NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1176.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Fisher, Espinosa and Koblitz.
This case concerns defendant's conviction of aggravated sexual assault on his stepdaughter, T.S. (hereafter "Jane, " a fictitious name), between 2002 and 2004, when Jane was under the age of thirteen years, and between 2004 and 2006, when Jane was at least thirteen but not yet sixteen years of age. Proof of these offenses first came to light during police investigation into an unsolved 1972 murder, committed when defendant was a juvenile, to which we briefly turn.
In 1972, when he was fifteen years old, defendant stabbed to death his six-year old brother. At the time, the lack of sufficient evidence prevented defendant from being brought to justice. In 1988, other evidence came to light that suggested defendant's guilt in the 1972 slaying but, after three days of grand jury proceedings, the prosecutor placed the matter on the inactive list due to the reluctance of witnesses to cooperate.
In 2004, defendant's nephew was arrested for drug possession. During an interview with Sergeant Robert Anzilotti of the Bergen County Prosecutor's Office, defendant's nephew said his mother had told him that defendant committed the 1972 murder. The nephew's mother was interviewed; she told police that on several occasions defendant had admitted to having killed his brother. These admissions came in the context of defendant's threats to his other brother, who was four years old when he witnessed the 1972 murder, asserting that he "should have killed you too" or "I'll kill you like I killed" their other brother. The nephew's mother also advised police that defendant's other brother had confided in her and expressed on an audiotape that he witnessed defendant kill their brother in 1972.
By the summer of 2006, Sergeant Anzilotti's investigation gathered additional evidence, resulting in defendant being charged in a juvenile delinquency complaint with the 1972 murder of his brother. After defendant's arrest, police proceeded to defendant's home in Lodi to interview defendant's wife and other family members. Defendant and his wife lived in the basement apartment of the home. Defendant's wife – Jane's mother – voluntarily invited police into the apartment where detectives observed a computer.
Sergeant Anzilotti asked defendant's brother about the computer and was told defendant used it for, among other things, viewing pornography; defendant's brother, however, was unsure whether defendant used the computer to view adult or child pornography. With this information, as well as the long history of the police investigation into the 1972 murder, the prosecutor sought and obtained a search warrant for the basement of the Lodi home and defendant's computer.
In executing the search warrant, Detective Brian Griefer came upon a letter written by defendant to his wife. This generated an investigation into defendant's sexual abuse of Jane, his stepdaughter.
Jane was born in 1991. After she split up with Jane's father, Jane's mother married defendant's brother, and they moved into the Lodi home in which defendant also resided. In 1994, custody of Jane was transferred to Jane's paternal grandparents, who lived in Hackensack; in 2000, the grandparents moved with Jane to North Carolina. A 2002 consent order set forth the visitation rights of Jane's ...