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STATE OF NEW JERSEY v. CURTIS A. FRANKLIN
Date: 02-24-2017
Case Number: A-0196-14T3
Judge: Jose L. Fuentes, Harry G. Carroll and Greta Gooden
Court: SUPERIOR COURT OF NEW JERSEY
Plaintiff's Attorney:
Gurbir S. Grewal, Bergen County Prosecutor,
Elizabeth R. Rebein, Assistant Prosecutor
Defendant's Attorney: Frank Gennaro
Description:
A.M. has known defendant since she was four years old. A.M.'s
family and defendant's family enjoyed a close relationship, and
both families were active in their local church, where defendant
served as associate pastor at the time of his arrest.
The accusations came to light on November 30, 2009, when A.M.
reported her past sexual relationship with defendant to the Mahwah
Police Department (MPD). A.M. described incidents of sexual
contact that occurred when she was fourteen years old and sexual
intercourse at age fifteen.
The next day, MPD Detective Guido Businelli and Detective Dan
O'Brien of the Bergen County Prosecutor's Office (BCPO) went to
defendant's home to investigate A.M.'s allegations. Upon
arriving, they were met by defendant's wife, who said he was
sleeping. When defendant came downstairs, the detectives
"informed him that his name had been brought up" in their
investigation and they requested he accompany them to the BCPO.
Defendant agreed to do so. According to O'Brien, defendant said
he was getting over a cold, and "seemed a [] little groggy from
just waking up, but he was fine." Defendant did not appear
disoriented, and was able to walk, stand, and communicate normally.
Defendant was transported without handcuffs in the officers'
car to the BCPO. At that time, he was not under arrest or charged
with any crime. Once there, defendant was placed in an interview
room, provided with Miranda2 warnings, and signed a Miranda waiver.
While alone in the room, before the interview began, defendant
received a call on his cell phone. Defendant answered and said,
"Hello. No, I'm hurting pretty bad."
During the course of the interview, defendant admitted having
an extra-marital affair with A.M. He stated he had moved to Oregon
for three years to repair his marriage, and that his sexual
relationship with A.M. began about six months earlier. Defendant
subsequently stated the relationship started "right before her
eighteenth birthday." At the time, defendant worked repossessing
cars, and he explained that he had sex with A.M. in hotels, in his
truck, in vehicles he repossessed, and in A.M's bedroom.
Other than some pedigree information the police later
obtained, Detective O'Brien's questioning of defendant concluded
with the following exchange:
DETECTIVE: All right. Now, what she has reported to us is that, she's fifteen and I've met her, she's an intelligent, attractive girl, there's no reason I can find to disbelieve her, especially since you guys haven't had any contact in two and a half years. She's very upset about what has gone on with you and her. She's very upset to the point of like, she's trying to put her life back together at this point and she feels that you had [] manipulated her and done something to her at a young age to the point where she feels terrible. She can't put things together in a . . . proper way for herself right now because she feels that she's been violated. She's been - - you know, mislead by you ever since she was a child. And I believe her. There's no reason for her to lie about this. I believe that you started coming to her house . . . at a young age, fifteen years old, sixteen years old, knocking on the window and coming in. And there's no doubt about it okay?
5 A-0196-14T3
DEFENDANT: Okay. DETECTIVE: I need you to come clean and come out in front of this now. [Because] the more you lie to me about this, the more you stretch this out, the worse it's [going to] get. Because we're [going to] conduct our investigation and we're [going to get] cell phone records, . . . interview other people, people she was speaking to about what was going on. All right?
DEFENDANT: Uh-huh.
DETECTIVE: And when [] she spoke to them and what she told them. All right? So I need you to be honest with me about what's happening. [Because] I don't want this to get worse than it has to be for you. DEFENDANT: I think I need to talk to an attorney because - - well, I think I need to talk to an attorney.
DETECTIVE: Okay, that's your right. All right. We'll be back in a few minutes.
Defendant was arrested and charged with sexually assaulting
A.M. He moved prior to trial to suppress the incriminating
statements he made during his recorded interview. He argued he
was too ill when he gave the statement for it to be voluntary. At
the motion hearing, O'Brien testified to the events described
above, and further indicated that no promises were made or threats
or coercion used to secure defendant's statement. Defendant's
daughter testified that defendant "had flu-like symptoms. He had
chills, a fever, and he was very sluggish, so November 30th he was
6 A-0196-14T3
in bed all night and all afternoon." When the police arrived on
December 1, 2009, she heard her mother ask them to "come back
later, because my father was still in bed, and he had been sick
all night." She also stated she was unaware if her father was
taking any medication. Defendant's videotaped statement was
introduced in evidence and viewed by the court.
The trial court denied the motion to suppress. The court
acknowledged that defendant "had some type of flu-like condition,
that he wasn't feeling [well]." However, "[t]here was no[]
testimony as to any medication that would in any way affect
[defendant's] cognitive abilities." The court concluded that
defendant's Miranda rights were scrupulously safeguarded, no
threats or coercion were used, defendant understood the questions
posed to him, and he answered those questions "voluntarily,
intelligently, and knowingly."
As a separate pretrial matter, the trial court conducted a
N.J.R.E. 104 hearing on the State's request to admit evidence of
uncharged conduct by defendant. Specifically, the State sought
to elicit testimony by A.M. at trial that, prior to the dates
charged in the indictment, defendant (1) told A.M. she was pretty;
(2) massaged A.M.'s back; and (3) knocked on A.M.'s window late
at night. Over defendant's objection, the court admitted the
testimony as intrinsic evidence pursuant to State v. Rose, 206
7 A-0196-14T3
N.J. 141 (2011), and United States v. Green, 617 F.3d 233 (3d
Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d
234 (2010). The court found the evidence was necessary as
background to "complete the story" and "it would be unnatural[]
for the jury to hear about the alleged sexual intercourse between
December 1[,] 2002 and February 4[,] 2003[,] without hearing [as]
background . . . how the alleged conduct came to be." The court
also found the testimony's probative value outweighed any
prejudice to defendant. Finally, the court stated it would provide
the jury with a limiting instruction about the proper use of the
testimony both when it was admitted and again at the end of the
case.
At trial, A.M. testified to the above uncharged acts. She
also stated that, on occasion, defendant "would try his best to
rub his leg against my leg, or if I walked by he would just
casually touch me[.]" The judge again allowed the testimony as
background information over defendant's objection, and gave a
limiting instruction to the jury.
With respect to the window incidents, A.M. testified that,
on the first occasion, defendant knocked on her window around
midnight. Nothing transpired, and she viewed the incident as a
joke. On a second occasion, defendant again knocked on her window.
This time A.M. let defendant in, and he followed her to her room
8 A-0196-14T3
where he began kissing her and attempting to touch her breasts and
place his hands in her pants. A.M. did not reciprocate but instead
pushed defendant away.
When A.M. was fifteen years old, defendant called her and
said he was thinking of coming to her window again. A.M. agreed,
and after defendant arrived they began kissing. Defendant asked
if he could have sex with A.M., and she consented.
A.M. testified she and defendant engaged in sexual
intercourse three times before her sixteenth birthday. They
continued their relationship thereafter and the frequency of their
sexual activity increased as A.M. got older. Defendant told A.M.
he was unhappy in his marriage and wanted to be with her and that
she would be a good mother to his children. In turn, A.M. told
defendant she loved him. However, as time went on, their
relationship cooled and defendant moved to Oregon. A.M.
characterized their relationship as "on again/off again." Their
final sexual encounter occurred in April 2007.
Eventually, A.M. went off to college where she met M.S.M.,
whom she would later marry. At M.S.M.'s urging, A.M. reported her
sexual relationship with defendant to the police on November 30,
2009. As noted, defendant was arrested and charged the next day.
Defendant did not testify at the May 2012 trial. He called two
witnesses in support of his defense that A.M. filed false charges
9 A-0196-14T3
in retaliation for the firing of A.M.'s mother, who worked as
church secretary and was suspected of having stolen money from the
church where defendant served as associate pastor.
The jury found defendant guilty of the sexual assault charge.
On November 15, 2012, the court sentenced defendant to an eight
year prison term. Defendant was placed on parole supervision for
life, N.J.S.A. 2C:43-6.4, and ordered to comply with the
restrictions and supervision of Megan's Law, N.J.S.A. 2C:7-1 to
19. The judge also imposed appropriate fines, penalties, and
assessments. The present appeal followed.
II.
On appeal, defendant raises the following issues for our
consideration:
POINT ONE
DEFENDANT'S STATEMENT WAS NOT THE PRODUCT OF A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN SILENT AND, THEREFORE, SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT.
POINT TWO
THE ADMISSION OF EVIDENCE OF CONDUCT BY DEFENDANT PRIOR TO THE DATES SET FORTH IN THE INDICMENT WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL.
10 A-0196-14T3
POINT THREE
DEFENDANT'S EIGHT[-]YEAR SENTENCE WAS EXCESSIVE.
For the reasons that follow, we reject each of the points raised
and affirm defendant's conviction and sentence.
A.
We review the trial court's factual findings from the
suppression hearing on defendant's self-incrimination claims under
"a deferential standard." State v. Stas, 212 N.J. 37, 48 (2012).
Our appellate function, as it relates to the facts, is simply to
consider "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Johnson, 42 N.J. 146, 162 (1964); see also State v.
Locurto, 157 N.J. 463, 471 (1999). We owe "deference to those
findings of the trial judge which are substantially influenced by
his opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra, 42 N.J. at 161; see also Stas, supra, 212 N.J. at
49. By comparison, "with respect to legal determinations or
conclusions reached on the basis of the facts," our review is
plenary. Stas, supra, 212 N.J. at 49.
Well-settled legal principles guide our analysis of the
admissibility of defendant's statements to the police. In Miranda,
11 A-0196-14T3
the United States Supreme Court held that in order to protect a
defendant's constitutional rights against self-incrimination, a
person may not be subjected to custodial interrogation by the
police unless he or she is apprised of certain rights. Supra, 384
U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719; accord Stas,
supra, 212 N.J. at 50-53. In particular, the police must inform
such a person that: he has the right to remain silent, anything
he says can be used against him in a court of law, he has the
right to the presence of an attorney, and if he cannot afford an
attorney one will be appointed for him prior to any questioning
if he so desires. Miranda, supra, 384 U.S. at 479, 86 S. Ct. at
1630, 16 L. Ed. 2d at 726.
The Court in Miranda further required that statements made
to the police during a custodial interrogation be excluded at
trial, unless it is shown that the defendant "knowingly and
intelligently waive[d] these rights" in responding to the
officers' questions. Ibid. See also J.D.B. v. North Carolina,
564 U.S. 261, 268, 131 S. Ct. 2394, 2401, 180 L. Ed. 2d 310, 321
(2011) (reiterating the significance of waiver) (citation
omitted).
A prosecutor bears the burden of proving a defendant's
voluntary waiver beyond a reasonable doubt. State v. Presha, 163
N.J. 304, 313 (2000). In making that assessment, our courts must
12 A-0196-14T3
look at the "totality of circumstances" involved. Ibid.; see also
State v. Nyhammer, 197 N.J. 383, 402 (2009), cert. denied, 558
U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). We consider in
the waiver analysis such factors as defendant's age, education and
intelligence; the advice given about his constitutional rights;
the length of the detention; whether the questioning was repeated
or prolonged; and whether physical punishment or mental exhaustion
was involved. Presha, supra, 163 N.J. at 313; see also State v.
Dispoto, 189 N.J. 108, 124-25 (2007) (noting that "fact-based
assessments" are appropriate in considering the totality of
circumstances and deciding whether a defendant voluntarily waived
his rights).
Here, we agree with the trial court's conclusion denying
suppression of defendant's statements to the police. Contrary to
defendant's argument, the record amply supports the court's
finding that although defendant was not feeling well, there was
no evidence he was on medication, his cognitive functioning was
impaired, or his resulting statement was involuntary. Defendant
clearly understood the questions asked of him and gave responsive
answers. There is also no showing that defendant's will was
overborne, especially in view of the fact that he recognized his
right to have an attorney present and during the interview
requested one. Consequently, Detective O'Brien properly stopped
13 A-0196-14T3
asking defendant questions about the crime. Thus, defendant's
Miranda rights were not violated, nor was his resulting statement
involuntary. Accordingly, the trial court properly denied
defendant's motion to suppress his statement.
B.
Defendant next contends the trial court erred in admitting
testimony about certain acts that occurred prior to the dates
charged in the indictment. As noted, these include defendant
telling A.M. she was pretty; giving A.M. a massage; knocking on
her bedroom window; and rubbing his leg against her and caressing
her. Defendant argues: (1) the testimony was prior "bad act"
evidence that failed to meet the criteria for admissibility set
forth in N.J.R.E. 404(b); (2) it did not qualify as "intrinsic
evidence;" and (3) the prejudicial effect of the testimony
outweighed its probative value. We find these arguments
unpersuasive.
Our standard of review on evidentiary rulings is abuse of
discretion. We only reverse those that "undermine confidence in
the validity of the conviction or misapply the law[.]" State v.
Weaver, 219 N.J. 131, 149 (2014); State v. J.A.C., 210 N.J. 281,
295 (2012). Simply stated, we do "not substitute [our] own
judgment for that of the trial court, unless the trial court's
14 A-0196-14T3
ruling is so wide of the mark that a manifest denial of justice
resulted." J.A.C., supra, 210 N.J. at 295.
N.J.R.E. 404(b) provides, in pertinent part: [E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
In general, other-crime evidence is not admissible to prove
guilt by criminal predisposition. N.J.R.E. 404(b). See also
State v. Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent
to prove one crime by proving another.") (citation omitted). The
rationale for this is that a jury, aware of such evidence, may be
tempted to convict, not by reason of proof, but by reason of
perception. State v. Gibbons, 105 N.J. 67, 77 (1987).
"The threshold determination under Rule 404(b) is whether the
evidence relates to 'other crimes,' and thus is subject to
continued analysis under Rule 404(b), or whether it is evidence
intrinsic to the charged crime, and thus need only satisfy the
evidence rules relating to relevancy, most importantly Rule 403."
Rose, supra, 206 N.J. at 179. An uncharged offense is intrinsic
evidence of a charged crime if: (1) "it 'directly proves' the
15 A-0196-14T3
charged offense," or (2) the uncharged act was "performed
contemporaneously with the charged crime" and it "facilitate[d]
the commission of the charged crime." Id. at 180 (quoting Green,
supra, 617 F.3d at 248-49).
Here, the trial court correctly determined that the evidence
of events occurring prior to the first date charged in the
indictment was "intrinsic" to the charged crimes. A.M.'s testimony
about these events was necessary background information that set
the stage for the criminal conduct that followed. Moreover, the
judge gave a detailed limiting instruction, describing the limited
purpose for which the jury should consider the testimony.
Accordingly, we discern no error in the admission of the challenged
testimony.
C.
Finally, defendant argues that his eight-year sentence is
excessive, and that the trial court improperly relied on his denial
of involvement, and erred in failing to find that mitigating factor
eleven3 applied. We disagree.
Our review of sentencing determinations is limited. State
v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily
disturb a sentence that is not manifestly excessive or unduly
3 N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of the defendant would result in excessive hardship to himself or his dependents.").
16 A-0196-14T3
punitive, does not constitute an abuse of discretion, and does not
shock the judicial conscience. State v. O'Donnell, 117 N.J. 210,
215-16, 220 (1989). In sentencing, the trial court "first must
identify any relevant aggravating and mitigating factors set forth
in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v.
Case, 220 N.J. 49, 64 (2014). The court must then "determine
which factors are supported by a preponderance of [the] evidence,
balance the relevant factors, and explain how it arrives at the
appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are
"bound to affirm a sentence, even if [we] would have arrived at a
different result, as long as the trial court properly identifie[d]
and balance[d] aggravating and mitigating factors that [were]
supported by competent credible evidence in the record." Ibid.
Here, the judge provided an adequate factual basis for finding
aggravating factors three, the risk that defendant will commit
another offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need to
deter, N.J.S.A. 2C:44-1(a)(9). See Case, supra, 220 N.J. at 66
(citing State v. Fuentes, 217 N.J. 57, 73 (2014) (noting that a
sentencing court must state a factual basis supporting a finding
of particular aggravating or mitigating factors affecting the
sentence)). The court properly viewed defendant's denial of
involvement not as a separate aggravating factor but as a relevant
consideration in finding aggravating factors three and nine. See
State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991).
The court also found mitigating factor seven, no prior
criminal history, N.J.S.A. 2C:44-1(b)(7), but no other mitigating
factors. Defendant argues the court erred in failing to find
mitigating factor eleven based on the hardship to his wife and
children resulting from his incarceration. We recognize that
factor eleven applies where a defendant demonstrates that his or
her dependents will suffer an excessive hardship by virtue of the
defendant's incarceration. State v. Dalziel, 182 N.J. 494, 505
(2005). Although defendant arguably established this mitigating
factor here, we agree with the State that ultimately it does not
change the sentencing calculus.
family and defendant's family enjoyed a close relationship, and
both families were active in their local church, where defendant
served as associate pastor at the time of his arrest.
The accusations came to light on November 30, 2009, when A.M.
reported her past sexual relationship with defendant to the Mahwah
Police Department (MPD). A.M. described incidents of sexual
contact that occurred when she was fourteen years old and sexual
intercourse at age fifteen.
The next day, MPD Detective Guido Businelli and Detective Dan
O'Brien of the Bergen County Prosecutor's Office (BCPO) went to
defendant's home to investigate A.M.'s allegations. Upon
arriving, they were met by defendant's wife, who said he was
sleeping. When defendant came downstairs, the detectives
"informed him that his name had been brought up" in their
investigation and they requested he accompany them to the BCPO.
Defendant agreed to do so. According to O'Brien, defendant said
he was getting over a cold, and "seemed a [] little groggy from
just waking up, but he was fine." Defendant did not appear
disoriented, and was able to walk, stand, and communicate normally.
Defendant was transported without handcuffs in the officers'
car to the BCPO. At that time, he was not under arrest or charged
with any crime. Once there, defendant was placed in an interview
room, provided with Miranda2 warnings, and signed a Miranda waiver.
While alone in the room, before the interview began, defendant
received a call on his cell phone. Defendant answered and said,
"Hello. No, I'm hurting pretty bad."
During the course of the interview, defendant admitted having
an extra-marital affair with A.M. He stated he had moved to Oregon
for three years to repair his marriage, and that his sexual
relationship with A.M. began about six months earlier. Defendant
subsequently stated the relationship started "right before her
eighteenth birthday." At the time, defendant worked repossessing
cars, and he explained that he had sex with A.M. in hotels, in his
truck, in vehicles he repossessed, and in A.M's bedroom.
Other than some pedigree information the police later
obtained, Detective O'Brien's questioning of defendant concluded
with the following exchange:
DETECTIVE: All right. Now, what she has reported to us is that, she's fifteen and I've met her, she's an intelligent, attractive girl, there's no reason I can find to disbelieve her, especially since you guys haven't had any contact in two and a half years. She's very upset about what has gone on with you and her. She's very upset to the point of like, she's trying to put her life back together at this point and she feels that you had [] manipulated her and done something to her at a young age to the point where she feels terrible. She can't put things together in a . . . proper way for herself right now because she feels that she's been violated. She's been - - you know, mislead by you ever since she was a child. And I believe her. There's no reason for her to lie about this. I believe that you started coming to her house . . . at a young age, fifteen years old, sixteen years old, knocking on the window and coming in. And there's no doubt about it okay?
5 A-0196-14T3
DEFENDANT: Okay. DETECTIVE: I need you to come clean and come out in front of this now. [Because] the more you lie to me about this, the more you stretch this out, the worse it's [going to] get. Because we're [going to] conduct our investigation and we're [going to get] cell phone records, . . . interview other people, people she was speaking to about what was going on. All right?
DEFENDANT: Uh-huh.
DETECTIVE: And when [] she spoke to them and what she told them. All right? So I need you to be honest with me about what's happening. [Because] I don't want this to get worse than it has to be for you. DEFENDANT: I think I need to talk to an attorney because - - well, I think I need to talk to an attorney.
DETECTIVE: Okay, that's your right. All right. We'll be back in a few minutes.
Defendant was arrested and charged with sexually assaulting
A.M. He moved prior to trial to suppress the incriminating
statements he made during his recorded interview. He argued he
was too ill when he gave the statement for it to be voluntary. At
the motion hearing, O'Brien testified to the events described
above, and further indicated that no promises were made or threats
or coercion used to secure defendant's statement. Defendant's
daughter testified that defendant "had flu-like symptoms. He had
chills, a fever, and he was very sluggish, so November 30th he was
6 A-0196-14T3
in bed all night and all afternoon." When the police arrived on
December 1, 2009, she heard her mother ask them to "come back
later, because my father was still in bed, and he had been sick
all night." She also stated she was unaware if her father was
taking any medication. Defendant's videotaped statement was
introduced in evidence and viewed by the court.
The trial court denied the motion to suppress. The court
acknowledged that defendant "had some type of flu-like condition,
that he wasn't feeling [well]." However, "[t]here was no[]
testimony as to any medication that would in any way affect
[defendant's] cognitive abilities." The court concluded that
defendant's Miranda rights were scrupulously safeguarded, no
threats or coercion were used, defendant understood the questions
posed to him, and he answered those questions "voluntarily,
intelligently, and knowingly."
As a separate pretrial matter, the trial court conducted a
N.J.R.E. 104 hearing on the State's request to admit evidence of
uncharged conduct by defendant. Specifically, the State sought
to elicit testimony by A.M. at trial that, prior to the dates
charged in the indictment, defendant (1) told A.M. she was pretty;
(2) massaged A.M.'s back; and (3) knocked on A.M.'s window late
at night. Over defendant's objection, the court admitted the
testimony as intrinsic evidence pursuant to State v. Rose, 206
7 A-0196-14T3
N.J. 141 (2011), and United States v. Green, 617 F.3d 233 (3d
Cir.), cert. denied, 562 U.S. 942, 131 S. Ct. 363, 178 L. Ed. 2d
234 (2010). The court found the evidence was necessary as
background to "complete the story" and "it would be unnatural[]
for the jury to hear about the alleged sexual intercourse between
December 1[,] 2002 and February 4[,] 2003[,] without hearing [as]
background . . . how the alleged conduct came to be." The court
also found the testimony's probative value outweighed any
prejudice to defendant. Finally, the court stated it would provide
the jury with a limiting instruction about the proper use of the
testimony both when it was admitted and again at the end of the
case.
At trial, A.M. testified to the above uncharged acts. She
also stated that, on occasion, defendant "would try his best to
rub his leg against my leg, or if I walked by he would just
casually touch me[.]" The judge again allowed the testimony as
background information over defendant's objection, and gave a
limiting instruction to the jury.
With respect to the window incidents, A.M. testified that,
on the first occasion, defendant knocked on her window around
midnight. Nothing transpired, and she viewed the incident as a
joke. On a second occasion, defendant again knocked on her window.
This time A.M. let defendant in, and he followed her to her room
8 A-0196-14T3
where he began kissing her and attempting to touch her breasts and
place his hands in her pants. A.M. did not reciprocate but instead
pushed defendant away.
When A.M. was fifteen years old, defendant called her and
said he was thinking of coming to her window again. A.M. agreed,
and after defendant arrived they began kissing. Defendant asked
if he could have sex with A.M., and she consented.
A.M. testified she and defendant engaged in sexual
intercourse three times before her sixteenth birthday. They
continued their relationship thereafter and the frequency of their
sexual activity increased as A.M. got older. Defendant told A.M.
he was unhappy in his marriage and wanted to be with her and that
she would be a good mother to his children. In turn, A.M. told
defendant she loved him. However, as time went on, their
relationship cooled and defendant moved to Oregon. A.M.
characterized their relationship as "on again/off again." Their
final sexual encounter occurred in April 2007.
Eventually, A.M. went off to college where she met M.S.M.,
whom she would later marry. At M.S.M.'s urging, A.M. reported her
sexual relationship with defendant to the police on November 30,
2009. As noted, defendant was arrested and charged the next day.
Defendant did not testify at the May 2012 trial. He called two
witnesses in support of his defense that A.M. filed false charges
9 A-0196-14T3
in retaliation for the firing of A.M.'s mother, who worked as
church secretary and was suspected of having stolen money from the
church where defendant served as associate pastor.
The jury found defendant guilty of the sexual assault charge.
On November 15, 2012, the court sentenced defendant to an eight
year prison term. Defendant was placed on parole supervision for
life, N.J.S.A. 2C:43-6.4, and ordered to comply with the
restrictions and supervision of Megan's Law, N.J.S.A. 2C:7-1 to
19. The judge also imposed appropriate fines, penalties, and
assessments. The present appeal followed.
II.
On appeal, defendant raises the following issues for our
consideration:
POINT ONE
DEFENDANT'S STATEMENT WAS NOT THE PRODUCT OF A VOLUNTARY, KNOWING, AND INTELLIGENT WAIVER OF HIS RIGHT TO REMAIN SILENT AND, THEREFORE, SHOULD HAVE BEEN SUPPRESSED BY THE TRIAL COURT.
POINT TWO
THE ADMISSION OF EVIDENCE OF CONDUCT BY DEFENDANT PRIOR TO THE DATES SET FORTH IN THE INDICMENT WAS ERROR WHICH DENIED DEFENDANT A FAIR TRIAL.
10 A-0196-14T3
POINT THREE
DEFENDANT'S EIGHT[-]YEAR SENTENCE WAS EXCESSIVE.
For the reasons that follow, we reject each of the points raised
and affirm defendant's conviction and sentence.
A.
We review the trial court's factual findings from the
suppression hearing on defendant's self-incrimination claims under
"a deferential standard." State v. Stas, 212 N.J. 37, 48 (2012).
Our appellate function, as it relates to the facts, is simply to
consider "whether the findings made could reasonably have been
reached on sufficient credible evidence present in the record."
State v. Johnson, 42 N.J. 146, 162 (1964); see also State v.
Locurto, 157 N.J. 463, 471 (1999). We owe "deference to those
findings of the trial judge which are substantially influenced by
his opportunity to hear and see the witnesses and to have the
'feel' of the case, which a reviewing court cannot enjoy."
Johnson, supra, 42 N.J. at 161; see also Stas, supra, 212 N.J. at
49. By comparison, "with respect to legal determinations or
conclusions reached on the basis of the facts," our review is
plenary. Stas, supra, 212 N.J. at 49.
Well-settled legal principles guide our analysis of the
admissibility of defendant's statements to the police. In Miranda,
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the United States Supreme Court held that in order to protect a
defendant's constitutional rights against self-incrimination, a
person may not be subjected to custodial interrogation by the
police unless he or she is apprised of certain rights. Supra, 384
U.S. at 467, 86 S. Ct. at 1624, 16 L. Ed. 2d at 719; accord Stas,
supra, 212 N.J. at 50-53. In particular, the police must inform
such a person that: he has the right to remain silent, anything
he says can be used against him in a court of law, he has the
right to the presence of an attorney, and if he cannot afford an
attorney one will be appointed for him prior to any questioning
if he so desires. Miranda, supra, 384 U.S. at 479, 86 S. Ct. at
1630, 16 L. Ed. 2d at 726.
The Court in Miranda further required that statements made
to the police during a custodial interrogation be excluded at
trial, unless it is shown that the defendant "knowingly and
intelligently waive[d] these rights" in responding to the
officers' questions. Ibid. See also J.D.B. v. North Carolina,
564 U.S. 261, 268, 131 S. Ct. 2394, 2401, 180 L. Ed. 2d 310, 321
(2011) (reiterating the significance of waiver) (citation
omitted).
A prosecutor bears the burden of proving a defendant's
voluntary waiver beyond a reasonable doubt. State v. Presha, 163
N.J. 304, 313 (2000). In making that assessment, our courts must
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look at the "totality of circumstances" involved. Ibid.; see also
State v. Nyhammer, 197 N.J. 383, 402 (2009), cert. denied, 558
U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). We consider in
the waiver analysis such factors as defendant's age, education and
intelligence; the advice given about his constitutional rights;
the length of the detention; whether the questioning was repeated
or prolonged; and whether physical punishment or mental exhaustion
was involved. Presha, supra, 163 N.J. at 313; see also State v.
Dispoto, 189 N.J. 108, 124-25 (2007) (noting that "fact-based
assessments" are appropriate in considering the totality of
circumstances and deciding whether a defendant voluntarily waived
his rights).
Here, we agree with the trial court's conclusion denying
suppression of defendant's statements to the police. Contrary to
defendant's argument, the record amply supports the court's
finding that although defendant was not feeling well, there was
no evidence he was on medication, his cognitive functioning was
impaired, or his resulting statement was involuntary. Defendant
clearly understood the questions asked of him and gave responsive
answers. There is also no showing that defendant's will was
overborne, especially in view of the fact that he recognized his
right to have an attorney present and during the interview
requested one. Consequently, Detective O'Brien properly stopped
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asking defendant questions about the crime. Thus, defendant's
Miranda rights were not violated, nor was his resulting statement
involuntary. Accordingly, the trial court properly denied
defendant's motion to suppress his statement.
B.
Defendant next contends the trial court erred in admitting
testimony about certain acts that occurred prior to the dates
charged in the indictment. As noted, these include defendant
telling A.M. she was pretty; giving A.M. a massage; knocking on
her bedroom window; and rubbing his leg against her and caressing
her. Defendant argues: (1) the testimony was prior "bad act"
evidence that failed to meet the criteria for admissibility set
forth in N.J.R.E. 404(b); (2) it did not qualify as "intrinsic
evidence;" and (3) the prejudicial effect of the testimony
outweighed its probative value. We find these arguments
unpersuasive.
Our standard of review on evidentiary rulings is abuse of
discretion. We only reverse those that "undermine confidence in
the validity of the conviction or misapply the law[.]" State v.
Weaver, 219 N.J. 131, 149 (2014); State v. J.A.C., 210 N.J. 281,
295 (2012). Simply stated, we do "not substitute [our] own
judgment for that of the trial court, unless the trial court's
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ruling is so wide of the mark that a manifest denial of justice
resulted." J.A.C., supra, 210 N.J. at 295.
N.J.R.E. 404(b) provides, in pertinent part: [E]vidence of other crimes, wrongs, or acts is not admissible to prove the disposition of a person in order to show that such person acted in conformity therewith. Such evidence may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident when such matters are relevant to a material issue in dispute.
In general, other-crime evidence is not admissible to prove
guilt by criminal predisposition. N.J.R.E. 404(b). See also
State v. Weeks, 107 N.J. 396, 406 (1987) ("[I]t is not competent
to prove one crime by proving another.") (citation omitted). The
rationale for this is that a jury, aware of such evidence, may be
tempted to convict, not by reason of proof, but by reason of
perception. State v. Gibbons, 105 N.J. 67, 77 (1987).
"The threshold determination under Rule 404(b) is whether the
evidence relates to 'other crimes,' and thus is subject to
continued analysis under Rule 404(b), or whether it is evidence
intrinsic to the charged crime, and thus need only satisfy the
evidence rules relating to relevancy, most importantly Rule 403."
Rose, supra, 206 N.J. at 179. An uncharged offense is intrinsic
evidence of a charged crime if: (1) "it 'directly proves' the
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charged offense," or (2) the uncharged act was "performed
contemporaneously with the charged crime" and it "facilitate[d]
the commission of the charged crime." Id. at 180 (quoting Green,
supra, 617 F.3d at 248-49).
Here, the trial court correctly determined that the evidence
of events occurring prior to the first date charged in the
indictment was "intrinsic" to the charged crimes. A.M.'s testimony
about these events was necessary background information that set
the stage for the criminal conduct that followed. Moreover, the
judge gave a detailed limiting instruction, describing the limited
purpose for which the jury should consider the testimony.
Accordingly, we discern no error in the admission of the challenged
testimony.
C.
Finally, defendant argues that his eight-year sentence is
excessive, and that the trial court improperly relied on his denial
of involvement, and erred in failing to find that mitigating factor
eleven3 applied. We disagree.
Our review of sentencing determinations is limited. State
v. Roth, 95 N.J. 334, 364-65 (1984). We will not ordinarily
disturb a sentence that is not manifestly excessive or unduly
3 N.J.S.A. 2C:44-1(b)(11) ("The imprisonment of the defendant would result in excessive hardship to himself or his dependents.").
16 A-0196-14T3
punitive, does not constitute an abuse of discretion, and does not
shock the judicial conscience. State v. O'Donnell, 117 N.J. 210,
215-16, 220 (1989). In sentencing, the trial court "first must
identify any relevant aggravating and mitigating factors set forth
in N.J.S.A. 2C:44-1(a) and (b) that apply to the case." State v.
Case, 220 N.J. 49, 64 (2014). The court must then "determine
which factors are supported by a preponderance of [the] evidence,
balance the relevant factors, and explain how it arrives at the
appropriate sentence." O'Donnell, supra, 117 N.J. at 215. We are
"bound to affirm a sentence, even if [we] would have arrived at a
different result, as long as the trial court properly identifie[d]
and balance[d] aggravating and mitigating factors that [were]
supported by competent credible evidence in the record." Ibid.
Here, the judge provided an adequate factual basis for finding
aggravating factors three, the risk that defendant will commit
another offense, N.J.S.A. 2C:44-1(a)(3), and nine, the need to
deter, N.J.S.A. 2C:44-1(a)(9). See Case, supra, 220 N.J. at 66
(citing State v. Fuentes, 217 N.J. 57, 73 (2014) (noting that a
sentencing court must state a factual basis supporting a finding
of particular aggravating or mitigating factors affecting the
sentence)). The court properly viewed defendant's denial of
involvement not as a separate aggravating factor but as a relevant
consideration in finding aggravating factors three and nine. See
State v. Rivers, 252 N.J. Super. 142, 153-54 (App. Div. 1991).
The court also found mitigating factor seven, no prior
criminal history, N.J.S.A. 2C:44-1(b)(7), but no other mitigating
factors. Defendant argues the court erred in failing to find
mitigating factor eleven based on the hardship to his wife and
children resulting from his incarceration. We recognize that
factor eleven applies where a defendant demonstrates that his or
her dependents will suffer an excessive hardship by virtue of the
defendant's incarceration. State v. Dalziel, 182 N.J. 494, 505
(2005). Although defendant arguably established this mitigating
factor here, we agree with the State that ultimately it does not
change the sentencing calculus.
Outcome:
Defendant's eight-year sentence
Defendant's eight-year sentence
is only slightly above the mid-range for a second-degree crime,
and by no means "shocks [our] judicial conscience."
Plaintiff's Experts:
Defendant's Experts:
Comments:
About This Case
What was the outcome of STATE OF NEW JERSEY v. CURTIS A. FRANKLIN?
The outcome was: Defendant's eight-year sentence is only slightly above the mid-range for a second-degree crime, and by no means "shocks [our] judicial conscience."
Which court heard STATE OF NEW JERSEY v. CURTIS A. FRANKLIN?
This case was heard in SUPERIOR COURT OF NEW JERSEY, NJ. The presiding judge was Jose L. Fuentes, Harry G. Carroll and Greta Gooden.
Who were the attorneys in STATE OF NEW JERSEY v. CURTIS A. FRANKLIN?
Plaintiff's attorney: Gurbir S. Grewal, Bergen County Prosecutor, Elizabeth R. Rebein, Assistant Prosecutor. Defendant's attorney: Frank Gennaro.
When was STATE OF NEW JERSEY v. CURTIS A. FRANKLIN decided?
This case was decided on February 24, 2017.