On appeal from the Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-02-0742.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2010
Before Judges Baxter and Coburn.
Following a trial by jury, defendant R.L. was convicted on charges of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (counts one and two); second-degree sexual assault, N.J.S.A. 2C:14-2b (counts three, five and six); and second- degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (count four). The judge imposed the following sentence: on count two, a fifteen-year term of imprisonment, subject to a seven and one-half year period of parole ineligibility consecutive to counts one, three and six; on count one, a fifteen-year term, consecutive to counts two, three and six; on count three, a five-year term of imprisonment, with a two and one-half year parole ineligibility period, consecutive to counts one, two and six; on counts three and four, a five-year term of imprisonment, concurrent to each other, and to counts one, two, three and six; and on count six, a five-year term of imprisonment, with a two and one-half year parole ineligibility period, consecutive to counts one, two and three.*fn1 The aggregate sentence was thus forty years imprisonment, subject to a twelve and one-half year period of parole ineligibility.
On appeal, defendant presents the following claims:
I. THE ADMISSION OF THE HEARSAY STATEMENTS OF A NON-TESTIFYING DOCTOR, WHO AFTER EXAMINING THE ALLEGED VICTIM ASKED WHETHER "THERE WAS ANY POSSIBLE WAY THAT . . . [SHE] COULD HAVE BEEN [SEXUALLY ABUSED]," DENIED DEFENDANT A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO CONFRONTATION. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, § 10
II. THE ADMISSION OF THE ALLEGED CHILD VICTIM'S HEARSAY STATEMENTS WITHOUT NOTICE AND WITHOUT A PROPER 104(A) HEARING TO DETERMINE WHETHER THE STATEMENTS MET THE ADMISSIBILITY REQUIREMENTS OF N.J.R.E. 803(C)(27) REQUIRES A REMAND. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, § 10
III. THE FOUR CONSECUTIVE SENTENCES HERE EXCEEDED THE THREE CONSECUTIVE SENTENCES REQUESTED BY THE PROSECUTOR, VIOLATED THE YARBOUGH GUIDELINES, AND WERE PATENTLY EXCESSIVE. U.S. Const. Amends. VI, XIV; N.J. Const. Art. I, ¶ 1, 9, 10.
We reject these contentions and affirm defendant's conviction and sentence.
The State's proofs demonstrated that from the time L.L. was four years old until she was twelve, defendant, who is her father, sexually abused her. L.L. testified that her father worked at a nearby factory during the day, but her mother, J.L., worked the night shift as a bartender. Consequently, defendant was responsible for the care of L.L. and J.G., her half-brother, while their mother was at work.
When L.L. was four years old, defendant began touching her "personal areas," rubbing her vagina. Defendant engaged in such conduct while J.G. was either in his bedroom in the attic or out with his friends. On the occasions when J.G. was home, defendant would move a piece of furniture in front of L.L.'s bedroom door so that no one could enter.
When defendant first engaged in this conduct, L.L. said "no," but subsequently she simply "look[ed] at the ceiling" and "just hope[d] that he would go away." L.L. explained that her father also frequently placed his hands on her breasts and moved them "in a circular motion."
By the time L.L. was seven years old, and she and her family had moved to her grandparents' home, defendant "took it up a notch." L.L. testified that her father starting by "doing his normal routine," but then started to also pull his pants to his knees, remove his underwear and start rubbing her vagina. He then placed his penis into her "private part" and "was moving it in and out." According to L.L., defendant typically said "that it would be okay, baby, it will be over soon."
After one of the occasions when defendant penetrated her with his penis, L.L. observed that she was bleeding slightly from her vagina, but ignored it and returned to bed. The next morning, she was "bleeding immensely" and crying when her mother, home from work, came into her room. L.L. told her mother she was bleeding. L.L. did not disclose to her mother anything about defendant's conduct. Because all of the women in her mother's family had begun menstruating at an early age, L.L.'s mother assumed that the bleeding was the result of menstruation. At this time, L.L. was only seven years of age. When L.L.'s mother told defendant that L.L. had become a "little lady," the two laughed; however, after the bleeding episode, defendant stopped coming to L.L.'s bedroom for approximately three years.
When L.L. was ten years old, defendant's visits to her bedroom resumed. After tucking her in for the night, defendant would return to L.L.'s room where he would rub the outside of her vagina and insert his fingers inside, moving them in and out. On another occasion, also when she was ten years old, L.L. recalled that defendant masturbated in front of her while penetrating her vagina with the fingers of his other hand. After ejaculating, defendant left the room.
L.L. proceeded to testify that more often than not during these episodes of abuse, defendant would merely insert his fingers into her vagina without touching himself. She testified this occurred a few times per week. During this time period, her ...