On appeal from Superior Court of New Jersey, Law Division, Middlesex County.
Pressler, Brody and Havey. The opinion of the court was delivered by Brody, J.A.D.
[197 NJSuper Page 129] An unresolved question of pre-Criminal Code law was whether an outrageous assault producing relatively minor physical injuries constituted an "atrocious assault" under N.J.S.A. 2A:90-1. The Supreme Court was evenly divided on the question in the last case that considered it. State v. Crumedy, 76 N.J. 319 (1978). This appeal requires us to consider the same question in light of the Code definition of aggravated assault. N.J.S.A. 2C:12-1(b)(1). As is typical of cases presenting the problem, defendant's assaultive conduct was also sexually offensive.
A jury found defendant guilty of committing aggravated sexual assault, N.J.S.A. 2C:14-2(a), and aggravated assault, N.J.S.A. 2C:12-1(b)(1), upon his 14-year-old daughter. The judge imposed consecutive prison terms: 20 years with 10 years parole ineligibility for the aggravated sexual assault and seven years with three and a half years parole ineligibility for the aggravated assault.
Defendant argues that the trial judge erroneously admitted his oral statement into evidence, erroneously failed to have the jury consider the lesser included offenses of sexual assault and simple assault, and imposed a sentence that is manifestly excessive.
The points outside our main concern need only brief treatment. After being arrested defendant was fully informed of his Miranda rights before giving an incriminating statement. He claims not to have realized the impact of the warnings because he was upset by the arrest, anxious over the welfare of his ailing father, and taken-in by the apparent solicitude of the interrogating officer. The trial judge found that defendant understood the warnings and that his will was not overborne. See State v. Miller, 76 N.J. 392, 404 (1978); State v. Powell, 98 N.J. 63 (1984). These findings are fully supported in the record and must therefore be accepted. State v. Johnson, 42 N.J. 146, 164 (1964).
Defendant's defense, rejected by the jury, was insanity. The evidence, including defendant's own testimony, established the aggravated sexual assault. There was no evidential basis for a conviction of the lesser included offense. Therefore the trial court properly refused to have the jury consider it. State v. Saulnier, 63 N.J. 199, 206-207 (1973).
The sentence for the aggravated sexual assault was the maximum that can be imposed. The findings and reasons given by the trial judge lead us to conclude that he properly followed the Code guidelines and strictures in imposing the sentence. State v. Roth, 95 N.J. 334 (1984); State v. Hodge, 95 N.J. 369 (1984). We must therefore defer to his discretion.
A brief recital of the evidence supporting the State's case is necessary to develop the aggravated assault issue. Defendant and the victim's mother divorced when the girl was two years old. He did not see his daughter again for 10 years. During that period she lived with her mother in Pennsylvania. The estrangement ended when they met at a family gathering. For the next two years he tried to persuade the girl to live with him, his present wife and their five children. She finally agreed, became part of defendant's household for four months and then returned to her mother.
A few weeks after his daughter's arrival, defendant had sexual relations with her on several occasions. The sexual relations ceased within a short time. He then began an intermittent course of bodily assaults that continued until she left. These assaults were administered in a manner that was sexually humiliating and degrading. The girl was usually forced to disrobe. On the last occasion he handcuffed her. Defendant committed these assaults in an aura of distorted religious zealotry. He accused the girl of seducing him and claimed that the assaults were necessary to purge her of that sin. In one instance she was forced to hold a rosary while undergoing the ordeal. Despite the enormity of these outrages, the only permanent mark on the girl's body is a slight scar left by the handcuffs.
The indictment charges that defendant committed an aggravated assault as defined by N.J.S.A. ...