On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, 03-08-01574.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Lintner, S.L. Reisner and Seltzer.
Tried to a jury, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count one); second-degree sexual assault, N.J.S.A. 2C:14-2b (count two); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count three). The judge merged counts two and three into count one and imposed a sixteen-year custodial term subject to the parole ineligibility period required by N.J.S.A. 2C:43-7.2a and the mandatory extended parole supervision required by N.J.S.A. 2C:43-7.2c. Appropriate monetary penalties were also imposed. Defendant appeals from the convictions and from the sentence imposed; the State cross-appeals from the merger of count three into count one. We affirm defendant's conviction but remand for resentence.
The State produced testimony from H.M. that, at the time of the incident involved, she lived in a one bedroom apartment with her then five-year-old daughter, C.M., who had been born on December 4, 1997. H.M. slept on a bed in the living room and C.M. slept in the bedroom. Defendant and H.M. met over the internet in December 2002. The relationship progressed to a point that defendant visited with H.M. on March 11, 2003, and lived in the apartment with H.M. and C.M. from that date through April 23, 2003. H.M. planned to move from New Jersey with her daughter to Alabama where she intended to live with defendant and his parents. Nevertheless, defendant was not left alone with C.M. until March 23, 2003. On that occasion, H.M. had been invited to a birthday party for a friend's husband and defendant agreed to stay with C.M., who could not attend because alcoholic beverages were being served.
For reasons not relevant to this appeal, on May 15, 2003, plaintiff drove to the Keansburg Police Station. She was accompanied by her friend Ruth*fn1 and C.M. Ruth and C.M. remained in the car while H.M. went into the police station. When she returned, H.M. ultimately testified, Ruth "slipped me a piece of paper and it said, [defendant] did something to [C.M.]." The matter was not pursued until they arrived at H.M.'s house. C.M. described what happened in the following testimony:
Q: Tell me what happened in your house after you got back in from talking to Ruth.
A: After we went inside, Ruthie told [C.M.] that she needed to tell me what she told Ruthie. And at first she really didn't say a lot. She just said that he kissed her on the mouth. And that he stuck his fingers in her private.
Q: Okay. Now, did she know her body parts at that time, if you know?
Q: Okay. What did she refer to her vaginal area?
Q: Did she use that term when she spoke?
A: Sometimes she'd say her private, sometimes she'd say her peeshy. Depended on her.
Q: Those were her two words for it, for that area?
Q: All right, now did she say this in front of Ruth?
Q: What was your reaction ...