State v. Harbatuk

STATE OF NEW JERSEY, Plaintiff-Respondent, v. ALLEN HARBATUK, Defendant-Appellant.

No. A-3743-18

Superior Court of New Jersey, Appellate Division

February 14, 2022

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 24, 2022

On appeal from the Superior Court of New Jersey, Law Division Ocean County, Indictment No. 15-04-0679.

Joseph E. Krakora, Public Defender, attorney for appellant (Christopher W. Hsieh, Designated Counsel, on the brief).

Bradley D. Billhimer, Ocean County Prosecutor, attorney for respondent (Samuel Marzarella, Chief Appellate Attorney, of counsel; Shiraz Deen, Assistant Prosecutor, on the brief).

Before Judges Sumners and Firko.

PER CURIAM.

Following a jury trial, defendant Allen Harbatuk was convicted of second-degree sexual assault, in violation of N.J.S.A 2C:14-2(c)(4), committed upon the victim, D.U ^[1] a minor. Defendant was sentenced to a seven-year term of imprisonment; Megan's law registration, N.J.S.A. 2C:7-1 to -19; parole supervision for life (PSL), N.J.S.A. 2C:43-6.4; and the requisite fines and penalties were imposed.

The conviction stemmed from a sexual relationship defendant and his husband, Raymond Waters, had with D.U. when he was between the ages of fourteen to seventeen years old. The victim was a student of Waters. The State arrested and charged Waters first with sexual assault. Defendant was later charged following his inculpatory statement to the police after he waived his Miranda^[2] rights and the execution of a search warrant, which uncovered incriminating letters and photographs.

Defendant now appeals from his conviction and sentence, raising the following points for our consideration:

POINT I

DEFENDANT'S STATEMENT WAS TAKEN IN VIOLATION OF HIS CONSTITUTIONAL RIGHT TO SILENCE AND RIGHT TO COUNSEL, AS THE POLICE UNLAWFULLY INTERROGATED.

DEFENDANT AFTER HE HAD ADVISED THAT HE DID NOT WANT TO SPEAK WITH THEM AND WANTED HIS ATTORNEY.

POINT II

DEFENDANT'S STATEMENT WAS INVOLUNTARY AND TAKEN IN VIOLATION OF HIS DUE PROCESS RIGHTS, AS THE POLICE MADE FALSE PROMISES OF LENIENCY THAT OVERBORE DEFENDANT'S WILL AND SUBVERTED HIS MIRANDA RIGHTS. (Not raised below).

POINT III

THE PRIOR BAD ACT ALLEGATION REGARDING STUDENT KNOWN AS C.J. LACKED PROBATIVE VALUE, WAS UNDULY PREJUDICIAL, AND SHOULD HAVE BEEN EXCLUDED FROM EVIDENCE SUA SPONTE. THE ERRONEOUS ADMISSION OF SUCH EVIDENCE AND THE ABSENCE OF A LIMITING INSTRUCTION VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not raised below).

POINT IV

THE PHOTOGRAPHS DEPICTING UNCLOTHED MALE ALLEGED TO BE DEFENDANT LACKED PROBATIVE VALUE UNDER [RULE] 401 AND WERE UNDULY PREJUDICIAL UNDER [RULE]

403. THE TRIAL COURT'S FAILURE TO SUA SPONTE EXCLUDE THIS EVIDENCE VIOLATED DEFENDANT'S RIGHT TO A FAIR TRIAL. (Not raised below).

POINT V

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE. THE TRIAL COURT'S APPLICATION OF AGGRAVATING FACTORS [THREE], RISK OF REOFFENSE, AND [NINE], DETERRENCE, WAS NOT SUPPORTED BY THE RECORD, AS DEFENDANT WAS [SEVENTY-TWO] YEARS OF AGE AT THE TIME OF SENTENCE AND THE COURT ACKNOWLEDGED THAT HIS CONDUCT WAS THE RESULT OF CIRCUMSTANCES UNLIKELY TO RECUR.

After considering the arguments in light of the record and applicable law, we affirm.

I.

We summarize the facts from the trial record to give context to the issues raised on appeal. In 2000, defendant and Waters began dating. In September 2002, Waters and D.U. first met when Waters was employed as an art teacher at Toms River High School North and D.U. was a student in Waters's freshman year art class. D.U. was fourteen years old at the time. Soon thereafter, Waters and D.U. developed a close relationship. Waters "played chess with D.U., ate lunch with him, helped with his homework, gave him rides to school and to the gym, and bought him gifts." Eventually, Waters and D.U.'s relationship "developed into a sexual one."^[3]

Defendant and D.U. first met in January 2003 after being introduced by Waters. At the time, Waters told D.U. defendant was his "friend" whom he lived with.^[4] In spring of 2003, Waters invited D.U. to the couple's home to spend the weekend there and assist them with their landscaping. On D.U.'s first visit to the couple's home, he had sexual relations with defendant for the first time. Throughout the remainder of his freshman year of high school and the summer of 2003, D.U. continued to visit defendant and Waters on weekends and "the three of them would engage in sexual encounters." During the summer months that year, D.U. assisted the couple at the Boy Scout camp where they were employed. Occasionally, D.U. slept in the couple's tent and engaged in oral sex with them several times.

The parties' sexual encounters regularly continued on the weekends until approximately the end of D.U.'s sophomore year.^[5] D.U. testified towards the end of his sophomore year, after he had teased Waters, defendant and Waters "said let's show him what rape is." Defendant then restrained D.U. "on the bed while Waters performed anal sex on him. Neither [defendant nor Waters] had penetrated [D.U.] anally before." Thereafter, D.U. ceased visiting the couple, and only visited them once during his junior year. D.U. never visited them again after that.

In 2011, D.U. disclosed, for the first time, his sexual relationship with defendant and Waters "to his drug rehabilitation counselor." But after completing rehab therapy, D.U. continued to keep his sexual encounters with the couple a secret because he "was embarrassed . . . [a]nd it really messed [him] up." In 2013, D.U. told his mother-in-law about his abuse because he "wanted to have some peace of mind." D.U.'s mother-in-law referred D.U. to an attorney who in turn made an appointment for D.U. to speak with the prosecutor's office.

On January 15, 2014, D.U. met with Detective Jason Steele and informed him of the "sustained period of sexual assault committed by" both defendant and Waters "against D.U. when he was [fourteen to seventeen] years old. "D.U. provided Detective Steele with twenty-one "letters and envelopes addressed from Waters and/or [d]efendant to D.U." One envelope, which had defendant's name and address on it, contained a number of photograph prints and negatives depicting "[d]efendant and/or Waters with D.U. in locations such as Waters's art class, the . . . Boy Scout [c]amp, and" the couple's home. "Several of the photos had written dates indicating that D.U. was under [sixteen] at the time they were taken ...." Two of the photos depicted defendant nude. D.U. also provided Detective Steele with thirty "postcards[;] various items of clothing[;] ceramic clowns[;] and other such gifts."

On October 22, 2014, at or about 2:30 p.m., Detective Steele and other detectives went to the couple's home to ask defendant "if he'd be willing to come to the . . . [p]olice [d]epartment for an interview." Defendant claims he both rejected the invitation for an interview and informed Detective Steele he wished to speak with his attorney first. Detective Steele testified defendant rejected the invitation but denied defendant requested to speak to his attorney first.

At or about 3:00 p.m., Detective Steele, and other detectives, returned to the couple's home and arrested Waters. Defendant was present and expressed concern regarding Waters's cardiac issues and medications. Detective Steele testified:

[Defendant] wanted to make sure that if [Waters] had any kind of medical issues, that we would . . . properly bring him to a hospital .... ....

. . . At that point[, ] . . . [defendant] ask[ed] if he could bring medications down for [Waters], because he . . . was taking numerous medications for [his] medical issues.

Defendant "was told that he could bring [Waters]'s medications to the police station."

At around 3:30 p.m., defendant drove himself to the police station to deliver Waters's medications. Defendant claimed he gave Waters's medications to an officer at a window inside the station and asked why Waters was arrested, but he did not receive an answer. "He was told to sit down and to wait." Thereafter, defendant was escorted "to an interview room and read [his] Miranda rights." At about 3:42 p.m., defendant signed a Miranda waiver form. The police interrogated defendant for approximately two hours, which was videorecorded.

In defendant's recorded statement, he initially "did not acknowledge that he or [Waters] had sex with D.U." However, defendant did confirm "substantial portions of D.U.'s account of events, including: (1) [defendant] met D.U. through Waters "; (2) D.U. helped with landscaping at the couple's home; (3) D.U. and Waters would wrestle in bed at the couple's home; and (4) defendant, Waters, and D.U. worked together at the Boy Scout camp. But after another detective entered the interrogation room and informed defendant Waters "had just given 'a full confession, '" defendant "admitted that he and D.U. engaged in oral sex multiple times and anal sex 'maybe once.'" However, defendant claimed he was uncertain of D.U.'s age when they first had sex. At trial, Detective Steele admitted that the officers deceived defendant as Waters had not actually confessed.

On October 24, 2014, a search warrant was executed at the couple's home. The police uncovered photographs of defendant, Waters, and D.U., "as well as a folder with the nickname [d]efendant and Waters used for D.U. written on it." "In the folder, detectives uncovered a signed letter addressed to Auto Strauss Center authorizing a payment of $220.01 from [d]efendant's credit card to D.U., with a note from [d]efendant thanking 'Nancy' for taking care of his 'nephew.'"

In addition, the police also uncovered "financial documents reflecting joint financial arrangement[s] between [d]efendant and D.U."

On April...