Defendant and N.M. cohabited at defendant's home in Pennsylvania from November 2006 to February 2007. N.M. testified that she "always wanted to leave but he would always dominate" her and that they had argued because he was seeing other women behind her back.
Defendant and N.M. continued to have contact with each other after N.M. moved out. On February 16, 2007, they had an argument and had consensual sex afterward. N.M. testified that she did not see defendant again until March 28, 2007. They continued to call each other. N.M. testified that defendant called and left messages from other women on her cell phone. Telephone records revealed that in March 2007, N.M. made fifty-three calls to defendant's cell phone. She stated that she called him because all her belongings were still at his house in Pennsylvania and he refused to return them. When defendant called her, she returned his call to tell him to stop calling if he was not going to return her belongings.
N.M. testified that, on March 28, 2007, she again told defendant to stop calling her. Telephone records showed that defendant called N.M that morning at work or on her cell phone at 9:14, 9:16, 9:31, 9:37, 9:47, 9:51, 9:59, 10:04 (twice), 10:05 (twice), 10:06, 10:07, 10:10, 11:42, 11:45, and 12:05 p.m. N.M. testified that, as a result of these calls, she felt ill and vomited and was permitted to leave work after 11:30 a.m.
N.M. returned home and prepared to take a shower. She heard someone knock on the door to her apartment, wrapped herself in a towel, and asked who was at the door. She opened the door slightly and saw defendant's shoes and New Jersey Transit uniform.
Armando Santiago lived upstairs from N.M., but did not know her well. He testified that, on March 28, 2007, he came home for lunch and was opening the door when he saw defendant knocking on N.M's door. Santiago observed N.M open the door, peek out and hold the door with her right shoulder to keep it from opening completely. Santiago saw defendant put his left foot toward the door and used his left hand to hold the door open. Santiago testified that N.M. told defendant to "get out" and described her tone of voice as "like she wasn't expecting somebody and she got like scared at the same time."
N.M. testified that defendant asked her to "look at his face and to allow him to come in[.]" N.M. told him to "please leave [her] alone and to leave[, ]" but defendant "pushed the door" and entered the apartment. Defendant grabbed her by the back of the head, tried to kiss her, and bit her lips. She told him to leave her alone and to leave, that nothing was going to work out between them. Defendant told N.M. he wanted her to return to Pennsylvania with him. N.M. testified that she fought back, "[b]iting" and "hitting him." Her towel fell off in the struggle. N.M. called him a "monster." Defendant said that if she "didn't go back with him[, she] was not going to be with anyone, [and] that [she] was going to lose [her] daughters."
During the struggle, defendant broke a chain that N.M. was wearing around her neck. She fell down and hit her left knee. N.M. testified that during the "fighting" and "brawling, " they "got to the kitchen area." Defendant grabbed a bottle of wine, held it over N.M.'s mouth, and poured wine down her throat and onto his shirt.
Defendant started taking off his clothes, grabbed N.M., and pushed her into the bedroom while N.M. continued to hit him. N.M. testified that she pushed back against defendant as he was pushing her into the bedroom. He threw her onto the bed, causing her head to hit the wall. Defendant got on top of her. He was biting her breasts and penetrating her vagina with his fingers while N.M. continued to fight him. N.M. testified that it was painful and felt "[h]orrible" when he put his fingers into her vagina. "He was putting them in very hard, sort of like to hit [her], to make [her] feel pain." Defendant kept saying that they should get married. He also said they should break "that little card that the phone has[, ]" which, N.M. explained, meant he did not want her "to have any relationship with any of [her] friends, with anybody . . . at all." She told him "[t]hat it was too much, that he had had his chance[.]"
N.M. testified that, while they were fighting, defendant received a phone call. Although he did not answer the phone at first, she was able to escape to the kitchen, where she stood, shaking, by the sink. Still naked and "very afraid of him[, ]" she did not try to leave or call anyone.
N.M. testified that defendant grabbed her again and threw her on the mattress. He continued biting her and tried to tear her lip even more with his mouth. She stated that defendant penetrated her with his penis, then withdrew his penis, and rubbed it all over her and around her lips. He put his fingers into her vagina and ejaculated between her breasts. After defendant ejaculated, N.M. broke a chain he was wearing around his neck. Defendant then hit her below her left eye with his closed fist. N.M. testified that the blow was hard, causing the bruise to turn purple right away. Defendant got dressed, then hit N.M. and threw her on the ground before leaving with the chain from N.M.'s neck, as well as her anklet.
N.M. testified she got up and looked for her cell phone to make a call. When she could not find it, she got dressed and went to her car. N.M. put her car in reverse to exit her parking spot, and then in drive to go down the driveway. Defendant came down the alleyway and hit the front-end of her car with the front-end of his car. He opened the passenger door of his car and threw out N.M.'s phone. N.M. hit defendant's car twice as he was backing up "[t]o defend [herself]" because "[h]e want[ed] to kill [her]." N.M. drove towards North Broad Street and hit defendant's car again. N.M. returned to her apartment, where she tried to make a call, but her damaged phone no longer worked.
Police officers from both Hillside and Elizabeth responded to the scene. N.M., who testified through an interpreter, said her English was worse at the time of the incident than it was at trial. Neither the Hillside officers nor the Elizabeth officers spoke to her in Spanish. She testified she told the Hillside officers that defendant tried to kill her in her car. When the Elizabeth police officers arrived, she said she was "so nervous" that she spoke in both English and Spanish but the officers only spoke English. She told them defendant "hit [her] car, that he had hit [her] inside the apartment, and that he wanted to make love but that [she] didn't want to." N.M. testified she did not know the English word for "rape" at the time. She also said there were "many men" and she was embarrassed to "tell in front of everybody everything [defendant] did to [her]." She also told the officers that she had intentionally rammed into defendant's car multiple times.
Elizabeth police officers Thomas O'Connor and Linda Lensch interviewed N.M. at her apartment. O'Connor testified N.M. was "visibly upset" and had "black eyes, visible swelling to her face, " the "swelling on the face around her eye was still red and swollen. It hadn't bruised up, didn't appear to be like an old injury where it was bruised up yet." Her wrist was also swollen. She was "distracted, . . . it would take her a minute to answer a question . . . [i]t just didn't seem like she was concentrating on us there talking to her." The officers spoke to her in English. She tried to answer in Spanish and spoke in broken English, saying she did not speak English well.
O'Connor testified that N.M. told them she had received two harassing phone calls at work that upset her from an ex-boyfriend, whom she identified as defendant. She took the rest of the day off and went home. O'Connor recounted what N.M. said occurred thereafter: she took a shower and heard a knock at the door. She answered the door in a large bath towel. Defendant tried to convince her to let him into the apartment to discuss their relationship. He attempted to enter; she tried to close the door but he was able to push it open. He proceeded to say he was sorry. N.M. told the officers she replied, "I'm tired of your abuse and leave me alone[.]" She said he entered the apartment, closed the door, grabbed a bottle of wine, and demanded she drink some. N.M. told them that defendant grabbed the towel, pushed her onto the bed, ripped off her necklace and anklet and laid on the bed next to her. N.M. told the officers defendant wanted to have sex with her; she said she did not want to have sex with him and that defendant then punched and slapped her. O'Connor interpreted her statement to mean that there had been domestic violence but no sex between N.M. and defendant.
Lensch also described N.M. as "very agitated[, ] . . . kind of panicking, breathing fast and walking around." She testified that, in the interview at N.M.'s apartment, N.M. spoke in "very broken English, heavily-accented, . . . she had difficulty speaking English." Lensch was only "somewhat" able to communicate with her.
At the police department, Lensch gathered domestic violence forms. She explained to N.M. that defendant would be charged with simple assault and released on bail. Lensch described N.M.'s reaction:
She became panicked and -- and again said but he -- he tried to make love to me. And I said what are you telling me? Because she kept saying that and she seemed afraid and agitated again. And I said did he have sex with you? And she said yes. . . . And I said did you give permission? . . . And she said no. And that's when I turned to Officer O'Connor and I said stop, we have something different here.
According to Lensch, the change in the officers' understanding was the product of the follow-up questions asked at headquarters rather than any change in N.M.'s statement. In fact, Lensch testified that N.M.'s story or words never changed.
O'Connor and Lensch took N.M. to Trinitas Hospital, where she was examined by Catherine Kinney, a SANE (Sex Assault Nurse Examiner) nurse. Kinney testified that a skin surface assessment revealed: a tear to N.M.'s lip, bruises to her cheek; redness, scratches, and bruises to her wrists and arms; a laceration to her right pinkie; bruises on her hips; redness on her shoulders; bite marks on both breasts; redness on right breast; bruises on inner thighs; and scratches and redness on right inner ankle. Kinney noted thirty injuries in total: nine on N.M.'s back and twenty on her front. Kinney testified that, based on her training and experience, the injuries appeared to be fresh, and the bruising appeared to be caused by force of some kind. A gynecological exam of N.M. revealed a lateral tear to N.M.'s vaginal wall, which Kinney testified would have been caused by force. Kinney further testified that based on her training and experience, the external injuries she observed, along with the tear in N.M.'s vaginal wall, were consistent with N.M.'s description of what happened to her.
In support of its case, the State called Detective Thomas J. Paret, an expert in the field of polygraph administration and interpretation. Paret conducted a polygraph examination of defendant in Spanish on July 23, 2007. Defendant stipulated, with advice of counsel, that the results would be admissible at trial. Prior to asking any questions, Paret advised defendant of his Miranda rights and gave him a polygraph consent form. After defendant acknowledged his understanding of each and signed them, Paret began the pre-test interview.
Paret asked defendant his version of what happened. Defendant replied that he did not have sex with N.M. He told Paret that N.M. had made numerous calls to his cell phone and said she wanted to see him. He did not want to go but went over because "she had gone home sick from work and was complaining to him that she wanted to see him." Paret testified that defendant gave the following account of what occurred at N.M.'s apartment:
So when he arrived, . . . she came to the door in just a bathrobe and that she had wine and that she wanted to have sex with him and he was telling her that he didn't want to. At that point she became irate and threw wine on him. At that point he said he . . . left the house because he didn't want to get in a confrontation with her, [and] while he got in his car, she followed him and then . . . she rammed his car[.]
Paret conducted a five-question pre-test, or certified verification of sensitivity ("CVOS") exam, to familiarize defendant with the components of the polygraph. Paret formulated ten questions to be asked as part of the polygraph exam and conferred with defendant's attorney prior to reviewing those questions with defendant. The relevant questions asked of defendant during the polygraph were: (1) "[D]id you have sex with [N.M.] on March 28, ?"; (2) "[W]ere you the person that had sex . . . with [N.M.] on . . . March 28, ?"; and (3) "[O]n March 28, 2007 were you the person that had sex with [N.M.?]" Defendant responded "no" to each of those questions. After comparing defendant's answers to the relevant questions to his responses to the other questions, Paret concluded that defendant was being deceptive on the relevant questions.
Paret advised defendant's attorney that defendant failed the exam. Paret then returned to the exam room and explained the results to defendant. Defendant, again, insisted he did not have sex with N.M. that day. Paret testified that after he started reviewing the test results again, defendant stated he wanted to speak with his attorney, and the post-test interview ended.
In November 2007, approximately three months after the polygraph examination, Lynn McBride, supervisor of the New Jersey State Police DNA laboratory, compared dried secretions obtained from N.M. to a buccal swab obtained from defendant. McBride determined that defendant was the source of the DNA found in the dried secretions.
Defendant was indicted on the following charges: first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2(a)(3) (count one); second-degree burglary in violation of N.J.S.A. 2C:18-2(b)(1) (count two); second-degree sexual assault in violation of N.J.S.A. 2C:14-2(c)(1) (count three); third-degree aggravated criminal sexual contact in violation of N.J.S.A. 2C:14-3(a) ...