March 24, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 03-08-0802.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 13, 2010
Before Judges Sapp-Peterson and Espinosa.
On August 25, 2003, defendant A.C. was charged in Passaic County Indictment No. 03-08-0802-I with second-degree attempted aggravated sexual assault of L.F., N.J.S.A. 2C:5-1(a)(3) and 2C:14-2(a)(1) (Count One); second-degree sexual assault of L.F., N.J.S.A. 2C:14-2(b) (Counts Two and Six); third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (Counts Three, Five, and Seven); and third-degree aggravated criminal sexual contact of K.V., N.J.S.A. 2C:14-3(a) (Count Four). Counts Four and Five were severed prior to trial, and defendant was tried on the remaining counts before the Honorable Ernest M. Caposela, J.S.C., and a jury, in September of 2005. On September 20, 2005, the jury returned a verdict of guilty, convicting defendant of all counts. The court imposed concurrent seven-year terms with an eighty-five percent period of parole ineligibility, pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, on Counts One, Two and Six, and concurrent five-year terms on Counts Three and Seven. Counts Four and Five were dismissed. On May 23, 2007, defendant filed a notice of appeal. We affirm.
On appeal, defendant raises the following points for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A MISTRIAL BECAUSE DETECTIVE BATTE'S TESTIMONY THAT DEFENDANT'S INTERROGATION ENDED AFTER DEFENDANT REQUESTED AN ATTORNEY INFRINGED UPON DEFENDANT'S PRIVILEGE AGAINST SELF-INCRIMINATION.
PROSECUTORIAL MISCONDUCT DEPRIVED DEFENDANT OF HIS DUE PROCESS RIGHT TO A FAIR TRIAL.
THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING DEFENDANT TO A SEVEN-YEAR TERM WITH AN [EIGHTY-FIVE PERCENT] PERIOD OF PAROLE INELIGIBILITY WHERE THERE WERE SIGNIFICANT MITIGATING FACTORS AND THE ONLY AGGRAVATING FACTOR WAS A GENERAL NEED TO DETER.
Defendant's convictions arose out of defendant's alleged sexual assault of his niece, L.F, during the summer of 2002 and December of 2002. That summer, while attending a family gathering at a local lake, defendant approached L.F. in the water, grabbed her, and made her feel his "private part[s]."
L.F. then got out of the lake, went to the bathroom, and told her older sister, K.V., what had happened. In December, during a four-night sleepover with defendant and his wife, defendant came into the room where L.F. was sitting, reached under the quilt she had on her lap, and made her rub up and down on his "private part[s]." The next day, defendant again approached her while she was in front of the television and made her "do the same thing... go up and down his private[s]" as he had made her do the previous day. The following day, defendant locked himself in his bedroom with L.F. and asked her to lick his private parts, which L.F. refused to do. After that, L.F. observed "white stuff" coming out of defendant's privates.
On December 24, during a family Christmas party, L.F., accompanied by her older sister, K.V., told her mother about the sexual incidents between her and defendant. L.F.'s mother subsequently took her to the hospital for testing and reported the incidents to the New York City Police Department, who referred the case to the Paterson Police Department and ultimately to the Passaic County Prosecutor's Office for investigation. Defendant was subsequently arrested and charged with the offenses for which he stood trial.
Under direct examination, Detective Steven Batte of the Passaic County Prosecutor's Office was asked, "[a]t some point in time [during his interrogation of A.C.], [did] that conversation [with defendant] end[,]" to which Batte responded, "Yes. At some point shortly into the interview process he asked for his -- he asked for a lawyer, and I immediately stopped asking questions." Defense counsel then moved for a mistrial, claiming undue prejudice, but the motion was denied. Instead, the judge gave an ameliorating instruction to the jury "to draw no negative inference from the fact that the defendant requested an attorney."
During the State's closing argument, the prosecutor told the jury that times like Christmas and summers at the lake are times that children should enjoy, "times that are meant for them. But [L.F] will never look back upon the summer and Christmastime of 2002 and remember them for those reasons.... [S]he'll think about those times as the two times that I lost my innocence forever." Defense counsel again moved for a mistrial, arguing that the prosecutor's remarks served no purpose other than to "[i]mpassion" the jury in a case that already involved a very sensitive subject matter. The trial judge denied the motion, concluding the comments were "based on the facts" and that the jurors innately sensed the loss of innocence, a feeling that was prototypical of the kind of feelings that he would normally instruct the jurors to put aside in the jury instructions, therefore negating the need for a special ameliorating instruction.
Defendant contends that Detective Batte's testimony regarding his request for an attorney during the interrogation infringed upon his privilege against self-incrimination by improperly biasing the jury and creating an inference of guilt. Defendant urges this misconduct requires a reversal since it was sufficient to warrant a mistrial.
"'The decision on whether inadmissible evidence is of such a nature as to be susceptible of being cured by a cautionary or limiting instruction, or instead requires the more severe response of a mistrial, is one that is peculiarly within the competence of the trial judge[.]'" State v. Hogan, 297 N.J. Super. 7, 15 (App. Div.), certif. denied, 149 N.J. 142 (1997) (quoting State v. Winter, 96 N.J. 640, 646-47 (1984)). Because the trial judge has a feel for the case and is "best equipped to gauge the effect of a prejudicial comment on the jury in the overall setting," the trial court's decision is accorded great deference on appeal and will only be reversed when reversal is necessary to prevent manifest injustice. Ibid.
References to a defendant's exercise of his right to counsel or right to remain silent are permissible if such evidence is necessary to explain why police questioning of defendant ended. State v. Ruscingno, 217 N.J. Super. 467, 471-72 (App. Div.), certif. denied, 108 N.J. 210 (1987). "Police are entitled to testify concerning any incriminating statements that defendant made and describe not only the beginning of the interrogation but how it ended as well so that the jury will know the police testimony is complete." Id. at 470; see also State v. Carroll, 256 N.J. Super. 575, 601-02 (App. Div.), certif. denied, 130 N.J. 18 (1992). In such instances, the trial court should provide an ameliorating or cautionary instruction explaining that the jury may not use the invocation of the right to counsel to infer guilt. State v. Feaster, 156 N.J. 1, 76 (1998), cert. denied, sub. nom., Kenney v. New Jersey, 532 U.S. 932, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001).
Here, the only reference made to defendant's request for a lawyer was when Officer Batte explained why the questioning ceased. Defense counsel initially moved for a mistrial, arguing the police officer's reference to defendant's request for counsel created an inference of guilt. Upon reconsideration, defense counsel expressed to the court that the potential prejudice resulting from the officer's testimony could be ameliorated with a stipulation that defendant denied the allegations and only asked for a lawyer when told he would be charged despite his denials. The trial judge issued the following instruction to which no objection was raised:
Detective Batte confronted him with the charges. Then the defendant denied committing the offenses.
Detective Batte then advised the defendant that despite his denials, he was going to charge him. The defendant then said if he was going to be charged despite his denial, then he wanted a lawyer.
And, finally, this is more - - that's the sequence. Now, my instruction is this: You're to draw no negative inference from the fact that the defendant requested an attorney. It's a constitutional right that he exercised after he experienced those [sic] sequence of events.
This instruction fulfilled the requirement of Feaster that the trial judge provide a cautionary instruction in response to testimony that defendant invoked his Fifth Amendment rights. Feaster, supra, 156 N.J. at 76. Because the stipulation makes clear that defendant's request for counsel came in the normal course of interrogation and should not be used to infer any culpability or guilt, the court did not err in denying defendant's mistrial motion.
Defendant next contends that the prosecution's closing statement regarding L.F.'s lost innocence represented prosecutorial misconduct that deprived defendant of his right to a fair trial. He claims that this reference improperly biased the jury by unfairly eliciting excess sympathy for the victim, and should have warranted a mistrial. We disagree.
We note that a prosecutor is afforded considerable leeway to make "vigorous and forceful" closing arguments. State v. Chew, 150 N.J. 30, 84 (1997), overruled on other grounds by State v. Boretsky, 186 N.J. 271 (2006). Even where a prosecutor's comments amount to misconduct, the misconduct will not be grounds for reversal unless it was "so egregious that it deprived defendant of a fair trial." State v. Frost, 158 N.J. 76, 83 (1999). In determining whether a defendant's right to a fair trial has been denied, the court should look at such factors as whether defense counsel made a timely objection, whether the remark was withdrawn promptly, whether the trial judge ordered the remarks stricken, and whether the judge instructed the jury to disregard them. State v. Ramseur, 106 N.J. 123, 322-23 (1987).
We agree with defendant that the prosecution's reference to the victim's loss of innocence was inappropriate because it had the capacity to inflame the jury and engender sympathy for the victim. State v. Jang, 359 N.J. Super. 85, 95 (App. Div.) certif. denied, 177 N.J. 492 (2003). However, the trial judge correctly determined that the comments did not deprive defendant of his right to a fair trial because the inappropriate comment was grounded largely in the facts of the case:
I don't think that by him saying there's a loss of innocence that it creates a different impression in the minds of the jurors than they would normally have. Whenever you have a child victim, there's typically a loss of innocence, which they all sense, and that's something that they have to put aside when I tell them to put aside their passions, biases, prejudices or emotions.
Further, the comments had not been repeated throughout the closing but were instead made one time, at the end. Additionally, the court's general instructions to the jury directed the jury to "weigh the evidence calmly and without passion, prejudice or sympathy." Ramseur, supra, 106 N.J. at 322-23.
Finally, defendant claims that the trial court abused its discretion in sentencing defendant to a seven-year term with an eighty-five percent period of parole ineligibility because there were multiple mitigating factors and only one aggravating factor, the need for general deterrence. N.J.S.A. 2C:44-(a)(9).
In our review of a defendant's challenge to the sentence imposed, our task is to ensure that the trial judge adhered to the sentencing guidelines. N.J.S.A. 2C:44-1(a) and (b). Specifically, our review is directed to whether the sentence imposed is "grounded in competent, reasonably credible evidence" and reflects correct application of the law. State v. Roth, 95 N.J. 334, 363-64 (1984). On appeal, we will only modify a sentence when the facts and law show "such a clear error of judgment that it shocks the judicial conscience." Ibid.
Here, the trial court found one aggravating factor, the need to deter, N.J.S.A. 2C:44-1(a)(3), and two mitigating factors: defendant's lack of a prior criminal record, N.J.S.A. 2C:44-1(b)(7); and the excessive hardship imprisonment would cause to defendant and his family, N.J.S.A. 2C:44-1(b)(11). Defendant urges that the trial court failed to articulate what particular need for specific deterrence was evident from the record. State v. Martelli, 201 N.J. Super. 378, 385-86 (App. Div. 1985) (finding re-sentencing necessary because the record did not reflect "what special need for deterrence or non-depreciation of this offense differentiates [the defendant's] case from other cases"). We disagree.
The court noted in this particular case that defendant was a trusted family member and the victim's statement that the events tore the entire family apart. The court credited defendant's argument that he had been a law-abiding citizen and the hardship which he and his family would endure as a result of his incarceration. The court concluded that its balancing of the aggravating and mitigating factors was a qualitative rather than quantitative analysis and that "the aggravating factors outweigh the mitigating factors[.]"
We are satisfied that this sentence was imposed based upon facts clearly in the record and was well within the trial court's discretion. State v. O'Donnell, 117 N.J. 210, 215 (1989). We discern no basis to disturb this sentence.
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