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State v. P.D.W.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 25, 2008

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
P.D.W., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Indictment No. 03-07-1010.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted April 16, 2008

Before Judges Axelrad, Sapp-Peterson and Messano.

Defendant P.D.W. appeals from the judgment of conviction and sentence imposed following a trial at which the jury found him guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(b)(a lesser-included offense of count one); first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (count two); second-degree sexual assault, N.J.S.A. 2C:14-2(b)(a lesser-included offense of count three); two other counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b)(counts four and five); and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a)(count six).*fn1 The crimes were alleged to have occurred between August 2002 and January 2003 when the victim, J.P.G., the daughter of defendant's live-in girlfriend, was either five- or six-years old.

Defendant raises the following points for our consideration:

POINT I THE COURT REVERSIBLY ERRED IN PERMITTING J.P.G.'S HEARSAY STATEMENT OF THE EVENTS WHICH SHE COULD NOT INDEPENDENTLY RECOLLECT AT THE TIME OF THE TRIAL BUT THAT SHE TESTIFIED TO FROM HER TAPED STATEMENT PLAYED TO HER BY THE POLICE IMMEDIATELY BEFORE TRIAL INTO EVIDENCE IN VIOLATION OF [DEFENDANT'S] FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS, TO CONFRONTATION AND TO A FAIR TRIAL.

POINT II THE COURT REVERSIBLY ERRED IN PERMITTING [DEFENDANT'S] RECANTED, PRIOR, INCULPATORY STATEMENT WHICH HE GAVE WHILE INTOXICATED, UNDER THE INFLUENCE OF DRUGS, AND WITHOUT A FULL UNDERSTANDING OF HIS CONSTITUTIONAL RIGHTS INTO THE RECORD IN VIOLATION OF HIS FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO A FAIR TRIAL BEFORE AN IMPARTIAL JURY.

POINT III THE COURT REVERSIBLY ERRED IN REJECTING [DEFENDANT'S] MOTION FOR A JUDGMENT OF ACQUITTAL AT THE END OF THE STATE'S CASE.

POINT IV THE COURT REVERSIBLY ERRED UNDER [N.J.R.E.] 404(b) AND [N.J.R.E.] 403 IN PERMITTING THE PROSECUTOR TO GO BEYOND THE SANITIZED REFERENCE TO [DEFENDANT'S] PRIOR CONVICTION TO QUESTION HIM ON THE DETAILS OF WHETHER HE HAD RECEIVED AND UNDERSTOOD HIS MIRANDA RIGHTS IN THAT PRIOR PROCEEDING AND IN FAILING SUA SPONTE TO ORDER A MISTRIAL WHEN THE PROSECUTOR STRESSED [DEFENDANT'S] CRIMINAL DISPOSITION ON THIS POINT IN HIS CLOSING STATEMENT.

POINT V [DEFENDANT'S] TOTAL FIFTEEN-YEAR PRISON TERM RESULTING FROM CONSECUTIVE PRISON TERMS FOR HIS CONVICTIONS OF COUNTS 1 AND 2 WITH 85% PERIODS OF PAROLE INELIGIBILITY PURSUANT TO THE NO EARLY RELEASE ACT WERE ILLEGAL AND MANIFESTLY EXCESSIVE.

We have considered these arguments in light of the record and applicable legal standards. We affirm.

I.

At a pre-trial N.J.R.E. 104(c) Miranda*fn2 hearing held to determine the admissibility of defendant's statement to the Mount Holly police, Detective Mark Beierschmidt testified that defendant was arrested on the evening of January 27, 2003, at approximately 8:40 p.m.*fn3 Beierschmidt did not speak to defendant until Detective Robert Hageman of the Burlington County prosecutor's office arrived at police headquarters sometime after 9:00 p.m. The detectives removed defendant's handcuffs before beginning the interview.

Beierschmidt read defendant his Miranda warnings from a card, pausing after each point to make sure defendant understood. Once finished, Beierschmidt handed defendant the card; defendant signed it to acknowledge the officers had advised him of his rights. Defendant did not appear to be under the influence of alcohol, narcotics, or any medication and informed the officers he was not. After indicating that he understood his rights, defendant expressed his willingness to speak to the detectives.

Without detail, Beierschmidt told defendant that he had engaged in inappropriate conduct with J.P.G. Defendant admitted putting his penis in J.P.G.'s mouth, ejaculating on her, and digitally penetrating her. After approximately an hour of this "pre-interview," Beierschmidt retrieved a tape recorder, asked again if defendant understood his rights, to which defendant responded in the affirmative, and recorded defendant's answers to the detectives' questions. In the taped statement, defendant admitted to committing sexual acts with J.P.G. in Pemberton and Mount Holly. Beierschmidt testified that defendant never asserted his right to remain silent or requested counsel, and the detectives never coerced him or made any promises in return for him giving the statement.

Beierschmidt explained discrepancies regarding the date and time of the interview as they appeared on the Miranda card, and the date and time contained in the actual statement. The State also called Hageman, who essentially corroborated Beierschmidt's testimony.

Defendant testified for the limited purpose of the Miranda hearing, N.J.R.E. 104(d), and claimed he attended special classes for slow learners while in the third grade, could not read and write well, and had psychiatric problems. Defendant further testified that the detectives read him his Miranda warnings only after the pre-interview and before the taped formal statement. He also testified that he had smoked six marijuana joints on the day of his arrest and that he was "high" when questioned by the police, though he admitted that during the questioning he told the detectives he had not consumed any alcohol or drugs. On cross-examination, defendant claimed that he invoked his right to remain silent "the whole time [he] was down there at the police station."

Following summations, the judge began his oral decision by finding both officers had testified in a "very credible, straightforward manner" and consistent with one and other. He concluded the detectives read defendant his Miranda warnings and defendant, who the judge determined could read and write English, understood them. The judge found that defendant never indicated he lacked an understanding of his rights, that he wanted to speak to an attorney, or that he did not want to speak to the detectives. The judge found defendant's testimony about being "high" incredible.

The judge concluded "beyond a reasonable doubt that [defendant] did knowingly, intelligently, and voluntarily waive his Miranda rights" and denied the motion to suppress the statements. The judge then noted that in the future law enforcement agencies should "fully Mirandize[] defendants on the record," "correctly note[]" the time, and record all interviews, including the "pre-interview with any suspect."*fn4

The matter was not reached for trial for another five months. Immediately before jury selection, the State informed the judge of its intent to introduce a videotape of J.P.G.'s interview by detectives pursuant to N.J.R.E. 803(c)(27), the "tender years" exception to the hearsay rule. Defense counsel acknowledged his prior receipt of the videotape and accompanying transcript, but claimed he "didn't know [the prosecutor] was going to introduce the tape []." The judge agreed to conduct the necessary N.J.R.E. 104 hearing before ruling on the admissibility of J.P.G.'s statement.

The hearing was held two days later after jury selection. Defendant objected to the statement's introduction because the State had failed to give proper notice. The prosecutor countered by arguing that defense counsel "ha[d] the tape and a transcript . . . for months and months and months," and that J.G.P. was "on the witness list." The judge found any late notice caused no prejudice to defendant because if indeed the tape were admitted, the testimony accompanying its introduction was not scheduled to occur for another week, thus giving defendant ample time to prepare.

The State subsequently called Beierschmidt and Hageman to testify regarding their videotaped interview of J.P.G. on January 27, 2003. Following the testimony, defendant argued the videotape was untrustworthy and inadmissible because of the potential influence exerted over the child by her family members and the two detectives prior to the interview. The State argued that the totality of the circumstances--including a lack of subjective questioning, lack of motive to fabricate, J.P.G.'s choice of words, the close temporal proximity between the interview and the incidents--made her statements trustworthy.

The judge concluded that "there was nothing suggestive about the questioning" of J.P.G. by the officers and that the child's version of events was "very, very consistent." She found that the statement was made to the police "within the hour, within two hours," of J.P.G. reporting defendant's assault to her mother. The judge found that based on all these circumstances, there was "a probability that" the videotaped statement was "trustworthy," and ruled it could be admitted in evidence. The judge also determined that she need not conduct a further competency hearing pursuant to N.J.R.E. 601 in order to permit J.P.G. to testify before the jury.

The State's first witness before the jury was Beirschmidt who testified that on January 27, 2003, his department received information of a "past tense sexual assault." After learning "the suspect resided in the home of the minor," Beierschmidt contacted the Burlington County Prosecutor's office to interview the child at the Child Advocacy Center. He interviewed J.P.G. and Hageman monitored the videotaping from an adjacent room. At this point, the prosecutor played for the jury the videotape in which J.P.G. told Beierschmidt that defendant had sexually assaulted her.

Beierschmidt testified that he and Hageman then interviewed J.P.G.'s mother, spoke to an assistant prosecutor, and prepared an arrest warrant for defendant's arrest. Unable to locate defendant at that time, Beierschmidt testified other officers ultimately arrested defendant that evening, and he described the interview he conducted and the statement he obtained from defendant in a manner consistent with the testimony he gave during the N.J.R.E. 104 hearing. The audiotape of defendant's statement was played for the jury.

Hageman also testified before the jury in a manner that was consistent with his earlier testimony, and the State then called J.P.G.'s mother, A.P., as a witness. She and defendant began dating approximately one and a half years earlier and, within a couple of months of beginning their relationship, decided to live together. Defendant was the father of two of A.P.'s five children, but not J.P.G. She worked as a bus driver and defendant often watched her children while she worked.

On January 27, 2003, J.P.G was at her cousin's house when A.P. received a call from the cousin who told A.P. that J.P.G. "had told her some disturbing things." A.P. contacted the police, who in turn interviewed J.P.G. and herself at the Child Advocacy Center. Later that evening, when defendant returned to their house, A.P. called 9-1-1 from a bedroom out of defendant's earshot, resulting in defendant's arrest. A.P. testified that defendant was not under the influence of drugs at any time during the day when he was in her presence.

J.P.G., then eight years old, testified that defendant "tried to put it in [her] mouth," "tried to put in [her] hole," and "tried to put his finger in [her] hole," while the family was living in Pemberton and Mount Holly. On cross-examination, however, the following exchange took place between defense counsel and J.P.G.:

Counsel: Okay. Did you remember those things on your own without seeing the tape or talking to [the prosecutor] or other people?

J.P.G.: No.

Counsel: You didn't remember, right, so it's only from seeing the tape that you remembered it, right?

J.P.G.: Yes.

Counsel: Okay. So the things that you told us that happened are the things that you saw that you said on the tape right?

J.P.G.: Yes.

On redirect, the prosecutor attempted to clarify the child's testimony by asking,

Prosecutor: Okay. Now did you remember anything that happened to you before you watched that tape . . . ?

J.P.G.: Yes.

Prosecutor: And, I'm asking you did you remember anything before you watched that tape?

J.P.G.: No.

Prosecutor: And what was the thing you remembered?

J.P.G.: I remember two things.

Prosecutor: What were the two things?

J.P.G.: He tried to put it in my mouth and his finger in my hole.

Prosecutor: And you remembered that before you saw this tape?

J.P.G.: No.

Prosecutor: No, only []cause you saw the tape?

J.P.G.: Yes.

After J.P.G.'s testimony, the State rested and defendant moved to dismiss the indictment arguing there was not "adequate proofs presented by the State." In particular, defense counsel noted J.P.G.'s "memory is totally dependent on the tape." Noting that J.P.G. had not denied that the incidents occurred, only that she "had forgotten about [them] until [she] saw the videotape," and considering defendant's statement to the police in which he "describe[ed] what he did to the child," the judge denied the motion.

Defendant testified in his own defense. He claimed that when he got off of work at 1:00 p.m. on January 27, 2003, he put his son to sleep, and smoked six marijuana cigarettes at his cousin's house, getting "high." When he returned, A.P. was there but she immediately went upstairs; shortly therafter, the police arrived and arrested him. Defendant explained that he told the police he never assaulted J.P.G. but eventually admitted to the allegations during the interrogation because he was extremely tired, frustrated, and upset, and the detectives kept pressuring him. Defendant claimed that the police told him he could go home if he just confirmed J.P.G.'s accusations, so he did.

On cross-examination, defendant admitted a prior conviction for third degree possession of a CDS, and, that when arrested on that charge, the police read him his Miranda rights. Defendant also admitted he understood his Miranda rights when police administered them to him in this case.

Defendant's mother testified that her son had been in special education classes from kindergarten to eighth grade and lacked strong reading and writing abilities. She claimed that if defendant were accused of something he did not do, he would still admit the accusation if constantly pushed. She also testified that when she saw defendant on the evening of January 27, 2003, his eyes were real dark red, he smelled of alcohol, and he was "pretty loaded."

Defendant was convicted of the charges as set forth above, and, on May 12, 2006, appeared for sentencing. The judge noted she had reviewed the report of defense expert, "Dr. Santina," regarding defendant's "significant cognitive deficiencies and learning difficulties." She also noted defendant's "very extensive juvenile history," twelve adult arrests "with [eleven] municipal court convictions," and his one prior "indictable conviction" for "a third-degree CDS charge."

The judge found aggravating factors two, four, six, and nine, as well as mitigating factor four.*fn5 She sentenced defendant to a period of incarceration of ten years, eighty-five percent of which had to be served without parole pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on count two, the first-degree aggravated sexual assault. After merging count four into count three, the judge imposed a five-year period of incarceration, with an eighty-five percent parole disqualifier on count one, consecutive to the sentence on count two. She then imposed three sentences of five years each on the remaining counts, all concurrent to the sentence on count one, thus, resulting in an aggregate sentence of fifteen years, eighty-five percent of which had to be served prior to parole. Although she noted that "all of these acts occurred within relatively short period of time," the judge imposed the consecutive sentence "because [she] [found] it to be an act entirely different than the act which is the first-degree aggravated sexual assault." This appeal ensued.

II.

Defendant contends that the admission of J.P.G.'s videotaped statement to the authorities was improper because 1) the State failed to give proper notice as required by N.J.R.E. 803(c)(27); 2) the statement was not trustworthy; and 3) its admission violated the Confrontation Clauses of the Federal and State constitutions. We are unpersuaded by these arguments.

N.J.R.E. 803(c)(27) provides

A statement made by a child under the age of 12 relating to sexual misconduct committed with or against that child is admissible in a criminal . . . proceeding if (a) the proponent of the statement makes known to the adverse party an intention to offer the statement and the particulars of the statement at such time as to provide the adverse party with a fair opportunity to prepare to meet it; (b) the court finds, in a hearing conducted pursuant to Rule 104(a), that on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy; and (c) either (i) the child testifies at the proceeding, or (ii) the child is unavailable as a witness and there is offered admissible evidence corroborating the act of sexual abuse . . . .

Defendant fails to show why the State's notice of intent provided two days before trial and a week before the actual introduction of the video tape was inadequate. In In the Interest of S.M., 284 N.J. Super. 611, 620 (App. Div. 1995), we concluded that a statement sought to be admitted under this exception to the hearsay rule, even in the absence of any notice, would be admissible if it was "self-evident" that the State would introduce the statement and defendant could demonstrate no prejudice.

Here, defendant acknowledged receipt of the tape and a transcript with the other discovery provided months in advance of trial, knew that all the witnesses produced at the N.J.R.E. 104 hearing were on the witness list, and, when asked what further preparation would have been made if greater notice was provided, failed to advance a single argument. We find no basis to deny the admission of the videotape on this ground.

In addition to notice, N.J.R.E. 803(c)(27) requires the judge to determine that the statement is probably trustworthy.

Factors for the judge to consider in this regard are "spontaneity, consistency of repetition, lack of motive to fabricate, the mental state of the declarant, use of terminology unexpected of a child of similar age, [the] interrogation, and manipulation by adults." State v. D.G., 157 N.J. 112, 125 (1999)(citing Idaho v. Wright, 497 U.S. 805, 821-22, 827, 110 S.Ct. 3139, 3150, 3153, 111 L.Ed. 2d 638, 656, 659-60 (1990)). The trial judge appropriately considered these factors in determining J.P.G.'s statement was trustworthy and we find no basis to overturn that decision.

To the extent defendant contends that J.P.G.'s trial testimony in which she claimed to have forgotten the incidents until seeing her statement again somehow affects the trustworthiness calculus, we reject the argument. The judge concluded J.P.G. had forgotten about the incidents until she saw the tape, but the child had never denied the incidents occurred. Therefore, her memory of them at the time of trial, or lack thereof, was not a factor in determining whether J.P.G.'s statement was "trustworthy" when it was made. We find no basis to disturb the judge's decision on this ground either.

Lastly, defendant contends the admission of the videotaped statement violated the rights he was accorded under the Confrontation Clause of the Federal and State constitutions. We first note that N.J.R.E. 803(c)(27) requires that the child declarant either 1) testify, or 2) be "unavailable," in which case there must be some independent corroborating evidence. However, we recently noted in rejecting a similar argument, that if "the child testified, [falling] within the first prong of 803(c)(27), and she was available for and was in fact subjected to cross-examination," there was no violation of the Confrontation Clause. State v. Burr, 392 N.J. Super. 538, 568 (App. Div. 2007), modified and aff'd, __ N.J. __ (June 11, 2008).

Defendant relies upon our decision in State v. Nyhammer, 396 N.J. Super. 72 (App. Div. 2007), certif. granted, 193 N.J. 586 (2008). There, while noting the "admission of a hearsay statement is viewed differently when the declarant testifies at trial," we nonetheless concluded that the admission of the child declarant's statement violated the Confrontation Clause because she was totally unresponsive when she testified at trial. Id. at 89.

Such was not the case here. J.P.G. testified and was fully responsive to direct and cross-examination. She admitted on several occasions that she had forgotten about the incidents, and that only her viewing of the videotape caused her to remember. In short, the jury had the opportunity to observe and determine the credibility of both her trial testimony and her prior videotaped statement. We find no basis for reversal on this ground.

III.

We turn to the balance of defendant's substantive arguments before addressing those that relate to his sentence. For the reasons discussed below, we find none of the contentions availing and conclude they do not provide any basis to reverse his conviction.

A.

Defendant challenges the judge's determination that his statement was admissible, arguing that the judge "improperly reversed the burden of proof and wrongfully placed it upon [defendant]." He contends the judge did not properly consider the testimony regarding his intoxication at the time the statement was taken, and his significant learning disabilities. Lastly, he contends the police were required to fully reMirandize him before taking his formal statement.

Much of this argument ignores the factual determinations made by the judge, findings that were supported by sufficient, credible evidence and which we will not disturb. See State v. Knight, 183 N.J. 449, 468 (2005)(noting reviewing court should "[a]pply[] the totality of the circumstances test," and determine if "there was sufficient credible evidence for the trial court to conclude that defendant's statement . . . was constitutionally obtained"), certif. denied, 189 N.J. 426 (2007). With respect to the obligation to re-Mirandize defendant before taking the formal statement, defendant cites no specific precedent for this point, and, as we noted in Nyhammer, supra, 396 N.J. Super. at 83, "[g]enerally, if a defendant has been given the Miranda warnings, and subsequently waives them, the police do not need to re-administer the warnings later." In short, none of defendant's arguments on this point are persuasive.

B.

Defendant contends the judge erred in denying his motion to dismiss the indictment made at the end of the State's proofs. He argues that the State failed to prove the date and time of the alleged crimes and that there was otherwise insufficient evidence of his guilt.

In reviewing whether the motion for judgment of acquittal was properly denied, we apply the same standard as the trial judge and determine whether, giving the State the benefit of all favorable testimony and inferences, a reasonable jury could find guilt beyond a reasonable doubt. State v. Spivey, 179 N.J. 229, 236 (2004). We agree with the trial judge who noted that defendant's confession, in conjunction with the testimony and statement by J.P.G., was sufficient evidence to find guilt beyond a reasonable doubt. The motion was properly denied.

As for the lack of proof as to the specific dates of the crimes, we note initially that the argument was never raised before the trial judge, which, in our opinion, demonstrates why the argument is unpersuasive. In In the Interest of K.A.W., 104 N.J. 112, 113-14 (1986), the Supreme Court held that particularly in child sexual abuse cases, the exact date of occurrence is not required in the charging document provided it "sufficiently apprises the accused of the offense with which he is charged to enable him to prepare a defense." See also, Cannel, New Jersey Criminal Code Annotated, comment 2 on N.J.S.A. 2C:14-2 (2008)(noting "because young children cannot be expected to remember dates and because the date of an alleged assault is not a legal constituent of the crime, the exact dates of a series of assaults need not be specified in an indictment" provided notice to defendant is adequate)(emphasis added). Trial counsel never claimed that he could not adequately prepare because of the lack of specificity as to the dates of the crimes. We find no basis for reversal on this score either.

C.

Defendant next argues that it was reversible error for the trial judge to permit the prosecutor to cross-examine him, in the context of his prior conviction for possession of CDS, as to whether he received and understood his Miranda rights on that prior occasion. He continues by contending that the prosecutor's comment in summation regarding defendant's knowledge of his rights because of that previous arrest was prosecutorial misconduct that requires reversal.

In direct examination, defendant acknowledged his prior conviction; he further testified that when arrested on these charges, he signed the Miranda rights card without reading it and without any explanation by the detectives. On cross-examination, the prosecutor asked defendant if his rights had been read to him at the time of that earlier arrest, and defendant acknowledged that they had. Although defense counsel objected, the judge overruled the objection finding the questions relevant in light of defendant's direct testimony.

After defense counsel highlighted defendant's learning disabilities and his difficulty in understanding the warnings in his summation, the prosecutor commented, Let's look at the defendant's statement. He's a criminal at the time he gives this statement. He tells you that. And why is that significant? He's been around before. Tells you on the stand I've been arrested before. The whole pitch is I don't understand, I didn't understand what they were saying. He does. He had them read to him before. He's a criminal. He's already told you, there's proof that at least on one other occasion he decided not to follow the rules we have, not to follow society so getting up on the stand and promising to tell the truth, why should he be bound by that rule?

There was no objection to the prosecutor's summation comments.

The evidence of defendant's prior conviction was admissible for the sole limited purpose of impeaching his credibility. N.J.R.E. 609. Evidence of a prior criminal conviction is routinely limited to only those matters that appear on the conviction record itself. State v. Sinclair, 57 N.J. 56, 63 (1970).

Here, the prosecutor's questions clearly went beyond the scope of the limited purpose for which the evidence was admitted in the first instance. While it may have been relevant to the issue of whether defendant understood his Miranda rights, the probative value of the questions was quite limited, and the judge certainly could have excluded the testimony pursuant to N.J.R.E. 403. However, the questions were fleeting, and in her charge, the judge clearly focused the jury's attention upon the proper use of the testimony regarding defendant's prior conviction. We therefore do not find reversible error.

There was no objection lodged to the prosecutor's summation comments, therefore we review the issue under the plain error standard. R. 2:10-2. Prosecutors "are expected to make vigorous and forceful closing arguments to juries," and therefore are allowed "considerable leeway . . . as long as their comments are reasonably related to the scope of the evidence presented." State v. Frost, 158 N.J. 76, 82 (1999). Additionally, as long as the comments do not misstate the evidence, prosecutors are permitted to rebut the specific arguments made by defense counsel. See State v. Mahoney, 188 N.J. 359, 376-77 (2006)(holding "prosecutor's comments . . . placed an unforgiving and harsh glare on . . . defense" but were permissible), cert. denied, __ U.S. __, 127 S.Ct. 507, 166 L. d. 2d 368 (2006); see also State v. Morais, 359 N.J. Super. 123, 131 (App. Div.)(holding prosecutor may respond to defense counsel's arguments as long as comments "do not stray beyond the evidence"), certif. denied, 177 N.J. 572 (2003).

We must severely criticize the prosecutor's reference to defendant as "a criminal" on two occasions. True, defendant admitted having been convicted of a crime on a prior occasion, however, labeling defendant in this way was an invitation to the jury to use that evidence for the wrong purpose, i.e., to assume defendant had a proclivity to commit crimes. While the prosecutor's comments sought to rebut defense counsel's summation regarding defendant's failure to understand his Miranda rights, and, to that extent were permissible, his denigrating characterization of defendant was not.

However, "[t]he failure to object suggests that defense counsel did not believe the remarks were prejudicial at the time they were made," and it "deprives the court of an opportunity to take curative action." Frost, supra, 158 N.J. at 84. We conclude that the prosecutor's comments, when judge in light of the entire summation and the evidence in the case, did not cause the jury to reach a result they would not otherwise have reached. See State v. Hightower, 120 N.J. 378, 412 (1990)(noting that the "strength of the State's case served to minimize any prejudice"); State v. Roman, 382 N.J. Super. 44, 61 (App. Div. 2005), (noting that even "[w]hen all of the offending conduct is considered against the strength of the State's" case, the verdict reflected the evidence and defendant was not deprived a fair trial), certif. granted, 188 N.J. 219 (2006), certif. dismissed, 189 N.J. 420 (2007).

IV.

Defendant argues that there was no basis to impose consecutive sentences on him since the criminal events all took place over a short period time and involved the same victim. He also argues that the sentences imposed were excessive in light of his psychiatric problems. We reject both arguments.

Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). When the judge has followed the sentencing guidelines, and her findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. State v. Roth, 95 N.J. 334, 364-65 (1984).

We note that the judge imposed the minimum sentence on each of the crimes for which defendant was convicted. Under NERA, she had no discretion with respect to the mandatory period of parole ineligibility she imposed. Thus, defendant's sole argument relates to the imposition of a five-year sentence consecutive to that imposed on the conviction for first-degree aggravated sexual assault, the result being that defendant's aggregate sentence was now fifteen years, as opposed to ten.

The judge recognized that all of the criminal conduct occurred in close temporal proximity over some six months. Nonetheless, she viewed the conduct for which defendant was convicted in count two, aggravated sexual assault which involved defendant forcing J.P.G. to perform fellatio upon him, to be qualitatively different from the other charges, none of which involved sexual penetration.

In 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), the Court set forth the factors to be considered when deciding whether to impose consecutive or concurrent sentences. The Yarbough factors essentially focus upon "the nature and number of offenses for which the defendant is being sentenced, whether the offenses occurred at different times or places, and whether they involve numerous or separate victims." State v. Carey, 168 N.J. 413, 423 (2001) (quoting State v. Baylass, 114 N.J. 169, 180 (1989)). In this case, the trial court properly recognized that the crimes for which defendant was sentenced involved separate offenses, most involving sexual contact, but one involving sexual penetration. This provides, in our opinion, a proper basis for the imposition of a consecutive term. The sentences imposed do not shock the judicial conscience, and we find no basis to otherwise disturb them.

Affirmed.


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