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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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?