January 15, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Indictment No. 02-06-0251.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2007
Before Judges Stern, A. A. Rodríguez and C. S. Fisher.
Defendant was indicted for, and convicted of, second degree sexual assault of his three year old daughter, S.C., N.J.S.A. 2C:14-2(b) (count one);*fn1 second degree endangering the welfare of S.C., N.J.S.A. 2C:24-4(a) (count two); second degree endangering the welfare of his six year old son, B.C., N.J.S.A. 2C:24-4(a) (count three);*fn2 and fourth degree lewdness, N.J.S.A. 2C:14-4(b) (count four). He was sentenced to ten years imprisonment, with 85% to be served before parole eligibility under the No Early Release Act (NERA), for the sexual assault of S.C. He received two ten year custodial sentences with five years before parole eligibility on each, for the child endangerment convictions, the one involving the son to be served consecutively to the sentence for sexual assault, and an additional consecutive sentence of eighteen months, with nine months to be served before parole eligibility, for the lewdness conviction. Thus, defendant received an aggregate custodial sentence of twenty-one and one-half years, with fourteen years and three months to be served before parole eligibility. The aggregate sentence was also made to run consecutive to another sentence then being served for defendant's sexual assault of his wife, which sentence was imposed on an indictment simultaneously returned by the same grand jury that heard the present matter.
The State acknowledges that defendant is entitled to a remand for resentencing under State v. Natale, 184 N.J. 458 (2005).*fn3 At that resentencing, the trial judge should consider the requirements of State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014, 106 S.Ct. 1193, 89 L.Ed. 2d 308 (1986), concerning consecutive sentences.*fn4
On this appeal defendant challenges the convictions based on the following arguments:
POINT I THE TRIAL COURT ERRED IN DENYING THE DEFENDANT'S MOTION TO DISMISS THE INDICTMENT BASED ON THE MISCONDUCT OF THE PROSECUTOR IN PRESENTING TWO UNRELATED MATTERS TO THE GRAND JURY SIMULTANEOUSLY.
POINT II THE DEFENDANT'S RECORDED AND UNRECORDED ORAL STATEMENTS MADE TO DETECTIVE LONG AND DETECTIVE DELISA AT THE STATE POLICE STATION SHOULD HAVE BEEN SUPPRESSED.
(A) THERE IS INSUFFICIENT CREDIBLE EVIDENCE "ON THE RECORD" TO SUPPORT THE TRIAL COURT'S FINDINGS
(B) THE DEFENDANT WAS NOT ADVISED OF HIS TRUE STATUS AS A CRIMINAL "SUSPECT" POINT III TESTIMONY THAT A "JUDGE" WAS INVOLVED IN THE PROCESS OF ARRESTING THE DEFENDANT DEPRIVED THE DEFENDANT OF A FAIR TRIAL (NOT RAISED BELOW).
POINT IV THE TRIAL COURT ERRED IN ADMITTING THE "PRESENT SENSE IMPRESSION" TESTIMONY OF [F.S.]. (A) THE PRESENT SENSE IMPRESSION TESTIMONY OF [F.S.] WAS NOT RELEVANT TO ANY MATERIAL ISSUE IN DISPUTE AND WAS ADMITTED FOR AN IMPROPER PURPOSE (B) THE EVIDENCE SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403 POINT V THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR IN DENYING THE DEFENDANT'S MOTION FOR RECUSAL.
POINT VI THE DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY COMMENTS MADE BY THE PROSECUTOR IN SUMMATION (NOT RAISED BELOW). POINT VII THE AGGREGATE SENTENCE OF TWENTY-ONE AND ONE HALF (21 1/2) YEARS WITH FOURTEEN AND ONE QUARTER (14 1/4) YEARS OF PAROLE INELIGIBILITY WAS MANIFESTLY EXCESSIVE AND VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE.
(A) IMPOSITION OF THE MAXIMUM BASE SENTENCES OF THE DEFENDANT'S CONVICTIONS WERE MANIFESTLY EXCESSIVE
(B) IMPOSITION OF BASE SENTENCES IN EXCESS OF THE THEN-EXISTING PRESUMPTIVE TERMS VIOLATED THE DEFENDANT'S CONSTITUTIONAL RIGHTS UNDER BLAKELY V. WASHINGTON AND STATE V. NATALE
(C) THE TRIAL COURT ABUSED ITS DISCRETION IN IMPOSING MAXIMUM PERIODS OF PAROLE INELIGIBILITY ON THE DEFENDANT'S CONVICTIONS
(D) THE TRIAL COURT ABUSED ITS DISCRETION IN RUNNING THE SENTENCES IMPOSED ON COUNTS ONE, THREE, AND FOUR CONSECUTIVE TO EACH OTHER
In his pro se supplemental brief, defendant also argues:
POINT I DEFENDANT'S RIGHT TO A FAIR TRIAL WAS PREJUDICED BY THE KNOWING AND DELIBERATE FALSE SWEARING STATEMENT OF PROBABLE CAUSE POINT II STATEMENTS MADE BY THE VICTIM ARE INCONSISTENT AND FALSE, SHE FURTHER PERJURED HERSELF IN COURT UNDER OATH We find these arguments to be without merit and that only the following discussion is warranted in a written opinion. R. 2:11-3(e)(2).
Defendant's son, B.C., was born on September 26, 1996, and his daughter, S.C., was born on June 2, 1998. Defendant and his wife, A.O., separated in October 2000 and were divorced in March 2001. Throughout this period, defendant had visitation with the children, and they stayed at his residence during the weekends. After the separation, A.O. went back to work, and her grandmother, F.S., the childrens' great-grandmother, moved into her home and "helped to watch the kids" while A.O. was at work.
F.S. testified that, around mid-August 2001, she observed S.C. and B.C. on the couch together wearing underwear and t-shirts. S.C.'s legs "were wide open" and B.C. "had his face between her legs rubbing his face back and forth . . . [i]n her vagina." F.S. further testified that she witnessed another incident when B.C. and S.C. were again on the couch and "[B.C] had [S.C.] sit on his -- on his private [area] . . . . And he was rubbing up against her. . . . [S.C.] was sitting on his penis and she was rubbing her vagina on him and [she] was bouncing up and down . . . [on] [h]is penis" with her vagina as the "part of her body  in contact with him." The great-grandmother testified that she saw this occur "about 4 [or] 5 times" in "[m]id-August," and that "[o]ne day it was extremely hot so they only had on their underwear and, [B.C.] was playing with [S.C.'s] nipples and she was playing with his." F.S. also testified that, every time she witnessed one of the above incidents, she told the children to stop. At the time these incidents occurred, B.C. was four years old, and S.C. was three years old.
F.S. ultimately told A.O. about the incidents and on or about October 5, 2001, she "gave a sworn taped statement" to the police.
Detective-Sergeant In-grid DeLisa who, at the time of the incident, was a detective in the Sex Crimes Unit of the Sussex County Prosecutor's Office, and State Police Detective Brian Long were assigned to the case. On October 2, 2001, DeLisa and Long interviewed defendant at the State Police barracks in Sussex. The interview took place in the interview room, beginning at about 11:55 a.m. At that time, according to DeLisa, defendant was not placed under arrest or handcuffed, but was read his Miranda rights off a "Miranda card" by Long at approximately 12:05 p.m., prior to questioning. According to DeLisa, defendant indicated that he was "willing to speak" without an attorney present, and voluntarily signed and dated the "Miranda card."
At the time of the interview, defendant did not have visitation with the children in light of the allegations made. In response to their request for an interview during the investigation, defendant expressed a "hope" the officers would "help him get his children back." However, according to DeLisa, while the officers indicated they wanted to speak with defendant, in part, regarding "why he wasn't currently seeing [his children] and didn't have visitation," they never told him "if he gave [them] a taped confession that [they] would get his kids back for him."
According to DeLisa, during the interview, the Detectives asked defendant questions regarding "sexual contact with [B.C.] and [S.C.]." DeLisa testified that defendant "was somewhat inconsistent with answers. He was evasive. He gave different answers at different times to different questions. We continued to try to ask him questions to clarify those answers." DeLisa further testified that the detectives "tr[ied] to make [defendant] feel somewhat comfortable[,]" including giving him "approximately two breaks" that were "about 30 minutes each" where defendant was "provided coffee, something to drink and, he was a smoker, so . . . he was allowed to go outside the State Police station and smoke cigarettes." Although discussions took place during the breaks, DeLisa stated that defendant was not questioned about sexual contact with his children at that time. Eventually, defendant "admit[ted] to having [sexual] contact with the children[.]"
Defendant then gave a sworn taped statement at 4:20 p.m. on the same day after again being given Miranda warnings and waiving them. The statement, which was played for the jury,*fn5 included the following regarding the events of August 2001:
[Defendant]: [S.C.] was on my bed [where she slept with her brother when visiting their father -- he slept on the couch in the next room] and [S.C.] had been having trouble, she had been peeing in my bed.
Ah....I told [S.C.] that I was going to get diapers for her. [S.C.] got extremely upset this particular evening ah, as a result of it ah I changed her ah put her underwear on her and I went on to console her.
Det. [Long]: When you...consoled her ah was she on her back? [Defendant]: She was laying on her back next to her brother.
Det. [Long]: On your bed?
[Defendant]: On my bed.
Okay. What were you dressed in?
[Defendant]: Ah I was dressed in shorts [and not wearing a shirt, underwear, socks, or shoes].
. . . . [Det. Long]: Did [S.C.] have just underwear on?
[Defendant]: At this time yes [and defendant could not recall if she had a t-shirt on as well].
Det. [Long]: This particular time when you went to console her, did you put your head and your face in her lower abdomen area?
[Defendant]: I absolutely did. I kissed her around the pelvis ah her belly, ah around her, I guess, private area, her thighs ah I...I...I was very loving and mushing with her. Ah...
[Det. Long]: . . . When she was lying on her back, were you between her legs and put your face on her lower abdomen? Is that yes, is that what happened?
[Det. Long]: Okay. During that time um did you kiss her stomach area?
[Defendant]: I did.
[Det. Long]: Did you kiss her inner thigh area?
[Defendant]: I did.
[Det. Long]: Did you kiss her vagina area?
[Defendant]: I did.
[Det. Long]: Okay and while you were kissing her what was the estimate, length of time that you were doing this? [Defendant]: It didn't last very long.
Under a minute...a minute or so. . . . .
[Det. Long]: What time of evening was this?
[Defendant]: Ahhh...she had gotten up ah it was ah, [B.C.] woke me up as a matter of fact I believe, this one particular night and ah he was complaining that [S.C.] had wet the bed.
[Det. Long]: So what time of day was this?
[Defendant]: Two...three o'clock in the morning.
[Det. Long]: Okay, and while you were consoling her and you had your face in her lower abdomen and her vagina area, was [B.C.] awake?
[Det. Long]: Okay. Where was he positioned?
[Defendant]: He was sitting right next to her. Laying right next to her.
[Det. Long]: Okay. During that time, did your...did you become ah erect? In other words, did you get a ah hard on or an erection?
[Defendant]: I got a mild arousal from it ah...
[Det. Long]: Okay. Did your penis become hard.
[Det. Long]: Did your penis then because it became hard exit your shorts out the side?
[Defendant]: Absolutely. My penis came out of the side of my shorts and what I did was ah, it was an awkward thing so I like fondled with it 'til I got him back where he belonged ah underneath my pants again.
[Det. Long]: Did you grab your penis?
[Defendant]: Yes sir.
[Det. Long]: Okay. Was it hard when you grabbed it.
[Det. Long]: Did you pull it or jerk it a few times?
[Defendant]: I might have, yes. . . . A couple of times...how long...ah...ah...'til I guess I felt comfortable where it was inside my pants again.
[Det. Long]: How long were you laying on top of her vagina and stomach area?
[Defendant]: A minute or...
[Det. Long]: Okay, during that minute, how long was your penis outside of your shorts?
[Defendant]: ... I guess as soon as I when...when I put my body over hers, to kiss her and give her some sort of comfort ah make her feel safe, I guess, from then...from that moment 'til I ah finally put the blanket over her and him.
Defendant also said he held S.C. "[a]round her little chest" and grabbed her breast area with his thumbs on her chest. Defendant also responded that his "lips [never] touch[ed] her skin area of her vagina" as her underwear was on. He also explained that this happened on "[t]hree . . . four . . . five" different days, when S.C. wet the bed. Defendant further stated that he became aroused only on two of the occasions, and that B.C. was present for all these events, and that he would kiss B.C. in a similar manner, although B.C. would be wearing pajamas, but that he never touched B.C.'s genital area. Defendant also admitted to "pinch[ing] [S.C.]'s breasts."
According to the testimony, after the taped confession was given, the detectives did "a lot of paperwork . . . [i]ncluding [preparing] an affidavit, arrest warrants, and calling the Judge. Getting bail." Then, "[defendant] was transported to the Sussex County jail," and "charged with three different crimes."
Defendant argues that "the trial court erred in denying the defendant's motion to dismiss the indictment based on the misconduct of the prosecutor in presenting two unrelated matters to the grand jury simultaneously." The other indictment alleged that defendant committed separate sexual assaults against his wife in 2000.
The New Jersey Constitution guarantees that "[n]o person shall be held to answer for a criminal offense, unless on the presentment or indictment of a grand jury." N.J. Const., art. I, ¶ 8. In presenting evidence to a grand jury, a prosecutor is obligated to "ensure fairness in the process . . . [and may not use] 'improper methods calculated to produce a wrongful conviction . . .'" In re Loigman, 183 N.J. 133, 144 (2005) (quoting State v. Frost, 158 N.J. 76, 83 (1999)). However, a grand jury's "power of inquiry is not bound by the rules of evidence." State v. Hogan, 336 N.J. Super. 319, 338 (App. Div.), certif. denied, 167 N.J. 635 (2001). As such, "evidence that would have been inadmissible at trial" is admissible before a grand jury and does not conflict with the prosecutor's obligation to ensure fairness. State v. Grant, 361 N.J. Super. 349, 357 (App. Div. 2003); see also State v. Holsten, 223 N.J. Super. 578 (App. Div. 1988).
[o]nce the grand jury has acted, an "indictment should be disturbed only on the 'clearest and plainest ground,'" and only when the indictment is manifestly deficient or palpably defective. Moreover, the decision whether to dismiss an indictment lies within the discretion of the trial court, and that exercise of discretionary authority ordinarily will not be disturbed on appeal unless it has been clearly abused. [State v. Hogan, 144 N.J. 216, 228-29 (1996) (citations omitted).]
Additionally, the "defendant bears the burden of proving that the prosecutor misused the grand jury for an improper purpose." State v. Francis, 191 N.J. 571, 587 (2007) (citing In re Addonizio, 53 N.J. 107, 126 (1968)).
The separate offenses involving defendant's wife were embodied in a separate indictment, R. 3:7-6, and not joined for trial. Moreover, the allegations involving A.O. were not offered at trial as N.J.R.E. 404(b) evidence. Hence, defendant cannot assert prejudice with respect to the disposition of this indictment. See Pressler, Current N.J. Court Rules, Comment 1.1 on R. 3:7-6 (Gann 2008). Moreover, the disposition of the charges before a fair and impartial trial jury can hardly be said to be affected by evidence presented to the grand jury which is unknown to the trial jurors. There is no basis to disturb the verdict of the trial jury. See State v. Warmbrun, 277 N.J. Super. 51, 60 (App. Div. 1994), certif. denied, 140 N.J. 277 (1995); State v. Schmidt, 213 N.J. Super. 576, 583-84 (App. Div. 1986), rev'd o.g., 110 N.J. 258 (1988); State v. Lee, 211 N.J. Super. 590, 599-600 (App. Div. 1986), certif. denied, 108 N.J. 648 (1987).
Defendant argues that his "recorded and unrecorded oral statements made to Detective Long and Detective DeLisa at the State Police Station should have been suppressed" because "the evidence presented to the trial court was insufficient to support its findings that the defendant made a knowing, informed, and voluntary waiver of his rights under Miranda." Specifically, defendant asserts that Detectives Long and DeLisa's pretrial testimony was insufficiently specific about the content of the Miranda warnings given to provide "substantial credible evidence" that the warnings were given and that defendant understood them. Defendant also asserts that the police used "unfair means" to obtain his oral statements by "essentially trick[ing] [him] into going to the State Police Station." He explains that the police failed to inform him that he was a suspect in the sexual assault of S.C., so, when he "purportedly waived" his Miranda rights, he was not aware of his status as a suspect in that matter, or that he was about to undergo "a lengthy interrogation[,]" making admission of the statements at trial harmful error.
Judge N. Peter Conforti held a hearing under N.J.R.E. 104(c) during which Detectives Long and DeLisa and defendant testified and determined that defendant's oral statements to police were given "freely, knowingly[,] and voluntarily" after defendant was "given his Miranda warnings and by his actions and responses waiv[ed] his Miranda Rights." In coming to this conclusion, the judge found the police detectives' testimony more credible than defendant who also testified. Among other things, the judge noted that defendant's comments at the conclusion of the taped interview and his tone throughout weighed heavily against any allegations of duress.
We must decide only whether the judge's findings could reasonably have been reached on "sufficient credible evidence present in the record." State v. Locurto, 157 N.J. 463, 471 (1999) (quoting State v. Johnson, 42 N.J. 146, 162 (1964)); see also State v. Knight, 183 N.J. 449, 468 (2005) (applying totality of circumstances in determining whether Miranda warning was properly given). In conducting that evaluation, we recognize that "[t]he State bears the burden of demonstrating that a waiver" of a suspect's Miranda rights was "knowing, intelligent, and voluntary[,]" and its burden is by proof beyond a reasonable doubt. State v. Cook, 179 N.J. 533, 549 (2004) (citing Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed. 2d 694, 706-07 (1966)); State v. Adams, 127 N.J. 438, 447 (1992). Whether a defendant waived his right to counsel "must be determined on the particular facts and circumstances surrounding that case, including the background, experience and conduct of the accused." State v. Kennedy, 97 N.J. 278, 286 (1984) (quoting North Carolina v. Butler, 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed. 2d 286, 293 (1979)). See also State v. Knight, supra, 183 N.J. at 462-63; State v. Carbrea, 387 N.J. Super. 81, 99-100 (App. Div. 2006). Here, the trial judge found by proof beyond a reasonable doubt that Miranda rights were waived and that "this Defendant freely, knowingly and voluntarily provided the statements to the officers."
The cases on which defendant relies are distinguishable. Defendant is correct that the State's witnesses did not detail the rights which were given to defendant. However, unlike State v. Elkwisni, 384 N.J. Super. 351, 366 (2006), aff'd on other grounds, 190 N.J. 169 (2007), here a Miranda card was admitted into evidence, and Long testified that it was signed by the defendant with notations as to the date and time. Moreover, defendant acknowledged at the N.J.R.E. 104 hearing that Long read him his Miranda rights off the Miranda card. Thus, here, the record does "reflect that a fair and accurate recitation of those rights was in fact given by the police to the defendant." Id. at 367.
Defendant also cites State v. A.G.D., 178 N.J. 56 (2003), for the proposition that:
Without advising the suspect of his true status when he does not otherwise know it, the State cannot sustain its burden to the Court's satisfaction that the suspect has exercised an informed waiver of rights, regardless of other factors that might support his confession's admission. [Id. at 68.]
However, unlike A.G.D., here the record does not reflect that a complaint or arrest warrant was filed or issued against defendant at the time of questioning. Therefore, defendant's "true status" was not hidden from defendant. See A.G.D., supra, 178 N.J. at 68. See also State v. Henderson, __ N.J. Super. __ (App. Div. 2008).
In sum, Judge Conforti rendered a thorough opinion which concluded that defendant's statements were admissible. His conclusion was properly reached by a standard, beyond a reasonable doubt, and we have no basis for disturbing his decision. State v. Knight, supra, 183 N.J. at 462-63; State v. Elkwisni, supra, 384 N.J. Super. at 366.
Similarly, we find no plain error based on defendant's present argument that "[t]estimony that a 'judge' was involved in the process of arresting the defendant deprived defendant of a fair trial." R. 2:10-2. A jury had to be aware that defendant would be arrested and held subject to bail as a result of the allegations and his own confession. See State v. Jones, 130 N.J. Super. 596, 602 (Law Div. 1974) (holding that the inadvertent exposure of the defendant wearing handcuffs to three jurors did not constitute grounds for a mistrial). See also State v. Marshall, 148 N.J. 89, 240, cert. denied, 522 U.S. 850, 118 S.Ct. 140, 139 L.Ed. 2d 88 (1997); State v. McDonough, 337 N.J. Super. 27, 34 (App. Div.), certif. denied, 169 N.J. 605 (2001).
Nor did the trial judge improperly admit F.S.'s testimony of what she heard and observed in August 2001. Defendant asserts that the testimony was irrelevant, admitted for an improper purpose, and was admitted in violation of N.J.R.E. 403.
The trial judge held a N.J.R.E. 104(c) hearing to determine the admissibility of F.S.'s testimony as to what she observed the children do with each other and what they said to her when she asked them about it. The court found that the testimony was admissible under the present sense impression hearsay exception in N.J.R.E. 803(c)(1). The children's statements were also deemed admissible under N.J.R.E. 803(c)(27), as "statements by a child relating to a sexual offense" due to the judge's determination that the statements carried a "very high" "probability of trustworthiness[.]" N.J.R.E. 803(c)(27). However, the judge also concluded that the children were available to testify and predicated the admission into evidence of their statements on the children being made available for cross-examination.
The State did not call the children as witnesses, and F.S. never testified before the jury as to what the children told her. Accordingly, no hearsay was admitted.
Defendant nevertheless argues that F.S.'s testimony was unduly prejudicial and violative of N.J.R.E. 403. He asserts that the testimony was "speculative" and the children's behavior may have been "nothing more than benign playfulness." We reject the argument as frivolous even if the objection before the judge related to more than F.S.'s testimony regarding what the children told her. The trial court did not "palpably abuse its discretion." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999) (quoting State v. Carter, 91 N.J. 86, 106 (1982)); see also Biunno, Current N.J. Rules of Evidence, comments 1 and 5 on N.J.R.E. 403 (Gann 2006).
Defendant also argues that "the trial court abused its discretion and committed reversible error in denying the defendant's motion for recusal," because of "adverse evidentiary rulings made by the trial court and the fact that the trial court had presided over defendant's trial" involving the sexual assault on defendant's wife. The trial judge had denied defendant's motions to dismiss the two indictments against defendant prior to the first trial and then "was asked to review its earlier evidentiary ruling" when defendant again raised a motion to dismiss the indictment prior to the trial on this matter. Defendant asserts that his right to due process was denied because the "trial court cit[ed] an evidentiary ruling made during another trial in denying defendant's motion to dismiss the indictment" and made other "adverse evidentiary rulings."
Again, defendant's argument has no merit. The decision on a motion for recusal is "entrusted to the 'sound discretion' of the trial judge whose recusal is sought." Panitch v. Panitch, 339 N.J. Super. 63, 66 (App. Div. 2001). Moreover, a trial judge is not barred from hearing a case because he or she has "given his opinion . . . on any question in controversy in the pending action in the course of previous proceedings therein." Hundred East Credit Corp. v. Eric Schuster Corp., 212 N.J. Super. 350, 358 (App. Div.), certif. denied, 107 N.J. 60 (1986). Furthermore, "bias is not established by the fact that a litigant is disappointed in a court's ruling on an issue." State v. Marshall, supra, 148 N.J. at 186. See also N.J. Code of Judicial conduct, Canon 3, § 1(a).
Finally, we reject defendant's plain error arguments addressed to the prosecutor's summation. Defendant points to two isolated statements. In the first, the prosecutor said:
The truth, ladies and gentlemen, as [defense counsel] said, that's your function. What is the truth? What happened? The State submits the credible evidence in this case shows the truth. Shows the truth that this defendant deliberately made a decision to use his three year old daughter, in front of his four year old son, for his sexual gratification. That's what the truth shows. That is what your duty is to find.
And in his very last comment the prosecutor stated:
Remember, do not create imaginary doubt when no reasonable doubt exists. When you look at the evidence, your duty is to find the truth. By the credible evidence. I submit, that the credible evidence, in this case supports and justice demands that the defendant be found guilty of each and every count of the indictment against him. And I ask you when you go into that room, do your duty, review the evidence, find the truth, and return a verdict of guilty.
Under most circumstances, when no objection is made to "the improper remarks, the remarks will not be deemed prejudicial." State v. Frost, 158 N.J. 76, 83 (1999) (quoting State v. Ramseur, 106 N.J. 123, 323 (1987)). That is so, because "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made. The failure to object also deprives the court of an opportunity to take curative action." Id. at 84.
As defendant made no objection at trial to the prosecutor's closing statements, remedial action by us is only proper "where the offending remarks are so egregious as to have deprived defendant of a fair trial." Pressler, Current N.J. Court Rules, comment 5.1 on R. 2:10-2 (Gann 2008). These comments were not.
In State v. Pennington, 119 N.J. 547, 575 (1990), overruled in part on other grounds by State v. Brunson, 132 N.J. 377 (1993), and State v. Stewart, 162 N.J. Super. 96, 104 (App. Div. 1978), relied upon by defendant in furtherance of a "plain error" argument, the prosecutor explicitly told the jury that their oaths required them to return a guilty verdict. See Pennington, supra, 119 N.J. at 575-76; Stewart, supra, 162 N.J. Super. at 103. Here, the comments were more benign in that they did not imply that a not guilty verdict would constitute a dereliction of duty. Knight, supra, 63 N.J. at 193; State v. Johnson, 31 N.J. 489, 512-13 (1960). In sum, the prosecutor's statements in this case were not "clearly and unmistakably improper," State v. Smith, 167 N.J. 158, 181-82 (2001); see also State v. Wakefield, 190 N.J. 397, 437 (2007), and did not deny defendant a fair trial.
The judgment of conviction is affirmed. The matter is remanded for resentencing. We do not retain jurisdiction.