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State v. P.L.M.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 18, 2007

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
P.L.M.,*FN1 DEFENDANT-APPELLANT.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1298.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted May 2, 2007

Before Judges A. A. Rodríguez, Sabatino and Lyons.

Defendant P.L.M. appeals a judgment of conviction in which he was found guilty by a jury of three counts of first-degree aggravated sexual assault in violation of N.J.S.A. 2C:14-2a, three counts of second-degree sexual assault in violation of N.J.S.A. 2C:14-2b, three counts of second-degree endangering the welfare of a child in violation of N.J.S.A. 2C:24-4a, and one count of second-degree attempted sexual assault in violation of N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2b. As a result, defendant was sentenced to a term of forty-eight years subject to an eighty-five percent parole ineligibility period. The following factual and procedural history is relevant to our consideration of the issues advanced on appeal.

This appeal concerns the sexual assault of three female children by defendant. Defendant, presently twenty-nine years old, was the boyfriend of the children's mother, Alice ("Alice"), who died in May 2003. The children who were the victims of the charged offenses are A.M., currently sixteen years of age; T.M., currently fifteen years of age, and N.T., now thirteen years old. The children's mother also had A.B.M., a son. A.M., T.M., and A.B.M. have the same father. N.T.'s father is another individual. Defendant and Alice also had two children, L.M. and F.M., together.

Defendant, Alice, and the children lived together in a Carteret apartment, moved to another apartment on Warren Street, and subsequently moved in with Alice's mother, the children's maternal grandmother, after their residence burned down. Before moving in with the maternal grandmother, defendant would supervise the children when Alice was not home. It was during Alice's absence that the sexual abuse of the children occurred. Defendant sexually abused A.M. beginning when she was ten and continuing until she was twelve years old. T.M. was abused from the time she was nine to eleven years of age. N.T. was abused from age seven to age nine.

On July 4, 2003, A.M., T.M., and A.B.M.'s aunt, Maria ("Maria"), was preparing lunch for her twelve-year-old niece, A.M., at her house in Elizabeth. As Maria was cooking, A.M. disclosed to her that defendant "had raped her." Maria did not tell anyone about A.M.'s statement until she brought A.M. back to her maternal grandmother's house on July 8, 2003.

Upon arriving at her grandmother's house, A.M. and her grandmother got into a confrontation over A.M.'s behavior. At the time of this revelation, there was a custody dispute over A.M. and T.M. between the children's father and the maternal grandmother. All three girls were then living with their grandmother while custody was being resolved. During the confrontation between A.M. and her grandmother, the grandmother threatened that if she got custody, she was going to take A.M. to the doctor to see if she was a virgin. A.M. yelled back at her and told her, "I'm not a virgin, but [it's] not because of what you think of."

Maria asked the other children to leave the apartment and disclosed to the girl's grandmother that A.M. had told her that defendant had "touched her." Maria then asked T.M. if defendant had touched her and she responded in the affirmative. At that time, N.T. also disclosed to Maria that, "on several occasions, [defendant] had sexual intercourse with her. And she was one time in the shower and he went in the shower with her." DYFS and the police were notified and Maria left without further discussion with the children regarding their allegations. DYFS workers arrived at the grandmother's home later that evening.

DYFS investigators arrived in response to a call from the grandmother. They interviewed each of the girls individually in the grandmother's bedroom. Each of the girls relayed to the DYFS investigators the details of their abuse by defendant. Both T.M. and N.T. informed the investigators that they had told their mother about the abuse. T.M. said her mother threw defendant out but eventually he came back, and N.T. stated when she told her mother about the abuse her mother did not do anything because she did not want to cause any trouble.

Following the interviews, the matter was immediately referred to the Carteret Police Department and the Middlesex County Prosecutor's Office. Defendant was arrested on July 10, 2003.

On July 18, 2003, Dr. Linda Shaw, an expert in pediatrics, specifically child abuse examinations and evaluations, conducted an evaluation of two of the girls, T.M. and N.T. With respect to T.M., the doctor did not see any specific injury to her genital tissues. After examining N.T., the doctor found a laceration or cut in the hymenal tissue that was healed but clearly evident. On August 15, 2003, Dr. Shaw examined A.M. and found some damage to her hymenal tissue. During Dr. Shaw's interview of A.M., A.M. also told Dr. Shaw that she had had sexual experiences with people other than defendant around the time she claimed that she was sexually assaulted by defendant.

On October 3, 2003, the Middlesex County Grand Jury returned Indictment No. 03-10-1298, charging defendant with three counts of first-degree aggravated sexual assault, contrary to N.J.S.A. 2C:14-2a (counts one, six, and eleven); three counts of second-degree sexual assault, contrary to N.J.S.A. 2C:14-2b (counts two, nine, and twelve); three counts of second-degree endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4a (counts three, ten, and thirteen); third-degree terroristic threats, contrary to N.J.S.A. 2C:12-3a (count four); three counts of third-degree criminal restraint, contrary to N.J.S.A. 2C:13-2 (counts five, seven, and fourteen); and second-degree attempted sexual assault, contrary to N.J.S.A. 2C:5-1 and 2C:14-2b (count eight).

On February 22, 2005, prior to the commencement of trial, defendant moved before the trial court to be permitted to admit evidence of A.M.'s previous sexual conduct pursuant to the Rape Shield Law, N.J.S.A. 2C:14-7. Defendant wanted to argue at trial that A.M. and the other girls fabricated the assaults by defendant and pointed to him as the offender to conceal A.M.'s own sexual experiences from her grandmother. The State opposed the admission of A.M.'s past sexual history, arguing that the rape shield statute was intended to protect such information. The court denied the motion on March 14, 2005, finding that the defense had other ways of proving A.M.'s fabrication of the assault without getting into her prior sexual activity.

The criminal restraint and terroristic threat charges were dismissed on the prosecutor's motion on April 12, 2005. Trial in this case was held on April 11, 12, 13, and 18, 2005.

All three children testified concerning the allegations of sexual abuse at trial. They each testified to the specific actions of defendant. In addition, Dr. Shaw testified at trial that a laceration to A.M.'s hymenal wall was "consistent with" A.M.'s statements regarding abuse but that the doctor would have no way of knowing what actually caused the tearing. T.M. stated during trial that her half sister, step-mother and her father had been aware of defendant's sexual abuse. T.M. stated that her father spoke to Alice about the abuse and that T.M. had also spoken to Alice about the issue and told her defendant had sexually assaulted her.

The jury convicted defendant of the charges outlined above. On appeal, defendant presents the following arguments for our consideration:

POINT I:

THE COURT VIOLATED DEFENDANT'S CONSTITUTIONAL RIGHT TO PRESENT EVIDENCE IN HIS DEFENSE AS WELL AS HIS CONFRONTATION CLAUSE RIGHTS BY EXCLUDING EVIDENCE REGARDING A.M.'S PRIOR SEXUAL EXPERIENCE.

U.S. CONST. AMENDS. VI, XIV; N.J. CONST., ART. I. ¶¶ 1, 10.

POINT II:

THE TRIAL COURT'S COMMENT ON DEFENDANT'S RIGHT TO TESTIFY, ESSENTIALLY REDUCED THAT DECISION TO A MATTER OF TRIAL STRATEGY, THEREBY VIOLATING DEFENDANT'S CONSTITUTIONAL RIGHTS AND MANDATING A REVERSAL OF HIS CONVICTIONS. U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. (1947), ART. I, PARS. 1, 9 AND 10.

POINT III:

THE PROSECUTOR'S COMMENT DURING SUMMATION THAT N.T. WOULD NOT LOOK AT DEFENDANT WHILE SHE TESTIFIED BECAUSE SHE FEARED HIM AND DID NOT WANT TO LOOK AT THE MAN WHO ASSAULTED HER WERE IMPROPER AND SO PREJUDICIAL AS TO DENY DEFENDANT A FAIR TRIAL AND REQUIRE THE REVERSAL OF HIS CONVICTIONS. U.S. CONST., AMEND. XIV; N.J. CONST., (1947), ART. 1, ¶10.

POINT IV:

THE DEFENDANT WAS DENIED A FAIR TRIAL WHEN THE COURT PERMITTED EVIDENCE TO BE ELICITED FROM DYFS WORKER DORSEY ASH THAT SHE FOUND A.M. AND N.T. TO BE CREDIBLE. (Not Raised Below).

POINT V:

THE TESTIMONY OF DYFS WORKER ASH AND INVESTIGATOR NIEVES, WHEREIN THEY TESTIFIED THAT A.M. TOLD THEM SHE HAD BEEN SEXUALLY ASSAULTED BY DEFENDANT, WAS INADMISSIBLE HEARSAY AS A.M. WAS NOT OF TENDER YEARS. DEFENDANT WAS THUS DENIED HIS RIGHT TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST., AMENDS. V, VI, XIV; N.J. CONST. (1947), ART. 1, PARAS. 1, 9 and 10.)

POINT VI:

THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.

A. A Natale Remand is Necessary

B. The Sentence Imposed Was Excessive

I.

Defendant argues on appeal that he was denied his right of confrontation by not being able to ask A.M., the oldest child, about her prior sexual experiences pursuant to the Rape Shield Law.

Prior to trial, defendant had moved to admit evidence regarding A.M.'s past sexual history as an exception to the Rape Shield Law, N.J.S.A. 2C:14-7. Defendant argued that at the time of A.M.'s allegation of abuse, her grandmother was attempting to obtain legal custody of her. Defendant argued that A.M. disclosed the sexual abuse during an argument in which the grandmother threatened to take A.M. to a doctor to make sure she was a virgin, which caused A.M. to respond that she was not a virgin, but not for the reason her grandmother supposed. In support of his motion, defendant had relied on an addendum to the report of Dr. Shaw, which noted, in part, "[A.M.] confided in me about prior sexual partners . . . She requested that her sexual history be confidential from her grandmother."

Defendant argued that evidence of A.M.'s sexual history was relevant to explain A.M.'s motive in fabricating the charges of sexual abuse by defendant. The defense argued that it was entitled to show the jury that A.M. was afraid that if her grandmother obtained legal custody of her, she would have to undergo a medical examination which would reveal that she was not a virgin and that this finding would have to be reported to her grandmother. Defendant intended to present as a defense, that in order to exculpate herself, A.M. falsely accused defendant of sexual abuse.

Defense counsel urged the admission of this evidence as its only vital defense because "[t]he jury is going to wonder how this 12-year old is not a virgin. This is why this information is necessary. This girl actually did have consensual sexual acts with another partner, per this report of Doctor Shaw. Without the jury knowing that, it robs us of that defense." The State objected to the admission of the evidence and argued that it was "reputation evidence" and inadmissible under the Rape Shield Law. The trial court agreed with the State, and denied defendant's motion, stating:

In this case if the Court were to allow that in, it would subject the victim to cross-examination about prior sexual acts, the purpose of which would be to demonstrate allegedly a fear of discovery of those acts that could embarrass her, would embarrass her and would be highly inflammatory, I believe, to the jury. The benefit that the defendant could get, that is, showing that she had fear of being exposed to her grandmother of prior sexual activity, I don't believe comes close to outweighing the harm to the victim of allowing unfettered delving into prior sexual encounters. So I think that the defense has other ways of proving that point without getting into prior sexual activity.

And furthermore, there is no clear evidence that there was any prior sexual activity. This was a bare statement made about prior encounters. We don't even know when they were or what they were.

On appeal, defendant argues that the court misapplied the Rape Shield Law, preventing defendant from cross-examining A.M. regarding her motive to falsely incriminate defendant and from cross-examining Dr. Shaw regarding the fact that A.M.'s hymenal tissue could have been damaged during the course of her other sexual encounters. Defendant argues that the trial court's ruling excluding the evidence deprived defendant of his constitutional rights of confrontation, the right to present a defense, and due process.

The State counters that the evidence defendant sought to present at trial was proof that she was not a virgin and that such evidence is the kind which the Rape Shield Law was intended to exclude. The State asserts that such evidence is substantially more prejudicial than probative, especially because it was hardly clear that A.M. had any relevant prior sexual history other than with defendant. Consequently, the State claims that the testimony regarding A.M.'s prior sexual conduct was properly precluded by the Rape Shield Law.

The Rape Shield Law provides in pertinent part:

In prosecutions [for charges such as these] evidence of the victim's previous sexual conduct shall not be admitted or reference made to it in the presence of the jury except as provided in this section. When the defendant seeks to admit such evidence for any purpose, the defendant must apply for an order of the court before the trial . . . [and] the court shall conduct a hearing in camera to determine the admissibility of the evidence. If the court finds that evidence offered by the defendant regarding the sexual conduct of the victim is relevant and highly immaterial and meets the requirements of the subsections c. and d. of this section and that the probative value of the evidence offered substantially outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim, the court shall enter an order setting forth with specificity what evidence may be introduced and the nature of the questions which shall be permitted, and the reasons why the court finds such evidence satisfies the standards contained in this section. The defendant may then offer evidence under the order of the court.

c. Evidence of previous sexual conduct with persons other than the defendant which is offered by any lay or expert witness shall not be considered relevant unless it is material to proving the source of semen, pregnancy or disease.

d. Evidence of the victim's previous sexual conduct with the defendant shall be considered relevant if it is probative of whether a reasonable person, knowing what the defendant knew at the time of the alleged offense, would have believed that the alleged victim freely and affirmatively permitted the sexual behavior complained of. . . . [N.J.S.A. 2C:14-7.]

One of the primary purposes of the Rape Shield statute, N.J.S.A. 2C:14-7, is to protect rape victims from excessive cross-examination and the improper use of evidence of the victim's prior sexual experiences. State v. Budis, 125 N.J. 519, 529 (1991). When a defendant seeks to offer evidence of a victim's previous sexual conduct for any purpose, the trial court must examine its relevance and weigh its probative value against its prejudicial effect. Ibid. To accomplish this, the Rape Shield statute provides that defendant must apply for a court order, prior to trial or preliminary hearing, after which, the court must conduct an in camera hearing to determine the admissibility of the evidence. Ibid. The court must enter an order introducing the evidence if it finds that it is relevant and its probative value is not outweighed by the possibility of the prejudice, confusion of the issues, or an unwarranted invasion of privacy. Id. at 530.

In addition, the Supreme Court has explained that evidence of prior sexual conduct is only relevant if "it is material to negating the element of force or coercion or to proving that the source of semen, pregnancy or disease is a person other than defendant." Ibid.; N.J.S.A. 2C:14-7(c). However, it has also been held that "the Rape Shield Law, like any other law which attempts to pre-judge relevancy and admissibility, must not be permitted to defeat defendant's sixth amendment right to confront the witnesses against him, and particularly, his right to a fair opportunity for cross-examination." State v. Ross, 249 N.J. Super. 246, 251 (App. Div.), certif. denied, 126 N.J. 389 (1991). If evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled. State v. Garron, 177 N.J. 147, 171 (2003), cert. denied, 540 U.S. 1160, 124 S.Ct. 1169, 157 L.Ed. 2d 1204 (2004).

An initial reading of N.J.S.A. 2C:14-7 clearly reveals that the evidence would not meet the requirements of subsections c.*fn2 and d. of N.J.S.A. 2C:14-7 and the statute would therefore prohibit the introduction of the proferred evidence. However, consistent with Garron, defendant's Sixth Amendment right to confrontation of witnesses against him requires us to determine whether the evidence is relevant to the defense and whether its probative value outweighs its prejudicial effect. Garron, supra, 177 N.J. at 172.

Here, the trial judge balanced subjecting A.M. to cross-examination, her embarrassment and the inflammatory nature of the testimony sought against defendant's claim that a fear of A.M.'s prior sexual history being disclosed to her grandmother caused her to fabricate the claims against defendant. After weighing those competing interests and, in the absence of any proof of A.M.'s prior sexual history, other than her statement to Dr. Shaw, the trial court excluded the evidence. The analysis, though, which must be conducted following an in camera hearing in situations where a defendant asserts the right to confront a witness under the Sixth Amendment of the Constitution in light of the rape shield statute's provisions, is whether the proferred evidence is relevant and material and whether its probative value outweighs its collateral nature or the probability that its admission will create undue prejudice, confusion of the issues, or unwarranted invasion of the privacy of the victim.

Defendant's argument that a person other than defendant may have caused the hymenal tearing described by Dr. Shaw and that A.M.'s fear of her grandmother finding out she was not a virgin is relevant to demonstrating A.M.'s motive to accuse defendant of sexual assault.

The record in this case though, does not assist us in analyzing whether what appears on its face to be relevant evidence is material and whether its probative value outweighs its prejudicial effect. For example, there is nothing in the record that would demonstrate that A.M. was repeatedly told by her grandmother that she would be examined to see if she was a virgin before she disclosed the abuse to Maria. Further, there is nothing in the record to determine what sexual activity A.M. was referring to when she confided to Dr. Shaw that she had prior "sexual partners." If A.M. had prior sexual intercourse that may be consistent with Dr. Shaw's findings concerning tearing of hymenal tissues, and if there is a record of the maternal grandmother repeatedly threatening A.M. prior to her disclosure to Maria with punishment if it were to be shown that she was not a virgin, the probative value of the proferred evidence may outweigh the protections afforded under the Rape Shield statute. On the other hand, if the record disclosed that A.M. told Maria of the abuse before her grandmother made any threat of punishment or that the sexual activities with others would not be responsible for the hymenal tear, then the probative value may not rise to a level so as to outweigh the concerns expressed in the Rape Shield statute.

Further, if the record indicates that when T.M.'s father learned of the abuse, he discussed it with others and that other third parties knew of the abuse before it was disclosed by A.M. to her aunt, A.M.'s prior sexual activities may well not be material and probative or outweigh its prejudicial effect. However, in the absence of such a record which explores these issues, we cannot resolve the point.*fn3

The Supreme Court has held that the best means of creating a record for appellate review of a decision to admit disputed evidence is during an N.J.R.E. 104 hearing. See State v. Harvey, 151 N.J. 117, 167 (1997), cert. denied, 528 U.S. 1085, 120 S.Ct. 811, 145 L.Ed. 2d 683 (2000); Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 104. Moreover, the Appellate Division has held that where a record developed before trial is insufficient to determine whether a defendant's constitutional rights were violated, "the appropriate remedy to correct this error is not reversal of defendant's conviction, but to remand this discrete issue to the trial court to conduct a new hearing." State v. Elkwisni, 384 N.J. Super. 351, 357, 367 (App. Div.), certif. denied, 187 N.J. 492 (2006), aff'd, 190 N.J. 169 (2007). Therefore, to preserve defendant's right to pursue confrontation and to assure that all the evidence on that topic has been properly scrutinized, this issue is remanded to the trial court for an in camera hearing so that a record can be developed on the issue of whether evidence of A.M.'s prior sexual history is relevant and, if so, whether its probative value outweighs any prejudicial effect.*fn4 The Appellate Division retains jurisdiction, and upon completion of the remand, the matter is to be assigned to a part of the Appellate Division for review, if either of the parties seek same within forty-five days of completion of the hearing.

II.

Defendant next argues that certain comments made by the trial court "effectively denied the defendant his State and [F]ederal constitutional rights and also violated his right against self-incrimination."

After the State rested its case, the judge made the following comments to the jury:

Thank you. Ladies and gentlemen, the State is finished with its case. And we by prearrangement have agreed that the defense, being late in the day, the defense wouldn't put on its case until Monday morning. So you can - you're free to retire for the weekend.

Outside the jury's presence, defense counsel objected to these comments, stating, "And I don't know how to cure at this point. But your Honor stated to the jury, that by our agreement, the defense case wouldn't start until Monday morning. I'm not sure if we have a defense case. That's the problem, we don't have any burden." The trial court agreed with defense counsel, brought the jury back out and delivered the following instruction:

Ladies and gentlemen, it was pointed out that I might have inadvertently indicated to you that the defense case would proceed on Monday. As you know, when I gave you your preliminary instructions and also before you were even selected as jurors, the defendant in a criminal case is under no obligation to prove his innocence. He is not obligated to put any testimony or evidence onto the record on his own behalf. He has a right to remain silent under our constitution. And that cannot be used against him or whatsoever about his guilt or innocence of the charges.

The State bears the burden of proving each and every element of each and every charge beyond a reasonable doubt. That burden never shifts to the defendant. The defendant has an absolute right to present no evidence in his own behalf. The defendant will consult with his attorney.

They will analyze the State's case. We'll give them the weekend to do that. And on Monday morning, the -- you will either get your instructions or there'll be further proceedings in the courtroom. We don't know which.

But again, you should not expect that the defendant will or will not present any evidence on his own behalf because he is absolutely under no obligation to do so. He is innocent of the charges until proven guilty beyond a reasonable doubt by the State of New Jersey.

The following Monday morning, after defendant's motion for a judgment of acquittal was denied, defense counsel moved for a mistrial based on the judge's comments regarding defendant's decision whether to testify or not. Defense counsel asserted that the court's comments transformed defendant's right not to testify into a tactical decision. The trial court denied the motion and denied defendant's later motion for a new trial on this ground.

On appeal, defendant contends that the comments made by the judge violated his constitutional rights to a fair trial and against self-incrimination. Defendant asserts that the comments warrant reversal of defendant's conviction because they created an impression in the jury that if defendant could have denied the charges against him, he would have testified, and his failure to do so constituted substantive evidence against him.

The State counters that the trial judge charged the jury on numerous occasions that defendant had a right not to testify or to present a defense and that the burden of proof always remained with the State to prove him guilty beyond a reasonable doubt. Thus, the State submits that no reversible error occurred as a result of the judge's comments.

It is well-established that, "[j]urors quite naturally are swayed by a judge's views, for the judge is a figure of objectivity and impartiality." State v. Corbo, 32 N.J. 273, 277 (1960). Therefore, "[i]n criminal cases, the court should be cautious in the exercise of the power of comment with a view to protecting the rights of the defendant." State v. Jones, 104 N.J. Super. 57, 62 (App. Div. 1968), certif. denied, 53 N.J. 354 (1969). Comments by the judge "should be temperately and fairly made, and should not be argumentative or contentious . . . which makes it characteristically an act of advocacy." Ibid.

A review of the record does not show that any prejudice arose from the court's comments or that the court failed to protect the rights of defendant. When the court made its first comment on April 13, 2005, that "defense counsel's case would not start until Monday morning," the trial court quickly agreed with defense counsel that it misspoke, brought the jury back into the courtroom and immediately issued a curative instruction clearly stating that defendant "is not obligated to put any testimony or evidence onto the record on his own behalf. He has the right to remain silent under our constitution . . . the State bears the burden of proving each and every element of each and every charge beyond a reasonable doubt." When read in its entirety, such an instruction cured any confusion that may have been caused in the minds of the jurors. The court made sure to immediately correct itself, instructing the jury as to the shifting of burdens of proof, that defendant's silence cannot be used to draw inferences of guilt, and that defendant had an "absolute right to present no evidence in his behalf."

Defendant also protests over the court's remark that defendant would have the weekend to consult with his attorney to analyze the State's case to decide whether to testify or not. This comment did not effectively deny defendant of his State and Federal constitutional rights. First, it should be noted that defense counsel only objected to this comment during a hearing for a mistrial motion on April 18, 2005, five days after the instruction was made. Defendant's failure to object to this curative instruction strongly indicates that defense counsel did not perceive it to be prejudicial when it was made or that it detracted from the instructions as a whole. See State v. Tierney, 356 N.J. Super. 468, 481-82 (App. Div.), certif. denied, 176 N.J. 72 (2003); State v. Wilbely, 63 N.J. 420, 422 (1973); State v. Macon, 57 N.J. 325, 333 (1971).

Second, the court sufficiently and repeatedly instructed the jury that defendant could elect to refrain from testifying, that such a decision could not be construed to be an indication of guilt, and that the State possessed the burden of proof. Such points were also discussed by the court during the preliminary jury instructions and in the final jury charge. Moreover, defense counsel informed the jury, during both its opening and closing statements, that defendant could elect not to testify. During the defense's opening statement, counsel stated that defendant "is under no burden this entire trial. He doesn't have to take the stand and testify. He doesn't have to call a single witness." During defendant's summation, defense counsel similarly stated, "as the court has told you repeatedly, [defendant] does not have to prove himself innocent . . . [defendant is] under no obligation to do anything. It's the State that has to prove [its] case" [emphasis added]. In addition, the prosecutor also told the jury that "the State bears the burden of proving each element beyond a reasonable doubt."

Third, the latter comments of the trial judge were not opinions on the evidence, were not prejudicial, argumentative or contentious. The trial judge made a mistaken remark and worked promptly and repeatedly to correct it and protect defendant's constitutional rights through further instructions and detailed final instructions.

Thus, through the court's two curative instructions, its preliminary and final jury charges, and the prosecutor and defense counsel's opening and closing statements, the jury was fully apprised that defendant had a right to remain silent and did not carry the burden of proof. The court's instructions were clear and correct, and the jury was properly charged. There was no error meriting a reversal of the conviction in this regard.

III.

Defendant argues that the court should reverse his conviction because the prosecutor made a prejudicial comment during summation that denied him a fair trial.

During summation, defense counsel urged the jury to disregard the fact that N.T. was crying while she was on the stand and did not want to look at defendant. In an effort to counter defendant's request to the jury, the prosecutor made the following comment during summation:

There's no question [N.T.] was sobbing. It was heart wrenching to hear her. She had difficulty walking into the courtroom, clearly fearing the defendant. Defense counsel says we can't really determine why she was crying. But I submit to you, ladies and gentlemen, that when this young lady sat in this chair, as did the other two, at no point did she want to look at defendant. [N.T.] sat here, and I had to question her right beside her because she didn't want to turn around. She didn't want to turn around because she didn't want to look at the defendant. And I submit to you that's why she was crying. She did not want to face the person that had assaulted her.

Defense counsel objected to the prosecutor's remarks during summation and asserted that there was no evidence that N.T. said she did not want to face defendant and that the prosecutor was "testifying about facts not in evidence." The court overruled the objection, stating that it did not believe there was "anything improper about any of the statements. Counsel may have . . . been somewhat in error about a specific thing [that] happened and when . . . [T]hat's really not a basis for an admonition or mistrial. The jury has heard all the evidence and can figure it out for themselves."

On appeal, defendant argues that the statements of the prosecutor improperly indicated to the jury that she knew N.T. was afraid of defendant because he had sexually assaulted her and the other girls as well, and thus deprived defendant of his right to a fair trial, meriting reversal of the convictions and a remand for a new trial. The State counters that the prosecutor's comments were adduced from evidence presented at trial and directly responsive to defense counsel's attack on N.T.'s credibility and demeanor in his summation.

In assessing whether prosecutorial misconduct, such as improper remarks in summation, requires reversal, we must determine whether "the conduct was so egregious that it deprives the defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999); State v. Blakney, 189 N.J. 88, 96 (2001); State v. Loftin, 146 N.J. 295, 386 (1996), remanded, 157 N.J. 253 (1999); State v. Ramseur, 106 N.J. 123, 322 (1987), cert. denied, 508 U.S. 947, 113 S.Ct. 2433, 124 L.Ed. 2d 653 (1993). The Supreme Court has held that factors such as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them, may be utilized to determine whether the right to a fair trial has been denied. Ramseur, supra, 106 N.J. at 322-23.

An attorney may make remarks that constitute legitimate inferences from the facts. State v. Perry, 65 N.J. 45, 48 (1974); State v. Mayberry, 52 N.J. 413, 437 (1968), cert. denied, 393 U.S. 1043, 89 S.Ct. 673, 21 L.Ed. 2d 593 (1969). However, he or she may not go beyond the facts before the jury. State v. Farrell, 61 N.J. 99, 103 (1972). A prosecutor's remarks may be harmless if they are only a response to remarks by opposing counsel. State v. Di Paglia, 64 N.J. 288 (1974). In reviewing a prosecutor's summation, the court must consider the context in which the challenged portions were made. State v. Engel, 249 N.J. Super. 336, 379 (App. Div.), certif. denied, 130 N.J. 393 (1991); see also State v. Morton, 155 N.J. 383, 419 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).

The prosecutor's comments that N.T. was crying on the stand as a result of her fear of defendant did not constitute reversible error. First, it can be inferred from the facts on record that N.T. was actually afraid of defendant while she was on the stand. The record reveals various delays during the proceeding before N.T. finally took the stand. Once on the stand, N.T. spoke softly and was asked several times to speak up. N.T. also hesitated and found it difficult to answer the question, "can you tell us how defendant touched you in a bad way?" Thus, the prosecution's remark addressed the legitimate inference that the eleven-year-old child was afraid of defendant.

Moreover, in placing the remarks of the prosecution in their full context, it becomes clear that the State was directly answering defense counsel's remarks during summation concerning N.T.'s crying on the stand. The defense urged the jury to ignore N.T.'s demeanor, however, it was wholly appropriate for the prosecutor, in response to defense counsel's summation, to urge the jury to assess N.T.'s demeanor and to draw a reasonable inference from her crying that she did not want to see defendant. "Generally, remarks by a prosecutor, made in response by opposing counsel, are harmless." State v. C.H., 264 N.J. Super. 112, 135 (App. Div.), certif. denied, 134 N.J. 479 (1993). The prosecutor's comments were based upon defense counsel's earlier remarks and facts in the record, and thus offer no ground for reversal. See State v. Smith, 167 N.J. 158, 178 (2001).

In addition, it should be noted that the prosecutor's remarks were also harmless in light of the court's preliminary and final jury charges. The court noted that statements made by attorneys in their opening and closing statements are not facts to be considered as evidence and that the only evidence in this case "is the testimony of witnesses under oath that you heard in this courtroom and the physical evidence that will go to the jury room with you." Such instruction further preserved defendant's constitutional rights and prevented reversible error.

Because motions for mistrial based on prosecutorial misconduct are left to the discretion of the trial court and should be granted only where manifest injustice would otherwise result, the trial court in this case was correct in determining that none of the prosecutor's comments warranted declaring a mistrial. See State v. Labrutto, 114 N.J. 187, 207 (1989). Having considered the full context in which the prosecutor's remarks were made, defendant's conviction cannot be reversed on this ground.

IV.

Defendant next argues that he was denied a fair trial when the court permitted testimony to be elicited from DYFS worker, Dorsey Ash ("Ash"), that she found N.T. and A.M. to be "credible" in their respective accounts of the sexual assaults.

Both during the N.J.R.E. 104 hearing and at trial, Ash testified, without any objection from defense counsel, that when she interviewed A.M. at her grandmother's house, she appeared to be "very honest and confident in what she was saying." When asked to describe A.M.'s demeanor with respect to the girl's disclosure that defendant had sexually assaulted her in front of T.M., Ash stated at trial, without any defense objection, that A.M. seemed "very certain about what had happened. She didn't hesitate. She appeared to be straightforward."

Ash also testified at the N.J.R.E. 104 hearing that T.M.'s demeanor appeared to be "confident and eager to share the information." At trial, Ash testified that during the interview, T.M. was "very confident, eager to tell her story. It seemed like it was a relief to her she just needed to get it off her chest." The trial court sustained defense counsel's objection to the latter sentence and told the jury to disregard it because Ash could not testify about how T.M. felt.

On appeal, defendant submits that the admission of this testimony bolstered both A.M. and T.M.'s credibility, created an unwarranted aura of "expertise" by the DYFS worker and unduly prejudiced defendant's right to a fair trial under N.J.R.E. 403. The State counters that the admission of Ash's testimony was entirely proper and was not demonstrated to be plain error. Because defense counsel failed to object to the testimony now complained of at the pretrial hearing, at trial or in his motion for a new trial, defendant has the burden to show that the court's admission of this testimony was plain error. State v. Fortin, 178 N.J. 540, 625-626 (2004).

N.J.R.E. 602 provides that a witness may not testify to a matter unless the witness has personal knowledge of it.

N.J.R.E. 701 permits a lay witness to render an opinion under the following circumstances:

If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it

(a) is rationally based on the perception of the witness and (b) will assist in understanding the witness' testimony or in determining a fact issue.

A non-expert may give his or her opinion on matters of common knowledge and observation. State v. Bealor, 187 N.J. 574, 586 (2006); State v. Johnson, 120 N.J. 263, 294 (1990); Labrutto, supra, 114 N.J. at 197; see also Biunno, Current N.J. Rules of Evidence, comment 2 on N.J.R.E. 701 (2007).

The court did not deny defendant a fair trial when it permitted the testimony from Ash. First, the Supreme Court has held that, "the admissibility of opinion evidence rests within the discretion of the trial court." Labrutto, supra, 114 N.J. at 197. Here, the trial court determined in its discretion that Ash's testimony would not be prejudicial and permitted its introduction. Moreover, defense counsel never objected to same, nor did defense counsel demonstrate that its introduction constituted error.

Second, the Rules of Evidence clearly allow lay witnesses to testify in the form of opinion or inferences if those statements arise from the witness' personal knowledge and are helpful to understanding the witness' testimony or to determine a fact in issue. N.J.R.E. 701; see also Labrutto, supra, 114 N.J. at 197-98. In this case, Ash testified as to the children's demeanor and her opinion, based on her personal interview with the children, of their disposition during the interview. Technical or specialized knowledge was not required to render an opinion on such matters of demeanor or attitude. Indeed, the court acted within its authority in permitting Ash's testimony on the children's demeanor and attitude. Similarly, as a lay witness, Ash was permitted to testify about her own observations of A.M. and T.M.'s demeanor.

Thirdly, it is important to note that Ash's testimony concerning the two girls' demeanors during their respective interviews was not sufficient, in itself, to cause error meriting reversal. Defense counsel had the opportunity to personally cross-examine Ash during the N.J.R.E. 104 hearing and at trial. In addition, given the fact that both A.M. and T.M. both testified at trial themselves and that the videotape of T.M.'s interview was shown to the jury at trial, the court's admission of Ash's testimony was not erroneous.

Finally, Ash never rendered an opinion regarding the children's honesty or veracity, nor did she ever hold herself out as an expert. As a lay person who happened to be employed by DYFS, she merely described the disposition of the children during the DYFS interviews. Thus, the court did not err by admitting the evidence complained of. See N.J.R.E. 607; compare State v. Clausell, 121 N.J. 298, 337-38 (1990), with State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd, 130 N.J. 554 (1993).

V.

The next issue raised on appeal by defendant is whether the testimony of investigators Ash (of DYFS) and Nieves ("Nieves") (of the Prosecutor's office), concerning A.M.'s interviews with them constituted inadmissible hearsay.

Following the N.J.R.E. 104 hearing regarding the admissibility of out-of-court statements of A.M., T.M. and N.T., the trial court ruled that the statements of A.M. made to Maria were admissible as fresh complaint evidence. The court also held that T.M. and N.T.'s statements to Ash and Nieves were admissible under the tender years exception to the hearsay rule since the statements were probably trustworthy and made by persons under twelve years of age. N.J.R.E. 803(c)(27).

At trial, and over defense counsel's objection, the prosecutor asked DYFS worker Ash what A.M. told her when she interviewed her in her grandmother's bedroom. Ash testified that defendant entered through her window, made T.M. stay in the bathroom and had intercourse with A.M. Ash further testified that A.M. told her mother about the incident but her mother did not do anything about it.

The prosecutor also asked investigator Nieves what A.M. disclosed during her interview. Defense counsel objected on hearsay grounds, the prosecutor withdrew the question and then asked whether A.M. had indicated that she had been sexually assaulted and by whom. A.M. indicated that defendant had assaulted her.

On appeal, defendant now complains that these out-of-court statements were inadmissible hearsay not subject to any exception, were extremely prejudicial and improperly bolstered A.M.'s credibility. Defendant argues that he was denied a fair trial because the court allowed A.M.'s testimony that defendant abused her to be corroborated by Ash and Nieves. We note that A.M.'s trial testimony, and her subjection to cross-examination by defense counsel, eliminates any Sixth Amendment issue under present case law construing the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 59 n.9, 124 S.Ct. 1354, 1369 n.9, 158 L.Ed. 2d 177, 197 n.9 (2004).

The State counters that the trial judge properly admitted the testimony of Ash and Nieves concerning A.M.'s statements about defendant's sexual assaults upon her as "prior consistent statements to rebut an express charge against the victim of recent fabrication or improper influence or motive." The State also asserts that A.M.'s statements to Maria were trustworthy as fresh complaint evidence and the victims' statements to Ash and Nieves were trustworthy for tender years purposes.

"'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." N.J.R.E. 801(c); Neno v. Clinton, 167 N.J. 573, 579 (2001). It is not admissible except as provided by the Rules of Evidence or by other law. N.J.R.E. 802. In this case, the disputed testimony by Nieves and Ash consisted of out-of-court statements made by A.M. and the other children and were offered by the prosecution to demonstrate that defendant, in fact, sexually assaulted the girls. Thus, the statements by Ash and Nieves were hearsay.

N.J.R.E. 802(a)(2), however, offers an exception to the hearsay bar. It allows admission of statements "offered to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive." Neno, supra, 167 N.J. at 580. The scope of the exception "encompasses prior consistent statements made by the witness before the alleged 'improper influence or motive' to demonstrate that the witness did not change his or her story." Ibid.; see also State v. Torres, 313 N.J. Super. 129, 158-59 (App. Div.), certif. denied, 156 N.J. 425 (1998). Importantly, "a prior consistent statement offered solely to bolster a witness' testimony is inadmissible" under the exception. Neno, supra, 167 N.J. at 580; see also Palismano v. Pear, 306 N.J. Super. 395, 402 (App. Div. 1997). In addition, N.J.R.E. 607 permits a party to introduce extrinsic evidence relevant to credibility, whether or not that evidence bears upon the subject matter of the action. N.J.R.E. 607; see also State v. Martini, 171 N.J. 176, 255 (1993).

The admission into evidence of Ash's testimony was proper as A.M.'s prior consistent statement under N.J.R.E. 803(a)(2) and 607. Consistent with these Rules of Evidence, the State was within its rights to introduce extrinsic evidence in the form of Ash's testimony to support A.M.'s credibility because she had made a prior consistent statement regarding defendant's sexual abuse to her mother well before the disclosure to Maria, her grandmother, Ash and Nieves. A.M.'s statements were not utilized merely to bolster her testimony, but had legitimate probative force. See United States v. Pierre, 781 F.2d 329, 333 (2d Cir. 1986), cert. denied, 528 U.S. 1052, 120 S.Ct. 593, 145 L.Ed. 2d 493 (1999). Moreover, it has been held that "trial judges are entrusted with broad discretion in making evidence rulings." State v. Muhammed, 359 N.J. Super. 361, 388 (App. Div.), certif. denied, 178 N.J. 36 (2003). In this case, the trial court admitted the disputed testimony as evidence. The trial court did not err.

In this case, both Nieves and Ash testified that A.M. reported sexual abuse by defendant. Such testimony was not improper. The trial court acted cautiously to protect defendant's due process rights by first conducting an N.J.R.E. 104 hearing to ascertain that the testimony of Maria, Ash and Nieves was trustworthy for admission. Thus, the trial judge properly exercised his discretion and admitted the challenged testimony.

VI.

Defendant next submits that a remand for a Natale hearing is necessary and that the sentence imposed was excessive and should be reduced.

The trial court imposed an aggregate sentence of forty-eight years subject to an eighty-five percent period of parole ineligibility pursuant to N.J.S.A. 2C:43-7.1 (NERA). The court based its sentence upon its findings of the existence of aggravating factors, specifically: (1) N.J.S.A. 2C:44-1a(1), the nature and circumstances of the offense; (2) N.J.S.A. 2C:44-1a(9), the need for deterrence; and (3) N.J.S.A. 2C:44-1a(3), the risk of repetition. No mitigating factors were found.

Defendant argues that under State v. Natale, 184 N.J. 458 (2005), because the sentences imposed were above the presumptive term for a first-degree crime, a remand for reconsideration is required. Defendant also challenges the trial court's application of the aggravating factors and its failure to apply mitigating factors to assert that the sentence imposed was excessive and should be reduced. Defendant also submits that the imposition of three consecutive sixteen year terms is excessive.

The State concedes that defendant received sentences greater than the former presumptive term and that defendant is entitled to a resentencing hearing in accordance with Natale. The State also submits, however, that defendant's three consecutive sentences were not excessive, do not shock the judicial conscience, and were imposed after the court properly balanced the aggravating and mitigating factors.

Defendant's claim that he is entitled to a Natale hearing is correct. Natale, supra, holds that defendants who receive sentences in excess of their presumptive term based on facts unrelated to their prior record and who raise the issue at trial or on direct appeal are entitled to a new sentencing hearing. 184 N.J. at 495-96. It is agreed by all parties that defendant in this case received sentences greater than the former presumptive term for the first-degree convictions. Under Natale, the matter is remanded to the trial court so that a resentencing hearing may be held. Defendant's claims regarding the sentences being excessive, and that the court improperly balanced the aggravating and mitigating factors, need not be explored in light of the remand for resentencing under Natale.

Consequently, this case is remanded to the trial court to conduct a hearing with respect to the Rape Shield issue and its impact on one or more of the convictions and re-sentencing under Natale. In all other respects, the judgment of conviction is affirmed.


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