On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-00591.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Yannotti.
A jury found defendant guilty of sexual assault, in violation of N.J.S.A. 2C:14-2b, and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4a. The trial court sentenced defendant to a nine-year term of imprisonment, subject to the 85% period of parole ineligibility mandated by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. The court merged defendant's conviction for endangering the welfare of a child into his conviction for sexual assault.
The victim of the offenses that the jury found defendant to have committed was his girlfriend's twelve-year-old daughter. At the time of the offenses, defendant was living in a small apartment with the victim's mother, his three-year-old son, the victim, her older brother and her younger sister. The victim slept in the same bedroom as her younger sister. The victim's mother generally left the apartment to go to work around 5 a.m.
According to the victim, one morning in September 2003, shortly after her mother had gone to work, defendant came into the bedroom she shared with her sister and asked her to stay home from school. The victim said she had to go to school because she had a test. Defendant then asked her to get out of bed and took her to his bedroom. Defendant put his hand under her shirt and started touching her "chest" and next put his hand on her vagina over her clothing and started rubbing. At this point, the victim left the room and went back to bed.
However, about five minutes later, defendant came back into the victim's bedroom, picked her up and carried her back to his bedroom. Defendant took his penis out and told the victim to feel his penis. The victim did what the defendant told her because she was scared. The victim touched defendant's penis for about fifteen seconds, then stopped and went back to her bedroom. Defendant came into her bedroom again and said, "this is going to be our secret. Don't tell anyone."
According to the victim, a few days later, when her mother was again away at work, a glass fell and broke while she and her sister were cleaning their room. When they began to clean up the glass, defendant came into the room and told her sister that she could leave and that the victim would finish the clean-up herself. After her sister left the room, defendant attempted "to put his hand up [her] shirt." However, the victim stopped him and, "said no, because I'm too young[,]" and left the room.
The victim told her younger sister what defendant had done to her but did not tell her mother or any other adult. She also told her sister not to tell anyone else about the incidents.
Around the end of September, the victim's mother, who has Lupus, had to be rushed to the hospital in an ambulance. Defendant was not in the apartment at the time. The neighbor who had called the ambulance asked the victim and her sister to stay in her apartment for the night. After her sister had gone to bed, the neighbor initiated a conversation with the victim, who appeared to be troubled. Prompted by the neighbor's questions, the victim told her about the two incidents with defendant. The neighbor later called the victim's father, who called the police.
At trial, defendant took the stand and denied that either of the incidents with ...