In re Registrant N.F.
| Decision Date | 11 June 2018 |
| Docket Number | DOCKET NO. A-1387-16T1 |
| Parties | IN THE MATTER OF REGISTRANT N.F., Appellant. |
| Court | New Jersey Superior Court — Appellate Division |
RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
Before Judges Yannotti, Mawla and DeAlmeida.
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. 16090004.
Michael C. Woyce argued the cause for appellant N.F. (Murphy & Woyce, attorneys; Michael C. Woyce, on the brief).
Kristen L. Brewer, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Esther Suarez, Hudson County Prosecutor, attorney; Kristen L. Brewer, on the brief).
N.F. appeals from an order entered by the Law Division on November 30, 2016, which designated him as a Tier II sex offender under the Registration and Community Notification Laws, N.J.S.A. 2C:7-1 to -11 (Megan's Law), and as subject to Tier II community notification and inclusion on the Sex Offender Internet Registry (Internet Registry), N.J.S.A. 2C:7-12 to -19. We affirm.
This appeal arises from the following facts. On or about November 28, 2011, the North Bergen Police Department (NBPD) received an anonymous phone call alleging possible child abuse. NBPD detectives located the witness, J.D., who reported that a man (later identified as N.F.) had shown her a video depicting a man engaging in sexual activity with a young female child named "Jackie."
According to J.D., N.F. claimed he was the man in the video. The NBPD referred the matter to the Special Victims Unit (SVU) in the Hudson County Prosecutor's Office (HCPO). J.D. also met with investigators from the New Jersey Division of Youth and Family Services (the Division) and described what she had seen.1
SVU Detective Kristen Fusiak interviewed J.D., who provided a statement under oath. J.D. explained that on November 26, 2011, she was driving around with a female friend. They picked up N.F., whom she had never met before. They then drove to N.F.'s home, but only J.D. and N.F. went inside. While sitting in the living room, J.D. and N.F. discussed their childhoods and previous incidentsof sexual assault. N.F. then began discussing a girl named "Jackie." He retrieved a laptop computer and showed J.D. approximately five minutes of a video depicting a man receiving oral sex from a young female who appeared to be between the age of seven and ten years old.
According to J.D., N.F. claimed to be the man in the video, although his face was not shown. He also identified the minor as "Jackie," a ten-year-old "neighbor" he sees regularly. N.F. said he engaged in oral and anal sex with the minor. J.D. stated that N.F. also showed her other child pornographic videos in which he was not involved, and asked J.D. if she would like to engage in sexual relations with him and the minor. J.D. left N.F.'s home.
On November 30, 2011, Fusiak showed J.D. approximately sixteen photographs of fourth, fifth, and sixth grade classes at a North Bergen elementary school. J.D. did not identify any of the females as the minor in N.F.'s pornographic video. On December 2, 2011, J.D. was shown a photograph of J.B. She stated she was eighty-percent sure that it was the photograph of the female child shown in the pornographic video that N.F. had shown to her.
On December 2, 2011, members of the SVU and NBPD executed multiple search warrants at N.F.'s addresses in North Bergen and another municipality, and communications-data warrants for any items seized at those locations. The searches yielded, among otherthings, several computers, a digital camera, and one unmarked video tape. Numerous videos and images of child pornography were found on the electronic devices. The video that J.D. had described was not located.
However, among the videos recovered was a homemade pornographic video depicting N.F. and a female he refers to as his "cousin." On the video, N.F. discussed sodomizing a young girl with a broomstick, and then stated "let's see like I'd wanna [sic] do that to like, like a girl that's a little under developed like someone like [A.], like [ten] years old going on [eleven]." N.F. and his "cousin" then discussed engaging in sexual activity with a juvenile.
One of the Division's workers spoke with N.F.'s children, and one of the children advised her that he has an eight-year-old playmate named "Jackie" who lives nearby. J.B., who goes by the name of "Jackie," and her mother, Ja.B., were brought to the HCPO to give a statement. Ja.B. stated that N.F. was a friend of her ex-husband.
Ja.B. said J.B. spent a lot of time at N.F.'s home playing with his children and slept over at N.F.'s house approximately three times. N.F. was there two of those times. Ja.B. stated that on one occasion J.B. returned from N.F.'s home and was "acting weird" in the bathroom. J.B. told Ja.B. that she was bleeding fromher vaginal area and had a pinkish discharge. However, J.B. denied that anyone touched her.
Fusiak spoke with J.B. and had her identify certain body parts on anatomically-detailed drawings. Fusiak asked J.B. if there was any place on her body that no one was permitted to touch. J.B. responded that no one was supposed to touch her "private part" and "butt." J.B. initially hesitated in answering, but then said no one was allowed to touch her chest. When asked why she hesitated, J.B. responded that she had to think if anyone had touched her. She denied ever seeing male genitals. She acknowledged she spends time at N.F.'s home and has slept over there.
Fusiak and J.B. next discussed the incident in the bathroom. J.B. initially claimed she did not remember the incident but then said "it was kind of at two places" — once at her house and once at another house where she lived at times. She stated that at her house, her private part hurt and she did not know why. She also said nothing came out, and she did not know what Ja.B. saw when she examined her. J.B. stated she told her mother that no one had touched her. J.B. said, however, that blood came out of her private part at the other house.
When asked about N.F., J.B. said she did not like him because he is "weird." J.B. stated that she did not think N.F. was cute and she denied having a crush on him. When asked if N.B. had acrush on her, J.B. said she was not sure. J.B. answered "no" to nearly every question about sexual matters that Fusiak asked. However, when asked if N.F. touched her butt, J.B. initially said yes and then quickly said no. J.B. also denied N.F. had ever recorded her on video. Eventually, J.B. began crying and said she did not want to continue the discussion.
Shortly thereafter, J.B. returned to the interview room, and Fusiak questioned her about a Facebook conversation J.B. had with N.F. The messages read as follows:
Fusiak explained to J.B. that the conversation could be interpreted as a boyfriend-girlfriend relationship. J.B. said she did not like N.F. and continued to deny that anyone ever touched her body parts, specifically N.F. Fusiak told J.B. she saw the video of her and N.F., but J.B. denied ever touching male genitals. J.B. acknowledged the videotaping by stating that the incidentshappened in the living room and sometimes the other children were in another room.
She said N.F. touched her belly and demonstrated a chopping motion. When asked what sexual touching happened in the living room, J.B. denied that any such touching occurred and said she did not remember anything. Several days later, Ja.B. called Fusiak to inform her that J.B. claimed N.F. had promised her an iPod.
On December 7, 2011, N.F.'s ex-wife, T.F., was interviewed. N.F. and T.F. have three children together. Among other things, T.F. said four neighborhood children frequented their home to play with her children, and one of the children was named "Jackie." T.F. told Fusiak that either she, N.F., or a babysitter would be home when the children would play together.
T.F. denied that any other neighborhood children frequented her home. T.F. also said there was a laptop computer in the home that recently broke when her son spilled juice on it. The last time she saw the laptop was November 30, 2011. T.F.'s children were also interviewed. They acknowledged there was another laptop in the home, but stated they had not seen it recently.
N.F. was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count two); fourth-degree abuse, cruelty and neglect of a child, N.J.S.A. 9:6-1 and -3 (countthree); first-degree endangering the welfare of a child (creation of child pornography), N.J.S.A. 2C:24-4(b)(3) (count four); second-degree endangering the welfare of a child (distribution of child pornography), N.J.S.A. 2C:24-4(b)(5)(i) (count five); and fourth-degree endangering the welfare of a child (possession of child pornography), N.J.S.A. 2C:24-4(b)(5)(ii) (count six).
On October 1, 2013, N.F. pled guilty to count five. On January 24, 2014, he was sentenced to five years in state prison, and required to register as a sex offender under Megan's Law, N.J.S.A. 2C:7-2. After his release from custody, N.F. registered as required. The HCPO filed a notice of proposed Tier II classification, Tier II notification to the community, and inclusion on the Internet Registry. N.F. filed an objection to the proposed classification and requested an evidentiary hearing.
On November 18, 2016, the Law Division judge conducted a hearing in the matter. N.F. presented the testimony of Dr. James R. Reynolds, a psychologist and expert in...
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