RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1298-20
STATE OF NEW JERSEY,
Plaintiff-Appellant,
APPROVED FOR PUBLICATION
v. June 4, 2021
APPELLATE DIVISION
OSCAR RAMIREZ,
Defendant-Respondent.
________________________
Submitted May 5, 2021 – Decided June 4, 2021
Before Judges Fuentes, Whipple, and Firko.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Hudson County,
Indictment No. 20-01-0071.
Esther Suarez, Hudson County Prosecutor, attorney
for appellant (Erin M. Campbell, Assistant Prosecutor,
on the brief).
Joseph E. Krakora, Public Defender, attorney for
respondent (Nakea J. Barksdale, Assistant Deputy
Public Defender, of counsel and on the brief).
The opinion of the court was delivered by
FUENTES, P.J.A.D.
On January 27, 2020, a Hudson County Grand Jury returned Indictment
20-01-0071 charging defendant Oscar Ramirez with one count of first degree
kidnapping, N.J.S.A. 2C:13-1b(1), four counts of first degree aggravated
sexual assault, N.J.S.A. 2C:14-2a(4); N.J.S.A. 2C:14-2a(3); one count of first
degree armed robbery, N.J.S.A. 2C:15-1a(1); third degree possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4d; fourth degree unlawful
possession of a weapon, N.J.S.A. 2C:39-5d; two counts of third degree
aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and one of count of
third degree terroristic threats, N.J.S.A. 2C:12-3a.
On November 19, 2020, the State moved before the Criminal Part for a
protective order pursuant to Rule 3:13-3(e)(1) to exclude the victim's home
address from the discovery made available to defendant and his counsel.
Although the criminal acts committed against the victim caused her great
emotional trauma, the State emphasized that its decision to seek a protective
order in this case was not based exclusively on the inherent violent nature of
these offenses. The prosecutor emphasized that in this case, the victim avowed
defendant expressly threatened to kill her if she tried calling for assistance.
Defense counsel argued that direct access to the victim by defense
investigators fell within defendant's constitutional right to present a complete
defense. However, in recognition of the victim's apprehensions, defense
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counsel suggested the court's protective order limit access to the victim's home
address to defense counsel and their investigators. Defense counsel thus urged
the judge to adopt the following approach:
Surely . . . [the State's] agent, in speaking with . . . the
victim, can explain . . . to her and possibly blunt any
nervousness that she might have, [n]umber [one].
Number [two], . . . not to state the obvious here but
my investigators are also well aware of the fact that as
a tactical matter harassing a victim is not likely to play
well in front of a jury. So they understand that they
need to be respectful, and that they need, if the victim
says we don't want to talk to you, to respect those
wishes because if my investigators were to somehow
engage in unprofessional behavior and try to
repeatedly speak with the victim despite her
repeatedly saying leave me alone, that would come out
at trial and I'm certain that that would not weigh in
favor of [defendant] should this case go to trial.
After considering the parties' arguments, the judge granted in part the
State's motion and adopted the approach suggested by defense counsel. The
judge provided the following explanation for his ruling in a memorandum of
opinion dated December 16, 2020:
While the partial release of the victim’s address may
not entirely relieve her subjective fears, as the State
argues, the [c]ourt must balance this against
defendant's Constitutional rights and assess the
reasonableness of any intimidation she may feel.
Defense counsel and his investigatory team, by my
order, will not allow [d]efendant to learn of her
address. Furthermore, [d]efendant is incarcerated.
Defense counsel has assured the [c]ourt that the victim
will not be coerced or intimidated and that their
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investigators are trained to identify themselves and
advise those approached that they work for or with
defense counsel. Finally, nothing in this decision
prevents the victim from informing the defense team
she does not wish to speak with them when they
contact her.
In Scoles, 1 the New Jersey Supreme Court restricted
access to child pornography to the defense team
noting that they "presume based on the
professionalism of the New Jersey criminal defense
bar, that we can expect strict adherence to the terms of
a court-issued protective order."
....
Here, I presume the same standard of strict adherence
to my protective order from defense counsel, an
attorney in good-standing and his investigatory team.
By leave granted, the State argues the judge abused his discretion by
denying its motion for a protective order pursuant to Rule 3:13-3(e)(1) to keep
completely confidential the victim's current home address. We agree and
reverse. The protective order entered by the Criminal Part leaves
unacknowledged and unaddressed the central basis of this victim's plea to
protect her privacy and, as a result, obtain a measure of physical security an d
emotional serenity. This compromise protective order also violates the public
policy of this State, as codified by the Legislature in the Sexual Assault
1
In State v. Scoles, our Supreme Court adopted a multi-factor procedural
protocol to resolve discovery disputes involving access to images of child
pornography. 214 N.J. 236, 244, 260-62 (2013).
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Victim's Bill of Rights, N.J.S.A. 52:4B-60.1 to 60.3, namely, the right "[t]o
choose whether to participate in any investigation of the assault[.]" N.J.S.A.
52:4B-60.2(7).
The State presented compelling grounds to protect the privacy of a
woman who was kidnapped and brutally sexually assaulted while her assailant
held a boxcutter to her throat. The assailant threatened to kill her if she called
for help. Defendant admitted to the Hudson County Prosecutor's Office
(HCPO) investigators that he has killed people while in Mexico. The victim
made clear to HCPO investigators assigned to the Special Victims Unit (SVU)
that she does not want defendant or anyone associated with his defense to
know her current address. Defense counsel conceded her right to decline to
speak with anyone about these charges, including those associated with
defendant, such as defense investigators.
We gather the following account of the assault and the relevant parts of
the subsequent law enforcement investigation that led to defendant's arrest
from the brief and appendix submitted by the State in support of this appeal.
Defendant does not question the accuracy of these facts for this limited
purpose, but reserves the right to challenge any aspect of the State's case
during motion practice and at trial.
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I.
In the early morning hours of October 26, 2019, the victim was walking
southbound on Kennedy Boulevard in the Township of North Bergen after
completing her shift as a waitress at a local restaurant. As she approached the
Grove Church cemetery located at 46th Street and Kennedy Boulevard, a man
grabbed her from behind, covered her mouth, held a boxcutter to her throat,
and threatened to kill her if she resisted or yelled for help. He forced her into
the cemetery and sexually assaulted her. The assailant forcibly kissed the
victim's neck, touched her breasts, penetrated her vagina with his penis, and
forced his penis into her mouth. He also threatened to kill her if she sought
help. He spoke to her in Spanish at all times. When he heard a siren, he
stopped the assault, pulled up his pants, told her to count to twenty, and fled
the scene. She believed the assailant ejaculated because he wiped his penis
with his clothing after the assault.
The victim fled the cemetery wearing only her underwear. She managed
to flag down a car occupied by a couple and begged them for help. They drove
her directly to the North Bergen Police Department, located approximately six
blocks away. She described her assailant as a "light skinned Hispanic male,
approximately five feet, four inches tall, wearing a dark sweatshirt, pants and
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. . . a cross body backpack." He had long dark hair and "loose big eyes," and
smelled of alcohol. She told the police that the assailant also took her purse.
Four hours after the assault, a registered nurse conducted a sexual
assault examination of the victim to recover any forensic evidence. The
evidence gathered from this examination was sent to the State Police Crime
Laboratory for analysis. SVU investigators secured video footage taken by a
surveillance camera located near the cemetery. The motion judge found "[n]o
crime is captured on the video. SVU reported the victim is then seen leaving
the cemetery at 12:13 a.m. and holding some of her clothes. The suspect is
seen walking on 46th Street toward Kennedy Boulevard at 12:30 a.m."
SVU investigators also obtained video footage showing some of
defendant's activities earlier on the night of the assault. This video recording
shows the same man "getting a haircut at a Bergenline Avenue barber[shop]
and going to a bar/club on the 4400 block."2 SVU investigators extracted a
still photograph of the man depicted in the video. The barber identified the
individual in the photograph as a client named "Oscar." The judge also found
"the suspect" in the surveillance video "is seen following another woman, who
appears to notice the suspect behind her; she beg[an] walking quickly and the
suspect appears to lose track of her."
2
This address indicates defendant was in the City of Union City, a
municipality located adjacent to the Township of North Bergen.
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An electronic search of law enforcement databases revealed an "Oscar
Ramirez" who resided at 70th Street in North Bergen and had been previously
charged with two separate sexually based offenses. SVU investigators
obtained a Commission of Motor Vehicles (CMV) photograph of this
individual. The barber confirmed the man depicted in the CMV photograph
was his client.
The State notes that after his arrest, defendant made a series of
incriminating statements to SVU investigators. For example, he denied
committing the sexual assault before the investigators "mention[ed] anything
about [a] rape." He alleged he was aware of a rape in North Bergen, but added
that "if he did something to the female," he could not remember because he
had been under the influence of alcohol and drugs. Defendant also confirmed
he was the man depicted in the surveillance videos near the scene, but denied
being in the cemetery. He also stated he is "a bad person," and that he had
killed people in Mexico.
The kit containing forensic material of the assault found defendant's
DNA on a swab taken from victim's genitalia. His DNA was also found on the
victim's undergarments. The judge presiding over the detention hearing found
sufficient grounds to deny his application for release under the Criminal
Justice Reform Act, N.J.S.A. 2A:162-15 to -26.
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II.
A trial court's ruling on a discovery issue "is entitled to substantial
deference and will not be overturned absent an abuse of discretion." State v.
Stein, 225 N.J. 582, 593 (2016). An appellate court should therefore
"generally defer to a trial court's resolution of a discovery matter, provided its
determination is not so wide of the mark or is not 'based on a mistaken
understanding of the applicable law.'" State in Interest of A.B., 219 N.J. 542,
554 (2014) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
334, 371 (2011)). An abuse of discretion typically arises when a trial court's
decision is "made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Flagg v. Essex
Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (internal citations omitted).
Here, the State seeks a protective order to keep confidential the home
address of a sexual assault victim pursuant to Rule 3:13-3(e), which in relevant
part provides:
Upon motion and for good cause shown the court may
at any time order that the discovery sought pursuant to
this rule be denied, restricted, or deferred or make
such other order as is appropriate. In determining the
motion, the court may consider the following:
protection of witnesses and others from physical harm,
threats of harm, . . . or any other relevant
considerations.
[Ibid.]
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The State makes this application on behalf of the victim, whose life was
threatened by her assailant and, as a result, reasonably augmented the
emotional trauma inherently associated with the violent sexual violation of her
body. The State made clear to the motion judge that the victim unequivocally
refuses to speak to, or answer any questions from, any individual associated
with the defense team.
Defendant argues his right to a "meaningful opportunity to present a
complete defense" is denied unless he is given access to adverse witnesses
during the investigatory phase of the case. Here, defendant mistakenly creates
an irreconcilable conflict between his right of confrontation under the U.S.
Const. amend. VI, and N.J. Const. art. I, ¶ 10, and the right of a victim "[t]o
choose whether to participate in any investigation of the assault . . . ."
N.J.S.A. 52:4B-60.2(7). The motion judge made the same error in denying
that aspect of the State's protective order.
The defense planted the seeds of this erroneous analytical approach by
relying on Scoles, a case where the defendant was charged with possession of
child pornography. In Scoles, the Supreme Court provided guidelines on how
defense attorneys may review evidence of child pornography when their clients
are charged with its possession. 214 N.J. at 262. Here, the motion judge
misapplied these standards to fashion an untenable "compromise" protective
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order that left the victim unprotected and exposed to the very trauma she
desperately sought to avoid.
However, the situation we face here is readily distinguishable from the
facts in Scoles. The primary difference lies in the nature of the evidence. In
Scoles, the Court sought to avoid harm "to child victims . . . through
unauthorized republication of "sexually explicit images. Id. at 255. The
Court thus imposed strict restrictions on how and why the images could be
viewed by defense counsel. Id. at 260-61. In sharp contrast to the facts in
Scoles, the disputed evidence here is the victim herself. The harm the
protective order seeks to prevent is the emotional trauma the victim will
experience when she is compelled, by judicial decree, to disclose her hom e
address to investigators associated with her alleged assailant's defense team ,
and the attendant authorization granted to these investigators to come to her
home and question her about this incident. Such an outcome would run afoul
of our State's Constitutional commitment to protect the safety and dignity of
crime victims, and the specific statutory protections the Legislature guaranteed
to victims of sexual crimes.
We want to make clear, however, that our decision here does not
constitute a retrenchment or departure from our State's long-established
commitment to meaningful pretrial discovery in criminal trials as a means "of
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promoting the search for truth." Id. at 251. As the Supreme Court explained
in Scoles, our judiciary has
adopted an open-file approach to pretrial discovery in
criminal matters post-indictment. As codified, the
New Jersey Court Rules presently demand that the
State will provide an indicted defendant with pretrial
access to the evidence against him. See R. 3:13-3(b)
(addressing indicted defendant's right to State's file).
Indeed, consistent with the view that broad pretrial
discovery beyond even that which the Court Rules
require advances the quest for truth, it is well
recognized that "[i]n general, a defendant in a criminal
case is entitled to broad discovery."
Id. at 252. (internal citations omitted).
Our commitment to the rights of crime victims is equally strong and
infused with the same principles of justice and fairness. Our State has codified
a series of protections for crime victims to guide how "re-victimization can . . .
be avoided through the efforts of the courts." Id. at 258. The Victims' Rights
Amendment (VRA) to the State Constitution mandates that a crime victim "be
treated with fairness, compassion and respect by the criminal justice system."
N.J. Const., art. I, ¶ 22. The Crime Victim Bill of Rights (CVBR) entitles
victims to be "free from intimidation, harassment or abuse by any person
including the defendant or any other person acting in support of or on behalf of
the defendant, due to the involvement of the victim or witness in the criminal
justice process." N.J.S.A. 52:4B-36(c).
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Our Supreme Court has long recognized that "criminal discovery has its
limits . . . [and courts must prevent] the chilling and inhibiting effect that
discovery can have on material witnesses who are subjected to intimidation,
harassment, or embarrassment." State v. D.R.H., 127 N.J. 249, 256 (1992)
(internal citations omitted). Thus, when the Legislature adopted the Sexual
Assault Victim's Bill of Rights (SAVBR) in 2019, it codified and clarified
what had long been the public policy of this State, that victims of sexual
violence have the right "[t]o chose whether to participate in any investigation
of the assault." N.J.S.A. 52:4B-60.2(c)(7).
We emphasize, however, that "the rights of the accused and alleged
victims and witnesses are not mutually exclusive. One right does not have to
be sacrificed for another. They can and must be harmonized." Interest of
A.B., 219 N.J. at 558. The rights reflected in the VRA, CVBR, and SAVBR
"do not diminish those rights possessed by the accused facing a criminal
prosecution." ibid.
Defendant's right to access the physical evidence the State has in its
possession related to this case remains inviolate. However, to permit defense
investigators to access the victim's home, against her expressed instructions,
would directly violate the Constitutional protections of the CVBR, the public
policy established by the Supreme Court in D.R.H., 127 N.J. 256, and the
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protection codified by the Legislature in N.J.S.A. 52:4B-60.2(c)(7). In sharp
contrast to Scoles, in which, over the State's objections, the Court established a
carefully drafted protocol to permit the defense team access to highly sensitive
evidence, this case involves only honoring and preserving the privacy of a
sexual assault victim. Neither defense counsel nor any person associated with
the defense team has the right to violate a crime victim's right to privacy.
Reversed and remanded. We do not retain jurisdiction.
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