STATE OF NEW JERSEY VS. OSCAR RAMIREZ (20-01-0071, HUDSON COUNTY AND STATEWIDE) (RECORD IMPOUNDED)

• Court: New Jersey Superior Court Appellate Division
• Decided: June 4, 2021
• Docket: A-1298-20
• Status: Published

Opinion

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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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

A-1298-20 2 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

A-1298-20 3 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).

A-1298-20 4 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.

A-1298-20 5 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

A-1298-20 6 . . . 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.

A-1298-20 7 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.

A-1298-20 8 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.]

A-1298-20 9 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

A-1298-20 10 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

A-1298-20 11 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).

A-1298-20 12 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

A-1298-20 13 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.

A-1298-20 14