State v. P.K.

• Decision Date: 08 November 2019
• Docket Number: DOCKET NO. A-1084-17T1
• Parties: STATE OF NEW JERSEY, Plaintiff-Respondent, v. P.K., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

STATE OF NEW JERSEY, Plaintiff-Respondent, v. P.K., Defendant-Appellant.

DOCKET NO. A-1084-17T1

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION

Argued September 23, 2019

November 8, 2019

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Sumners, Geiger and Natali.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 14-05-0539.

Tamar Yaer Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Yaer Lerer, of counsel and on the briefs).

Joie D. Piderit, Special Deputy Attorney General/Acting Assistant Prosecutor, argued the cause for respondent (Christopher L.C. Kuberiet, Acting Middlesex County Prosecutor, attorney; Nancy Anne Hulett, Special Deputy Attorney General/Acting Assistant Prosecutor, of counsel and on the brief).

PER CURIAM

After defendant P.K.'s first trial resulted in a mistrial, a second jury convicted him of second-degree sexual assault upon a child less than thirteen years of age, contrary to N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). On appeal, defendant raises the following six points for our consideration:

POINT I

THE ADMISSION OF REPETITIVE, CORROBORATIVE HEARSAY STATEMENTS, ADMITTED PURSUANT TO THE TENDER YEARS EXCEPTION, WAS CUMULATIVE, UNDULY PREJUDICIAL, AND REQUIRES REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT II

BECAUSE THE DIVISION OF YOUTH AND FAMILY SERVICES CASEWORKERS DESTROYED THEIR INTERVIEW NOTES, DEFENDANT WAS ENTITLED TO AN ADVERSE INFERENCE CHARGE. THE TRIAL COURT'S REFUSAL TO GIVE THAT CHARGE WAS REVERSIBLE ERROR.

POINT III

THE EXCLUSION OF STATEMENTS MADE BY THE COMPLAINANT'S SISTER THAT A FAMILY

MEMBER MOLESTED HER PREVENTED DEFENDANT FROM PRESENTING A COMPLETE DEFENSE AND NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT IV

TESTIMONY THAT FALSE DISCLOSURES ARE NEVER MADE WHEN A CHILD IS INTERVIEWED USING THE TECHNIQUE EMPLOYED IN THIS CASE WAS INAPPROPRIATE OPINION TESTIMONY. ITS ADMISSION NECESSITATES REVERSAL OF DEFENDANT'S CONVICTIONS.

POINT V

EVEN IF NONE OF THE ERRORS WOULD BE SUFFICIENT TO WARRANT REVERSAL, THE CUMULATIVE IMPACT OF THOSE ERRORS DENIED DEFENDANT DUE PROCESS AND A FAIR TRIAL.

POINT VI

DEFENDANT WAS DEPRIVED OF HIS RIGHT TO UNCONFLICTED COUNSEL AT SENTENCING, HIS SENTENCE IS EXCESSIVE, AND FINANCIAL PENALTIES WERE IMPROPERLY IMPOSED WITHOUT REGARD TO HIS ABILITY TO PAY. FOR ALL THESE REASONS, A REMAND FOR RESENTENCING IS REQUIRED.

We have considered the record against the relevant legal principles and applicable standard of review and disagree with defendant's arguments contained in Points I-V. Accordingly, we affirm his convictions. We do,however, conclude that a remand is appropriate for the court to resentence defendant after appointing new counsel who is unencumbered by any potential conflict of interest.

I.

The facts underlying defendant's convictions relate to an incident where he sexually assaulted then six-year-old S.W. (Sarah).¹ At the time of the assault, Sarah and her younger sister, then five-year-old J.W. (Jennifer), lived with their mother M.F. (Mary) and maternal grandfather. Mary and the children often visited Mary's friend, C.P. (Charlotte), who lived in an apartment in South River and babysat the children.

On December 14, 2013, Mary, Sarah, and Jennifer went to Charlotte's apartment to eat dinner. When they arrived at the apartment, Charlotte asked if her friend, K.D. (Katy), and her boyfriend, defendant, could join them. Mary agreed, as Sarah and Jennifer were "familiar" with Katy and defendant.

Defendant and Katy arrived at Charlotte's apartment while Mary was cooking dinner. At one end of the small apartment was Charlotte's bedroom anda spare bedroom. A long hallway led from the bedrooms to a bathroom and the kitchen. While Mary was cooking dinner in the kitchen, Sarah and Jennifer played in the spare bedroom. At times, Mary left the kitchen to smoke cigarettes in Charlotte's bedroom with the door closed, and Charlotte and Katy joined her.

At one point in the evening, defendant was in the spare room with the children watching a movie while Mary, Charlotte, and Katy were in the kitchen. Jennifer sat on "the front of the bed," closest to the television, Sarah sat behind her "in the middle of the bed," and defendant sat close behind Sarah. As they watched the movie, defendant picked Sarah up under her armpits, pulled her onto his lap, and began "rubbing" her in her vaginal area with his hand. Only after Sarah repeatedly told defendant to stop did defendant cease rubbing Sarah's vaginal area.

Mary and Charlotte then entered the spare bedroom. Sarah did not tell Mary about the incident because she was "scared to tell [Mary] while [defendant] was still in the room." Afterwards, the group ate dinner together without incident, and defendant and Katy left.

Approximately one week later, Mary, Sarah, and Jennifer returned to Charlotte's apartment. As they were sitting in Charlotte's bedroom, Charlotte saw defendant's car approach the parking lot from her window and announced,"[o]h, [defendant is] here." Mary observed Sarah's "body language [change]" and asked her what was wrong, to which Sarah responded, "why does [defendant] like naked people?" When Mary asked Sarah why she asked that, Sarah stated that defendant touched her, and then pointed to her vaginal area. Mary asked Sarah if she was sure this happened, and Sarah responded "yeah."

When defendant entered the apartment, Mary brought him to the spare bedroom and "let him know that [Sarah] [said] . . . he tried to touch her." After they spoke for approximately two minutes, Charlotte asked defendant to leave. Defendant left, and Mary told Sarah that her allegation was "very serious," and would have to be reported.

Mary, however, did not immediately report the incident. At the second trial, she testified that she failed to inform the police right away because:

At the time[,] . . . I was dealing with a [Division of Family Services (DYFS)] case. I had willingly given up the children because I had gotten into an accident and hurt my leg and I couldn't take care of them anymore . . . . So, when my leg started getting better[,] . . . I was dealing with getting the custody back. There was a [c]ourt date set . . . to finalize the custody . . . [and] I was scared at that time that if I had reported this, that DYFS would find me as [an] unfit parent . . . .

Mary stated she planned to report the allegation to the police after she regained full custody. On December 29, 2013, however, Mary and her boyfriendat the time, B.D. (Bobby), were at Charlotte's apartment when Mary informed Bobby about Sarah's allegation. Mary told him that she wanted to wait until she regained custody of the children before reporting the incident. At that point, Bobby became "very upset and angry . . . because he felt that . . . [they] needed to tell the police right away." Their argument became physical, the police "were called for a noise disturbance," and Mary was arrested for simple assault and then brought to the hospital.

Sergeant Jennifer Novak, one of the officers that responded to the disturbance, spoke with Bobby, who informed her of the "allegation of child abuse." When Novak questioned Mary at Charlotte's apartment and at police headquarters about the allegation, Mary "wouldn't admit [that] anything that [Bobby] was saying [was] truthful."

After Mary was released from the hospital, she returned to Charlotte's apartment. Shortly afterward, the police arrived at the apartment and brought Mary and Charlotte to police headquarters to question them about the sexual assault allegation.

Later that night, Sharyn Walz, an intake supervisor with the now Division of Child Protection and Permanency (Division), and a worker in the Special Response Unit, which is responsible for "respond[ing] to child abuse and neglectallegations after hours," received a referral for the sexual abuse allegations involving Sarah. Walz contacted her partner, Michelle Mason, and they immediately went to the residence of Sarah's and Jennifer's paternal grandmother, where the children were staying for the weekend.

Walz and Mason spoke with Sarah and began asking her a series of open-ended questions. After Walz asked Sarah if "anything happened with [defendant]," Sarah responded that defendant "touched her." When asked where defendant touched her, Sarah "pointed to her vaginal area." Sarah informed Walz that defendant "did not touch [Jennifer], but he did touch her twice . . . before dinner and then again . . . after dinner." Sarah also stated that Jennifer "saw [defendant] touch her."

Both Walz and Mason took notes during the interview and used them to write their final reports, which they completed on the day of the interview. Once the reports were written, they shredded their notes, which Walz testified was Division "policy."

After the interview, Walz and Mason contacted the office of the Middlesex County Prosecutor. Later that day, Sarah and Jennifer were brought to the prosecutor's office for a taped interview with Detective Karleen Duca. Duca testified during defendant's second trial that she received training atFinding Words, "which is a training for law enforcement officers and [Division] workers on a method to interview children that is not leading or suggestive in any manner."

During the interview, Sarah told Duca that she did not like touches to "the vagina and the butt." When asked if she had been touched in those areas, Sarah responded "yeah," and added that she "told [defendant] to stop, but he wouldn't stop." Sarah also stated that defendant touched her "[t]wo times . . . in the same day."

On January 30, 2014, ...