On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-05-0620.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Skillman and Wefing.
A jury found defendant guilty of aggravated sexual assault, in violation of N.J.S.A. 2C:14-2(a)(7); sexual assault, in violation of N.J.S.A. 2C:14-2(b); sexual assault, in violation of N.J.S.A. 2C:14-2(c)(1); sexual assault, in violation of N.J.S.A. 2C:14-2(c)(4); aggravated sexual contact, in violation of N.J.S.A. 2C:14-3(a); sexual contact, in violation of N.J.S.A. 2C:14-3(b); and endangering the welfare of a child, in violation of N.J.S.A. 2C:24-4(a). The trial court sentenced defendant for the aggravated sexual assault to a thirteen-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 also imposed a concurrent seven-year term for one of the sexual assaults, and a concurrent four-year term for endangering the welfare of a child, both of which were also made subject to NERA. The court merged defendant's other convictions.*fn1
The victim of these offenses was a developmentally disabled teenager, who resided with her grandfather when the sexual assaults occurred. Defendant, who was an uncle of her grandfather's wife, resided three houses away. Defendant would take care of the victim when her grandfather was not home. The victim referred to defendant as "Uncle Buzz."
The victim was fourteen when she first reported defendant's sexual assaults to her special needs teacher in January 2004.
At that time, the victim was reading on a third-grade-level and doing fourth-grade-level math. The special needs teacher described her as "slightly dyslexic" and "communication handicapped." The teacher expressed the opinion that the victim was not "retarded." She also testified that the victim "seemed embarrassed" reporting the sexual assaults.
The first sexual assault incident occurred when the victim was twelve. When the victim went to the defendant's house to get some birthday cake and ice cream, defendant fondled her breasts and rubbed her vagina. The victim testified on direct examination that defendant's sexual touching occurred under her clothing, but she indicated on cross-examination that defendant touched her breast over her bra. The victim did not report this incident because she was "scared."
The second sexual assault incident occurred when the victim was "almost fourteen." Defendant came into a bedroom in his house where the victim had been watching television and started rubbing her thighs. He then grabbed the victim and started to take her clothing off. She attempted to resist by kicking defendant but he overpowered her and pinned her arms down over her head. After defendant took her clothing off, the victim tried to escape, but defendant grabbed her leg, physically restrained her, and then vaginally penetrated her. The victim did not report this sexual assault because she was "scared" and did not think anyone would believe her.
Defendant committed a third sexual assault upon the victim when she was "around fifteen." On this occasion, defendant came into a bedroom where the victim was reading a book and again started by touching her thighs, then removed her clothing, and penetrated her anally.
A few days later, defendant walked into a bedroom where the victim was watching television, told her that she was "sexy," and again started to rub her thighs. However, the victim picked up a telephone and pretended to talk to someone so that, as described by the victim, defendant would "leave me alone." Defendant then left the room. The following day, the victim reported defendant's sexual assaults to her special needs teacher.
The victim subsequently gave two statements regarding the assaults to members of the Plainfield Police Department, which were typed and signed by the victim. Before trial, defendant filed a motion for a "Michaels*fn2 taint ...