Cross–Respondent, v. Cross–Appellant. (2011)

Defendant appeals from a judgment of conviction for second-degree endangering the welfare of a minor and sexual assault.   A judge (other than the trial judge) imposed two concurrent nine-year terms, the sentence for sexual assault (count two) including parole ineligibility term under the No Early Release Act (NERA).   On a motion for a new trial belatedly heard, the original trial judge amended the sentences to seven years, with NERA to apply.   The State appeals as to the sentence modification.¹

In its special verdict, the jury found defendant guilty of second as well as third-degree endangering (the jury returning a verdict on the lesser-included offense)—because defendant “assumed the responsibility for the care of” T.M. when performing the acts.   The jury also found an act or acts of criminal sexual contact occurred when T.M. was less than thirteen years old and defendant was at least four years older.   The jury found defendant not guilty of aggravated criminal sexual contact and criminal sexual contact when the victim was between thirteen to sixteen years of age.²

The defendant argues:

POINT I THE JURY'S VERDICT WAS CLEARLY AGAINST THE

WEIGHT OF THE EVIDENCE, REQUIRING A NEW TRIAL.

POINT II THE DEFENDANT WAS ENTITLED TO A MISTRIAL AS A

RESULT OF THE MOTHER'S STATEMENT THAT THE

DEFENDANT HAD BEEN INCARCERATED DURING THE

PERIOD OF THEIR RELATIONSHIP.

POINT III THE COURT ERRED BY NOT GRANTING THE DEFENDANT'S

MOTION FOR AN ACQUITTAL ON COUNT FIVE OF THE

INDICTMENT, WHICH REQUIRED THAT THE DEFENDANT BE

A FOSTER PARENT, A GUARDIAN, OR IN LOCO PARENTIS

IN RELATION TO THE ALLEGED VICTIM.

POINT IV THE INDICTMENT SHOULD HAVE BEEN DISMISSED

BECAUSE, IN THE ABSENCE OF A BILL OF

PARTICULARS, IT FAILED TO PROVIDE ADEQUATE

NOTICE TO THE DEFENDANT AS TO THE TIME PERIOD

OF THE ALLEGED OFFENSES.

A. The Indictment Warranted Dismissal Because

It Failed To Provide Adequate Notice of the

Charges Against the Defendant.

B. The Trial Court's Decision Was Not Based Upon

An Accurate View of the Record and Failed to

Appreciate the Factors Set Forth in the Seminal

K.A.W. Case, Especially With Respect to the

Alleged Victim's Age.

POINT V THE DEFENDANT WAS ENTITLED TO AN IN CAMERA

REVIEW BY THE COURT OF [T.M.]'S DYFS,

JUVENILE, AND PSYCHIATRIC RECORDS.

A. The Defendant Was Entitled to Discovery of

[T.M.]'s DYFS Records.

B. The Defendant Was Entitled To Discovery of

Relevant Juvenile Records Regarding [T.M.].

POINT VI[THE] MODIFICATION OF THE DEFENDANT'S

SENTENCE SHOULD BE AFFIRMED ON APPEAL.

POINT VII THE AGGREGATE LEGAL ERRORS AT TRIAL HAD THE

CUMULATIVE EFFECT OF DENYING THE DEFENDANT

HIS RIGHT TO A FAIR TRIAL.

T.M. was born on June 20, 1991.   She lived with her mother, her brothers, and the defendant, who was her mother's boyfriend.

One night, before T.M. was thirteen years old, she and defendant were in his bedroom watching television.   According to T.M. as she “was laying down next to him ․ he placed his hand on her breast,” “on top of [her] clothes.”   She felt “scared” but said nothing.³  On another occasion “he touched [T.M.] under [her] clothes” and touched her breasts and vagina.   Again T.M. was “scared” and said nothing.   The following colloquy developed a third event:

Q And did there come a point in time where you had another, or another time that Wilfredo Ruiz had contact with you?

A It was the other time also was, I was in the bathroom, I was doing my eyebrows and he just walked in and I just keep doing my eyebrows and that's when he pulled my pants down and that's when he placed his mouth on my vagina.

․

Q And did there come a point in time where there were other incidents between you and Wilfredo Ruiz?

A Yes.

Q When were those, what were those other instances, or let me back up.

Do you recall specific dates of those instances?

A It was like, it was like almost every day.

Q And almost every day what would he do?

A The same thing, but he only place his mouth on my vagina once, but he kept touching me.

Q There was only one occasion he placed his mouth on your vagina?

A Yes.

Q And when you say touching you, can you describe in details what the touches were?

A Like he would put his hand on my breast, he would touch my vagina or he would let me see him masturbate.

Q So, you would watch him masturbate?

A Yes.

Q And how many times did this occur?

A So many.

Q A[ ] lot of times?

A Yes.

T.M. testified she “turned thirteen” “when these incidents began” and they ended when defendant and her mother “broke up.”   These events went on for about a year.   She finally told a sixth grade school friend, T.M., but did not tell her mother until she was fourteen years old.

In her cross-examination, T.M. admitted that her April 20, 2005 statement referred to “the second time was on [her] eleventh birthday” but added she “was mistaken,” and later corrected her statement to note “it was [her] twelfth birthday.”

T.M. further testified on cross-examination that her April 2005 statement referred to “licking [her] vagina ․ one time,” but told the grand jury “he perform[ed] oral sex ․ a lot of times,” as she testified at trial.

Defendant's recorded statement was played to the jury.⁴  In it he said:

Q Um, okay, during this time Mr. Ruiz, um, we had some allegations that uh, that you touched [T.]. You touched her breast, and her vagina, is this true sir?

A No, Sir.

Q No, you so you never touched her?

A No, sir.

Q Okay, what was your relationship with [T.] while you were living with Ms. [A.]?

A You know I guess, like her father type model.

․

Q Did you ever yell at them, punish them.

A Yeah, (inaudible) yeah, of course.   If they do something bad, I would tell them don't do it, you know, and they would get out of hand sometimes and you know.

Q Alright, did you have any problems with [T.]?

A Nope.

Q No, okay.

A She was much better you know, you would tell her something and she would listen, instead of the other ones, they would argue and jump of and curse you out.   She wouldn't do that.

Q Okay, um, do you remember how long you lived with them?

A Four and half years something like that.

State in Interest of K.A.W., 104 N.J. 112 (1986), notes the difficulty of fixing precise dates with respect to child abuse cases.   The inability to defend by reference to specific dates and places is adversely affected.   However, the issue relates to whether the State can sustain its burden of proof and defendant could prepare a defense.   The reference to dates was sufficient, see State in the Interest of K.A.W., supra, 104 N.J. at 120, and full discovery was provided.

As to the discovery issues, defendant's reply brief does not contest the State's assertion that DYFS records were not expressly mentioned in the pretrial discovery motion, and apparently neither DYFS nor the Board of Education was served with any discovery request or subpoena.   Nor does the reply brief contest the State's assertion that Judge Frederick DeVesa in fact reviewed the juvenile records in camera.   On February 16, 2006, Judge DeVesa decided the pretrial discovery motion, and stated the following:

What I was about to say, Ms. Bevacqua, is I have reviewed the complaint in this matter and the corresponding police reports, and I am satisfied that this information is not in any way relevant to any material issue in this case.   I'm satisfied that, first of all, it does not represent any type of pending matter that in any way could be used to impeach the credibility of TM. I'm satisfied that it does not involve any related factual issue, and I'm also satisfied that it pertains to a time frame that is not related either to the time frame that is the subject matter of the indictment or the time frame that is the subject matter of the complaint of TM that triggered this case.

So, Mr. Fleming, the document will be marked C–1 for appellate review in the event that's necessary, which is what we do under the appropriate case law, but I'm satisfied that the juvenile's interest in confiden- tiality should not be pierced in this case because these documents have no probative value to any material issue in this matter.5

Judge DeVesa also ruled “the defendant has not met his burden with respect to piercing any type of psychologist/patient privilege or victim/counsellor privilege” with respect to counselling records.   He found “no indication in the discovery or in the submissions by the defense that there is any type of issue of the alleged victim's mental health or mental state at the time she reported this alleged misconduct.”   The judge indicated he would “at least review the school records [to see] if there is some arguable possibility that there is some information that the court might find relevant” and required defense counsel to serve the discovery order upon the Board of Education which defense counsel said he had “no” “problem” doing.   The judge then said he would conduct an “in camera review” “to be sure that there's nothing in those records that would have any real bearing on the credibility of the victim and/or her mother.”

The record reflects an order of February 27, 2006, requiring the Carteret and Perth Amboy Public Schools to produce T.M.'s “school records ․ for an in camera review for relevance by the Court.”   A second similar order was entered by the trial judge on April 10, 2006.   Nothing further of relevance is presented to us.

The endangering gradation turned upon the defendant's relationship with the victim.   See State v. Galloway, 133 N.J. 631, 657–62 (1993).⁶  The mother testified that he had lived there the better part of five years, and based on her testimony and that of T.M., we cannot disturb the verdict of second degree endangering.   In fact, defendant's own statement to Detective Rivers supports that conclusion.

Defendant's other contentions do not warrant discussion.   R. 2:11–3(e)(2).   We find no abuse of discretion in any other ruling, including the denial of a mistrial resulting from the testimony of T.M.'s mother that defendant did not live with her family when he was “out of my house and in jail․”  The judge instructed the jury “to disregard that last answer of this witness,” and J.A. then testified defendant lived with her “[f]ive years back and forth.”   Accordingly, we affirm the convictions.

With respect to the State's appeal, we note that defendant filed an appeal while his motion for a new trial was pending.   That appeal was withdrawn, and the motion was heard by the trial judge and denied on April 20, 2007.   Thereafter, the judge added:

But here's what I would like to do, and I do this somewhat sua sponte.   This trial took place on August 2nd, 2006.   Somewhere in the middle of August, I was zipped out of the criminal division, ․ and landed in the civil division.   And when I left, I was told to leave everything I had behind and go, that I was now being transferred, what I thought was for a permanent stay, back in the civil division because they needed some more civil judges, which I did.   So, at that time, I threw out my case notes and my records, and I took no cases with me, and this case was ultimately brought before Judge Rea for sentencing some time after I had left.

When I read Judge Rea's sentence, I saw that he—I don't have the JOC in front of me—he sentenced Mr. Wilfredo to a 9 with 85 percent concurrent on the two charges.   And he said in his statement of reasons that the offense occurred on multiple occasions in “various and diverse sex acts” with the daughter T.M., when she was between the ages of 10 and 13.   I think if that's what occurred, I would have imposed the same sentence he did.

But based on my listening to this trial, I disagree that it was a three-year event.   I believe, as the child said and as I argued with you during your motion, that it was a one-year event.   That doesn't make it, you know, good, nor do I see “various and diverse sex acts.”   I see exactly what [T.] described, that being fondling of her breasts, touching of her vagina, but not penetrating, and only a single moment, one that she describes in the bathroom, where he placed his mouth upon her.

Because of all of this, I feel if Judge Rea had heard and considered what I had heard during this trial and not what he reviewed in considering the crime itself against the additional mitigating and aggravating factors, he would have come to the same conclusion that I came to at the end of this case, and that is that I would have sentenced Mr. Ruiz to 7 with 85 percent and not 9. That being the case, I spoke with Judge Rea. I certainly am not an appellate court, and yet it was just happenstance that I didn't get to sentence Mr. Ruiz.

I am going to modify the sentence.   I'm going to change Count Two and Count Five to a 7 with 85 percent.   I think that is the appropriate sentence giving due consideration to the incident itself, as well as his past conviction with regard to a drug offense, the need to deter, and while I find that the aggravating factors do outweigh the mitigating factors, I don't find it is a substantial outweighing.   It is merely an outweighing of the mitigating factors, and I believe that 7 with 85 percent would be appropriate at this [time].

On its appeal, the State argues that “the trial court had no authority to resentence defendant.”   The State also contends that because the sentence was imposed after State v. Natale, 184 N.J. 458 (2005), was decided, there was no illegal sentence or sentence that had to be reconsidered.

The sentence was originally imposed on November 9, 2006—162 days before it was modified.   However, the time limit under R. 3:21–10(a) for a change or reduction of sentence had passed, and there was no basis for an exception to the strict time limit embodied in R. 3:21–10(b).  In fact, R. 3:21–10(b) was adopted because of the absolute prohibition to such an enlargement beyond the seventy-five day period which cannot be relaxed or enlarged.   See R. 3:21–10(a);  R. 1:3–4(c).  See also, e.g., State v. Alvarado, 95 N.J.Super.   595 (App.Div.1967), aff'd, 51 N.J. 375 (1968) (old rule);  State v. Tully, 148 N.J.Super.   558 (App.Div.), certif. denied, 75 N.J. 9 (1977).

Here, the trial judge who heard the case resentenced defendant after another judge, unfamiliar with the trial, had originally done it and expressed good reasons for the reductions.   On the other hand, there is the very strong judicial policy against such belated reconsideration of the sentence.   There is a strict time limit in which a sentence can be modified.   The order must be “entered within 75 days from the date of the judgment of conviction and not thereafter.”   See R. 3:21–10(a) (emphasis added).   The Supreme Court is concerned, and justifiably so, about imposition of sentences which receive public attention and then could be revisited after public attention has subsided.

The motion for a new trial was also untimely.   The ten-day time limit for a motion for a new trial cannot be enlarged.   See R. 3:20–2;  R. 1:3–4(c).  Here the notice was filed within a month, and defendant's then-pending appeal was withdrawn probably because new counsel was retained and in order to have the motion considered.

We bypass the procedural issues and concerns related to the resentencing because we are satisfied that, assuming the propriety of the State's arguments on procedure, the sentence imposed after a trial, by a judge who did not hear the testimony,⁷ must be deemed “shocking” and inappropriately imposed.   See, e.g., State v. Roth, 95 N.J. 334, 363–65 (1984).   We cannot ignore what the judge, who observed the witnesses and sat through all the proceedings, said and the fact she had a different view as to the appropriate sentence — — a difference of over a year in “real time” given the NERA component.   Accordingly, we modify the nine-year sentences to seven years with NERA to apply to the sentence imposed for the sexual assault.⁸

The April 20, 2007 amended judgment shall remain in effect on the basis of our decision.   However, the NERA portion of the sentence on the endangering conviction shall be deleted.   A NERA ineligibility term was not originally imposed on that count, and properly so, see N.J.S.A. 2C:43–7.2d, and the parties which focus on the issue relating to the specific terms do not address this aspect of the concurrent sentences.

Affirmed as modified.

FOOTNOTES

FN1. From a technical standpoint, the State filed the appeal and defendant cross-appealed..  FN1. From a technical standpoint, the State filed the appeal and defendant cross-appealed.

FN2. The first count, aggravated sexual assault—penetration—was dismissed at the end of the State's case..  FN2. The first count, aggravated sexual assault—penetration—was dismissed at the end of the State's case.

FN3. In her statement to the Prosecutor's office, T.M. stated the first event occurred in her bedroom.   T.M. was born on June 20, 1991, and testified she was fifteen years old at the time of trial in August 2006, and gave a statement in April 2005 which referred to the first event occurring “the day before [her] birthday.”   Only one page of her statement is in the record.   We appreciate the concern about her age at the time of offense.   Perhaps because the State is respondent on the cross-appeal its three paragraph counter-statement of facts used on the appeal and repeated in its response to the cross-appeal does not address anything with respect to the victim's age at the time of the alleged offenses..  FN3. In her statement to the Prosecutor's office, T.M. stated the first event occurred in her bedroom.   T.M. was born on June 20, 1991, and testified she was fifteen years old at the time of trial in August 2006, and gave a statement in April 2005 which referred to the first event occurring “the day before [her] birthday.”   Only one page of her statement is in the record.   We appreciate the concern about her age at the time of offense.   Perhaps because the State is respondent on the cross-appeal its three paragraph counter-statement of facts used on the appeal and repeated in its response to the cross-appeal does not address anything with respect to the victim's age at the time of the alleged offenses.

FN4. We quote from the transcript that was also submitted to the jury..  FN4. We quote from the transcript that was also submitted to the jury.

FN5. Despite the marking of the document, it has not been presented to us for review under seal.   See, e.g., Shuttleworth v. City of Camden, 258 N.J.Super. 573, 588 (App.Div.), certif. denied, 133 N.J. 429 (1992)..  FN5. Despite the marking of the document, it has not been presented to us for review under seal.   See, e.g., Shuttleworth v. City of Camden, 258 N.J.Super. 573, 588 (App.Div.), certif. denied, 133 N.J. 429 (1992).

FN6. The “assumed responsibility” gradation is now second degree, and “may arise from cohabitation with the child's parent.”  Id. at 661..  FN6. The “assumed responsibility” gradation is now second degree, and “may arise from cohabitation with the child's parent.”  Id. at 661.

FN7. We distinguish cases involving pleas from those involving trials, and there is also a difference between jury trials before judges still on the bench at the time of sentencing and those who are not.   Even after rotation, sound judicial policy promotes sentencing by judges who tried the case..  FN7. We distinguish cases involving pleas from those involving trials, and there is also a difference between jury trials before judges still on the bench at the time of sentencing and those who are not.   Even after rotation, sound judicial policy promotes sentencing by judges who tried the case.

FN8. We review and modify the original sentence imposed.   Although the result is the same, we do not affirm the sentence as modified by the Law Division..  FN8. We review and modify the original sentence imposed.   Although the result is the same, we do not affirm the sentence as modified by the Law Division.

PER CURIAM