Opinion
DOCKET NO. A-4283-12T3
12-12-2014
STATE OF NEW JERSEY IN THE INTEREST OF G.J.P., Juvenile-Appellant.
Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for appellant G.J.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Firoz, of counsel and on the brief). Meghan O. Price-Furfari, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Price-Furfari, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Accurso and Manahan. On appeal from the Superior Court of New Jersey, Chancery Division, Family Part, Cumberland County, Docket No. FJ-06-610-13. Solmaz F. Firoz, Assistant Deputy Public Defender, argued the cause for appellant G.J.P. (Joseph E. Krakora, Public Defender, attorney; Ms. Firoz, of counsel and on the brief). Meghan O. Price-Furfari, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Jennifer Webb-McRae, Cumberland County Prosecutor, attorney; Ms. Price-Furfari, of counsel and on the brief). PER CURIAM
Following a bench trial, George was adjudicated delinquent for an act which, if committed by an adult, would constitute fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). He was sentenced to an eighteen-month probationary term. On appeal, George argues the adjudication of delinquency should be reversed or, in the alternative, he is entitled to a new disposition hearing. We affirm in part, reverse in part and remand for a new disposition hearing.
The names of all persons involved in this matter have been changed to fictitious names to protect their identities.
In November or December 2009, the victim, Olivia, a mentally disabled nineteen-year-old, reported to her mother, Catherine, that her sixteen-year-old cousin, George, entered her bedroom and wanted to have sex with her. According to Catherine, after Olivia reported the incident, "[s]he was crying a lot and she was hiding in her room a lot." At that time, George lived with Olivia and Catherine.
Catherine did not report the incident to the police. Instead, she purchased a monitor and placed it in Olivia's room. In January 2010, after Olivia complained of pain, Catherine took her to a gynecologist. Olivia was not examined.
In July 2012, after Olivia made another complaint about George's sexual conduct toward her, Catherine reported the incident to the police. Thereafter, Olivia was examined by a gynecologist. However, Olivia's medical records from the January 2010 and July 2012 doctor visits were not provided to the prosecutor or to the police.
On January 15, 2013, George was charged in a complaint with juvenile delinquency for conduct which if engaged in by an adult would constitute: first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3(a); second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). A bench trial was held on February 19, 2013. Catherine and Olivia testified. Catherine testified as a fresh-complaint witness and a fact witness. Olivia was twenty-one years old at the time of the trial, but according to Catherine, functioned as a nine-year-old.
There were no other proofs relating to Olivia's capacity. No evaluation of her competency was requested or ordered.
When Olivia took the stand, she was unable to be sworn due to her emotional state. The judge took a recess. When Olivia returned to the witness stand she was asked a number of questions by the judge and counsel for the purpose of establishing her understanding of the difference between the truth and a lie. Olivia was then sworn without objection.
Olivia testified that George entered her bedroom one evening while she was sleeping, climbed into her bed and touched her "butt." Through use of anatomical dolls, Olivia demonstrated George's conduct as touching her butt with his penis. Olivia testified that she did not consent to the touching, the touching hurt and the touching made her mad.
During cross-examination, counsel requested the judge declare Olivia not competent because she could not be understood. After considering argument, the judge acknowledged the victim had communication challenges, but did not find the victim was incapable of communication nor that the victim was not competent. The judge noted the victim's responses were "on topic," she was "testifying as a child would testify," and Olivia understood the difference between the truth and a lie. The judge concluded that Olivia "is capable of testifying, as difficult as it may be."
After Olivia's testimony, pursuant to Rule 3:7-4, the State moved to amend the complaint in conformance with the proofs to allege the body part penetrated and touched from vagina to "butt." Over objection, the judge granted the motion.
At the conclusion of the trial, the judge granted the State's motion to dismiss counts one and two of the complaint. In regard to the remaining counts, the judge found:
[t]he following events to have occurred sometime between September 2009 and the end of November 2009. In that time period, [George] entered into the bedroom of the victim, during the night. That she was initially sleeping, but awoke while he was standing in her room . . . . Thereafter he climbed into her bed, and got behind her. He climbed over her. Her testimony, and it was demonstrated with the dolls here, was that she — and she demonstrated several times. She positioned the doll on the doll's side, with the dolls arms in front of her. And, she indicated her arm was hanging over the bed. And, that [George] got into bed, but crawled over her, onto her other side. And, that he positioned himself behind her.
The judge determined the victim's testimony, aided through use of anatomical dolls, supported the finding the juvenile used his "genital area" to hurt the victim's buttocks. Based on this testimony, the judge found it "clear that what the victim communicated in 2009 was that . . . [George] had sex with her in some way." The judge noted, "the victim's testimony to be very credible" despite being difficult to understand, and that Olivia "consistently [said] the same thing."
The judge acquitted George of delinquency for conduct which if engaged in by an adult would constitute second-degree sexual assault and found the juvenile delinquent for conduct which if engaged in by an adult would constitute fourth-degree criminal sexual contact. The judge found George, "[c]omitted an act of sexual contact with the victim's buttocks . . . for the purpose of sexually gratifying himself. He did so through the use of force and coercion of the victim . . . but the victim did not sustain severe personal injury."
On March 25, 2013, the judge heard the motion to vacate the adjudication and entered a judgment of acquittal. The motion raised issues of sufficiency of proof to sustain a conviction, the victim's competency, the amendment of the complaint at trial, and the failure of the State to provide the victim's medical records. The judge denied the motion, placing his findings on the record.
The disposition hearing was held on April 9, 2013. At the hearing, George's counsel requested the judge impose an adjourned disposition, or in the alternative, a six-month probationary term to be transferred to Florida where George resided. Counsel argued the mitigating factors were: "no history of prior delinquency"; George's "conduct was a result of circumstances unlikely to recur"; "the character and attitude (of George) indicated he's unlikely to commit another delinquent or criminal act"; George is "particularly likely to respond to non-custodial treatment"; and that "it was not contemplated that this conduct would cause or threaten serious harm." N.J.S.A. 2A:4A-44(a)(2)(c),(h)-(k).
In opposition, the State argued that the aggravating factors were: "the harm inflicted on the victim, based on age or mental capacity, where he should have known that they were particularly vulnerable"; "the need to deter the juvenile and others from violating the law"; and "the impact of the offense on the victim." N.J.S.A. 2A:4A-44(a)(1)(b),(g),(j). The State requested an eighteen-month probationary term.
Prior to imposing the disposition, the judge noted that George maintained his innocence:
[W]hat I see here is, I see an unwillingness, on behalf of [George] to accept responsibility for his actions. I see denial; I see someone who simply will not address the issues. And, it causes the Court great concern. Because it is the fundamental objective of this Court to provide [George] with rehabilitative help, in order to deal with the consequences and the motivations behind his conduct. And, if [George] is unwilling to accept responsibility for that, then it cause the Court to be more concerned and take steps in the area of the disposition to impress upon [George] the need for [George] to accept his conduct and what he did, and take steps to address the issues that led to that conduct. But if he's not willing to accept that fact, then that causes me some concern.
The judge found the aggravating factors: "character and attitude of the juvenile indicate that he or she is likely to commit another delinquent or criminal act"; "the need for deterring the juvenile and others from violating the law"; "the impact of the offense on the victim or victims"; the impact of the offense on the community"; "[t]he threat to the safety of the public." N.J.S.A. 2A:4A-44(a)(1)(c),(g),(j)-(l). The judge found the mitigating factors: "juvenile has no history of prior delinquency" and "the juvenile is particularly likely to respond affirmatively to non-custodial treatment." N.J.S.A. 2A:4A-44(a)(2)(h),(k).
The judge noted, "if the approach of [George] had been one of reconciliation of his conduct[,] I would have found that an adjourned disposition probably would have been appropriate under the circumstances here, provided that there was proper treatment." The judge determined a probationary term was appropriate:
I'm doing this . . . to demonstrate to you how important it is that you change the way you're viewing this, and approach it with a positive attitude towards dealing with it and getting the assistance that can be given to you, rather than simply walling up behind, "I didn't do it, and I'm not going to take responsibility for it."
George was sentenced to an eighteen-month probationary term and ordered to pay fines and penalties. He was required to submit to fingerprinting and a DNA sample, to undergo sex offender specific psycho-sexual evaluation and treatment, and have no contact with the victim or her immediate family. The judge reasoned the length of the probationary term was longer than the one-year probationary term recommended in the pre-disposition report because the probation was being transferred to Florida. The judge further reasoned it would likely take more time for Florida to impose the probationary term and the disposition than if the juvenile resided in New Jersey. The judge noted the probation term would terminate after one year so long as the juvenile successfully completed sex offender evaluation and treatment.
While the judge was imposing the sentence, George asked when he would be able to talk. At the conclusion of the sentence, counsel stated that George wished to address the court. The judge said he would consider modifying the sentence after hearing from George. After George addressed the court at length, his counsel raised the concern that George's assertion of innocence was being held against him "as far as the sentencing." The judge responded:
It's not being held . . . against him, Counsel. That's not the point that I'm making here. What I'm making here is that there's been an adjudication here, and all of his rights are preserved with regard to that.
However, from the standpoint of what is appropriate in terms of the rehabilitation; and, as I indicated, I considered Factor K as a mitigating factor for precisely that reason. I'm not holding the fact against him that he continues to assert his
innocence here. That's not what I'm talking about.
What I'm talking about is that willingness to address his own conduct in a productive way. That's to make it very, very, very clear, the reason I found that Mitigating Factor K to be appropriate, was because, I do not hold the fact that you assert that you did not do this. Okay? You're asserting this, and that's fine.
My point is, is when it comes down to ultimately the issue of your approach to the rehabilitative recommendations, that I don't think you're addressing them. I think you're avoiding it. And, the fact of the matter, as to the adjudication is done. The decision was made. I heard the evidence, and that's where we are at this point in time. And, you can avail yourself of any and all rights that you want to.
A juvenile order of disposition was entered on April 9, 2013. A notice of appeal was filed on May 8, 2013.
On appeal George argues:
POINT I
[GEORGE'S] ADJUDICATION FOR CRIMINAL SEXUAL CONTACT IS MANIFESTLY UNJUST AND MUST BE VACATED BECAUSE THE STATE OFFERED NO EVIDENCE OF [GEORGE'S] PURPOSE, THEREBY FAILING TO PROVE EVERY ELEMENT OF THE OFFENSE BEYOND A REASONABLE DOUBT AND MAKING THE COURT'S FINDING AS TO THIS ELEMENT ERRONEOUS. U.S. CONST., AMEND. XIV; N.J. CONST., ART. I, PARS. 1 AND 10 (NOT RAISED BELOW).
POINT II
THE TRIAL COURT ABUSED ITS DISCRETION BY FINDING THAT [OLIVIA] WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601, THEREBY DEPRIVING [GEORGE] OF HIS RIGHT TO CROSS-
EXAMINE [OLIVIA] AND TO DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. VI, AND XIV; N.J. CONST., ART. I PARS. 1 AND 10.
POINT III
DURING DISCOVERY THE STATE FAILED TO PROVIDE REQUESTED RELEVANT RECORDS OF [OLIVIA'S] MEDICAL VISITS RELATING TO THE ALLEGED INCIDENT WITH [GEORGE], AND THE COURT ERRED IN NOT ORDERING THE STATE TO PRODUCE THE MEDICAL RECORDS, EVEN FOR IN CAMERA REVIEW, THEREBY DEPRIVING [GEORGE] OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. VI, AND XIV; N.J. CONST., ART. 1, PARS. 1 AND 10.
POINT IV
THE TRIAL COURT ERRED BY ALLOWING LATE AMENDMENT OF THE COMPLAINT, AS IT PREJUDICED [GEORGE] IN HIS DEFENSE THEREBY DEPRIVING HIM OF DUE PROCESS AND A FAIR TRIAL. U.S. CONST., AMENDS. VI, AND XIV; N.J. CONST., ART. 1, PARS. 1 AND 10.
POINT V
[GEORGE] SHOULD BE RESENTENCED BECAUSE THE COURT VIOLATED RULE 3:21-4(B) BY FAILING TO INQUIRE WHETHER [GEORGE] WISHED TO SPEAK BEFORE BEING SENTENCED.
POINT VI
AT HIS DISPOSITION HEARING, THE COURT ERRED BY PENALIZING [GEORGE] FOR MAINTAINING HIS INNOCENCE AND FOUND AGGRAVATING FACTORS NOT SUPPORTED BY THE RECORD WHILE FAILING TO FIND APPLICABLE MITIGATING FACTORS.
Defendant argues for the first time on appeal that the adjudication for criminal sexual contact must be reversed for failure of the State to prove every element of the crime, to wit, George's purpose. We will not disturb the adjudication unless we conclude there was plain error. R. 2:10-2. State v. Macon, 57 N.J. 325, 333 (1971). George clothes the argument in terms of constitutional error. Should we find constitutional error, we would reverse unless the error was harmless beyond a reasonable doubt. State v. Cabbell, 207 N.J. 311, 338 (2011).
Under either the plain error or constitutional error standard, we conclude the argument is neither supported by the facts nor the governing law. To establish guilt of criminal sexual contact in violation of N.J.S.A. 2C:14-3(b), the State must prove beyond a reasonable doubt that the individual intentionally touched the victim's intimate parts, either directly or through clothing, "for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor." N.J.S.A. 2C:14-1(d). Criminal sexual contact occurs in cases where "[t]he actor use[d] physical force or coercion, but the victim does not sustain severe personal injury." N.J.S.A. 2C:14-2(c)(1). "Intimate parts" is defined in N.J.S.A. 2C:14-1(e) as "sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." In sexual assault cases, the defendant's purpose may not be inferred from the manner in which the offense was committed. State v. Cusick, 219 N.J. Super. 452, 466 (App. Div.), certif. denied, 109 N.J. 54 (1987).
In Cusick, the defendant admitted to touching his granddaughter, but denied having touched her intimate body parts. Id. at 464-65. We affirmed the admission of defendant's prior criminal conduct to rebut that the fondling was consistent with accidental touching rather than with lascivious intent. Id. at 464.
In State v. Beckler, 366 N.J. Super. 16, 28 (App. Div.), certif. denied, 180 N.J. 151 (2004), we distinguished Cusick and those cases where the charged sexual conduct was ambiguous or subject to more than one interpretation from those where defendant's intent and motive were clear from the manner in which the offense was allegedly committed. In Beckler, the defendant was charged with crimes relating to an attempt to engage a fourteen-year-old in sex acts. Beckler, supra, 366 N.J. Super. at 22. The defendant denied any criminal conduct took place between he and the victim. Id. at 22-23. As in Beckler, George denied that any sexual conduct ever took place between he and Olivia. George did not claim there was "a misrepresentation by the victim or some other reason justifying defendant's engagement in a specific type of conduct." Id. at 28. As such, in the absence of nuance, interpretation or ambiguity, the judge could find George's purpose was clear from the nature of his acts and conduct.
The judge rejected George's denial and found a "non-consensual incident of a sexual nature" occurred with Olivia and George sometime between September 2009 and the end of November 2009:
[George] entered into the bedroom of [Olivia] during the night when everyone else in the house was sleeping . . . [George] then got into [Olivia's] bed, climbed over [Olivia] onto [Olivia's] other side and positioned himself behind [Olivia]. [George] then exerted pressure with his genital area against [Olivia's] buttocks area for the purpose of sexual gratification.
The court added:
Here, the State met its burden of proof to warrant a finding of guilty. [Olivia] testified that [George] used his genital area to "hurt" her "butt." The court finds that this constitutes an act of sexual contact. Furthermore, the court finds that the juvenile entered the victim's room at night, uninvited, while she and everyone else in the house was sleeping. The court finds that the juvenile also entered [Olivia's] bed and touched her uninvited. The court finds that the victim was placed in fear of the defendant and feigned sleeping hoping to deter him. Her fear of the defendant was also demonstrated when on a subsequent night when defendant again appeared at her door she fled to her mother to report that the defendant was at her door to "sex" her.
Finally, the victim did not sustain severe personal injury.
We conclude the judge's determination was not erroneous that George's conduct, without extrinsic evidence, satisfied the requisite element of purpose.
George argues the judge abused his discretion by finding Olivia was competent to testify. The standard for determining the competency of a witness is set forth in N.J.R.E. 601:
Every person is competent to be a witness unless (a) the judge finds that the proposed witness is incapable of expression concerning the matter so as to be understood by the judge and jury either directly or through interpretation, or (b) the proposed witness is incapable of understanding the duty of a witness to tell the truth, or (c) except as otherwise provided by these rules or by law.
Whether a person is competent to testify lies within the discretion of the court. The finding is entitled to great deference. State v. R.W., 104 N.J. 14, 19 ( 1986); State v. Krivacska, 341 N.J. Super. 1, 36 (App. Div.), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).
[P]eople who suffer from insanity or mental disability could be disqualified under N.J.R.E. 601 only if the trial court makes the finding that they are incapable of either communicating adequately or understanding the obligation of a witness to tell the truth. If a witness's mental disability would make a judge conclude that no trier of fact could reasonably believe that the witness perceived the matter about which he wishes to testify, then the witness
could be prohibited from testifying about that particular matter under N.J.R.E. 602. If the testimony of a mentally disabled witness might be too misleading or confusing, or of unduly limited probative value, it might be excluded by the trial court under N.J.R.E. 403.
[Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 601 (2014)].
In order to testify, a "witness must understand the difference between right and wrong, that to tell the truth is right and that in some way he will be punished if he lies to the court." State v. Davis, 229 N.J. Super. 66, 78 (App. Div. 1988). "The same rules apply in determining the competency of individuals afflicted by mental retardation or mental illness." Krivacska, supra, 341 N.J. Super. at 36 (citing State v. Scherzer, 301 N.J. Super. 363, 463 (App. Div.), certif. denied, 151 N.J. 466 (1997)). A person, therefore, does not have to be "entirely sound mentally" to qualify as a witness, provided the person has "sufficient capacity to observe, recollect and communicate with respect to the matters about which he is called to testify, and to understand the nature and obligations of an oath." State v. Butler, 27 N.J. 560, 602 (1958).
George asserts that Olivia's testimony was "incomprehensible" and "she was not competent to testify." George further asserts that Olivia's communication challenges affected her ability to "understand questions, express herself, and be understood." George notes the answers and leading questions on Olivia's direct examination establish that Olivia was unable to "comprehend and/or accurately express [her]self." George also asserts since reasonable people could interpret Olivia's testimony differently, her testimony contradicts the letter and spirit of Rule 601. George argues by permitting leading questions during Olivia's direct examination it was unclear whether she actually understood the questions and answers she was giving, or if she was merely repeating after the questioner. George also argues there was an inability to effectively cross-examine Olivia and that her responses were incongruous and confused.
In our review of the judge's determination, we consider not only the voir dire but "the entire record including the testimony in fact given by the witness under oath in order to arrive at [a] decision." State in Interest of R.R., 79 N.J. 97, 113 (1979). However, we do not review the record to determine how we would decide the matter if we were "the court of first instance." State v. Johnson, 42 N.J. 146, 161 (1964).
Disqualification of a witness requires a showing that the witness is unable to understand questions, frame and express intelligent answers, as well as understand the difference between right and wrong. Davis, supra, 229 N.J. Super. at 77-78. George contends that Olivia's demonstrated inability to understand questions and her "unintelligible testimony" deprived him of a fair trial.
The judge concluded that he understood Olivia:
[Olivia] fully comprehended the court proceeding and the questions she was posed. [Olivia], before being sworn, adequately demonstrated her knowledge of the difference between the truth and a lie, and how it was necessary to tell the truth when testifying. [Olivia] used speech, hand signals, body language, and the use of anatomically correct dolls to express herself while testifying. Furthermore, [Olivia's] responses to the questions by the court and counsel were consistently on topic. [Olivia] answered each question with minimal hesitation, save a few moments when she became upset or frustrated at her own limitations in making herself understood. [Olivia] often repeated what she was saying in an attempt to ensure that the court and counsel were able to understand her testimony. At one point, [Olivia] even spelled out a word using her hands to form the letters of the word to clarify her speech in order to accomplish this. [Olivia] cannot be adjudged incompetent because her speech at times took extra effort on behalf of the court and counsel to understand. The court finds that she understood the questions asked and persisted in her attempts to express herself using speech, hand gestures, facial expressions, and the use of the anatomical dolls and demonstrations while on the stand.
George contends the judge should have required Olivia to undergo a psychological or psychiatric evaluation to address whether she had the competence to comprehend the proceedings. Psychiatric testing or evaluations of a witness are considered extraordinary measures that are only undertaken if it is demonstrated that there is a substantial need to determine competence. R.W., supra, 104 N.J. at 22 (quoting Butler, supra, 27 N.J. at 605). See also Scherzer, supra, 301 N.J. Super. at 463-64 (affirming the denial of the defense's request for a psychiatric evaluation as to the competence of the victim of sexual assault, who was "mildly mentally retarded," as nothing in the record suggested the victim was incompetent).
The judge had the opportunity to observe Olivia. As with a credibility determination, a competency determination is based upon factors not necessarily amenable to preservation in the written record, such as demeanor. After carefully reviewing the record in light of our standard of review, we find no basis upon which to disturb the judge's exercise of discretion in not ordering an evaluation and in his determination of Olivia's competency. R. 2:11-3(e)(2).
George also argues the judge erred in not ordering the State to produce Olivia's medical records or to conduct an in camera review. Prior to the trial, the State was not made aware of the existence of the records, and therefore, did not have them within its "possession, custody or control." R. 3:13- 3(b)(1)(E). See State Ex Rel. A.B., 219 N.J. 542, 555 (2014) (evidence in the control of a crime victim is not within the prosecutor's "possession, custody or control.") As such, the court found no prejudice since neither the State nor defense had access to the records. We agree.
We find nothing to support the argument that the medical records were relevant to the defense. Olivia's January 2010 doctor's visit did not result in an exam and the July 2012 doctor's visit was almost three years after the 2009 incident(s) which gave rise to the adjudication. The judge correctly determined that the medical records were not relevant as proving or disproving any act of consequence to the determination of the action, i.e., an act constituting sexual assault. N.J.R.E. 401. A trial court's evidentiary rulings are accorded substantial deference and will not be disturbed on appeal absent a finding that the court abused its discretion in excluding evidence. Benevenga v. Digregorio, 325 N.J. Super. 27, 32 (App. Div. 1999), certif. denied, 163 N.J. 79 (2000).
Next, George argues that the judge abused his discretion in permitting the amendment to the complaint. Rule 3:7-4 provides:
[t]he court may amend the indictment or accusation to correct an error in form or the description of the crime intended to be charged or to charge a lesser included offense provided that the amendment does not charge another or different offense from
that alleged and the defendant will not be prejudiced thereby in his or her defense on the merits. Such amendment may be made on such terms as to postponing the trial, to be had before the same or another jury, as the interest of justice requires.
In State v. J.S., 222 N.J. Super. 247, 258 (App. Div.), certif. denied, 111 N.J. 588 (1988), we held that "[a] specification of the particular intimate parts touched is not an essential element of the crime [of sexual contact] . . . ." The trial court in J.S. amended the indictment by substituting "the vagina" for "breast and inner thigh." Id. at 257. We found no prejudice to defendant because the indictment included a penetration charge, which "necessarily encompasses a touching." Id. at 258.
The judge reasoned that George was not prejudiced by the amendment because both the "vagina" and "buttocks" are included within the statutory definition of "intimate parts" under N.J.S.A. 2C:14-1(e). The judge also noted that there was no prejudice because George was aware of Olivia's out-of-court statement to police referencing vaginal and anal contact, as well as Olivia's testimony on direct examination regarding contact to the buttocks. George had the opportunity to cross-examine Olivia on both her out-of-court statement and trial testimony. As the amendment to the complaint did not charge another or different offense from that alleged, we find no prejudice.
George argues he is entitled to a new disposition hearing because the judge failed to inquire whether George wished to speak before imposing the disposition. Rule 3:21-4(b) states:
[b]efore imposing sentence the court shall address the defendant personally and ask the defendant if he or she wishes to make a statement in his or her own behalf and to present any information in mitigation of punishment. The defendant may answer personally or by his or her attorney.Rule 3:21-4(b) is applicable to Family Part actions through Rule 5:1-1. A failure to afford defendant the "right of allocution" warrants automatic remand for resentencing if defendant argued its omission in his direct appeal. State v. Cerce, 46 N.J. 387, 395-97 (1966); State v. Harris, 70 N.J. Super. 9, 18-19 (App. Div. 1961). Furthermore, "the fact of the rule violation in itself requires resentence without the necessity of any showing or prejudice." Cerce, supra, 46 N.J. at 396. Juvenile defendants are afforded a right of allocution. State in Interest of J.R., 244 N.J. Super. 630, 632 (App. Div. 1990).
In Cerce, the defendant's lawyer spoke on his behalf at the sentencing, the judge imposed the sentence without asking whether the defendant wanted to speak on his own behalf, and after the sentence was imposed the defendant did make a statement maintaining his innocence. Cerce, supra, 46 N.J. at 392. In J.R., the juvenile was "never given an opportunity to address the court before the disposition." J.R., supra, 244 N.J. Super. at 639.
Here, as in Cerce and J.R., the right of allocution was not afforded in accord with Rule 3:21-4(b). The judge did not ask George whether he wanted to speak on his own behalf and imposed a disposition before George had the opportunity to address the court. Although, unlike Cerce and J.R., George was eventually afforded the opportunity to address the court, we conclude the failure to adhere to the requisite order of allocution impermissibly tainted the disposition.
After the allocution, the judge noted the disposition might be "modified." Notwithstanding, the record does not reflect a modified disposition.
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We further conclude the judge erred in "penalizing" George for maintaining his innocence. "[A] defendant's refusal to acknowledge guilt following a conviction is generally not a germane factor in the sentencing decision." State v. Marks, 201 N.J. Super. 514, 540 (App. Div. 1985). However, a "trial judge's brief allusion to defendant's failure to candidly admit his guilt does not require a reversal." Ibid. Maintaining innocence is not an aggravating factor nor is stating guilt a mitigating factor to be considered in a juvenile disposition hearing. See N.J.S.A. 2A:4A-44. George avers that he "was penalized for maintaining his innocence and received a higher sentence than he otherwise would have had he capitulated to the court's insistent urging and just said he was guilty." We agree.
The judge's reference to the juvenile's decision to maintain his innocence was more than a "brief allusion." The judge made repeated references to George maintaining his innocence throughout the disposition hearing. Although the judge clarified his use of George's refusal to acknowledge guilt, after the issue was raised by defense counsel, the record supports the contention that George's refusal was a "factor" the judge considered during the disposition process.
We, therefore, remand for a new disposition hearing.
Affirmed in part, reversed in part and remanded for re-sentencing. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION