State v. Alfano

• Decision Date: 30 October 1997
• Citation: State v. Alfano, 701 A.2d 1296, 305 N.J.Super. 178 (N.J. Super. App. Div. 1997)
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Edward N. ALFANO, Defendant-Respondent.
• Court: New Jersey Superior Court — Appellate Division

Page 178

305 N.J.Super. 178

701 A.2d 1296

STATE of New Jersey, Plaintiff-Appellant, v.Edward N. ALFANO, Defendant-Respondent.

Superior Court of New Jersey Appellate Division.

Argued Oct. 7, 1997.

Decided Oct. 30, 1997.

Peter S. Hamerslag and Simon Louis Rosenbach, Assistant Middlesex County Prosecutors, for plaintiff-appellant(Robert W. Gluck, Middlesex County Prosecutor, attorney; Mr. Hamerslag and Mr. Rosenbach, of counsel; Mr. Rosenbach, on the brief).

Steven D. Altman, New Brunswick, for defendant-respondent(Benedict & Altman, attorneys; Mr. Altman and Doris E. McNeil, on the brief).

Before Judges LONG, STERN and KIMMELMAN.

The opinion of the court was delivered by

STERN, J.A.D.

The State appeals, pursuant to leave granted, from portions of an order of the Law Division entered on March 12, 1997, "recusing Assistant ProsecutorPeter Hamerslag from prosecuting the case of M.M.K. as the alleged victim" and severing the counts of the indictment relating to M.M.K. from those relating to victim M.A.R.We reverse the order disqualifying the prosecutor and remand for further proceedings on the issue of severance.

The background for this appeal is taken from the grand jury transcript of August 29, 1995 and material before the trial court on defendant's motion to sever and his motion "for an order dismissing the indictment and other relief" including an order recusing Hamerslag "from prosecuting this case predicated upon his being a factual witness."At the grand jury hearing both M.M.K. and M.A.R. testified, and M.M.K.'s prior 1993 grand jury testimony was read to the grand jurors by the Edison Police Lieutenant who investigated the matter and appeared as a witness at both grand jury presentations.

I.

In February 1990, the Division of Youth and Family Services("DYFS") received information that defendant was having sex with M.M.K. who was born on April 29, 1977.At the time, M.M.K. was twelve years old and defendant was forty.The DYFS investigation was subsequently suspended because M.M.K. and defendant both denied any sexual relationship.Approximately one year later DYFS received new information that defendant was engaging in sexual activity with M.M.K.Another investigation ensued but, like the first, it ended without the filing of proceedings, essentially for the same reasons.

On August 27, 1991, M.M.K.'s mother reported to the Edison Police Department that defendant, her ex-boyfriend, admitted to her that he had been having sex with M.M.K.In response, the police initiated an investigation.Both M.M.K. and defendant again denied having any sexual contact with the other.Both attributed the mother's allegation to defendant's recent break-up with her and his planned marriage to another woman.Accordingly, the police investigation was closed without the filing of charges.

However, in June 1992 after seeing an Oprah Winfrey show about adults who had been sexually molested when they were children, M.M.K. told her new boyfriend, close girlfriend and then her mother about her sexual relationship with defendant.The mother again contacted the police.Interviews confirmed the conversations and M.M.K. gave the police details about her sexual relationship with defendant.According to later reports, however, her story at that time was incomplete.

M.M.K. first met defendant when she was eleven years old.M.M.K. was a friend of defendant's daughter, and M.M.K. frequently spent time at defendant's home.One day in 1988 when M.M.K. visited defendant's house, defendant invited M.M.K. to his bedroom to watch television while his daughter left the house.Defendant offered M.M.K. a pillow, started tickling her, and then "pulled [her] on top of him."M.M.K. pushed defendant away and sat up.Defendant then kissed her on the lips.M.M.K. said "no" in response and the incident was interrupted by the entry of defendant's daughter.

On a subsequent occasion shortly thereafter, defendant"grabbed" M.M.K.'s "butt" and within a month of the first incident defendant began to "fondle" M.M.K.'s breasts and vaginal area, both over and underneath her clothing.Eventually, defendant began inserting his fingers into M.M.K.'s vagina.These incidents occurred at both the defendant's and M.M.K.'s respective homes, usually when nobody else was home.The sexual conduct between defendant and M.M.K. included oral sex.

Defendant also attempted to have vaginal intercourse with M.M.K.At first he was unsuccessful, but ultimately that occurred at age thirteen.

In May 1990, M.M.K. started dating a boyfriend, and the sexual activity with defendant ceased because she"wasn't around as much."In the nearly two years of sexual contact that defendant had with M.M.K., there was some sort of sexual activity occurring between them on a daily basis.

In August 1991, M.M.K. and her boyfriend split up, and the sexual activity between defendant and M.M.K. resumed.Their relationship included sexual intercourse, and defendant took M.M.K. to hotels about once a week to have sex.However, in May 1992 M.M.K. started dating another boy closer to her own age and the sexual activity with defendant ended again.

As we already noted, around June 1992 M.M.K. disclosed first to friends and then to her mother that she had been sexually involved with defendant.However, M.M.K. then reported only the sexual activity that occurred between September 1988 and May 1990, before she met her first boyfriend.On June 18, 1992, a criminal complaint was filed, and defendant was arrested the following day.

On June 10, 1993defendant was indicted for aggravated sexual assault based on sexual penetration with M.M.K. while she was less than thirteen years of age between September 1988 and April 1990, N.J.S.A. 2C:14-2a(count one), sexual assault by sexual penetration upon M.M.K. in May 1990 when she was between thirteen and sixteen years old, N.J.S.A. 2C:14-2c(count two), sexual assault on M.M.K. while she was under thirteen years of age between September 1988 and April 1988 and he was at least four years older, N.J.S.A. 2C:14-2b(count three), and endangering the welfare of M.M.K. as a minor between September 1988 and May 1990, N.J.S.A. 2C:24-4a(count four).

In preparing the indictment for trial, Assistant Prosecutor Hamerslag met with Lieutenant Carol Whalen, the Edison Police officer who initially investigated the matter.Whalen reported to Hamerslag about another investigation involving similar alleged conduct by defendant with a different young woman, M.A.R.That investigation had been closed in March 1993 when the young woman's family declined to cooperate.However, after being contacted again in January 1995, M.A.R. agreed to cooperate and gave a statement to Whalen.

M.A.R., born on September 15, 1975, was a friend of defendant's son, Chris, and would frequently visit Chris at defendant's home.M.A.R. recalled that from July through October of 1991, when she was fifteen years old, she was subjected to several incidents involving sexual overtures by defendant.M.A.R. remembered that around the Fourth of July that year she attended a barbecue at defendant's home.At one point while M.A.R. was alone in Chris' bedroom brushing her hair, defendant walked in and asked her what she wanted to eat.Defendant"sat [M.A.R.] down" on the bed and tried to kiss her.M.A.R. resisted and attempted to get up.Defendant finally stopped his advances after M.A.R. repeatedly pushed away.

Sometime thereafter, M.A.R. ran away from home and needed a place to spend the night.M.A.R. phoned defendant's house intending to speak to Chris but instead spoke with defendant because Chris was not at home.Defendant offered to put M.A.R. up in a motel for the night.M.A.R. accepted the offer, believing that defendant would pay for the motel, drop her off, and then "go about his business."Defendant picked up M.A.R. and drove her to a motel on Route 1 in Linden.Defendant paid for the room, showed M.A.R. into the room and closed the door behind them.He then "tried pushing himself on" M.A.R., proceeded to lay her on the bed, got on top of her, and began "rubbing himself on [her]."M.A.R. protested and insisted that defendant take her home.Defendant eventually dropped M.A.R. off at an all-night Dunkin' Donuts attempting to kiss her again during the drive.

One or two months later, M.A.R. called defendant's house again looking for Chris who was not home.She hoped Chris could give her a ride to her grandmother's house where she was living.She was afraid of being tardy and locked out for the night.Defendant offered to give her the ride, and M.A.R. accepted the offer thinking that defendant would not try to repeat his previous conduct in light of her prior response.However, during the drive, defendant ignored M.A.R.'s directions to her grandmother's house and drove to an industrial area where he parked the car.Defendant tried to kiss M.A.R. and fondled her genital area.M.A.R. rejected these sexual advances and made it clear that she was not interested in having anything to do with defendant sexually.Defendant stopped his advances after M.A.R. told him "you're sick."

While preparing for trial on defendant's 1993 indictment, Hamerslag also began interviewing M.M.K. who revealed to him that defendant's sexual activity with her had not ended in May 1990 as she had initially reported.Rather, in 1995 M.M.K. reported that defendant had again engaged in sexual activity with her from August 1991 to May 1992.

Based on the new information from M.M.K. and M.A.R.'s cooperation, Hamerslag re-presented the case to a grand jury.On September 15, 1995 a superseding indictment was returned charging defendant with aggravated sexual assault, N.J.S.A. 2C:14-2c, penetrating M.M.K. while under thirteen between September 1988 and April 1990(count one); sexual assault, N.J.S.A. 2C:14-2a, between April 29, 1990 and May 30, 1990 and between August 1991 and May 1992, by sexually penetrating M.M.K. while sh...