Man Convicted of Incestuous Assault Loses Appeal

The last name of this offender was removed to protect the victim.
COURT HOUSE — A Burleigh man convicted in 2006 of sexually assaulting his daughter two years prior lost a recent appeal and will likely remain in state custody for another five years.
Timothy K. and his former wife had two children together including a 9-year-old girl, who was the victim in this case.
Being divorced, Timothy K and his ex-wife shared custody of the children.
In an August 2004 conversation with their daughter, Timothy K.’s wife learned of disturbing incidents that took place at Timothy K’s residence that she interpreted as sexual assault.
The incident was reported, but the physician who examined the child did not find any physical evidence of sexual trauma or molestation. However, in a recorded interview at the time, the girl testified that sexual penetration took place.
At trial, Timothy K. testified in his own defense, denying that he did anything to his daughter, according to the appeal. A Herald article from the time stated that he also called 14 character witnesses to speak on his behalf.
According to court documents, the defense strategy described what occurred between father and daughter as an innocent and loving gesture. Timothy K.’s attorney said it was “taken out of context and given sinister connotations by a disgruntled former wife and an overly zealous, prosecutorial-minded system.” Timothy K’s. defense challenged his daughter’s credibility.
Because of increased media interest in the three-day trial, Cape May County Superior Court Judge Carmen Alvarez repeatedly cautioned jurors not to discuss the trial with anybody and to avoid television, radio and newspaper accounts about it, naming the Press of Atlantic City and the Herald specifically.
On the third day of trial, a juror informed the court that he had been approached by a colleague at work who questioned him about the trial. At first Alvarez did not excuse the juror, but at the end of the third day of trial, she reversed her decision and excused the juror.
Timothy K. was convicted in May 2006 of first-degree aggravated sexual assault and second-degree child endangerment. He was sentenced to 11 years on the assault charge and a concurrent six years for endangerment. Both sentences were subject to an 85 percent period of parole ineligibility under the state’s No Early Release Act.
On Jan. 5 this year, Timothy K submitted an appeal arguing that Alvarez erred by not dismissing the most serious charge against him because penetration was not proven, by not removing a “tainted” juror, and by refusing to reduce his sentence given his “overall good character.”
On July 26, Appellate Division judges Jose Fuentes and Marie Simonelli rejected Timothy K’s arguments.
On the first point, the judges noted in their opinion that if “accepted as credible” the girl’s testimony established beyond a reasonable doubt the element of penetration. The judges clearly found her credible.
They added that his additional arguments lacked “sufficient merit to warrant discussion in a written opinion,” but they made the following points:
“We reject defendant’s argument…that an incident with one of the jurors irreparably tainted the trial and impugned the reliability of the verdict,” the opinion stated. “The court’s efforts in aggressively admonishing all jurors to refrain from reading or viewing any materials about the trial was exemplary. The court’s decision to remove one juror, despite evidence that he may not have been affected by what was said to him, displayed an abundance of caution and further reassures us that the court took all of the steps necessary to safeguard the integrity of defendant’s trial.”
On the final point, the judges noted that the sentence imposed by Alvarez was at the bottom of the first-degree range and was well supported by the record. Timothy K could have received a 20-year sentence for the sexual assault and 10 additional years for endangerment if the sentences were consecutive.
Timothy K marked his 45th birthday July 27 incarcerated at the Adult Diagnostic and Treatment Center in Avenel, Middlesex County, where convicted sex offenders are held and treated.
According to the Department of Corrections, Timothy K will be eligible for parole on Sept. 12, 2015. Upon release, he will be subject to registration as a sex offender under Megan’s Law.