On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 03-10-1298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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:
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.
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.
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.
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).
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.)
THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE, NECESSITATING REDUCTION.
A. A Natale Remand is Necessary
B. The Sentence Imposed Was ...