NJ & CT News

NEW JERSEY

High Court Asked to Alter Model Charge on Child Sex Abuse Testimony

A case argued Oct. 13 asked the New Jersey Supreme Court to decide whether it was reversible error for a judge in a sexual assault trial to tell the jury to give special consideration to the state Child Sexual Abuse Accommodation Syndrome expert's testimony that few children lie about sexual abuse. The lawyer representing a man serving a 10-year sentence for sexually assaulting his stepdaughter argued that the Model Jury Charge on this issue is flawed and led to an injustice in the case, in State v. W.B., A-80-09. Passaic County Superior Court Judge Ernest Caposela read from the Model Jury Charge when he told jurors that they “may not automatically conclude” that the girl was lying when she initially made the allegations merely because of the delay in reporting them or because of her recantations at the trial.

E-Z Pass Records Meet Test for Hearsay Admissibility Exception

In an unpublished opinion, a New Jersey appellate court held in S.S.S. v. M.A.G., A-1623-09, a domestic abuse case, that a man could introduce possibly exculpatory evidence of his whereabouts at the time of alleged misconduct through E-ZPass records. Although the EZPass evidence was heresay, the appellate court determined that it should have been admitted as a business records hearsay exception. The decision is one of first impression in New Jersey, where no court but the trial court here had previously ruled on the admissibility of E-ZPass records as an exception to the hearsay rule.

In S.S.S. v. M.A.G., the defendant was accused of picking his ex-girlfriend up from her school in New Jersey, then taking her against her will to a Jersey City motel where he allegedly yelled at her, pulled her arm and took her cell phone. The accuser said these events took place on a certain day from about 9:00 a.m. until 10:00 a.m, when the defendant dropped her back at her campus. The defendant sought to introduce E-ZPass records showing that he entered the Bayonne Bridge heading to Staten Island and Brooklyn at 8:19 that morning, along with a letter from his employer stating that he had arrived at work at 8:35 a.m. that day. The trial judge excluded the E-ZPass records, holding that they did not fall under the business-records exception of New Jersey Rule of Evidence 803(c)(6). That rule requires that the record be made at or near the time in question, be prepared during the regular course of business and be a record of the type that the business regularly keeps.

Appellate Division Judges Dorothea Wefing and Linda Baxter held that the records should have been admitted because they satisfy Rule 803(c)(6) in that they are recorded at the exact time the toll pass-through occurs and they are compiled in the regular course of the business of toll revenue collection. The judges noted that the error was not harmless because this was “a classic 'he said-she said' dispute, with neither party presenting any witness or exhibits to substantiate his or her version of events. Under such circumstances, the wrongful exclusion of defendant's E-ZPass records had the clear capacity to produce an unjust result.”

CONNECTICUT

Man Loses Child for Continuing to Stay with Wife

The Appellate Court of Connecticut recently upheld the termination of a father's parental rights in In re Summer S., — A.3d —-, 2010 WL 3985597 (Conn.App. 10/19/10), agreeing with the hearing court that the father, although possibly capable of adequately caring for his daughter on his own, was placing the child in danger by continuing to cohabit with the child's mother, who has mental health and substance abuse issues. The father argued on appeal that he had no “parenting issues to rehabilitate.” He accused the hearing court of failing to take into account his willingness to separate from the mother in order to provide a stable environment for the child. However, the evidence showed that although the father had filed for divorce from the mother prior to the hearing, that petition was later withdrawn. He was still living with the mother at the time that his parental rights were terminated and he continued to leave the child in her care. A court-ordered psychological evaluation had also found that the father's inability to recognize the parenting limitations of the mother “demonstrate[d] a continued risk to” the child. Finding no fault in the lower court's application of the law to the facts, the appellate court affirmed.

NEW JERSEY

High Court Asked to Alter Model Charge on Child Sex Abuse Testimony

A case argued Oct. 13 asked the New Jersey Supreme Court to decide whether it was reversible error for a judge in a sexual assault trial to tell the jury to give special consideration to the state Child Sexual Abuse Accommodation Syndrome expert's testimony that few children lie about sexual abuse. The lawyer representing a man serving a 10-year sentence for sexually assaulting his stepdaughter argued that the Model Jury Charge on this issue is flawed and led to an injustice in the case, in State v. W.B., A-80-09. Passaic County Superior Court Judge Ernest Caposela read from the Model Jury Charge when he told jurors that they “may not automatically conclude” that the girl was lying when she initially made the allegations merely because of the delay in reporting them or because of her recantations at the trial.

E-Z Pass Records Meet Test for Hearsay Admissibility Exception

In an unpublished opinion, a New Jersey appellate court held in S.S.S. v. M.A.G., A-1623-09, a domestic abuse case, that a man could introduce possibly exculpatory evidence of his whereabouts at the time of alleged misconduct through E-ZPass records. Although the EZPass evidence was heresay, the appellate court determined that it should have been admitted as a business records hearsay exception. The decision is one of first impression in New Jersey, where no court but the trial court here had previously ruled on the admissibility of E-ZPass records as an exception to the hearsay rule.

In S.S.S. v. M.A.G., the defendant was accused of picking his ex-girlfriend up from her school in New Jersey, then taking her against her will to a Jersey City motel where he allegedly yelled at her, pulled her arm and took her cell phone. The accuser said these events took place on a certain day from about 9:00 a.m. until 10:00 a.m, when the defendant dropped her back at her campus. The defendant sought to introduce E-ZPass records showing that he entered the Bayonne Bridge heading to Staten Island and Brooklyn at 8:19 that morning, along with a letter from his employer stating that he had arrived at work at 8:35 a.m. that day. The trial judge excluded the E-ZPass records, holding that they did not fall under the business-records exception of New Jersey Rule of Evidence 803(c)(6). That rule requires that the record be made at or near the time in question, be prepared during the regular course of business and be a record of the type that the business regularly keeps.

Appellate Division Judges Dorothea Wefing and Linda Baxter held that the records should have been admitted because they satisfy Rule 803(c)(6) in that they are recorded at the exact time the toll pass-through occurs and they are compiled in the regular course of the business of toll revenue collection. The judges noted that the error was not harmless because this was “a classic 'he said-she said' dispute, with neither party presenting any witness or exhibits to substantiate his or her version of events. Under such circumstances, the wrongful exclusion of defendant's E-ZPass records had the clear capacity to produce an unjust result.”

CONNECTICUT

Man Loses Child for Continuing to Stay with Wife

The Appellate Court of Connecticut recently upheld the termination of a father's parental rights in In re Summer S., — A.3d —-, 2010 WL 3985597 (Conn.App. 10/19/10), agreeing with the hearing court that the father, although possibly capable of adequately caring for his daughter on his own, was placing the child in danger by continuing to cohabit with the child's mother, who has mental health and substance abuse issues. The father argued on appeal that he had no “parenting issues to rehabilitate.” He accused the hearing court of failing to take into account his willingness to separate from the mother in order to provide a stable environment for the child. However, the evidence showed that although the father had filed for divorce from the mother prior to the hearing, that petition was later withdrawn. He was still living with the mother at the time that his parental rights were terminated and he continued to leave the child in her care. A court-ordered psychological evaluation had also found that the father's inability to recognize the parenting limitations of the mother “demonstrate[d] a continued risk to” the child. Finding no fault in the lower court's application of the law to the facts, the appellate court affirmed.