On appeal from Superior Court of New Jersey, Law Division, Mercer County, Indictment Nos. 01-09-1198 and 01-10-1291.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 23, 2008
Before Judges Wefing, Parker and Yannotti.
Defendant Gregory Eastmead appeals from judgments of conviction entered on May 7, 2004 under two separate indictments. We affirm defendant's convictions and sentence but remand for entry of an amended judgment of conviction.
The judgment in Indictment 01-09-1198 was entered after a jury found defendant guilty on three counts of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a; three counts of second degree sexual assault, N.J.S.A. 2C:14-2b; and three counts of third degree endangering the welfare of a child, N.J.S.A. 2C:24-4. After the appropriate mergers and an evaluation by the Adult Diagnostic and Treatment Center (ADTC), defendant was sentenced to an aggregate term of twenty years at the ADTC in Avenel.
The judgment on Indictment 01-10-1291 was entered after defendant pled guilty to one count of first degree aggravated sexual assault, N.J.S.A. 2C:14-2a. On this indictment, he was sentenced to a fifteen-year term at Avenel, concurrent with the sentence imposed on Indictment 01-09-1198.
On September 6, 2000, the mother of one of the three nine-year-old victims in this case, overheard two of the victims saying that they had to do something about Gregory. Gregory was the mother's sister's twenty-one-year-old boyfriend. The mother asked the girls what they were talking about and they initially said "nothing." Ultimately, the girls disclosed that three of them were victimized by defendant, who played a game of "Go Fish" with the children, during which he molested them.
The day after the mother's conversation with the children, September 7, 2000, she reported it to the police and that evening Trenton Detective Dennis Shuster interviewed two of the girls on videotape. The third girl was interviewed on September 8. That interview was also videotaped.
Defendant was subsequently located and taken into custody.
After he was advised of his Miranda*fn1 rights, he gave a formal statement in which he acknowledged playing the game "Go Fish" with the three girls and molesting them. He described fondling the girls, but denied penetration.
The three victims testified at trial and identified defendant. The mother also testified, along with the officers who participated in the investigation.
In this appeal, defendant argues:
THE JURY CHARGE FAILED TO DISTINGUISH DIGITAL PENETRATION, AN ESSENTIAL ELEMENT OF THE GREATER OFFENSE OF AGGRAVATED SEXUAL ASSAULT, FROM TOUCHING, AN ELEMENT OF THE LESSER-INCLUDED OFFENSE OF SEXUAL CONTACT
THE COURT ERRED IN DENYING DEFENDANT'S MOTION FOR MISTRIAL WHEN A WITNESS INTERJECTED PREJUDICIAL OTHER-CRIME EVIDENCE IN VIOLATION OF N.J.R.E. 404(b) AND DEFENDANT'S RIGHT OF CONFRONTATION UNDER U.S. CONST. AMENDS. VI, XIV; AND N.J. CONST. ART. I, ¶¶ 1, 9, 10
DETECTIVE MCKEOWN TESTIFIED TO MEDICAL FINDINGS BEYOND THE SCOPE OF HER QUALIFICATIONS AS AN EXPERT IN SEXUAL-ASSAULT INVESTIGATIONS
THE COURT ERRED IN ALLOWING THE JURORS TO TAKE NOTES WITHOUT FOLLOWING THE MANDATES OF R. 1:8-8(b) AND THE CASE LAW THAT ENSURES A FAIR TRIAL. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT SUGGESTED THAT HE HAD AN OBLIGATION TO TESTIFY AND THEREBY VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE SENTENCE IS EXCESSIVE BECAUSE THE COURT IMPROPERLY WEIGHED THE AGGRAVATING FACTORS AND FAILED TO CONSIDER ...