STATE OF NEW JERSEY VS. KEVIN J. MICUCCI (19-08-0276, WARREN COUNTY AND STATEWIDE) (CONSOLIDATED) (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NOT FOR PUBLICATION WITHOUT THE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-2045-20
A-2087-20
STATE OF NEW JERSEY,
Plaintiff-Respondent/
Plaintiff-Appellant,
v.
KEVIN J. MICUCCI,
Defendant-Appellant/
Defendant-Respondent.
_________________________
Argued (A-2045-20) and Submitted (A-2087-20)
October 20, 2021 – Decided November 23, 2021
Before Judges Hoffman, Geiger and Susswein.
On appeal from the Superior Court of New Jersey, Law
Division, Warren County, Indictment No. 19-08-0276.
Thomas S. Ferguson argued the cause for Kevin J.
Micucci as appellant in A-2045-20 and as respondent in
A-2087-20.
Naya A. Tsang, Assistant Prosecutor, argued the cause
for the State of New Jersey as respondent in A-2045-20
and as appellant in A-2087-20 (James L. Pfeiffer,
Warren County Prosecutor, attorney; Dit Mosco,
Assistant Prosecutor, of counsel and on the briefs).
PER CURIAM
The State appeals the trial court's order dismissing without prejudice the
indictment charging defendant with sexual abuse of his girlfriend's eight-year-
old daughter (the child). Defendant also appeals that order, contending the
indictment should have been dismissed with prejudice. 1 We calendared the
appeals back-to-back and now consolidate them for the purpose of issuing a
single opinion.
The prosecution alleges that on multiple occasions, defendant caused the
child to touch him inappropriately while they were alone before he too k her to
school. The child was unable to specify the dates on which the sexual abuse
occurred, or when the recurring sexual abuse began or ended. Both appeals
focus on the specificity of the relevant time frame. The indictment alleges that
the sexual abuse occurred "on or about between the dates of September 4, 2018
and May 3, 2019." September 4, 2018, is the first day of the school year in
which the child attended second grade (the 2018-2019 school year). May 3,
1
Both parties moved for reconsideration of the trial court's order to dismiss the
indictment without prejudice. The trial court denied both reconsideration
motions, rendering a written opinion, whereupon both parties filed separate
appeals.
A-2045-20
2
2019, is the day the child first reported the sexual abuse to her grandmother.
That day falls within the 2018-2019 school year.
Defendant moved to dismiss the indictment with prejudice, arguing that it
failed to provide adequate notice as to the time frame of the alleged sexual abuse.
He also argued that the prosecutor committed misconduct in presenting the case
to the grand jury by (1) failing to introduce one of the two videorecorded
interviews of the child, and (2) eliciting testimony from the lead detective that
misled the grand jury by mischaracterizing and overstating the specificity of the
child's statements as to when the alleged sexual abuse occurred.
The trial court rejected defendant's due process argument that the
indictment failed to provide adequate notice. The court determined, however,
that the assistant prosecutor presenting the matter to the grand jury intentionally
misled the grand jury with respect to statements the child made during two
interviews conducted by a Warren County Prosecutor's Office detective. The
trial court found that during the grand jury presentation, the assistant prosecutor
posed confusing questions to the detective that were designed to make it appear
that the child had provided a definitive and specific time frame as to when the
sexual abuse occurred. The court also found that the assistant prosecutor
compounded the false impression created by the detective's testimony by
A-2045-20
3
choosing not to present a videorecording of the second interview of the child.
The trial court reasoned that viewing the second recording would have shown
the grand jury the child's inability to provide detailed information about when
the recurring sexual abuse started and ended. The trial court concluded that
these two decisions—to pose misleading questions to the detective on the
witness stand and to omit the recording of the second interview from the
evidence presented to the jury—together amounted to prosecutorial misconduct.
The court concluded this misconduct infringed upon the grand jury's decision -
making function and warranted dismissal of the indictment without prejudice,
thereby requiring the State to re-present the case to another grand jury.
After carefully reviewing the record in light of the arguments of the parties
and the governing principles of law, we reverse and vacate the trial court's
decision to dismiss the indictment. Although the court issued a commendably
thorough written opinion, it did not view the evidence presented to the grand
jury in the light most favorable to the State. The child consistently stated that
the criminal sexual contact incidents happened repeatedly after her mother left
the house with the other children and before defendant took her to school. That
testimony supported an inference that the unlawful acts occurred on school days.
While the child repeatedly told the detective the alleged sexual abuse began
A-2045-20
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sometime before the start of the 2018-2019 school year, her statements do not
indicate that the ongoing and repetitive alleged sexual misconduct did not
continue during that school year.
During the second interview, moreover, the detective asked the child: "But
it happened during this school year [referring to the ongoing 2018 -2019 school
year]?" The child answered: "Yeah and I think it's probe [sic] uh I'm pretty sure
it was more than that." This answer provides an adequate foundation upon
which the detective could testify that the child stated that inappropriate touching
occurred during the 2018-2019 school year. Although other answers the child
gave in both the first and second interviews do not specifically link the recurring
sexual abuse to that particular school year, she at no time stated definitively that
acts constituting sexual abuse did not occur during the 2018-2019 school year.
In these circumstances, we do not believe the indictment was palpably
deficient in narrowing the time frame of the alleged criminal acts. Because we
hold that there was no basis upon which to dismiss the indictment without
prejudice, we necessarily reject defendant's contention that the indictment
should have been dismissed with prejudice.
A-2045-20
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I.
We briefly summarize the pertinent facts and procedural history. On May
3, 2019, the child and her younger sister were playing after school while their
maternal grandmother babysat. The grandmother overheard the two girls talking
about "rubbing daddy's leg." The grandmother asked the child to repeat what
she had said. The child revealed that defendant had been causing her to "rub his
legs" and "touch his 'thing'" when she was alone with him in the morning before
school. The grandmother apprised the child's mother when she arrived home.
The mother and the child's biological father immediately took the child to the
police station to make a report. Interviews were scheduled for the following
Monday, May 6, 2019. On that date, a Warren County Prosecutor's Office
detective interviewed the child, her mother, the grandmother, and the younger
sister.
During the May 6 interview (first interview), which was electronically
recorded and presented to the grand jury, the child was unable to recall the dates
when the alleged sexual abuse began and ended. She was, however, consistent
in stating that the incidents happened on school days during the time between
when her mother left the house with the other children and when defendant took
her to school.
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On May 9, 2019, the detective conducted a second recorded interview of
the child (second interview or follow-up interview) in an attempt to narrow the
time frame during which the alleged sexual abuse occurred. Although the child
was once again clear about the specific time of day of the alleged acts of sexual
abuse, she was unable to remember anything that linked a particular incident of
sexual contact to a specific calendar event. 2 The child again was unable to
specify when the alleged sexual abuse began or ended. However, as we have
noted, the child affirmatively responded to the detective's question pertaining to
whether the sexual abuse "happened during this school year." 3
2
During the second interview, the detective attempted to narrow the timeline of
the abuse by asking the child if she remembered whether any of the incidents
happened: 1) during that school year; 2) between September and May; 3) in the
summer; 4) around the child's sister's birthday in April; 5) while the child was
eight years old; and 6) since the child had turned eight years old in January. The
detective's questions were unsuccessful in narrowing the relevant timeline. We
note that, although the child could not tie any particular sexual contact incident
to an event or a specific date, she did link all the alleged acts of sexual abuse to
her school morning routine.
3
During the second interview, the following exchange occurred:
Detective: Was all right so we talked about um this
happening during this school year
Child: Mmhmm
Detective: You said it might have been a little longer
maybe in the summer
Child: It might have been a lot longer a little bit
longer
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On May 9, 2019, defendant was arrested at his workplace and charged by
complaint with two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b)
and one count of second-degree endangering the welfare of a child, N.J.S.A.
2C:24-a(1).
The matter was presented to the grand jury on August 19, 2019. The State
presented only one live witness: the Warren County Prosecutor's Office
detective who was the lead investigator and who had conducted both interviews
of the child. The State also introduced into evidence the May 6, 2019,
videorecorded interview of the child. Although the grand jury was informed
that a second interview had been conducted, jurors were not shown the
videorecording of the May 9, 2019, follow-up interview. The grand jurors posed
no questions about the second interview and did not request the prosecutor to
play the recording for them.
During the grand jury presentation, the following exchange occurred
between the assistant prosecutor and detective:
Prosecutor: Did you learn as part of the investigation
what grade the victim…was in?
Detective: When I interviewed her she was in the
[second] grade.
Prosecutor: Okay. So she was in her second grade
school year, from September 2018 to May [3], 2019?
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Detective: Correct
Prosecutor: Okay. And she indicated in her interview
with you that this [referring to sexual acts] had been
going on during that school year, correct?"
Detective: Correct.
The grand jury returned a three-count indictment charging defendant with
two counts of sexual assault of a child less than thirteen years of age, N.J.S.A.
2C:14-2(b), and one count of endangering the welfare of a child, N.J.S.A. 2C:24-
4a(1). All three counts were alleged to have occurred "on or about between the
dates of September 4, 2018 and May 3, 2019."
Defendant filed a motion to dismiss the indictment with prejudice. He
argued that the time frame presented by the prosecution afforded inadequate
notice to allow him to prepare a defense, and thus violated his due process rights.
He also argued that the prosecutor committed misconduct by failing to play the
recording of the second interview to the grand jury. Defendant further asserted
that the child's inability to specify the start and end dates of the alleged sexual
abuse was clearly exculpatory. He also argued that the confusing questions the
assistant prosecutor posed to the detective misled the grand jury into believing
that the child said the abuse happened during her second-grade school year when
in fact, according to defendant, she made no such definitive statement.
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On January 6, 2021, the trial court heard oral argument on defendant's
motion to dismiss after which the court rendered a ruling on the record. The
trial court concluded, "It is clear to the [c]ourt that the State lacks any form of a
definitive timeline as it relates to the alleged offenses." The trial court
nonetheless recognized that "[such lack of a definitive timeline] by itself is not
sufficient to dismiss an indictment."
While acknowledging that leading questions are permitted in the grand
jury, the trial court found that the questions posed by the assistant prosecutor to
the detective were "clearly…intentionally confusing" and that the detective's
simple affirmative answers were misleading in suggesting that the child had
specified that sexual contact incidents occurred within the 2018-2019 school
year.
Specifically, the court explained,
By asking questions in this manner… the Grand Jury
was intentionally misled, rendering the Indictment
palpably defective due to the misleading nature of the
questions and subsequent answers. The Victim only
ever indicated that the alleged offenses occurred in the
morning before school from which perhaps an inference
could be drawn that it happened during a school year,
however, she could not say it was during the current
schoolyear, or a prior school year, and she never said
that it happened during this second grade school year as
was presented to the Grand Jury by way of the
Detective's 'Yes' answer.
A-2045-20
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The court also questioned the prosecutor's decision not to play the
recording of the second interview to the grand jury and the motive for that
decision. The court noted that while it "is the State's right to decide which
evidence to present[,]" they "also have a duty to present clearly exculpatory
evidence that directly negates an element of the crime." The court did not find,
however, that the statements the child made at the second interview were clearly
exculpatory. Rather, the court remarked that the second interview was
"borderline exculpatory." 4 The trial court also found that the second interview
was "full of contradictory responses by the Victim, with no single statement
indicating that the alleged abuse occurred during the school year that started in
September 2018. If any conclusions could be drawn, it [was] that the Victim
was uncertain when the alleged abuse began, when it ended, or when it occurred
last."
The court concluded:
the State chose to bolster its argument for an indictment
using an interview of the Victim, while choosing not to
show the recording to the Grand Jury based only upon
the testimony of [the detective]. A recording, that if
nothing else, raises questions and contradictions which
very possibly could have swayed the Grand Jury to
4
As we have already noted on multiple occasions, it was during the second
interview that the child made what we refer to as the "yeah" response, indicating
to the detective that the sexual abuse "happened during this school year."
A-2045-20
11
decide not to indict based upon the contradictory
statements and the overall lack of timeline. While these
statements in the second interview may not directly
negate an element of a crime, [they are] at the very least
borderline exculpatory based on their very nature. The
[c]ourt finds that by suggesting to the Grand Jury by the
Detective's testimony that the interview, which the
State chose not to show, clarified the statement of the
Victim from the first interview, which it clearly did not,
is intentionally misleading and therefore, necessitates
the granting of the Defendant's Motion to Dismiss the
Indictment. The [c]ourt finds that by the State
attempting to walk a fine line in its presentation to the
Grand Jury they intentionally misled the Grand Jury
and usurped their decision-making authority.
The court thereupon granted defendant's motion to dismiss the indictment
but did so without prejudice.
Both defendant and the State filed motions for reconsideration. The court
denied both motions on February 23, 2021, 5 rendering a lengthy written opinion.
The written opinion repeats and amplifies the same reasoning as the court had
stated in its oral ruling.
With respect to the State's argument regarding when the alleged sexual
abuse occurred, the trial court in its written opinion noted:
5
The court initially issued its order denying the State's motion for
reconsideration on February 23, 2021. The caption of that order failed to
indicate that the court also was denying defendant's motion for reconsideration.
A corrected order was issued on March 29, 2021.
A-2045-20
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This matter was presented to the Grand Jury and,
despite the inability of the Victim to give a direct and
definitive answer stating that the alleged abuse
occurred during her second-grade school year, [the
detective] affirmed to the Grand Jury that the Victim
stated that the incidents occurred during [her second
grade] school year. Thus, the [c]ourt finds that the State
has failed to demonstrate that this [c]ourt based its
opinion upon a palpably incorrect or irrational basis, or
a failure to consider or appreciate the significance of
the probative, competent evidence.
The court's written opinion also addressed defendant's motion for
reconsideration. Defendant "assert[ed] that there was no fair notice given by the
State of the time period in which the alleged offense occurred." Citing State in
the Interest of K.A.W., 104 N.J. 112 (1986), defendant argued "that the
transcripts failed to establish or prove which dates the alleged sexual abuse
occurred with any specificity."
The trial court rejected defendant's argument:
The Defendant conflates the inability to prove the
specific instances with failing to give the Defendant fair
notice of the timeframe of the accusation. [Ibid.]
(remanding the case to proceed within the fair notice
standard where the State could charge, "'four or five
occurrences' within a 20-month period."). The [c]ourt,
in discussing the Indictment and denying the motion for
reconsideration before it, refrains from ruling on the
fair notice issue raised by Defendant because it is moot.
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II.
Our review of the dismissal of an indictment is guided by well-established
legal principles. In State v. Campione, 462 N.J. Super. 466 (App Div. 2020),
we recently summarized those principles, explaining:
An indictment is presumed valid and should only
be dismissed if it is manifestly deficient or palpably
defective. A motion to dismiss is addressed to the
discretion of the trial court and that discretion should
not be exercised except for the clearest and plainest
ground.
At the grand jury stage, the State is not required
to present enough evidence to sustain a conviction. As
long as the State presents some evidence establishing
each element of the crime to make out a prima facie
case, a trial court should not dismiss an indictment. In
a nutshell, a court examining a grand jury record should
determine whether, viewing the evidence and the
rational inferences drawn from that evidence in the
light most favorable to the State, a grand jury could
reasonably believe that a crime occurred and that the
defendant committed it.
[Id. at 492 (citing State v. Feliciano, 224 N.J. 351, 380–
81 (2016)).]
Our Supreme Court has also provided instruction on when an indictment
may be dismissed based on prosecutorial misconduct. In State v. Murphy, the
Court stressed, "An indictment should be dismissed only on 'the clearest and
plainest ground.'" 110 N.J. 20, 35 (1988) (quoting State v. N.J. Trade Waste
A-2045-20
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Ass'n, 96 N.J. 8, 18 (1984)). The Court added, "'Unless the prosecutor's
misconduct . . . is extreme and clearly infringes upon the [grand] jury's decision-
making function, it should not be utilized . . . to dismiss[] an indictment.'" Ibid.(alterations in original) (quoting State v. Schamberg, 146 N.J. Super. 559, 564
(App. Div. 1977)).
That standard is consistent with the notion that dismissal of an indictment
is an extraordinary remedy. See State v. Williams, 441 N.J. Super. 266, 271-72
(App. Div. 2015). "[A]n indictment should not be dismissed unless the
prosecutor's error was clearly capable of producing an unjust result. This
standard can be satisfied by showing that the grand jury would have reached a
different result but for the prosecutor's error." State v. Majewski, 450 N.J.
Super. 353, 365-66 (App. Div. 2017) (citing State v. Hogan, 336 N.J. Super.
319, 344 (App. Div. 2001)).
We add that the prosecution "may not deceive the grand jury or present its
evidence in a way that is tantamount to telling the grand jury a 'half-truth.'" State
v. Hogan, 144 N.J. 216, 236 (1996). The Court in Hogan explained, "the grand
jury cannot be denied access to evidence that is credible, material, and so clearly
exculpatory as to induce a rational grand juror to conclude that the State has not
made out a prima facie case against the accused." Ibid. The grand jury thus
A-2045-20
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must be presented with evidence whose absence would cause "a distorted
version of the facts… and interfere[] with the grand jury's decision -making
function." Ibid. (internal citations omitted). This standard, however, "is
intended to be applied only in the exceptional case in which a prosecutor's file
includes not only evidence of guilt but also evidence negating guilt that is
genuinely exculpatory." Id. at 237. "Moreover, courts should dismiss
indictments on this ground only after giving due regard to the prosecutor's own
evaluation of whether the evidence in question is 'clearly exculpatory.'" Id. at
238. "The prosecutor's duty [to present exculpatory evidence] arises only if the
evidence satisfies two requirements: it must directly negate guilt and must also
be clearly exculpatory." Id. at 237.
III.
We next apply these general principles to the present case. At the risk of
undue repetition, we reiterate that the record shows that at one point during the
second interview, the child expressly—albeit cursorily—acknowledged that
sexual abuse occurred during the 2018-2019 school year. We repeat verbatim
that critical exchange during the second interview:
Detective: But it [referring to the alleged sexual
contact] happened during this school year?
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Child: Yeah and I think it's probe [sic] uh I'm pretty
sure it was more than that.
We interpret "yeah" as an affirmative response to the detective's question.
There is no doubt that the detective's reference to "this school year" means the
school year that was ongoing at the time of the interview, that is, the 2018-2019
school year. And while the child added that "I'm pretty sure it was more than
that," indicating the sexual abuse occurred before the then-current school year,
the clear implication is that the abuse occurred both before and during the 2018-
2019 school year.
It is true, as the trial court emphasized, this was the only time during either
interview that the child indicated the abuse continued into the 2018-2019 school
year. She never repeated this affirmative response with respect to a particular
school year. Nor did she rescind it, expressly or implicitly. Her brief but
unambiguous "yeah" response provides a foundation upon which to support the
detective's grand jury testimony that the child had stated that sexual abuse
occurred at some time during the course of that school year. That testimony,
viewed in the light most favorable to the State, see Campione, 462 N.J. Super.
at 492, provides an adequate evidential basis for the time frame specified in the
indictment.
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We do not disagree with the trial court's finding that throughout both
interviews, the child was confused and thought the detective was asking about
when the sexual abuse first began. Her other responses in that sense could fairly
be characterized as inconsistent with the "yeah" response in that they did not
directly and expressly state that acts of sexual contact occurred during the 2018-
2019 school year. We do not agree, however, that the child ever "contr adicted"
her "yeah" response. The interview transcripts make clear that the child could
not recall in either interview when the sexual abuse started or ended. But she
never definitively stated that no act of sexual abuse occurred during the 2018 -
2019 school year. She never stated, for example, that the abuse stopped before
the start of that school year. Indeed, she never indicated when the alleged sexual
abuse last occurred.
We do not dispute that the child's apparent confusion, inability to recall
details about the time frame, and repeated equivocations, undermine confidence
in her recollection as to the timing of events. Her uncertainty and confusion
expressed during both interviews will no doubt be highlighted at trial and closely
scrutinized during cross-examination. But the prosecution was not required to
present the grand jury with enough evidence to sustain a conviction. See
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Feliciano, 224 N.J. at 380-81 (noting "some evidence establishing each element
of the crime" is sufficient to protect an indictment from dismissal).
That conclusion does not end our review of the grand jury presentation.
By all accounts, the compound leading questions the assistant prosecutor posed
to the detective were confusing. We must decide whether those questions were
intentionally designed to mislead the jury as to what the child stated during her
interviews, and whether any such misconduct was sufficiently extreme as to
infringe upon the grand jury's decision-making function and thus warrant
dismissal of the indictment. See Murphy, 110 N.J. at 35.
We note that while the recording of the second video was not played, the
jury was aware that there had been a second interview. They were told,
moreover, that the follow-up interview was conducted for the purpose of
clarifying the timeline. See note 2, supra. We focus on the following exchange
during the grand jury presentation:
Prosecutor: And was that [second interview] for the purpose to –
clarify a timeframe with regards to [the child's] disclosure?"
Detective: Yes.
…
Prosecutor: And that — again that timeframe that you discussed
with her in the second interview was that it occurred during her
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school year that started in September of 2018 and she was still in
the school year it was that 2nd grade, correct?
Detective: Yes
The trial court found this testimony to be misleading, asserting that at no
point did the child "definitively affirm that the alleged abuse occurred during
her second-grade school year." Rather, the trial court stressed that she repeated
the alleged abuse began sometime before the 2018-2019 school year. We
disagree that the child had not sufficiently affirmed that the sexual abuse also
occurred during the school year while she was in second grade.
We acknowledge that the grand jurors had the benefit of watching the
recording of the first interview and could decide for themselves whether and to
what extent the child equivocated as to the timeline of the abuse. The grand jury
did not have the same opportunity with respect to the second interview. 6
The trial court acknowledged that nothing in that follow-up interview was
clearly exculpatory within the meaning of the rule announced in Hogan, 144 N.J.
at 237. As the trial court correctly noted, the second interview did not negate
an element of the crime. The court characterized the video as being "borderline
6
We note again that the grand jury had the opportunity to ask questions
pertaining to the second interview, or to request that it be played, but did not do
so.
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exculpatory." We certainly agree the recording of the second interview was not
clearly exculpatory and thus need not have been presented to the grand jury. See
Hogan, 144 N.J. at 237. Although the second interview does reveal the child's
confusion, and is arguably helpful to the defense, we emphasize that this
recording also includes the child's "yeah" response. Therefore, if the second
interview was introduced to the grand jury, as well as viewed in the light most
favorable to the State, it would have provided direct evidentiary support for the
time frame specified in the indictment. We do not interpret her repeated
statements that the alleged sexual abuse started before the 2018-2019 school
year to mean the abuse stopped before the start of said school year. Indeed, as
we have noted, the record makes clear that the child could not recall when the
alleged sexual abuse ended.
While it is unclear to us why the prosecutor chose not to introduce the
recording of the second interview, we discern no stratagem to intentionally
mislead the grand jury. Nor do we view the assistant's prosecutor's questions to
the detective as constituting intentional misconduct. Although the detective's
testimony may have oversimplified, and thus overstated the clarity of the child's
statements regarding the relevant time frame, we are satisfied that the
prosecutor's questions to the detective did not rise to the level of "extreme
A-2045-20
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prosecutorial interference with the grand jury's decision-making process," nor
constitute an "intentional subversion of the grand jury process." Murphy, 110
N.J. at 35.
We are also not convinced that the grand jury "would have reached a
different result but for the prosecutor's error." Majewski, 450 N.J. Super. at
355–56. Had the prosecutor played the recording of the second interview, the
jury would have learned that the child remained uncertain as to when the alleged
sexual abuse began and ended. But nothing in the second interview eviscerated
the reasonable inference that at least some alleged acts of sexual conduct
occurred during the course of the 2018-2019 school year, especially in light of
her repeated statements that the incidents of sexual contact occurred during her
morning routine on school days. Whether the State may have difficulty
ultimately proving at trial when the alleged sexual contact occurred does not
mean that the prosecutor intentionally misled the grand jury or that the
indictment is palpably deficient.
We also deem it important, for purposes of assessing defendant's
prosecutorial misconduct claim, that the prosecutor sought to limit, not expand,
the time frame of the recurring acts of alleged sexual abuse. In K.A.W., the
Court noted that, "[t]he aim is to narrow the time frame of the occurrence as
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complained of—if not to the extent of an exact date or dates, then possibly in
respect of seasons of the year." 104 N.J. at 122–23. We believe the prosecutor's
effort to narrow the time frame comports with the goal expressed in K.A.W.
IV.
We turn next to defendant's challenge to the trial court's order to dismiss
the indictment without prejudice. Defendant raises the following contentions
for our consideration:
POINT I.
THE SWORN TESTIMONY OF J.B. BLATANTLY
CONTRADICTS THE STATE'S INDICTMENT
(Raised below)
POINT II.
THE STATE'S COMPLAINT AND INDICTMENT
ARE NOT SPECIFIC [AS] THEY CONTRADICT
THE EXPRESS LANGUAGE OF THE
INDICTMENT. THAT REQUIRES A REVIEW OF
BOTH THE MAY 6, 2019 STATEMENT AND THE
MAY 9, 2019 STATEMENT OF THE ALLEGED
VICTIM
(Raised below)
POINT III.
THE TRIAL COURT WAS CORRECT IN DENYING
THE STATE'S MOTION FOR RECONSIDERATION
(Not raised below)
A. CRIMINAL COURTS ONLY PERMIT TO FILE A
MOTION FOR RECONSIDERATION IN LIMITED
CONTEXTS
A-2045-20
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B. IF THE COURT FINDS THE MOTION FOR
RECONSIDERATION IS PROPER, THE STATE'S
APPLICATION MUST STILL BE DENIED
C. THE COURT'S DETERMINATION THAT J.B.'S
STATEMENT CONTAINED CONTRADICTIONS
CANNOT BE OVERTURNED BY A MOTION FOR
RECONSIDERATION
(Raised below)
D. THE COURT PROPERLY DETERMINED J.B.
SPECIFICALLY DENIED THE SEXUAL ABUSE
OCCURRED WHEN SHE WAS EIGHT (8) YEARS
OLD
(Raised below)
E. AS A PRELIMINARY MATTER, THE COURT
MUST DETERMINE JURISDICTION UNDER RULE
1:7-4(B)
(Raised below)
POINT IV.
COUNT 3 OF THE INDICTMENT REQUIRES
DISMISSAL BECAUSE THE VICTIM DENIED IT
HAPPENED AND CANNOT INDICATE WHEN IT
HAPPENED
(Not raised below)
POINT V.
THE TRIAL COURT FAILED IN BOTH INSTANCES
TO MAKE FINDINGS OF LAW PURSUANT TO
RULE 1:7-4
(Not raised below)
Defendant also raises the following points in his reply brief in A-2045-20:
N.J. LAW REQUIRES ACCURATE "TIME"
INFORMATION SET FORTH IN A COMPLAINT AS
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INFORMED BY THE DETAILS DISCLOSED IN
THE STATE'S INVESTIGATION
(Raised below)
THE TIME INFORMATION IN THE INTERVIEW
OF J.B. OF MAY 6, 2019 AND MAY 9, 2019
THE TRIAL COURT FAILED TO APPLY THE
BALANCING TEST OF K.A.W. AS TO CHARGING
DECISIONS
(Raised below)
THE DEFENDANT RELIES ON THE LEGAL
ANALYSIS OF THE [TRIAL COURT,] FOUND IN
HIS ORDER AND OPINION DATED AUGUST 21,
2020
(Raised below)
Defendant additionally raises the following points in his reply brief in A -
2087-20:
THE INDICTMENT SHOULD BE DISMISSED WITH
PREJUDICE IN THAT THE STATE CANNOT
ESTABLISH A TIMELINE
(Raised below)
THE ARGUMENT OF THE STATE THAT THE
TESTIMONY OF J.B. IS CLEAR AND CONCISE AS
TO SATISFY THE LAW UNDER K.A.W. IS
WITHOUT MERIT
(Raised below)
THE TRIAL COURT CONCLUDED THAT THE
STATE LACKS ANY FORM OF A TIMELINE
(Raised below)
A-2045-20
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THE TRIAL COURT CORRECTLY DISMISSED
THE INDICTMENT BECAUSE IT WAS BASED ON
BLATANT MISREPRESENTATIONS BY THE
STATE TO THE GRAND JURY
(Raised below)
THE STATE'S ARGUMENT THAT THE MAY 9,
2019 INTERVIEW WAS GIVEN TO THE GRAND
JURY IS FRIVOLOUS
(Raised below)
We have already addressed most of defendant's contentions in our
discussion of the State's challenge to the dismissal of the indictment without
prejudice. For the most part, defendant's arguments are subsumed in our
decision to vacate the trial court's order to dismiss the indictment without
prejudice. If there is no basis to dismiss the indictment without prejudice, which
would allow the prosecutor to re-present that matter to another grand jury, there
could be no basis to dismiss the indictment with prejudice, thereby precluding
another indictment and effectively affording defendant transactional immunity
for the alleged sexual abuse of the child.
We focus on defendant's contention that the eight-month time frame
specified in the indictment provides inadequate notice to enable defendant to
prepare a defense. We affirm the trial court's ruling that the indictment does not
violate defendant's due process rights. We do so substantially for the reasons
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expressed by the trial court in its oral decision and subsequent written opinion
denying defendant's motion for reconsideration. We add the following:
Our Supreme Court spelled out the analytical framework for addressing
this constitutional issue in K.A.W., 104 N.J. at 112. The Court specifically
addressed
whether a complaint in a juvenile delinquency action,
charging sexual assault on a victim younger than
thirteen years of age, must specify an exact date of
occurrence. The answer to that question is "no." For
constitutional due process purposes, the adequacy of a
charge set forth in a juvenile delinquency complaint, as
in a criminal indictment, turns on whether the notice
contained in the complaint sufficiently apprises the
accused of the offense with which he [or she] is charged
to enable him [or her] to prepare a defense.
[Id. at 113–14.]
The Court rejected the Appellate Division holding that a complaint must
set forth a specific date or dates of the offense, concluding instead that "'fair
notice' in this context is not concerned exclusively with the specificity of a date
of offense." Id. at 114.
In that case, the juvenile complaint originally alleged that the acts of
sexual assault occurred "in midyear 1984," but was amended to allege that the
sexual assaults occurred "on divers dates from January 1983 through August
1984." Id. at 115. The juvenile argued that this time frame left him unable to
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construct a defense, prejudicing him because he had visited his mother in
Virginia for a good portion of that time period and thus had a potential alibi for
at least part of the time period during which the divers dates fell. Id. at 116.
The Court recognized the need to balance the State's interest in the
vigorous prosecution of child abusers against the accused's interest in receiving
adequate notice of the offense to permit him or her to prepare a defense. Id. at
119. The victim was seven years old when the sexual assaults allegedly took
place. The Court recognized that a victim may be "so young as to make it well-
nigh impossible to state the exact time of that offense." Id. at 118 (emphasis in
original). The Court explained "our concern is with the specificity required, in
the interest of fairness, at the charging stage of the proceeding." Ibid. The Court
added:
In gauging that fairness we need no battery of experts
to convince us that a child of the age of five to seven
years . . . cannot recall precise dates or even
approximate times the way a normal adult can.
Children of that age do not think in terms of dates or
time spans. Unlike adults, their lives are not controlled
by the clock or the calendar—at least not as rigidly and
surely not as consciously.
[Ibid.]
The Court went on to provide an analytical paradigm to balance the
competing interests. First, the Court focused on whether the State had disclosed
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all the information it possessed about when the acts of sexual abuse occurred.
In that case, as in the one presently before us, there was full disclosure. Ibid.The Court made clear, however, that full disclosure was not enough to avoid
dismissal. The Court recognized there could be no fixed, precise standards to
guide the resolution of the issue. The Court instead presented "some general
criteria to aid a court in its review of the adequacy of 'time' information set forth
in a complaint, as informed by the details disclosed in the State's investigation."
Id. at 121-22.
The Court then provided an illustrative list of relevant factors, including
"the length of the alleged period of time in relation to the number of individual
criminal acts" and "the ability of the victim or complaining witness to
particularize the date and time of the alleged transaction or offense." Id. at 122(quoting People v. Morris, 61 N.Y.2d 290, 296 (1984)). The list also includes
"the age and intelligence of the victim, the extent and thoroughness of the
prosecutor's investigative efforts to narrow the time frame of the alleged of fense,
and whether there was a continuous course of conduct." Ibid. Importantly for
purposes of the present appeal, the Court emphasized that,
[t]he aim is to narrow the time frame of the occurrence
as complained of—if not to the extent of an exact date
or dates, then possibly in respect of seasons of the year,
or incidents in the victim's life such as a death in the
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family, or a change in a family member's job routine, or
the beginning of the school year or of vacation time or
of extracurricular activities.
[Id. at 122-23.]
The Court further stressed that "to the extent the juvenile or criminal
defendant makes known his [or her] defense—here, non-involvement,
supplemented by an alibi for a brief period during the [twenty]-month span—
that too may be placed in the scales." Id. at 123. The Court added
that an alibi defense might suffer in the face of an
extended time frame does not constitute a sufficient
basis for dismissal of a complaint in this context, where
a 'number of occasions' of misconduct are alleged. It
may be pertinent in this regard that whereas the
opportunity to victimize an infant is enhanced by a
degree of family relationship or sharing of living
quarters or frequency of contact, by the same token the
likelihood of the victim being able to recount a specific
time of the offenses is reduced. The events blur.
[Ibid.]
Applying these factors to the present case, we are satisfied the prosecutor
made considerable investigative efforts to narrow the time frame.
We note also that in the matter before us, defendant has not suggested that
he intends to rely on an alibi defense. Nor does such a defense seem plausible
given the nature of the allegations. We surmise that the defense in this case will
not be that defendant was not home alone with the child before he took her to
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school. Rather, we expect the gravamen of the defense to be that the child was
not telling the truth, or at least was mistaken, in describing the touching alleged
by the State to constitute "sexual contact" as defined in N.J.S.A. 2C:14-1(d).
The lack of specificity of the timeline does not prevent defendant from preparing
to mount that defense.
In sum, we agree with the trial court that the time frame specified in the
indictment affords defendant sufficient notice to permit him to prepare a defense
to the charge of repeated acts of sexual abuse. Given the allegation of repeated
incidents of sexual abuse on mornings before defendant took the child to school,
we believe that requiring an eight-year-old child in these circumstances to be
more specific "would effectively preclude prosecution of those who have
sexually abused children who are unable to specify a date." Id. at 12. Of course,
defendant at trial will be free to highlight the child's inability to recall aspects
of the alleged sexual abuse. But the indictment provides sufficient notice to
allow defendant to prepare his defense and to cross-examine the child.
To the extent we have not specifically addressed them, any remaining
arguments raised by defendant lack sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(2).
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Affirmed in part and reversed in part.
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