On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 04-05-00401.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Coburn and Fuentes.
In this child sexual abuse case, defendant was convicted of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1), second-degree sexual assault, N.J.S.A. 2C:14-2b, and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a.
After merging the conviction for second-degree sexual assault with the first-degree aggravated sexual assault conviction, the court sentenced defendant to a term of eighteen years, with an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and to a concurrent eight-year term of imprisonment for the second-degree endangering the welfare of a child conviction. The court also imposed the mandatory fines and penalties, and ordered defendant to submit to all statutorily required registration procedures.
Defendant now appeals raising the following arguments.
THE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE EVIDENCE.
AGGREGATE ERRORS DEPRIVED THE DEFENDANT OF A FAIR TRIAL IN THE SPECIFIC CONTEXT OF THIS CHILD SEXUAL ASSAULT CASE RESTING UPON THE CREDIBILITY OF THE CHILD.
1. FAILING TO DISCLOSE THAT THE CHILD WAS BEING PUNISHED AND FORCED TO SIT IN A CORNER AT THE VERY TIME SHE FIRST CAME FORWARD WITH THE ACCUSATION CONSTITUTED A BRADY VIOLATION AND MANDATES REVERSAL.
2. THE STATE'S FAILURE TO DISCLOSE TAINTED PRE-TRIAL PROCEEDINGS AND RESULTED IN INAPPROPRIATE RULINGS AS TO FRESH COMPLAINT AND TENDER YEARS EVIDENCE.
3. NO LIMITING INSTRUCTIONS CONCERNING PRIOR AND CONTEMPORANEOUS BAD ACTS EVIDENCE CONCERNING THE DEFENDANT'S INCESTUOUS RELATIONSHIP WITH HIS OWN NIECE AND THE MOTHER OF THE CHILD HE WAS ACCUSED OF MOLESTING.
4. THE STATE IMPROPERLY BOLSTERED THE CHILD'S CREDIBILITY THROUGH EXPERT TESTIMONY.
5. THE TRIAL COURT IMPROPERLY QUESTIONED DEFENSE WITNESSES IN THE PRESENCE OF THE JURY IN THE DELICATE CONTEXT OF THIS CHILD SEXUAL ASSAULT CASE.
6. THE ADMISSION OF THE VIDEOTAPED STATEMENT IMPERMISSIBLY EXPANDED THE BASES OF LIABILITY TO INCLUDE DIGITAL PENETRATON WHEN THE CHILD FAILED TO DESCRIBE DIGITAL PENETRATON DURING HER TESTIMONY BEFORE THE JURY.
7. THE COURT'S JURY INSTRUCTIONS IMPROPERLY EXPANDED THE BASES OF LIABILITY FOR AGGRAVATED SEXUAL ASSAULT.
We are satisfied that the arguments raised by defendant in Argument Point One and in all but one subsection of Point Two, are sufficiently without merit as not to warrant discussion in a written opinion. R. 2:11-3(e)(2). The argument raised in Point Two, subsection 1, although ultimately without merit, warrants a detailed analysis, which we will expand upon here.
The events giving rise to this case occurred on October 21, 2003. At that time, defendant lived with his girlfriend, S.G., and her teenage son D.S. During the same time period, defendant was romantically involved with his adult niece, T.S. (the daughter of defendant's sister). In fact, defendant fathered one of T.S.'s four children. N.H., the alleged victim here, is one of T.S.'s children who is not defendant's biological child. N.H. was eight years old at the time of the alleged sexual assault; defendant was forty.
On the date at issue, defendant drove T.S. to work, then picked up two of her children: N.H. and her older brother, D.S. (who was thirteen years old at the time). Defendant brought the children to his house so his girlfriend S.G. could look after them while the children's mother was at work.
What occurred next was disputed at trial. Through testimonial evidence, the State maintained that defendant and N.H. were alone in the apartment for a short period of time in the late afternoon. During this time, N.H. fell asleep while watching television in defendant's bedroom. When she woke, defendant was on top of her. In response to the prosecutor's questions, N.H. gave the following account of what transpired next.
[PROSECUTOR]: What did [defendant] do?
[N.H.]: He put his penis inside my cherry.
[PROSECUTOR]: When that happened were your clothes on or off?
[N.H.]: Off. Just my pants was off.
[PROSECUTOR]: Who took your pants off?
[N.H.]: [responded by referring to defendant using his first name].
[PROSECUTOR]: And what happened after your pants were down?
[N.H.]: He, he had his penis inside my cherry.
[PROSECUTOR]: Did [defendant] do anything else?
[N.H.]: He was moving back and forth and that's when, when, when the sperm had came out he stopped but I ...