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State v. Smith

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 24, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
TYRONE SMITH, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 02-04-0595.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted October 11, 2006

Before Judges Coburn, Axelrad and Gilroy.

Defendant, Tyrone Smith, worked as a football coach for the Police Athletic League (PAL), and used that opportunity to sexually molest at least three boys on numerous occasions.

Following a twelve-day jury trial, defendant was found guilty of a variety of charges relating to the sexual molestation of R.C., T.D., and P.D., who were between the ages of eleven and thirteen at the time of the assaults.

As to R.C., the judgment reflects convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) and N.J.S.A. 2C;14-2a(2)(c) (Counts Two and Three, respectively); second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (Count Four) and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (lesser included offense) (Count Eight). As to T.D., the judgment reflects convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (Count Seventeen); and second-degree sexual assault, N.J.S.A. 2C:14-2b (Count Twenty-One). As to P.D., the judgment reflects convictions for first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(b) and N.J.S.A. 2C:14-2a(2)(c) (Counts Twenty-Five and Twenty-Six, respectively); second-degree sexual assault, N.J.S.A. 2C:14-2c(4) (Count Twenty-Seven); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (Count Twenty-Eight); fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Twenty-Nine); and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (lesser included offense) (Count Thirty). The other counts, some of which concerned three other boys, A.W., R.S., and C.L., were resolved in defendant's favor either by the judge or by the jury.

On July 14, 2003, defendant was sentenced to prison for fifteen years on Count Two; seven years on Court Four; sixteen years on Count Seventeen; seven years on Count Twenty-One; seventeen years on Count Twenty-Five; four years on Count Twenty-Eight; and one year on Count Twenty-Nine. The sentence imposed on Count Four is concurrent to the sentence on Count Two, and the sentence on Count Seven is concurrent to the sentence on Count Twenty-Eight. The five other terms run consecutive to each other, resulting in an aggregate prison term of fifty-nine years. The other convictions were merged. All appropriate fees and penalties were also imposed. Defendant appeals, and except to remand for resentencing on Counts Seventeen and Twenty-Five, we affirm.

Defendant does not contend that the verdicts were against the weight of the evidence. Consequently, we will describe and discuss the relevant facts, as necessary, during our disposition on each of the issues raised on appeal. Defendant raises the following arguments for our consideration:

POINT I.

THE TRIAL COURT'S FAILURE TO INSTRUCT THE JURY ON FACTORS RELEVANT TO DETERMINING WHETHER THE DEFENDANT HAD "SUPERVISORY OR DISCIPLINARY" POWER OVER THE VICTIMS AND WHETHER THE DEFENDANT STOOD "IN LOCO PARENTIS" TO THE VICTIMS DEPRIVED DEFENDANT OF A FAIR TRIAL. (NOT RAISED BELOW).

POINT II.

THE TRIAL COURT DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHT TO PRESENT A DEFENSE BY PRECLUDING THE DEFENDANT FROM PRESENTING EXCULPATORY EVIDENCE PURSUANT TO N.J.R.E. 804(B)(1)(A).

POINT III.

PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.

POINT IV.

IMPOSITION OF CONSECUTIVE PRISON TERMS ABOVE THE PRESUMPTIVE [TERMS] VIOLATES DEFENDANT'S CONSTITUTIONAL RIGHTS TO TRIAL BY JURY AND DUE PROCESS OF LAW. (NOT RAISED BELOW).

POINT V.

THE IMPOSITION OF CONSECUTIVE SENTENCES IS CONTRARY TO THE PRINCIPLES OF STATE V. YARBOUGH, 100 N.J. 627 (1985), CERT. DENIED, 475 U.S. 1014 [106 S.CT. 1193, 89 L.ED. 2d 308] (1986).

POINT VI.

THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO AN AGGREGATE FIFTY-NINE YEAR TERM BECAUSE A QUALITATIVE WEIGHING OF THE AGGRAVATING AND MITIGATING FACTORS DOES NOT SUPPORT SUCH A SENTENCE.

Defendant raises the following arguments pro se:

POINT I.

THE TRIAL COURT [ABUSED] ITS [DISCRETION] IN NOT ORDERING INDIVIDUAL VOIR DIRE, AND BY NOT ORDERING A MISTRIAL AND IN FAILING TO APPLY THE PRESUMPTION OF PREJUDICE BECAUSE THE JURY VOIR DIRE, ALTHOUGH REMEDIAL AND PROPH[Y]LACTIC, WAS UNABLE TO CURE THE INHERENT PREJUDICE ASSOCIATED WITH JUROR SIX AND THE JURY AS A WHOLE READING AND [HAVING] THE NEWSPAPER HEADLINE ENTITLE[D] ["]EX-FOOTBALL COACH[]" AND [CONTAINED A "FULL BLOWN" PICTURE OF DEFENDANT] IN HANDCUFFS DURING TRIAL.

POINT II.

PROSECUTORIAL MISCONDUCT DEPRIVED THE DEFENDANT OF HIS RIGHT TO A FAIR TRIAL "BY SECURING PERJURED [TESTIMONY]" FROM 404B WITNESS[] (T.S.).

I.

Defendant, forty-four years old at time of trial, had worked at the PAL for twenty-three years and had coached football and wrestling there from 1980 to 1993, and again in 1997. Between 1989 and 1994, the six boys played football or wrestled for the PAL where they were coached and befriended by defendant. In those years, mostly between 1991 and 1992, the boys were invited to stay overnight at defendant's home on numerous occasions, most of which preceded next-day scheduled sporting events. It was during these overnight stays that defendant sexual assaulted the boys, generally without the knowledge of the others. Defendant instructed the boys not to tell anyone about the assaults and bestowed gifts of cash and clothing upon them. It was not until 2001, when several of the boys read a newspaper article concerning an unrelated child sexual abuse case, that the boys spoke to each other about defendant's assaults and reported the incidents to the police. After defendant was arrested, he admitted that the boys had slept over at his home but denied sexually molesting them.

Defendant first challenges his convictions on Counts Two, Three, Twenty-Five, Twenty-Six, and Twenty-Eight. On Counts Two and Twenty-Five, defendant was charged with aggravated sexual assault under N.J.S.A. 2C:14-2a(2)(b), whereby the "actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional, or occupational status . . . ." On Counts Three and Twenty-Six, defendant was charged with aggravated sexual assault under N.J.S.A. 2C:14-2a(2)(c), whereby the "actor . . . stands in loco parentis within the household . . . ." On Count Twenty-Eight, defendant was charged with aggravated criminal sexual contact under N.J.S.A. 2C:14-3(a), which incorporates the elements of N.J.S.A. 2C:14-2a(2)(b) and (c).

Defendant argues that the trial court erred by failing to "instruct the jury on the elements to consider to determine whether defendant had supervisory or disciplinary power over the victim by virtue of defendant's legal, professional, or occupational status and whether defendant stood in loco parentis within the household," (underscoring added), citing State v. Buscham, 360 N.J. Super. 346, 360-62 (App. Div. 2003), and the model criminal jury charges for the offenses, as revised February 23, 2004. We disagree. We are satisfied that the trial judge correctly instructed the jury on the five charges.

The trial court instructed the jury in accordance with the then-applicable model criminal jury charges. On Counts Two and Twenty-Five, the jury was instructed that it could not convict defendant of first-degree aggravated sexual assault unless it found beyond a reasonable doubt that defendant had "supervisory and disciplinary power over the victim, by virtue of [his] legal, professional, or occupational status." For Counts Three and Twenty-Six, the jury was instructed that it could not convict defendant of first-degree aggravated sexual assault unless it found beyond a reasonable doubt that defendant stood in the place of the victim's parents. For Count Twenty-Eight, the jury was instructed that in order to convict, it had to find beyond a reasonable doubt that defendant had supervisory or disciplinary power over the victim, by virtue of his legal, professional, or occupational status, and/or defendant stood in the place of the victim's parents.

During the initial jury charge, the court did not elaborate on the meaning of "supervisory or disciplinary power over the victim by virtue of defendant's professional or occupational status" or "in place of parents"; only that they were elements the State was required to prove with respect to the charges for aggravated sexual assault and aggravated sexual contact. The jury asked a question about "supervisory versus in place of parents." The trial judge responded, "[t]hey don't give a definition of supervisory or disciplinary. You have to take the facts as you find them and apply it to that charge."

During deliberations, the jury asked for a definition of "supervisory/disciplinary power." The judge responded:

I [can] only give you what Webster's tells us because the law does not provide an exact definition. To supervise, according to Webster's New Collegiate Dictionary, means to superintend or oversee.[ ] Superintend means to have or exercise the charge and oversight of or to direct. See, therefore, supervisory power is the power or the authority to oversee, direct or exercise charge over.

Discipline, according to Webster's, means, A, to punish or penalize for the sake of discipline. B, to train or develop, by instruction and exercise, especially in self-control. C, to bring under control. So, again, disciplinary power is the power of authority to do those things.

The jury also indicated that it was "confused about how to distinguish between supervisory and parental (in place of parents)" and whether one standard was "higher" than the other. The trial judge responded with a definition of in loco parentis as follows: "According to Black's Law Dictionary it means in the place of a parent, instead of a parent, or charge factitiously with a parent's rights, duties and responsibilities." The jury was instructed to "[u]se a common sense application of those terms . . . and [not to] compare the standards in each . . . because they are separate crimes and they do have separate elements." In response to another jury question, the judge explained that in loco parentis was not "from the perspective of the child" but was a factor for the jury to determine.

Defendant did not object during the charge conference, or at the end of the jury charge. Nor did defendant object to the court's responses to any of the jury's questions. Because defendant raises this objection for the first time on appeal, we consider the issue under the plain error rule. R. 2:10-2. Under Rule 1:7-2, "a defendant waives the right to contest an instruction on appeal if he does not object to the instruction." State v. Torres, 183 N.J. 554, 564 (2005). Thus, the court will reverse on the basis of unchallenged error only if the error was "clearly capable of producing an unjust result." R. 2:10-2.

"[C]lear and correct jury instructions are essential for a fair trial." State v. Koskovich, 168 N.J. 448, 507 (2001) (quoting State v. Brown, 138 N.J. 481, 522 (1994)). "The charge must be read as a whole in determining whether there was any error." Torres, supra, 183 N.J. at 564. Further, "[i]t is firmly established that '[w]hen a jury requests a clarification,' the trial court is 'obligated to clear the confusion.'" State v. Savage, 172 N.J. 374, 394 (2002) (quoting State v. Conway, 193 N.J. Super. 133, 157 (App. Div.), certif. denied, 97 N.J. 650 (1984)).

At the time of trial, there was "little reported authority in New Jersey on what constitute[d] 'supervisory or disciplinary power' for purposes of N.J.S.A. 2C:14-2." Buscham, supra, 360 N.J. Super. at 360. As the trial court noted, the model jury charge for N.J.S.A. 2C:14-2a(2) did not provide any guidance for instructing the jury on how to determine if the State had met its burden of proof on that element.

Defendant relies on Buscham as support for his argument that the instructions or responses to the jury's inquiries on this issue were inadequate. In Buscham, decided after the trial in this matter, the defendant was the owner and operator of a gymnastics business. Id. at 353. He was convicted of aggravated sexual assault on two of his students under N.J.S.A. 2C:14-2a(2)(b), whereby the actor has supervisory or disciplinary power over the victim by virtue of the actor's legal, professional or occupational status. Ibid. After deciding that the defendant was entitled to a new trial based on the improper use of "fresh complaint" evidence, the court addressed the denial of defendant's motion for judgment of acquittal at the end of the State's case where defendant claimed that there was insufficient evidence to support his conviction on aggravated sexual assault.

We had "no quarrel with the general proposition that a coach can, indeed, be in a position to possess significant psychological or emotional power over a team member and that, in appropriate circumstances, a coach can be found to have supervisory or disciplinary power." Id. at 361. However, we were, troubled by the fact that although the jury was told it had to find that defendant did have supervisory or disciplinary power over [the victim] in order to find him guilty of aggravated sexual assault, it was given no guidance in resolving the question whether he did, indeed, have such power. [Ibid.]

To remedy that deficiency, we held that "[t]he jury should examine the entire context of the relationship[]" between the defendant and the victims, and "[o]n remand, the jury must be told what factors to consider, with particular reference to the evidence presented during the course of the trial." Id. at 362.

In 2004, adopting the factors suggested by Buscham, ibid., the model criminal jury charges were amended to include an instruction pertaining to the supervisory or disciplinary elements of N.J.S.A. 2C:14-2a(2):

Defendant had supervisory or disciplinary power over the victim because of his/her legal, professional or occupational status. In this case, the State alleges that defendant had [supervisory][disciplinary] power over (name of victim) because of defendant's status as (insert allegation). In determining whether defendant had [supervisory][disciplinary] power over (name of victim), you must examine the entire context of the relationship between the defendant and (name of victim). To do so, you should consider the nature of the relationship between the defendant and the victim and whether the relationship was so unequal as to vest [supervisory][disciplinary] power in the defendant. Among the factors you may consider are whether there was a significant disparity in ages and/or maturity level between the defendant and victim, whether the defendant offered advice and guidance to the (name of victim) on questions and issues outside the defendant's role as _______ and the power or ability of the defendant to affect the (name of victim) future participation or success. [Model Jury Charge (Criminal), Aggravated Sexual Assault Victim At Least 13 But Less Than 16 (2004).]

The model jury charge for aggravated criminal sexual contact, N.J.S.A. 2C:14-3a, was also amended in 2004 to include the above-referenced instruction. Defendant contends the jury charges were legally insufficient because the trial court did not instruct the jury in accordance with Buscham and the revised jury instructions. We disagree.

Although the trial court did not have the benefit of Buscham's suggestions for guidance on the supervisory or disciplinary element of the charge, we are satisfied that the court adequately responded to the jury's inquiries. The jury was provided with the dictionary definitions of "supervise" and "discipline," which, when combined with the testimony regarding the relationship between defendant and each of the victims as presented through the State's witnesses, sufficiently equipped the jury with the background necessary to make the determination that defendant had a certain power over the victims because of his status as their coach and father-figure. Concerning the charges under N.J.S.A. 2C:14-2a(2)(c) and the factors for determining whether defendant stood in loco parentis, the court's jury instruction included the legal definition of the term from Black's Law Dictionary.

We conclude the trial judge's initial charge, plus the detailed responses to the jury's questions, sufficiently instructed the jury on how to determine whether the State met its burden of proof on the elements of aggravated sexual assault and contact. When the charge is viewed as a whole, it cannot be said that the failure to highlight the aspects of the State's case that related to whether defendant had supervisory or disciplinary power over the victims was plain error. R. 2:10-2.

II.

During the course of the trial, one of the victims, P.D., alleged that an individual by the name of A.H. had been present when he was molested by defendant, and that A.H. himself had been molested by defendant. Defendant, after ascertaining that A.H. was not available to testify at trial, moved pursuant to N.J.R.E. 804(b)(1)(A) to introduce A.H.'s sworn statement, in which he denied that he was ever sexually abused by defendant and that he ever witnessed defendant sexually abusing anyone else. This statement was taken by Detective DeRosa on July 3, 2001, during the investigation of the matter.

Defendant argues that his Sixth Amendment "right to present a [complete] defense was violated when the trial court prohibited defendant from introducing the exculpatory statement of A.H. pursuant to N.J.R.E. 804(b)(1)(A)." Specifically, defendant contends that the sworn statement A.H. gave to the police during their investigation satisfied the criteria of N.J.R.E. 804(b)(1)(A) and should have been admissible. Defendant asserts that the statement was exculpatory because A.H. denied being sexually abused by defendant, and that the statement was necessary to impeach the credibility of P.D., who had alleged that A.H. had been present during an incident and that he had witnessed A.H. being molested by defendant as well. We find the argument is without merit.

Hearsay is defined as a "statement, other than one made by the declarant while testifying at trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c). Hearsay is not admissible unless the rules of evidence or other law permits it. N.J.R.E. 802.

N.J.R.E. 804(b)(1)(A), an exception to the hearsay rule, provides in pertinent part that the testimony of an unavailable witness is not excluded by the hearsay rule where it is: given by a witness at a prior trial of the same or a different matter, or in a hearing or deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive in the prior trial, hearing or proceeding to develop the testimony by examination or cross-examination.

Defendant relies on State v. Gentile, 331 N.J. Super. 386 (Law Div. 2000), as support for his argument that the statement should have been admitted under N.J.R.E. 804(b)(1)(A). In Gentile, the defendant sought to use the grand jury testimony of an unavailable witness that supported his self-defense theory. Id. at 389. In granting the defendant's motion to admit the witness's grand jury testimony, the trial court ruled that the testimony satisfied all the conditions governing admissibility under N.J.R.E. 804(b)(1)(A) because the State had "the opportunity and a similar motive to examine the exculpatory portions of [the witness's] testimony before that body." Id. at 396-97.

Here, the judge correctly determined that A.H.'s statement to the police was not admissible pursuant to N.J.R.E. 804(b)(1)(A). A.H.'s statement to the police was not given "at a prior trial," or "in a hearing or deposition," nor did the prosecution have an opportunity or motive to cross-examine A.H.

III.

Defendant argues next that he was denied a fair trial because the prosecutor "engaged in misconduct during his closing argument by unfairly eliciting excessive sympathy for the victims." Defendant challenges the following statements.

While discussing why men "don't make up stories about being a sexual play thing for a man," the prosecutor stated that, "[m]en don't cry. [P.D.] busted in half here. I don't know how to simulate crying. That kid lost it. Wouldn't do that unless something terrible happened to him." The prosecutor then stated:

I mean, [T.D.], crying, screaming, whatever? I mean, it was--that kid was torn apart.

You are never going to see more raw emotion in your lives as when you saw him up there. Something terrible happened to that kid, man, whatever, young man. Men don't cry like that. They don't--they act out.

Next, defendant objects to the following: "I almost wish [T.D.] could sum up. I could rip out my heart and throw it on the table and I could never touch the passion that that kid could to describe to you what happened to him. There is no question that he's carrying around something terrible." Finally, defendant specifically objects to the prosecutor's comment that:

[t]he idea that they could conspire and set up this 30 trillion dollar fiasco is absurd.

These kids came in here as raw, and as real, and as heartful [sic] and they spilled it out, they bled on the stand for you and told you what happened to them. You know he's guilty.

After summation, defendant stated that he had an "issue" with the prosecutor's "talk about emotion" and asked that the jury charge include an instruction that the comments about crying or passion could be used for the demeanor or credibility of the witnesses but should not be used to elicit any sympathy. Defendant did not object during the summation and advised the court that it was not necessary to address the jury about the summation immediately thereafter.

During the court's charge, the court instructed the jury that it was its duty "to weigh all of this evidence calmly, without bias, without passion, without prejudice, without any sympathy." The trial court also instructed the jury several times that arguments of counsel are not evidence, and that a witness's appearance and demeanor goes to the credibility of that witness.

"It is well-established that prosecuting attorneys, within reasonable limitations, are afforded considerable leeway in making opening statements and summations." State v. Williams, 113 N.J. 393, 447 (1988). However, this wide latitude is not unfettered: it is bound by parameters established by decisional law and by ethical considerations. Ibid. Accordingly, "the assistant prosecutor's duty is to prove the State's case based on the evidence and not to play on the passions of the jury or trigger emotional flashpoints, deflecting attention from the hard facts on which the State's case must rise or fall." State v. Blakney, _____ N.J. ______, _______ (2006) (slip op. at 10). In considering issues of prosecutorial misconduct, the reviewing court must first determine whether misconduct occurred. State v. Frost, 158 N.J. 76, 83 (1999). Where misconduct is identified, it does not constitute grounds for reversal unless it was so egregious that it deprived the defendant of a fair trial. State v. DiFrisco, 137 N.J. 434, 474 (1994), cert. denied, 516 U.S. 1129, 116 S.Ct. 949, 133 L.Ed. 2d 873 (1996). Thus, to warrant reversal, a prosecutor's misconduct must constitute a clear infraction and "substantially prejudice the defendant's fundamental right to have a jury fairly evaluate the merits of his [or her] defense." State v. Roach, 146 N.J. 208, 219, cert. denied, 519 U.S. 1021, 117 S.Ct. 540, 136 L.Ed. 2d 424 (1996).

Whether a prosecutor's misconduct denied a defendant a fair trial requires consideration of both the "tenor of the trial and the responsiveness of counsel and the court to the improprieties when they occurred." State v. Timmendequas, 161 N.J. 515, 575 (1999), cert. denied, 534 U.S. 858, 122 S.Ct. 136, 151 L.Ed. 2d 89 (2001). A reviewing court will consider: (1) whether defense counsel made timely and proper objections to the improper remarks; (2) whether the remarks were withdrawn promptly; and (3) whether the court ordered the remarks stricken from the record and instructed the jury to disregard them. Id. at 575-76.

Defendant's arguments about prosecutorial misconduct in the closing argument are weakened when reviewed in context because the prosecutor's remarks were responsive to arguments made by defense counsel in his summation regarding his theory that the charges had been fabricated for revenge and financial gain. Indeed, "we review the challenged portions of a prosecutor's summation in the context of the entire summation." State v. Vasquez, 374 N.J. Super. 252, 262 (App. Div. 2005). "[P]rosecutors are permitted to respond to arguments raised by defense counsel as long as they do not stray beyond the evidence." Id. at 260 (quoting State v. Morais, 359 N.J. Super. 123, 131 (App. Div.) certif. denied, 177 N.J. 572 (2003)). Indeed, the court "must take into account defense counsel's 'opening salvo.'" Morais, supra, 359 N.J. Super. at 133.

In the context of the highly emotional trial and in light of defendant's theory that the charges were fabricated, the prosecutor's references to the emotional state of the victims during their testimony were not error. Although the prosecutor's statements could certainly be viewed as an appeal to the jury's sympathy, defense counsel objected and requested that the court charge the jury it is not to base its verdict on sympathy. The judge gave such a charge, and members of a jury are duty-bound to follow the court's instructions faithfully. State v. Compton, 304 N.J. Super. 477, 483 (App. Div. 1997), certif. denied, 153 N.J. 51 (1998). In the absence of contrary evidence, an appellate court "must assume that the jury followed the instructions delivered by the trial court." State v. Martini, 187 N.J. 469, 477 (2006) (quoting State v. Marshall, 173 N.J. 343, 355 (2002)).

In his supplemental pro se brief, defendant also alleged that, during a pretrial hearing, the prosecutor elicited false testimony regarding the age of T.S., who was one of the alleged victims not listed in the indictment because of the statute of limitations. During the 404(b) hearing, T.S. testified that he was twenty-five years old at the time of the trial and he was born on October 11, 1975. In January 2003, T.S. would have actually been twenty-seven years old. Although we agree that there was obviously a mistake, whether intentional or otherwise, there was no prejudice to defendant because T.S. did not testify before the jury.

IV.

We next address defendant's challenges to the sentences imposed. Under Point Four, defendant argues that the sentences violate his Sixth Amendment right to trial by jury under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed. 2d 403 (2004), because the trial court imposed sentences above the then-presumptive term. Under Points Four and Five, defendant argues that the consecutive sentences imposed also violated Blakely, as well as State v. Yarbough, 100 N.J. 627 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986). Finally, under Point Six, defendant argues that the aggregate sentence of fifty-nine years is manifestly excessive because the trial court did not properly apply the aggravating and mitigating factors. The State counters that the trial court did not err in its finding and weighing of the aggravating and mitigating factors, or in its decision to impose consecutive terms. The State appropriately concedes that defendant is entitled to a new sentencing hearing on Counts Seventeen and Twenty-Five because the sentences on those counts exceeded the then-presumptive term.

Defendant was sentenced to the following terms of imprisonment: (1) a term of fifteen years on Count Two; (2) a term of seven years on Count Four; (3) a term of sixteen years on Count Seventeen; (4) a term of seven years on Count Twenty-One; (5) a term of seventeen years on Count Twenty-Five; (6) a term of four years on Count Twenty-Eight; and (7) a term of one year on Count Twenty-Nine. The sentence imposed on Count Four is concurrent with the sentence on Count Two, and the sentence on Count Seven is concurrent with the sentence on Count Twenty-Eight. The five other terms are consecutive to each other. The aggregate sentence is fifty-nine years.

We first address defendant's argument concerning the sentences on his convictions for first-degree aggravated sexual assault on Counts Seventeen and Twenty-Five. Defendant argues that the terms imposed violate Blakely v. Washington, supra. The State concedes and we agree. State v. Natale (Natale II), 184 N.J. 458 (2005). Accordingly, we vacate the sentences imposed on Counts Seventeen and Twenty-Five and remand for re-sentencing on those two counts.

Defendant received consecutive sentences on Counts Two, Seventeen, Twenty-One, Twenty-Five, and Twenty-Eight. Defendant argues that the trial court erred in imposing consecutive sentences contending that such sentences violate the principles of Yarbough and Blakely.

Because the New Jersey Code of Criminal Justice (Code) does not set forth standards to guide a sentencing court in deciding whether to impose consecutive or concurrent sentences, the New Jersey Supreme Court, in Yarbough, developed criteria to be applied in making those decisions:

(1) there can be no free crimes in a system for which the punishment shall fit the crime;

(2) the reasons for imposing either a consecutive or concurrent sentence should be separately stated in the sentencing decision;

(3) some reasons to be considered by the sentencing court should include facts relating to the crimes, including whether or not:

(a) the crimes and their objectives were predominantly independent of each other;

(b) the crimes involved separate acts of violence or threats of violence;

(c) the crimes were committed at different times or separate places, rather than being committed so closely in time and place as to indicate a single period of aberrant behavior;

(d) any of the crimes involved multiple victims;

(e) the convictions for which the sentences imposed are numerous;

(4) there should be no double counting of aggravating factors; [and]

(5) successive terms for the same offense should not ordinarily be equal to the punishment for the first offense[.]*fn1

[Yarbough, supra, 100 N.J. at 643-44 (footnote omitted).]

The trial court ruled that consecutive sentences were appropriate because the offenses on the three victims were separate and distinct criminal acts that occurred during different time frames. Defendant contends that "the imposition of consecutive sentences cannot be justified under the Yarbough criteria" because the crimes "although facially separate, were interdependent," and "the single objective . . . was to gratify the defendant sexually . . . ." We disagree with defendant's characterization of the individual incidents as "interdependent" or having a "single objective."

"Consecutive sentences are not an abuse of discretion when the crimes involve multiple victims and separate acts of violence." State v. Roach, supra, 146 N.J. at 230. In State v. Walker, 322 N.J. Super. 535, 557 (App. Div.), certif. denied, 162 N.J. 487 (1999), the court found that a robbery and murder, which took place less than an hour apart, justified the imposition of consecutive sentences because, although so close in time and place as to indicate a single period of aberrant behavior, the crimes involved separate acts of violence and multiple victims. See also State v. Russo, 243 N.J. Super. 383, 414 (App. Div. 1990) (that the offenses were committed so closely in time and place was outweighed by the fact that they involved multiple victims and separate acts of violence), certif. denied, 126 N.J. 322 (1991).

Here, the trial judge appropriately noted that the victims were "never assaulted together," and the incidents occurred over a protracted time. Further, defendant's conviction encompasses different counts involving the same victims. Where the separate charges involved the same illegal act, the trial court merged those counts. On the whole, defendant was convicted for separate acts of sexual assault or contact on three separate victims. Therefore, we are satisfied the judge did not abuse his discretion in imposing consecutive sentences on those convictions.

Nor does imposition of consecutive sentences invoke a Blakely problem. In State v. Abdullah, supra, 184 N.J. at 512, the Court noted that the discretion given to sentencing courts to impose consecutive sentences by the Code was the continuation of a long-standing common law principle. The Court further noted that there is no presumption in favor of concurrent sentences; thus, the maximum potential sentence authorized by the jury verdict is the aggregate of sentences for multiple convictions. Id. at 513-14. Therefore, the Court held that the discretion given to trial judges to impose consecutive sentences in N.J.S.A. 2C:43-6(b) does not violate federal or state constitutional rights to due process and trial by jury. Id. at 512.

Defendant challenges the aggregate term of imprisonment on the grounds that it is excessive, contending that the trial court did not properly apply the aggravating and mitigating factors. We disagree.

"[T]his court will seldom interfere with a trial court's discretionary imposition of sentence." State v. Henry, 323 N.J. Super. 157, 162 (App. Div. 1999). "So long as the sentencing judge applies the proper standard and proceeds in the manner prescribed by the Criminal Code and controlling decisions of our Supreme Court, a rational and reasonable exercise of discretion and judgment will not be upset." Ibid. When reviewing a trial court's sentencing decision, "[a]n appellate court may not substitute its judgment for that of the trial court." State v. Johnson, 118 N.J. 10, 15 (1990) (citing State v. O'Donnell, 117 N.J. 210, 215 (1989)). However, an appellate court may review and modify a sentence when the trial court's determination was "'clearly mistaken.'" State v. Jabbour, 118 N.J. 1, 6 (1990) (quoting State v. Jarbath, 114 N.J. 394, 401 (1989)). Generally, in determining the appropriate sentence to be imposed on an individual convicted of a crime, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1a and b, balance them, and explain how the sentence was determined so that a reviewing court will have an adequate record to review on appeal. State v. Kruse, 105 N.J. 354, 359-60 (1987). If a sentencing court properly identifies and balances the factors, and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. Jabbour, supra, 118 N.J. at 6.

Here, as to Counts Seventeen, Twenty-Five, Twenty-Eight, and Twenty-Nine, the trial judge found aggravating factor, N.J.S.A. 2C:44-1(a)(1) (the nature and circumstances of the offenses including that they were committed in an especially heinous, cruel or depraved manner) because defendant told the victims not to say anything, and gave them money and gifts in exchange for their silence. The trial judge found aggravating factor, N.J.S.A. 2C:44-1a(9) (the need to deter defendant and others from violating the law), as to all counts. Lastly, the trial court found mitigating factor, N.J.S.A. 2C:44-1b(7) (defendant had no prior criminal history). The factors are amply supported in the record. We are satisfied that the trial court properly weighed the aggravating and mitigating factors and found that the aggravating factors outweighed the mitigating factors as to each count. We affirm defendant's sentences except for those imposed on Counts Seventeen and Twenty-Five. We vacate the sentences on Counts Seventeen and Twenty-Five and remand for a new sentencing hearing on those two counts. Natale II, supra.

V.

In his supplemental pro se brief, defendant argues that the judge abused his discretion in not questioning each juror individually or declaring a mistrial after a copy of the Newark Star-Ledger, containing a story about the trial with the headline "Ex-Football Coach" and a "full blown" picture of defendant in handcuffs, was found in the jury room. Defendant did not provide a copy of the article in his appendix, nor did he provide any details of its content, other than to say that the article was "troublesome" because it "indicates a past relationship between the [victims] and defendant." Defendant contends that the trial court abused its discretion when the court accepted juror Sison's representation that he had not viewed that part of the photograph showing defendant in handcuffs and by not declaring a mistrial.

The Sixth and Fourteen Amendments to the United States Constitution and Article I, Paragraph 10, of the New Jersey Constitution guarantee the right to a fair trial by an impartial jury. State v. Papasavvas, 163 N.J. 565, 643 (2000), mod. on other grounds, 164 N.J. 553 (2000); State v. Williams, 93 N.J. 39, 60 (1983); State v. Scherzer, 301 N.J. Super. 363, 422-23 (App. Div. 1997), certif. denied, 151 N.J. 466 (1997). Jurors "must be 'as nearly impartial as the lot of humanity will admit.'" State v. Fortin, 178 N.J. 540, 575 (2004) (quoting State v. Williams, supra, 93 N.J. at 60). "It is axiomatic that an impartial jury is a necessary condition to a fair trial." State v. Williams, supra, 113 N.J. at 409.

This guarantee protects a defendant from substantial preand mid-trial publicity. Sheppard v. Maxwell, 384 U.S. 333, 362-63, 86 S.Ct. 1507, 1522, 16 L.Ed. 2d 600, 620 (1966); Timmendequas, supra, 161 N.J. at 551. "It has long been recognized under the federal constitution that a defendant is entitled to a jury that is free of outside influences and will decide the case according to the evidence and arguments presented in court in the course of the criminal trial itself." Williams, supra, 93 N.J. at 60 (citing Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907)). The jury's verdict must be based on the evidence that is adduced in open court. State v. Bey, 112 N.J. 45, 75 (1988).

The Supreme Court has determined that, when alerted to the possibility that a juror has been "exposed to extraneous information," the trial court "is obliged to interrogate the juror, in the presence of counsel, to determine if there is a taint; if so, the inquiry must expand to determine whether any other jurors have been tainted thereby." State v. R.D., 169 N.J. 551, 557-58 (2001). "The decision to grant a new trial based on jury taint resides in the discretion of the trial court . . . ." Id. at 558. The trial court's decisions on such matters are reviewed using an "abuse of discretion" standard. Id. at 559.

Prior to the start of the trial, the judge instructed the jury not to read or listen to accounts of the case and he specifically warning that such accounts were not evidence, and may not be accurate or complete. On numerous occasions throughout the trial, the judge again instructed the jurors not to read any newspaper articles or listen to radio discussions about the case.

At the start of the proceedings on February 5, 2003, the trial judge noted that the county section of that day's Newark Star Ledger newspaper contained a picture of defendant in handcuffs. The judge indicated that he intended to question the jury as a whole to see if any jurors saw the newspaper and then conduct individual voir dire of those jurors in chambers. Defendant did not object to this procedure. When the judge asked the jury if anyone saw the paper, juror Sison answered affirmatively and the following colloquy occurred in open court:

THE COURT: Did you look at the county section of the Ledger?

THE JUROR: No.

THE COURT: Not at all?

THE JUROR: I didn't read the article.

THE COURT: Did you see the picture?

THE JUROR: I saw the picture.

The juror was then questioned in chambers:

THE COURT: Okay. What did you notice--what did you see in the picture?

THE JUROR: I just saw the defendant's picture and just the headline.

THE COURT: Okay. Do you recall what you saw when you looked at the picture?

THE JUROR: Ex-coach something.

THE COURT: Okay. Anything about the photographs [sic] itself?

THE JUROR: Just the top of the photograph. His head was facing the left.

THE COURT: Okay. When you say you looked at the top of the photo, does that mean you didn't even unfold the paper?

THE JUROR: Right. I just kind of went through the sections and I saw his picture and the headline.

THE COURT: Did you do like I did? You had the paper in your lap and just flipped it forward?

THE JUROR: Yeah.

THE COURT: And when you saw the picture, what did you do with that section?

THE JUROR: I set it aside.

THE COURT: You didn't look at anything further?

THE JUROR: No.

THE COURT: Did you look at the caption at all?

THE JUROR: At the bottom of the picture?

THE COURT: Yes.

THE JUROR: No.

THE COURT: Did you look at the photo only of [sic] the picture at all?

THE JUROR: No.

THE COURT: Okay. Counsel, do you think

I have to inquire as to anything further?

DEFENSE

COUNSEL: Your Honor, I was--

THE COURT: And we can excuse Mr. Sison.

DEFENSE COUNSEL: I think this can be said in front of him. I was wondering if you, your Honor, could just maybe spend a moment talking about the fact that, you know, whatever picture really has nothing to do with this case.

THE COURT: I was going to do that in front of everybody. I appreciate that, though . . . .

(Juror excused from chambers.)

THE COURT: For the record the picture of the handcuffs was below the fold because I did [not] notice it at first either. I had the paper on the front seat of the car, and I flipped it forward and I did [not] notice anything amiss. I just saw the picture of the defendant's upper torso . . . . but since Mr. Sison never looked below the fold, I think it is safe to assume he saw nothing amiss nor did he look at the caption or bottom of the photograph. Does anybody want to pursue anything further?

THE PROSECUTOR: No, sir.

DEFENSE COUNSEL: I'm satisfied, [Y]our Honor.

I have no application.

Thereafter, it was discovered that a copy of the Star-Ledger had been found in the jury room. The trial judge asked the jurors if the paper belonged to any of them, and specifically if it belonged to juror Sison. The record does not reflect the response to either question or any further details about where the paper was found, or whether the section with defendant's picture was visible. The court then gave the following instruction to the jury:

All right. Ladies and gentlemen, as I said throughout this case, what's in a newspaper article isn't evidence and it can't be considered by you. So in leaping [sic] though a newspaper or in listening--I hear this case has been on the radio, too. If you hear a little blurb on the radio, please shut it off. If you see something in the paper, again, do as Mr. Sison did. Just set it aside. Don't look at it except to identify that it's possibly the subject matter of this trial. Okay?

Again, even though [sic] a brief glimpse that you have of a photograph or something to determine that the article has to do with this case can't be considered by you because it is not evidence. Your decision has to be based on the evidence that comes out during the course of the trial and not in anything you read or hear in any media source.

Anything further?

Defendant did not object to this instruction, nor request any further action.

We are satisfied that the trial court did not abuse its discretion in failing to conduct individual voir dire of each juror, or in failing to declare a mistrial that was never requested. The jury was instructed on numerous occasions to avoid exposure to news articles on the case, and, according to the voir dire of the one juror who admitted to seeing part of defendant's picture in the paper, the juror set the article aside without reading it, or looking at the remaining part of the picture below the fold. As the court noted, there was no indication that the juror saw the handcuffs or that any other jurors were exposed to the picture or the article. Although a copy of the newspaper with defendant's picture was found in the jury room, there was no indication that the section with defendant's picture was visible when it was found. We are satisfied that the trial court did not abuse its discretion in conducting its voir dire of the jury and by not declaring a mistrial that was never requested.

We affirm the convictions; and remand for a new sentencing hearing on Counts Seventeen and Twenty-Five.


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