Before Judges Kleiner, P.G. Levy and Lefelt.
The opinion of the court was delivered by: P.G. Levy, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 23, 1999 - Decided: October 7, 1999
On Appeal from the Superior Court of New Jersey, Law Division, Camden County.
The opinion of the court was delivered by:
Defendant was convicted of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2a (Count One); two counts of second degree sexual assault committed upon a victim less than thirteen years of age, in violation of N.J.S.A. 2C:14-2b (Counts Two and Three); and endangering the welfare of a child contrary to N.J.S.A. 2C:24-4a (Count Four). He was sentenced to serve an aggregate term of thirty years imprisonment with fifteen years parole ineligibility, consisting of a twenty year term with ten years of parole ineligibility for Count One, a consecutive ten year term with five years of parole ineligibility on Count Two, a concurrent ten year term of imprisonment with five years of parole ineligibility on Count Three and a concurrent five year sentence with two-and-a-half years of parole ineligibility on Count Four. Appropriate fines and fees were also imposed.
On appeal, defendant contends:
POINT I. THE TRIAL COURT ERRED BY DENYING DEFENSE COUNSEL'S REQUEST FOR A BRIEF CONTINUANCE TO PERMIT A DEFENSE EXPERT'S EXAMINATION OF THE VICTIM TO DETERMINE HIS COMPETENCY TO TESTIFY AFTER THE COURT HAD PREVIOUSLY CONCLUDED THAT AN EXPERT'S EVALUATION OF THE VICTIM TO ASSESS HIS COMPETENCY WAS WARRANTED.
POINT II. THE PROSECUTOR'S SUMMATION EXCEEDED THE BOUNDS OF PROPRIETY BY INFERENTIALLY COMMENTING UPON THE DEFENDANT'S FIFTH AMENDMENT PRIVILEGE. (NOT RAISED BELOW)
POINT III. THE TRIAL COURT ERRED IN RULING THAT THE DEFENDANT'S ONLY PRIOR CONVICTION 14 YEARS PRIOR TO TRIAL WAS ADMISSIBLE TO ATTACK CREDIBILITY.
POINT IV. THE TRIAL COURT ERRED IN DENYING DEFENSE COUNSEL'S MOTION FOR A MISTRIAL BASED UPON THE TRIAL COURT'S CONDUCT TOWARDS COUNSEL.
POINT V. THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE.
Defendant lived with the victim, J.H., and the victim's mother, E.G., from November 1987 through May 1988. During this time period, Defendant repeatedly sexually assaulted J.H. J.H. was in a special education school program at the time, and this was known to defendant. Defendant often warned J.H. that if he told anybody about these attacks, defendant would do something "very severe" to J.H. and his mother, E.G. Defendant stopped living with J.H. and E.G., but J.H. still did not reveal the abuse to anybody. When E.G. married D.G. in August of 1988, she, D.G. and J.H. began living together. In April 1989, J.H. approached D.G., who he referred to as "Dad," and revealed the course of sexual abuse he had endured while living with defendant.
Prior to trial, the Judge conducted extensive hearings, provided both parties sufficient time to conduct their own investigations and closely examined the subject of whether J.H. was competent to testify. After the State presented the testimony of J.H. at the hearing concerning his competency, defense counsel requested that the court permit a psychiatric evaluation of J.W. as allowed under State v. R.W., 104 N.J. 14 (1986), to determine the child's competency to testify. The Judge suggested that there be an independent expert with both parties sharing the cost. ...