STATE OF NEW JERSEY VS. C.M. (16-03-0252, PASSAIC COUNTY AND STATEWIDE) (RECORD IMPOUNDED) ( 2021 )

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NOT FOR PUBLICATION WITHOUT THE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.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0089-18
STATE OF NEW JERSEY,
Plaintiff-Respondent,
v.
C.M.,
Defendant-Appellant.
_______________________
Argued February 10, 2021 – Decided April 14, 2021
Before Judges Sumners and Geiger.
On appeal from the Superior Court of New Jersey, Law
Division, Passaic County, Indictment No. 16-03-0252.
Peter T. Blum, Assistant Deputy Public Defender,
argued the cause for appellant (Joseph E. Krakora,
Public Defender, attorney; Peter T. Blum, of counsel
and on the brief).
Kerry Salkin, Assistant Prosecutor, argued the cause for
respondent (Camelia M. Valdes, Passaic County
Prosecutor, attorney; Kerry Salkin, of counsel and on
the brief).
PER CURIAM
Defendant C.M.1 appeals his convictions following a jury trial for two
counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and two counts of
the lesser-included offense of third-degree endangering the welfare of a child,
N.J.S.A. 2C:24-4(a)(1). He also appeals his aggregate seven-year sentence
subject to an eighty-five percent parole disqualifier under the No Early Release
Act (NERA), N.J.S.A. 2C:43-7.2.
Defendant argues:
POINT I
THE TRIAL COURT ERRED IN ADMITTING THE
VIDEOTAPED STATEMENT OF THE FIVE-YEAR-
OLD COMPLAINANT UNDER THE TENDER
YEARS EXCEPTION TO THE HEARSAY RULE
BECAUSE THE INTERVIEWER FAILED TO
EXTRACT A PROMISE FROM COMPLAINANT TO
TELL THE TRUTH OR OTHERWISE DISCUSS
TRUTH AND LIES WITH COMPLAINANT. U.S.
CONST. AMEND. VI, XIV; N.J. CONST. ART. I,
PARA. 1, 10.
POINT II
IN A CASE THAT TURNED ON THE OPPOSING
OUT-OF-COURT STATEMENTS OF
COMPLAINANT AND DEFENDANT, THE TRIAL
1
We use initials and pseudonyms to protect the privacy of the victim and
preserve the confidentiality of these proceedings. N.J.S.A. 2A:82-46(a); R.
1:38-3(c)(9).
A-0089-18
2
COURT COMMITTED PLAIN ERROR IN
EFFECTIVELY INSTRUCTING THE JURORS TO
VIEW DEFENDANT'S – BUT NOT
COMPLAINANT'S – OUT-OF-COURT
STATEMENTS WITH SKEPTICISM. U.S. CONST.,
AMEND. XIV; N.J. CONST. ART. I, PARA. 1. (NOT
RAISED BELOW).
POINT III
A RESENTENCING SHOULD OCCUR BECAUSE
THE COURT MADE CONFLICTING FINDINGS ON
THE AGGRAVATING AND MITIGATING
FACTORS, FINDING THAT THE DEFENDANT
WAS UNLIKELY TO REOFFEND, BUT ALSO
FINDING A RISK OF REOFFENDING AND A NEED
FOR DETERRENCE.
We affirm because we conclude: (1) the trial judge did not abuse his
discretion in admitting the victim's videotaped statement under the tender years
hearsay exception, N.J.R.E. 803(c)(27); (2) there was no plain error in the
judge's failure to give the Hampton/Kociolek 2 jury charge regarding the victim's
out-of-court statements; and (3) defendant has not shown that the judge erred in
considering the sentencing factors.
I
2
State v. Hampton, 61 N.J. 250 (1972); State v. Kociolek, 23 N.J. 400 (1957).
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3
C.K. (Cindy) was five years old on March 27, 2012, when she told her
mother L.K. (Lillie) that defendant, her first cousin, sexually assaulted her while
he was babysitting her. Lillie reported the allegations to the Division of Youth
and Family Services.3
The next day, Cindy gave a videotaped statement to Passaic County
Prosecutor's Office Detective Sergeant Marshall Wang. She told Wang that
defendant "touched [her] in the front of [her] private." After Wang used an
anatomical drawing, she explained that defendant put "his weenie" in her "butt"
and placed it into her vagina. She described how she was on her bed, playing
with her pony dolls, when defendant "putted [her] down on [her] bed, then he
started doing that." She said that this happened "a lot of times." She also
recounted an incident "[w]hen we had ants in our house, he did it again."
One day after Wang interviewed Cindy, Dr. Nina Agrawal, a child abuse
pediatrician, conducted a child abuse evaluation on Cindy. Cindy told Dr.
Agrawal that "my cousin touched her butt with his front butt." Cindy said it felt
"gross" but denied anyone touched her "front private."
Michael Heresi, who was an uncertified teacher at Cindy's daycare,
revealed that on or about March 26, 2012, he overheard Cindy tell a male
3
Currently known as the Division of Child Protection and Permanency.
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classmate that defendant "chased her into a room and pulled her pants down"
and he then "stopped [the] conversation, and . . . pulled her aside [to] . . . have
her finish the conversation with me." She then told Heresi, "[h]e pulled my
pants down and pulled his pee pee out through his zipper and rubbed it against
my thing." (1T8:12; 8:24 to 9:4; 12:2-4; 12:23 to 13:14; 9:19 to 10:4).
In addition, Cindy made two subsequent non-recorded statements to Wang
and others on July 31, 2014 and December 23, 2014. She essentially reiterated
what she stated in her videotaped statement.
On March 24, 2016, a Passaic County Grand Jury indicted defendant for
three counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1);
three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); and two
counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)
(1).
On June 30 and July 12, 2016, Judge Sohail Mohammed conducted a Rule
104 hearing regarding the State's motion to admit Cindy's out-of-court
statements under N.J.R.E. 803(c)(27). The judge viewed Cindy's videotaped
statement and heard testimony from Lillie, Heresi, and Wang. After reserving
decision, the judge issued an order and written decision on October 13, 2016,
admitting Cindy's videotaped statement to Wang as well as her statements to her
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mother and Heresi under the tender years exception on the condition that Cindy
testify at trial. The judge, however, denied the State's request to admit two non-
recorded statements by Cindy to Wang because they "lack[ed] the probability of
trustworthiness[.]"
Following a seven-day trial ending on December 21, 2017, the jury found
defendant guilty of two counts of second-degree sexual assault and two counts
of the lesser-included offense of third-degree endangering the welfare of a child.
On July 26, 2018, after merger, defendant was sentenced to concurrent seven-
year prison terms subject to NERA on the two counts of second-degree sexual
assault.
II
Defendant's first argument contends the trial judge erred in admitting
Cindy's videotaped statement under the tender years hearsay exception.4 The
judge did not abuse his discretion in admitting the statement. See State v. Cole,
229 N.J. 430, 449 (2017).
Hearsay is "a statement that the declarant does not make while testifying
. . . offer[ed] in evidence to prove the truth of the matter asserted in the
4
Defendant does not challenge the admission of Cindy's statements to her
mother and Heresi.
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statement[,]" N.J.R.E. 801(c), and is inadmissible unless the rules provide an
exception, N.J.R.E. 802. Commonly referred to as the "tender years" exception,
N.J.R.E. 803(c)(27) allows the admission of a statement made by a child under
the age of twelve "relating to sexual misconduct" on a finding of three
conditions. The first is the requirement that the proponent give notice of an
intention to use the statement, N.J.R.E. 803(c)(27)(a), which was satisfied here.
The second requires that the judge conduct a hearing, pursuant to N.J.R.E.
104(a) — as occurred here — and, before admitting such a statement, determines
there is a "probability that the statement is trustworthy" "on the basis of the
[statement's] time, content and circumstances[.]" N.J.R.E. 803(c)(27)(b). The
third requires, which also occurred here, that the child testify. N.J.R.E.
803(c)(27)(c).
Defendant's focus on appeal is on the second condition: whether the judge
properly concluded that the statements were trustworthy. He maintains Cindy's
videotaped statement should not have been admitted because Wang did not have
a truth-lie discussion with her to confirm that she understood what it meant to
tell the truth and have her promise to tell him the truth. Defendant argues that
"because the admission of [Cindy's] detailed video statement in this he-said-she-
said case was obviously harmful, a new trial should occur." We disagree.
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Judge Mohammed's decision thoroughly followed the guidelines
established by the United States Supreme Court in Idaho v. Wright, 497 U.S.
805, 821-22, (1990), in describing the relevant non-exclusive factors as
"spontaneity, consistent repetition, mental state of the declarant, use of
terminology unexpected of a child of similar age, and lack of motive to
fabricate[]" to determine the trustworthiness of Cindy's videotaped statement.
State v. P.S., 202 N.J. 232, 249 (2010); see also State in Interest of A.R., 234
N.J. 82, 103 (2018). Noting that Wang "follow[ed] the protocol set forth by his
office to ensure investigatory independence[,]" the judge detailed how Cindy
consistently answered Wang's mostly open-ended questions in a conversational
manner, "provid[ing] a detailed and animated rendition of the incidents."5 The
judge acknowledged that Wang asked some leading questions, but they were
appropriate given Cindy's age "and the rapport [he] needed to establish with
[her], and they "did not prompt [her]" to make statements that were not
5
At the time of Wang's interview of Cindy, the Finding Words protocol used
by his office did not include having a truth-lie discussion with the child victim
That protocol included: (1) Rapport; (2) Anatomy Identification, in which the
interviewer shows the child diagrams so that they can identify anatomy and label
it; (3) Touch Inquiry, in which questions about desired and undesired touch are
discussed; (4) Abuse, or what happened in the abuse scenario, using anatomical
dolls as necessary; and (5) Conclusion, where the interviewer tells the child
whom they can tell if they are hurt or made to feel uncomfortable.
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credible." In sum, substantially for the cogent reasons set forth in Judge
Mohammed's written decision, we defer to his determination that Cindy's
videotaped statement was "sufficiently trustworthy" and "admissible, provided
[she] testif[y] at trial."
III
Defendant next argues the trial judge committed plain error in not giving
the Hampton/Kociolek charge to the jury to assess the credibility of the prior
out-of-court statements Cindy allegedly made accusing defendant of sexual
abuse. Defendant highlights the following testimony by Lillie:
[Lillie:] . . . [Cindy] told me that [defendant] did things
to her. And I said what things does he do? And, um,
I'm sorry, this is not easy to say. So, at that point, he –
she said that he – they were in her room, and she had
been playing with her my little ponies, which I did find
that next morning, and that he – they were on her bed,
and that he had taken off her, her, her pants and her
underwear and that he had rubbed his, she called it a
front butt, pointed down to her, her front, and that he
had rubbed that between her butt.
[Prosecutor:] Did you ask her what she meant by a front
butt?
[Lillie:] I did. I said, well, what does that look like?
And she said a hotdog.
[Prosecutor:] And how did you – what did you do next?
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[Lillie:] Then, you know, I asked her that they were on
the bed and that he had, he was rubbing his front butt
against her butt and she motioned like the motion of
two people having sex. And that her back was to him
when he was rubbing himself against her with his front
butt or penis.
[Prosecutor:] Did she give you any other detail?
[Lillie:] Just that he had done things to her before and
that she wanted it to stop and she didn't want him to
babysit her anymore.
[Prosecutor:] Did she say when it happened before?
[Lillie:] She said, mom, remember the ants that when
he had [sic] and when he babysat.
Defendant also argues the Hampton/Kociolek charge applies to Cindy's
statements accusing defendant of sexual assault to her mother at bedtime the day
after she was assaulted and after a family meeting, as well as to Dr. Agrawal and
to Heresi.
Because defendant did not request a Hampton/Kociolek charge or
otherwise object to the jury charge pursuant to Rule 1:7-2, we consider his
contention for plain error. Under this standard, any error or omission by the
judge is disregarded "unless it is of such a nature as to have been clearly capable
of producing an unjust result[.]" R. 2:10-2; see also State v. Hock, 54 N.J. 526,
538 (1969) (noting the "legal impropriety in the charge" must be "sufficiently
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grievous . . . to convince the [reviewing] court that of itself the error possessed
a clear capacity to bring about an unjust result.").
The Hampton/Kociolek charge does not apply to Cindy's statements
accusing defendant of sexual assault. A trial judge should provide a Kociolek
charge whenever a witness at trial testifies regarding oral statements made by a
defendant. Kociolek, 23 N.J. at 421. In such cases, the judge should provide
the jury with an instruction that it "should receive, weigh and consider such
evidence with caution, in view of the generally recognized risk of inaccuracy
and error in communication and recollection of verbal utterances and
misconstruction by the hearer." Ibid. (internal quotation marks omitted). "[T]he
Kociolek charge should be given whether requested or not." State v. Jordan,
147 N.J. 409, 428 (1997). "The principal value of the Kociolek charge is to cast
a skeptical eye on the sources of inculpatory statements attributed to a
defendant[,]" and opposing counsel's "devastating cross-examination . . .
accomplished that end." State v. Harris, 156 N.J. 122, 183 (1998).
A trial judge should provide a Hampton charge "whenever a defendant's
oral or written statements, admissions, or confessions are introduced in
evidence[,]" regardless of whether the charge is requested. Jordan, 147 N.J. at
425. A jury "shall be instructed that they should decide whether . . . the
A-0089-18
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defendant's [statement] is true[,]" and if they conclude that it is ". . . not true,
then they must . . . disregard [it] for purposes of discharging their function as
fact finders on the ultimate issue of guilt or innocence." Hampton, 61 N.J. at
272. "The very purpose of a Hampton charge is to call the jury's attention to the
possible unreliability of the alleged statements made by a criminal defendant."
State v. Feaster, 156 N.J. 1, 72 (1998).
The judge gave appropriate charges guiding the jury's evaluation of
Cindy's statements to her mother, Wang, Heresi, and Dr. Agrawal by giving the
detailed instructions on assessing the general credibility of witnesses set forth
in Model Jury Charges (Criminal), "Criminal Final Charge" (rev. May 12, 2014).
The Hampton/Kociolek charge was properly limited to defendant's statements
denying Cindy's allegations. Defendant cites no caselaw indicating that the
charge should be given to a jury to evaluate out-of-court statements by a crime
victim accusing a defendant. His argument – based on the assertion that Cindy's
statements should have been treated with "skepticism" because they were made
by a child some five years before trial – does not invoke the principles
underlying the Hampton/Kociolek charge to protect inculpatory statements
made by a defendant. Accordingly, we conclude the court's failure to provide a
Hampton/Kociolek charge does not require reversal.
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IV
Defendant lastly argues that resentencing is required because the trial
judge misapplied two aggravating sentencing factors in imposing his aggregate
seven-year sentence subject to NERA. The judge applied aggravating factor
three, a risk to reoffend, N.J.S.A. 2C:44-1(a)(3), and aggravating factor nine,
need to deter, N.J.S.A. 2C:44-1(a)(9). Defendant maintains these aggravating
factors conflicted with the judge's application of low to medium weight to
mitigating factors seven, no prior criminal record, N.J.S.A. 2C:44-1(b)(7), and
nine, unlikely to reoffend N.J.S.A. 2C:44-1(b)(9).
A sentencing judge's finding of aggravating factor nine is not
"inappropriate in a case in which the defendant had no prior record, and the
sentencing court accordingly applies mitigating factor seven[.]" State v.
Fuentes, 217 N.J. 57, 80 (2014). Such was the situation here. Similarly, a judge
can find aggravating factor three and mitigating factor seven, which seem
irreconcilable in theory, if there is "a reasoned explanation for [the] conclusion
that this first-time offender presented a risk to commit another offense." State
v. Case, 220 N.J. 49, 67 (2014). The judge did so in this case.
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In applying aggravating factor three, the judge observed that the two
sexual assaults occurred within a year of each other making it a "low risk" that
defendant would reoffend. As to aggravating factor nine, the judge believed
there was a specific need to deter defendant given he committed two separate
sexual assaults, as well as a general need to deter others. The judge's
consideration of mitigating factor nine was based upon the "fifteen letters" he
received attesting to defendant's support system along with the numerous caring
family members who appeared at sentencing.
Judge Mohammed did not abuse his discretion in sentencing defendant.
His weighing of the aggravating and mitigating factors challenged by defendant
was based upon competent and credible evidence in the record, and the sentence
does not shock our judicial conscience. See State v. Bolvito, 217 N.J. 221, 228
(2014).
Affirm.
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