February 26, 2008
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Mercer County, No. 05-06-0663-I.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 12, 2007
Before Judges Wefing, Parker and Lyons.
Tried to a jury, defendant was convicted of one count of aggravated sexual assault, N.J.S.A. 2C:14-2(a), a crime of the first degree; two counts of aggravated criminal sexual contact, N.J.S.A. 2C:14-3, a crime of the third degree; and one count of endangering the welfare of a child, N.J.S.A. 2C:24-4, a crime of the second degree. The only count which survived merger at sentencing was the conviction for aggravated sexual assault. The trial court imposed a sentence of twenty years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, and Megan's Law, N.J.S.A. 2C:7-1 to -19. Defendant has appealed his conviction and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Defendant raises two points on appeal:
TESTIMONY FROM DETECTIVE YARD, THAT THE DEFENDANT'S DNA SAMPLE WAS OBTAINED PURSUANT TO A COURT ORDER BY A COUNTY PHYSICIAN, VIOLATED DEFENDANT'S STATE AND FEDERAL CONSTITUTIONAL RIGHTS TO A FAIR TRIAL AND DUE PROCESS OF LAW. U.S. CONST. AMENDS. VI, VI AND XIV; N.J. CONST. (1947) ART. I, PARS. 1, 9 AND 10. (Not Raised Below)
THE DEFENDANT'S SENTENCE WAS MANIFESTLY EXCESSIVE, UNDULY PUNITIVE AND NOT IN CONFORMANCE WITH THE CODE OF CRIMINAL JUSTICE.
Defendant's victim was his daughter, S.D. On November 8, 2004, defendant brought his daughter, who had just celebrated her fourteenth birthday three days earlier, to the Henry J. Austin Health Center with complaints of stomachache and vomiting. A urine test revealed that she was pregnant. When the doctor informed her, she began to cry. The doctor told her she wanted to be of assistance and asked the girl if she wanted the doctor to tell her father, who was in the waiting area. The girl cried more and said that her father was responsible. The girl said that she wanted to talk to her caseworker, who was located in Puerto Rico. The doctor arranged for the girl to make this telephone call and then notified the authorities.
S.D. testified that in July 2004 she came from Puerto Rico to live with her father in Trenton. She had never lived with him prior to that point. She testified that shortly after she moved into her father's house, he began to enter her bedroom at night and have sex with her. She said these attacks occurred on a continuous basis and that the last one took place two days before her visit to the clinic. S.D. elected to terminate her pregnancy approximately one week later.
The Division of Youth and Family Services ("DYFS") arranged for S.D. to reside with a foster family. After she had been with that family for some months, she ran away and two days later went to her brother and sister and said she did not want to be with a foster family but with her natural family. S.D. testified that they told her that if she recanted the charges against their father, she could live with them and would not have to reside with him. She agreed to do so, and her sister took her to the office of the attorney representing defendant.
There, she said that her father had not assaulted her and that her pregnancy was due to her boyfriend. At trial, S.D. testified that her recantation was not true, that her father had indeed repeatedly assaulted her and that she had said otherwise only because she wanted to live with her own family, not the foster family with whom DYFS had placed her.
The State presented eleven witnesses. These included, in addition to S.D., the doctor who met with S.D. at the health clinic and the two employees of the clinic who served as interpreters; a counselor from Planned Parenthood; members of the Trenton Police Department; an expert in child sexual abuse accommodation syndrome; a DNA expert; and an expert in DNA paternity analysis. This last witness testified that DNA analysis performed after S.D. terminated her pregnancy showed a 99.99% probability that defendant was the source of her pregnancy. The defense did not present any witnesses.
One witness stated that he obtained a buccal sample from defendant to use in connection with DNA testing pursuant to a court order. Defendant made no objection to this testimony at the time of trial but now contends its admission was error. In light of what can fairly be described as the overwhelming evidence against defendant, there is no merit to the contention that this brief comment constituted plain error. R. 2:11-3(e)(2).
We also reject defendant's contention that his sentence is manifestly excessive. He complains that the trial court failed to take into account the fact that he had no prior record of criminal involvement. N.J.S.A. 2C:44-1(b)(7). The trial court did, however, in the course of imposing sentence, recognize that defendant did not have a criminal record. As a reviewing court, we may not substitute our judgment for that of the sentencing court. Selecting an appropriate sentence requires a delicate balancing of the appropriate factors and the exercise of discretion and judgment. "Our sentencing statute contemplates a thoughtful weighing of the aggravating and mitigating factors, not a mere counting of one against the other." State v. Denmon, 347 N.J. Super. 457, 467-68 (App. Div. 2002). In our judgment, defendant's sentence does not represent an abuse of the court's sentencing power, and we decline to intervene. State v. O'Donnell, 117 N.J. 210, 215 (1989).
Defendant's conviction and sentence are affirmed.
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