Opinion
DOCKET NO. A-3323-12T2
06-22-2015
STATE OF NEW JERSEY, Plaintiff-Respondent, v. JEAN P. JOSEPH, Defendant-Appellant.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Ashrafi and O'Connor. On appeal from Superior Court of New Jersey, Law Division, Essex County, Indictment No. 11-01-0110. Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief). Carolyn A. Murray, Acting Essex County Prosecutor, attorney for respondent (Frank J. Ducoat, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief). PER CURIAM
Defendant appeals from his conviction and sentence for first-degree aggravated sexual assault and second-degree sexual assault. We affirm, but remand for redetermination of the $3000 Sex Crime Victim Treatment Fund (SCVTF) penalty imposed upon defendant.
I
On July 19, 2012, a jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count three); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count four).
On November 16, 2012, defendant was sentenced to a fifteen-year term on the aggravated sexual assault charge, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). He was also sentenced to a concurrent term of seven-and-a-half years on the sexual assault charge, also subject to NERA. Both counts for endangering the welfare of a child merged into the count for sexual assault. In addition, the court imposed parole supervision for life and, in addition to other fees, assessed a SCVTF penalty of $3000 pursuant to N.J.S.A. 2C:14-10.
On April 8, 2010, Natalie, the mother of six-year old Deborah, saw the child attempting to insert a key into her vagina. When Natalie asked the child to explain her behavior, Deborah reported that defendant, her babysitter's adult son, told her to put any pointed object she found into her vagina.
To protect their privacy, the child's and mother's names are fictitious.
In response to the mother's question whether defendant told her to perform any other acts, the child replied that she kissed his penis and that defendant threatened to beat her if she told anyone what she had done. Deborah also mentioned that on one occasion defendant asked her if he could kiss her "private part," but the child told him that "my mother doesn't want anybody to go to my private part."
The mother testified that, before her daughter's revelations, she had discontinued using the babysitter because she discovered defendant and her daughter lying together on a bed. On that occasion the mother had gone to the babysitter's home to pick up Deborah and discovered the babysitter was not home, even though the understanding was that only the babysitter was to care for the child. Other adults were present, however, and they told her Deborah was watching television in one of the bedrooms. When the mother walked into the bedroom, she discovered defendant lying on a bed wearing only shorts. Deborah was lying across his chest. The mother grabbed the child and left.
The victim's family lived on the top floor of a three-family home. The babysitter and defendant lived on the first floor.
After the child revealed defendant's actions, the mother alerted the police and, within days, the child gave a videotaped statement. Her recorded statement, which was viewed by the jury, was consistent with what she told her mother. In addition, in her statement she described defendant's penis as brown with a pink top, and that it smelled like urine. Deborah also said defendant's penis went inside her mouth. The child testified at trial, as well; her testimony was consistent with her statement and what she divulged to her mother.
Deborah was unable to state when she kissed and defendant placed his penis into her mouth. The mother could not recall when the babysitter first started to care for her daughter, but knew the babysitter provided services in February and March 2010. Deborah did not move to the United States until 2009, and thus was not exposed to defendant before that time.
Deborah's parents emigrated from Haiti. For reasons not clear in the record, after her parents immigrated to the United States, Deborah remained in Haiti for a period with her relatives before her own immigration.
II
Defendant raises the following points for our consideration.
POINT I - THE INSTRUCTION THAT THE JURY MAY NOT AUTOMATICALLY CONCLUDE THAT THE VICTIM'S TESTIMONY WAS UNTRUTHFUL BASED ONLY ON HER DELAYED DISCLOSURE WAS PLAIN ERROR U.S. CONST. AMEND. XIV; N.J. CONST. ART. I, ¶ 1.
POINT II - NUMEROUS INSTANCES OF PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF DUE PROCESS AND A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST. AMEND. VI, XIV; N.J. CONST. ART. I, ¶ 10.
POINT III- THE COURT ERRED IN IMPOSING $3000 IN SEX CRIME VICTIM TREATMENT FUND FINES WITHOUT CONSIDERING DEFENDANT'S ABILITY TO PAY THAT ASSESSMENT.
POINT IV - DEFENDANT'S SENTENCE IS MANIFESTLY EXCESSIVE.
The third argument point is moot. The State concedes that because of the Supreme Court's ruling in State v. Bolvito, 217 N.J. 221 (2014), a remand is necessary for the court to reconsider the SCVTF penalty.
As for the first argument point, over defendant's objection, the court gave the model jury charge for fresh complaint in effect at the time of trial. The court charged the jury as follows:
The law recognizes that stereotypes about sexual assault complainants may lead some of you to question [Deborah's] credibility based solely on the fact that she did not complain about the alleged abuse sooner. You may not automatically conclude that [Deborah's] testimony is untruthful based only on her silence/delayed disclosure. Rather, you may consider the silence/delayed
disclosure along with all the other evidence, including [Deborah's] explanation for her silence/delayed disclosure, when you decide how much weight to afford to [Deborah's] testimony.
Defendant argued a fresh complaint charge was unnecessary because there was not any silence or delay before the child divulged what occurred between her and defendant. He also contended that, because the jurors stated during voir dire that they did not have any preconceived notions of how a victim of sexual abuse might behave, the jurors would be confused by the instruction. The State countered that the time when defendant allegedly put his penis in the child's mouth was not known and thus whether there was a delay was also unknown, making a fresh complaint charge appropriate. The trial court agreed.
On appeal, defendant does not argue it was error for the court to have given the instruction, but contends it was plain error for the court to have used the term "may not automatically" in the charge. Citing State v. W.B., 205 N.J. 588 (2014), as authority, defendant asserts the words "may or may not conclude that" should have been used in place of the words "may not automatically conclude that." Defendant did not identify the prejudice he suffered by the use of the language that was read to the jury.
In W.B., the trial court delivered a charge based upon the model child sexual abuse accommodation syndrome (CSAAS) charge, which included language that the jury may not automatically conclude a witness's testimony is untruthful based on his or her delayed disclosure. Id. at 621-22. On appeal, the defendant argued that the inclusion of the word "automatically" in the CSAAS charge improperly restricted the jury's ability to weigh the witness's credibility. Ibid. He contended the word "automatically" should have been substituted with "may or may not." Id. at 622.
The Court did not hold that the use of the word "automatically" constituted reversible error or that this word should be removed from the charge, although the Court did direct the Model Jury Charges (Criminal) Committee to review the language in CSAAS jury instructions. Id. at 621-22. The Court did hold it incumbent upon a defendant to object to the word "automatically" if he or she believed the term prejudicial in the circumstances. Ibid. The Court stated that
The committee recommended that the word "automatically" be removed from the fresh complaint charge. The amendment did not take effect until April 15, 2013. The trial in this matter ended July 19, 2012. --------
[t]o the extent a defendant may believe the word "automatically" unduly limits the jury's right and obligation to evaluate credibility or . . . "constitute[s] a directive to the jury that it must accept
the expert's CSAAS testimony and filter its view of the case through that testimony," the word "automatically" is to be substituted by the words "may or may not conclude that . . .," or words of like effect.
[Ibid.]
Here, although defendant objected to the court giving the charge on the ground it was unnecessary, he did not object to the language in the charge or assert that any part of the charge was prejudicial. In our view, the charge did not produce an unjust result. See R. 2:10-2.
Defendant next argues that the prosecutor made three remarks during his summation that constituted prosecutorial misconduct and deprived him of a fair trial, warranting a reversal. We disagree, and conclude the contention these remarks were prejudicial is without sufficient merit to warrant discussion in a written opinion. See R. 2:11-3(e)(2).
Defendant maintains the sexual assault conviction should have been merged with the aggravated sexual assault conviction. We disagree. As we said in State v. D.R., 214 N.J. Super. 278, 298-99 (App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988),
[s]eparate sexual acts, although encompassed in a single episode, may each be the basis for a separate conviction. By inserting his penis in the victim's mouth, defendant committed an aggravated sexual assault
contrary to N.J.S.A. 2C:14-2(a). This was a clear act of sexual penetration with a victim less than the age of 13 years. The additional acts of having N.R. touch or kiss his penis or having his penis touch her vagina were additional sexual assaults in violation of N.J.S.A. 2C:14-2(b), and were not so integrally related to the aggravated assault to preclude separate convictions.
[(citations omitted).]
Defendant asserts the fifteen-year sentence for first-degree aggravated sexual assault and the concurrent term of seven-and-a-half years for second-degree sexual assault is manifestly excessive. The court found aggravating factors one, two, three, four, and nine applied. See N.J.S.A. 2C:44-1(a)(1)-(4), (9). The only mitigating factor the court found applicable was number seven. See N.J.S.A. 2C:44-1(b)(7). Defendant argues aggravating factors one and two do not apply.
As for aggravating factor one, the trial court found the offense was committed in an especially heinous, cruel, or depraved manner because the victim was six years of age at the time of the offense and that defendant violated a relationship of trust between them. Defendant argues that because the child's age was an element of first-degree aggravated sexual assault under N.J.S.A. 2C:14-2(a)(1), the trial court impermissibly double-counted when it took Deborah's age into consideration when applying the first aggravating factor. Defendant also contends there was no evidence of a relationship of trust between the child and defendant. We agree.
There was no evidence about the relationship between defendant and the child. Second, because the age of the victim is an element of both N.J.S.A. 2C:14-2(a)(1) and N.J.S.A. 2C:14-2(b), the child's age cannot also be used to assess the applicability of an aggravating factor. See State v. Yarbough, 100 N.J. 627, 633 (1985); State v. Hodge, 207 N.J. Super. 363, 367 (App. Div.), certif. denied, 105 N.J. 518 (1986). Thus, the trial court erred when it applied aggravating factor one.
The trial court found aggravating factor two applied because defendant knew or should have known that the child was particularly vulnerable or incapable of resistance due to her extreme youth. For the same reason we found aggravating factor one does not apply, aggravating factor two also does not apply. See State v. C.H., 264 N.J. Super. 112, 140 (App. Div.) (holding the trial court erred in applying aggravating factor number two because the age of victim was an element of the offense itself), certif. denied, 134 N.J. 479 (1993). Although not raised by defendant, we cannot overlook the fact the trial court's application of aggravating factor four was also erroneous because of the absence of evidence defendant took advantage of a position of trust or confidence to commit the offense.
Accordingly, because factors one, two, and four do not apply, we remand for the court to consider whether aggravating factors three and nine support the imposed term. In doing so, we offer no view on what the sentence should be. Whether the elimination of these three aggravating factors warrant a different sentence is a determination to be made by the sentencing judge.
Affirmed, except that the matter is remanded for reconsideration of the sentence and the SCVTF penalty. 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