On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 02-06-0717.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 20, 2006
Before Judges Lefelt and Sapp-Peterson.
A Middlesex County jury convicted defendant Jessie Pickney of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Subsequently, Judge Pullen sentenced him to ten years in the Adult Diagnostic and Treatment Center at Avenel. Defendant appeals, arguing first that his "conviction [was] against the weight of the evidence," and second that "the sentence was excessive."
Defendant's first argument is not properly before us because a motion for new trial was not made in the trial court.
R. 2:10-1; State v. Perry, 128 N.J. Super. 188, 190 (App. Div. 1973), aff'd, 65 N.J. 45 (1974). In any event, we find the argument meritless. Defendant's niece, S.P., who was ten years old at the time, testified that defendant touched the "inside" of her "pee-pee" with his hand and with his "private part." He also touched her "top part" with his hand and the inside of her "lower area in the back" with his "front part." S.P. claimed that she bled in her "front part," after defendant touched her. She further explained that "upstairs he would bother me with some [of his] parts and downstairs he would . . . bother me with all of them."
If the jury believed this testimony, it would constitute sufficient evidence supporting the verdict. See State v. Conway, 193 N.J. Super. 133, 150 (App. Div.), certif. denied, 97 N.J. 651 (1984). It is neither the trial court's function nor our function to determine what testimony should have been rejected by the jury since we may not substitute our credibility judgments for those of the jury's. See Dolson v. Anastasia, 55 N.J. 2, 7 (1969).
In defendant's second appeal point, he argues that his sentence was excessive as Judge Pullen imposed the maximum term for a second-degree crime, which was well in excess of the then presumptive sentence. We need not address defendant's excessive-sentence argument, however, because after the judge imposed the sentence, the Supreme Court decided State v. Natale, 184 N.J. 458 (2005). Pursuant to Natale, defendant is entitled to be resentenced. State v. Thomas, 188 N.J. 137, 152 (2006).
Accordingly, defendant's conviction is affirmed, but the matter is remanded for resentencing.
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