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David Fernandez showed little reaction as the verdicts were read. Family members later sobbed quietly as the courtroom was being cleared and Fernandez was escorted out in handcuffs by Bergen County Sheriff’s officers.
Superior Court Judge James J. Guida revoked his bail and set sentencing for Sept. 16.
Assistant Bergen County Prosecutor Kristin DeMarco told Guida that she would accept the partial verdict and wouldn’t seek a retrial on the two counts on which the jury was hung.
Defense attorney Angela Rodriguez objected, but Guida accepted the partial verdict.
“We’ll be filing an appeal,” she later told CLIFFVIEW PILOT. “I took this case because I strongly believe in my client’s innocence.”
DeMarco said that Fernandez is facing a minimum of 15 years. Rodriguez, however, argued that the estimate is based on separate offenses and that she’ll argue they should be consolidated as one for sentencing purposes.
Jurors convicted Fernandez of rape, oral sex, touching her breasts and impairing her morals.
They couldn’t decide on two other counts — of digital penetration of a minor and touching the girl’s buttocks.
In accepting the partial verdict, Guida said he believed jurors made a thorough and sincere effort to reach agreement.
“It’s not a complicated case,” the judge said. “There were two witnesses for the state, the victim and the officer who laid the foundation for the video, and a character witness as to the way the defendant acted in the telephone conference.
The verdict followed last-minute courtroom drama this morning while jurors were deliberating elsewhere.
Rodriguez tried to present a new defense witness, a Hackensack woman who she said is the mother of a Fernandez’ 19-year old son.
She said the woman, who came forward last Friday evening, would testify that portions of a crucial phone confession recorded by the victim’s mother were made without Fernandez on the line, because she herself was speaking to the woman during that time.
Guida rejected the request — although he noted: “I have never had a defense attempt to stop jury deliberations to introduce a new witness.”
The judge also said Rodriguez had others — including the victim’s mother — who could have provided the same testimony.
The phone call, during which prosecutors said Fernandez admitted to the crimes, was a key piece of evidence in the case.
Rodriguez insisted the recording was made without his knowledge and was “coerced and [made] under duress.”
However, Guida told jurors before they began deliberating last week that only one party needs to consent to a telephone recording in New Jersey.
DeMarco told jurors during closing arguments last Wednesday that the call was recorded in March 2012 while Fernandez was helping to make funeral arrangements for his father in Florida — “not in the same room, house or state with the victims, not with a gun to his head, but with his family and friends.
“Imagine his 39-year old hands all over a 13-year old child, impairing and debauching her morals,” she said.
Rodriguez countered that investigators from the Bergen County Prosecutor’s Office didn’t collect DNA samples or analyze the recording to determine whether it might have been edited.
“Even Monica Lewinsky kept her dress for a year,” she said.
Rodriguez also claimed inconsistencies in the girl’s testimony during the week-long trial.
DeMarco said there was no opportunity for DNA testing because “the defendant wore a condom, and the 5-day time period had lapsed.”
“There’s no sperm, there’s no physical evidence, no Monica Lewinsky dress,” the prosecutor said.
STORY / PHOTOS: Mary K. Miraglia, CLIFFVIEW PILOT Courthouse Reporter
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