On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Indictment No. 07-01-0075.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 6, 2009 -
Before Judges Grall and LeWinn.
Atlantic County Superseding Indictment No. 07-01-0075 charged defendant, Thomas Harris, with the following ten counts:
first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts one and three); second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count two); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (counts four, seven and nine); second-degree sexual assault, N.J.S.A. 2C:14-2(c) (counts five, six and eight); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b) (count ten).
Tried to a jury on June 11 and 13, 2007, defendant was found guilty of the second-degree sexual assault charge in count two; the three counts of third-degree endangering the welfare of a child; and fourth-degree criminal sexual contact. On September 21, 2007, after proper mergers of counts, the trial judge sentenced defendant as follows: on count two, to a nine-year term subject to an eighty-five percent parole ineligibility period pursuant to the No Early Release Act (NERA) N.J.S.A. 2C:43-7.2, and a three-year period of parole supervision; on count seven, to a consecutive four-year term with a two-year parole ineligibility period; and on count nine, to a consecutive five-year term with a two-and-one-half-year parole ineligibility period.
The pertinent factual background may be summarized as follows. The charges involve the ongoing sexual abuse of a minor, L.A., which occurred during three separate episodes in 2002, 2003 and 2004. In 2002, L.A. was eleven years old and defendant was forty-six years old.
Defendant met L.A. in 2001; at that time L.A. was living with his mother and older sister and was estranged from his biological father. L.A. described defendant as being like a "stepfather" to him. Defendant spent time with L.A. and his family on a regular basis.
Two weeks before L.A.'s twelfth birthday in 2002, defendant began sexually abusing him. L.A. and defendant had been wrestling in the living room of L.A.'s home when the wrestling progressed into fondling and L.A. touched defendant's genitals.
L.A. and defendant went into L.A.'s bedroom, closed the door, and continued to fondle one another.
L.A. testified about a second sexual encounter before his twelfth birthday, which involved fondling and oral sex. L.A. also testified about incidents of sexual abuse between April and May 2002 which involved anal and oral penetration. The first round of abuse stopped in May 2002 when defendant left New Jersey for a period of time.
The sexual abuse resumed when defendant returned to New Jersey in 2003 and ended in September 2003 when defendant again left the state. L.A. testified that during this period, he and defendant engaged in more incidents of fondling and anal and oral sex. L.A. specifically recalled a sexual encounter after a wedding reception in which defendant performed oral sex on L.A.
Defendant returned to New Jersey in early summer 2004.
L.A. testified that he and defendant engaged in incidents of oral sex and fondling until October 2004, at which time defendant again left the state.
L.A. did not tell anyone about these incidents until January 25, 2005, when he met with his school guidance counselor, Jill Pappas. L.A. told Pappas that he and defendant had engaged in fondling activity between three and five times; he did not tell Pappas about the other sexual activities because he was "ashamed, embarrassed, afraid, [and] worried." That night, L.A. also disclosed the abuse to his mother.
After speaking with L.A., Pappas called the police. On January 26, 2005, Patrolmen Michael Finnerty, of the Egg Harbor Township Police Department, responded to L.A.'s residence in response to a telephone call from L.A.'s mother informing the officer that defendant was there. Finnerty asked defendant to come back to police headquarters with him and defendant agreed to follow him there in his own vehicle.
At some point after being advised of his Miranda*fn1 rights, defendant voluntarily gave the police a taped statement in which he described several ...