On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 05-10-1164.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 15, 2009
Before Judges Parrillo and Lihotz.
A jury convicted defendant D.M.A. of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); third-degree aggravated sexual contact, N.J.S.A. 2C:14-3(a) (count six); fourth-degree sexual contact, N.J.S.A. 2C:14-3(b) (count seven); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts eight and nine); and fourth-degree child abuse, N.J.S.A. 9:6-3. The jury acquitted defendant of aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), and three counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1), c(3) and c(4).
Defendant was sentenced to eight years imprisonment, subject to the eighty-five percent period of parole ineligibility required by the No Early Release Act, N.J.S.A. 2C:43-7.2 on count two, a four-year consecutive term of imprisonment on count six, a concurrent eighteen-month term on count seven, a consecutive eight-year term on count eight, and a concurrent eight-year term on count nine after the merger of count ten into count nine. Applicable fines and penalties were imposed.
On appeal, defendant presents the following issues for our review:
POINT I: THE JURY INSTRUCTION ON FRESH COMPLAINT UNCONSTITUIONALLY INTRUDED ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TOLD THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE THAT [THE ALLEGED VICTIM'S] TESTIMONY IS UNTRUTHFUL BASED ONLY ON HER SILENCE OR DELAYED DISCLOSURE"; MOREOVER, THAT SAME FRESH COMPLAINT INSTRUCTION ERRED WHEN IT DID NOT EXPLAIN TO THE JURY THAT THE EXTREME DELAY IN REPORTING THE ABUSE TO ANOTHER WAS A PROPER FACTOR TO CONSIDER AGAINST THE CREDIBILITY OF THE ALLEGED VICTIM.
POINT II: THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE, AND NO REASONS WERE GIVEN AT ALL FOR THE IMPOSITION OF CONSECUTIVE SENTENCES FOR SEXUAL ASSUALT AND ENDANGERING THE WELFARE OF A CHILD.
We reject the argument set forth in Point I and affirm defendant's conviction. However, we agree the sentencing was flawed, requiring that we vacate defendant's sentence and remand the matter to the trial court for resentencing.
We summarize the evidence introduced by the State at trial. A.A., who was born in Jamaica, came to the United States at the age of seven to live in Orange with defendant, defendant's sister, S.A. and her children. Both A.A. and defendant believed he was her biological father.*fn1 Thereafter, the family moved to Summit. During the weekday, defendant held two jobs in New York City. On some evenings, A.A. stayed with defendant and slept at his place of employment. When A.A. was eleven, she and defendant moved to their own two-bedroom home in Summit. Because defendant continued to work two jobs, during the week A.A. would sometimes stay with her aunt or accompany defendant to his evening employment. Defendant was home on the weekends.
Defendant began making sexual gestures toward A.A., suggesting she "looked sexy," smacking her "behind" and asking her to try on clothing that he purchased, such as jeans, shirts, and bras. A.A. admitted she did not protest or object to defendant's conduct. On one occasion, A.A. developed a yeast infection, and defendant asked to watch her shower and apply the vaginal medication. A.A. felt "violated" and "embarrassed," but acceded to defendant's requests because she felt "scared and thought it wouldn't happen again."
Before A.A.'s twelfth birthday, V.A., a girlfriend of defendant, who agreed to care for A.A., and her ten-year-old daughter S.S. moved into defendant's home. V.A. slept in the downstairs bedroom and her daughter slept with A.A. in the upstairs bedroom. V.A. cared for A.A. while defendant worked in New York. A.A. visited defendant at his job when she did not have school the following day; she recalls she only stayed overnight one evening.
Defendant continued making sexual gestures toward A.A. when V.A. was not present. One evening, while S.S. was asleep, defendant entered A.A.'s bedroom. He "groped her breasts" and touched her vagina over her clothing. A.A. stated she was scared and told defendant to stop. He complied and left her room. A.A. did not reveal this incident. Two weeks later, defendant repeated similar sexual contact one weekday when he was not working. A.A. requested defendant stop, and he replied he was "going to do this for awhile." The incident lasted ten to fifteen minutes. A.A. did not tell anyone because she was "scared." Thereafter, defendant regularly committed similar assaultive acts on the weekends, and then began touching A.A. underneath her clothing.
While living in defendant's home, V.A. heard defendant go upstairs to A.A.'s room late at night and, on several occasions, noticed defendant was missing from his sofa bed in the middle of the night. V.A. once saw A.A. laying in bed between defendant and S.S. Approximately one month following the first touching incident, V.A. requested S.S. to sleep downstairs with her, rather than upstairs with A.A., on the weekends when defendant was home. In the summer 2001, V.A. and S.S. left defendant's residence. A.A. stayed with her aunt in Georgia for one ...