June 4, 2007
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 04-01-00122.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 7, 2007
Before Judges Parker and C.S. Fisher.
Defendant J.A.S. appeals from a judgment of conviction entered on August 26, 2005 after a jury found him guilty of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4a; and fourth degree criminal sexual contact, N.J.S.A. 2C:14- 3b. After the appropriate mergers, defendant was sentenced to a term of five years. We affirm.
These charges arose from a series of incidents in October 2002 when the victim, T.G., was thirteen years old. She lived with her parents, a brother, three older sisters and her seven-year-old niece. Defendant is the niece's father. He visited T.G.'s home twice a week to see his daughter. Beginning in October 2002, defendant began touching T.G.'s vaginal area and digitally penetrating her. In one instance, she alleged that he masturbated in front of her. T.G. told her girlfriend Nikki about the incidents and Nikki persuaded T.G. to talk to a school guidance counselor, which she did. The matter was reported to the police, who subsequently arrested defendant. In his statement to police, defendant maintained that T.G. approached him and unbuttoned her pants, but he said "no" and walked away.
In this appeal, defendant argues:
THE EVIDENCE IS INSUFFICIENT TO SUSTAIN THE VERDICT. (PARTIALLY RAISED BELOW)
IT WAS ERROR TO DENY THE MOTION FOR ACQUITTAL POINT THREE
THE SENTENCE WAS EXCESSIVE
We note initially that defendant did not move for a new trial. Consequently, his argument that the evidence was insufficient to sustain the verdict is not cognizable on appeal.
R. 2:10-1. If we were to consider the merits of defendant's argument, however, they do not support reversal of the verdict. Defendant focuses entirely on credibility issues which are the province of the jury.
Where the jury's verdict was grounded on its assessment of witness credibility, a reviewing court may not intercede, absent clear evidence on the face of the record that the jury was mistaken or prejudiced. [State v. Smith, 262 N.J. Super. 487, 512 (App. Div.), certif. denied, 134 N.J. 476 (1993).]
Defendant belabors the fact that T.G. did not tell the police about every incident to which she testified at trial. Nevertheless, T.G. reported a majority of the incidents about which she testified, and she was subject to cross-examination on all of the incidents included in her testimony. The jury had the opportunity to make its assessment of T.G.'s credibility. Defendant has presented no evidence demonstrating "that the jury was mistaken or prejudiced." Ibid.
We similarly find no merit in defendant's argument that the trial court erred in denying his motion for acquittal at the end of the State's case.
[T]he broad test for determination of such an application is whether the evidence at that point is sufficient to warrant a conviction of the charge involved. R.R. 3:7-6. More specifically, the question the trial judge must determine is whether, viewing the State's evidence in its entirety, be that evidence direct or circumstantial, and giving the State the benefit of all its favorable testimony as well as all of the favorable inferences which reasonably could be drawn therefrom, a reasonable jury could find guilt of the charge beyond a reasonable doubt. State v. Fiorello, 36 N.J. 80, [at] 90-91 (1961), certiorari denied, 368 U.S. 967, 82 S.Ct. 439, 7 L.Ed. 2d 396 (1962). [State v. Reyes, 50 N.J. 454, 458-59 (1967).]
We have carefully considered the record and we are satisfied that there was more than sufficient credible evidence upon which a reasonable jury could find defendant guilty beyond a reasonable doubt. Ibid. We find no error in the trial court's denial of defendant's motion for a judgment of acquittal.
With respect to defendant's sentencing argument, he maintains that the court's application of aggravating and mitigating factors is "flawed." Aggravating factors 2, 3 and 9 were applied. No mitigating factors were found. We are satisfied that the trial court's findings on the aggravating and mitigating factors were supported by the credible evidence in the record. State v. O'Donnell, 117 N.J. 210, 216 (1989); State v. Ghertler, 114 N.J. 383, 389-90 (1989); State v. Roth, 95 N.J. 334, 359 (1984).
Finally, defendant argues that his sentence violates the tenets of State v. Natale, 184 N.J. 458 (2005), which was decided twenty-four days before he was sentenced. In Natale, the Court found that "[a] judge is authorized to impose a sentence within the range allowed by the jury verdict." Id. at 481. The Court further "reject[ed] making the presumptive term the maximum sentence a court could impose," and eliminated presumptive terms, allowing "the 'statutory maximum' authorized by the jury verdict . . . [as] the top of the sentencing range for the crime charged, e.g., ten years for a second-degree offense, N.J.S.A. 2C:43-6(a)(2)." Id. at 487. Accordingly, we find nothing shocking or offensive about defendant's sentence to a five-year term for a third degree crime, given his five prior convictions. See State v. Abdullah, 372 N.J. Super. 252, 271 (App. Div. 2004).
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