On appeal from the Superior Court, Law Division, Bergen County.
Michels, Gaulkin and Stern.
Defendant was indicted for second degree sexual assault, contrary to N.J.S.A. 2C:14-2b (count one), and first degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a(1) (count two). At a jury trial defendant was acquitted on the latter count but convicted of the former. He was sentenced to the custody of the Commissioner of Corrections for 10 years, with four years of parole ineligibility, and assessed a $25 penalty for the benefit of the Violent Crimes Compensation Board. The victim was 4 1/2 years old.
On this appeal defendant argues:
POINT I THE STATE'S INTRODUCTION OF EVIDENCE REGARDING DEFENDANT'S DISTRIBUTION, POSSESSION AND USE OF A MARIJUANA JOINT PRIOR TO THE ALLEGED SEXUAL OFFENSE CONSTITUTED PREJUDICIAL ERROR, REQUIRING A NEW TRIAL.
POINT II THE LAW DIVISION'S DENIAL OF DEFENDANT'S PRE-TRIAL MOTION TO EXCLUDE EVIDENCE OF HIS TWO PRIOR CONVICTIONS CONSTITUTED AN ABUSE OF DISCRETION, REQUIRING A NEW TRIAL.
POINT III THE STATE'S INTRODUCTION INTO EVIDENCE OF THE INCULPATORY PORTION, BUT NOT THE EXCULPATORY PORTION, OF DEFENDANT'S POST-ARREST, IN-CUSTODY STATEMENT, CONSTITUTED PLAIN ERROR, REQUIRING A NEW TRIAL.
POINT IV THE DEFENDANT MAY HAVE BEEN CONVICTED OF A CRIME NOT ALLEGED IN THE INDICTMENT DUE TO THE TRIAL JUDGE'S IMPROPER CHARGE TO THE JURY. ACCORDINGLY, THE JUDGMENT OF CONVICTION SHOULD BE VACATED, AND THE INDICTMENT DISMISSED.
POINT V THE STATE FAILED TO PROVE DEFENDANT GUILTY BEYOND A REASONABLE DOUBT.
POINT VI THE STATE'S INTRODUCTION OF EVIDENCE REGARDING DEFENDANT'S REFUSAL TO LEAVE THE POLICE CAR UNLESS HE WAS PROVIDED WITH A MATCH FOR HIS CIGARETTE, AND THE PROSECUTOR'S ARGUMENT TO THE JURY REGARDING THAT EVIDENCE, CONSTITUTED PREJUDICIAL ERROR, REQUIRING A NEW TRIAL.
We have carefully reviewed the record in light of these contentions and the arguments advanced in support thereof, and conclude that, with the exception of Point IV, they are clearly without merit. R. 2:11-3(e)(2).*fn1
With respect to the fourth point, defendant was indicted in the first count for second degree sexual assault, N.J.S.A. 2C:14-2b, because he committed an act of sexual contact with a victim who was less than 13 years of age while he was at least four years older. The indictment did not specify defendant's age or age disparity expressly, but defendant was indicted, and there was no challenge to the indictment or, therefore, to his status as an adult. See N.J.S.A. 2C:4-11. We do not believe, in these circumstances where the victim's age was noted in the indictment, that defendant's age or age disparity (the basis for making "sexual contact" a second degree crime) had to be alleged in the indictment. This is particularly true because the first count specifically refers to N.J.S.A. 2C:14-2b. There was
no motion to dismiss the indictment and no direct facial attack addressed to the indictment on this appeal.
"Sexual contact" is defined in N.J.S.A. 2C:14-1d and "means an intentional touching by the victim or actor, either directly or through clothing, of the victim's or actor's intimate parts for the purpose of degrading or humiliating the victim or sexually arousing or sexually gratifying the actor. . . ." N.J.S.A. 2C:14-1e defines "intimate parts" as "the following body parts: sexual organs, genital area, anal area, inner thigh, groin, buttock or breast of a person." The State's principal witness, Abbregail Pope, testified that she observed the contact and noticed defendant rubbing the victim's inner thigh. The testimony of the eyewitness included the following:
Q What did you see initially as you initially watched?
A As I looked out the window I saw M.C. He was feeling Coletia's ...