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State v. L.W.

Superior Court of New Jersey, Appellate Division

October 15, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
L.W., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 30, 2013

On appeal from Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 09-03-0561.

Joseph E. Krakora, Public Defender, attorney for appellant (Gilbert G. Miller, Designated Counsel, on the brief).

Gaetano T. Gregory, Acting Prosecutor of Hudson County for respondent (Brian Schreyer, Special Deputy Attorney General/Acting Assistant Prosecutor, on the brief).

Appellant filed a pro se supplemental brief.

Before Judges Yannotti and Hayden.

HAYDEN, J.A.D.

In 2011, defendant, L.W., pled guilty to first-degree aggravated sexual assault of his daughter, A.C., then eleven years old, and second-degree sexual assault of a friend's daughter, G.G., then twelve years old. Following denial of defendant's motion to withdraw his plea, the judge sentenced him, pursuant to a plea agreement, on the first-degree conviction to ten years imprisonment with an eighty-five percent parole disqualifier under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent sentence of five years imprisonment with an eighty-five percent parole disqualifier on the second-degree conviction.

On appeal, defendant argues that the trial court erred in denying his motion to withdraw his guilty plea, failing to appoint him a new attorney, determining that his videotaped statements were admissible, and in imposing an excessive sentence. Additionally, in his pro se supplemental brief defendant argues that he was deprived of the effective assistance of counsel, and that he was detained without probable cause for his arrest. Having considered defendant's arguments in light of the applicable legal principles, we affirm defendant's convictions and sentence.

We discern the following facts from the record on appeal. On September 10, 2008, Detective Maria Dargan of the Special Victims Unit of the Prosecutor's Office interviewed then-twelve-years-old G.G. G.G. told Dargan that defendant had touched her private parts on several occasions while she and her mother were living with defendant.

On October 16, 2008, a Division of Youth and Family Services[1] (the Division) worker informed A.C.'s mother, M.C., that she wanted to speak to A.C. and defendant's two other children regarding allegations concerning defendant and "a little girl." M.C. agreed, and an appointment was scheduled for October 20, 2008. That night, M.C. asked A.C. if she knew anything about defendant and a girl. A.C. said G.G. had told her that defendant had "bothered her, " but told A.C. not to tell anyone. M.C. then asked if defendant had "ever touched her, " and A.C. started crying, said yes, pointed to her vagina, and said "down there." M.C. reported the conversation to the Division worker that same night, who arranged for Dargan to interview A.C. on the following day.

On October 17, 2008, Dargan conducted a recorded interview with A.C., who said that G.G. told her that she had been hurt by defendant. A.C. also stated that defendant had touched her private parts with his penis and his mouth.

That evening, police officers arrested defendant at his home and transported him to the Special Victims Unit. Upon arrival, defendant waived his Miranda[2] rights and agreed to give a recorded statement under oath. Two detectives questioned defendant over the course of approximately three hours. During the recorded interview, defendant admitted that he had put his mouth on A.C.'s vagina and had touched G.G. in a way that made her feel uncomfortable. As a result, the police charged defendant with aggravated sexual assault of A.C. and sexual assault by contact with G.G.

In February 2009, a grand jury charged defendant with first-degree aggravated sexual assault against A.C., N.J.S.A. 2C:14-2(a) (counts one and two); second-degree sexual assault against A.C. (count three) and G.G. (count eight), N.J.S.A. 2C:14-2(b); second-degree endangering the welfare of a child (A.C.), N.J.S.A. 2C:24-4(a) (counts four and five); third-degree endangering the welfare of a child (G.G.), N.J.S.A. 2C:24-4(a) (count nine); and fourth-degree abuse of A.C. (counts six and seven) and G.G. (count ten), N.J.S.A. 9:6-1, -3.

On February 18, 2011, defendant filed a pro se motion seeking the dismissal of his assigned veteran public defender, and appointment of new counsel not employed by the local Public Defender's Office. His most recent complaint against his attorney was due to having been transported from jail to court only to be informed at the end of the day that his case had not been reached. In a March 1, 2011 letter, the trial judge informed defendant that his application had been forwarded to the Public Defender. She also assured defendant that his attorney was not the cause of the delay and no proceedings were being held without him.

Before trial, the judge held a N.J.R.E. 104(c) hearing to determine the admissibility of defendant's video-recorded statement.[3] The statement was on a DVD, authenticated by a detective who took the statement, and consisted of three separate segments. The first two segments were sixty minutes long and the third segment was fifty-three minutes long. The time counter on the video recorder reset to zero at the start of each of the three segments.

Defense counsel informed the judge that defendant suspected that the recording did not include his complete interrogation because the time counter had been reset each time a new segment began. The Public Defender's Office, however, had denied counsel's request for an expert examination of the recording, based both on the cost and the validity of the challenge. Defense counsel did not specify what, if anything, defendant claimed was missing or altered on the recorded statement, or identify any gap in the interrogation.

After viewing the entire recorded statement, the trial judge determined it contained nothing to suggest that defendant had been forced or coerced into making the statement. Instead, the judge found that defendant had leaned forward when he spoke to the detective and expressed his willingness to explain what had happened. When the detective suggested stopping after an hour, defendant insisted on ...


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