On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 06-10-1466.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 30, 2009
Before Judges Wefing and Grall.
A jury found defendant J.S. guilty on eleven counts of an indictment charging sexual offenses committed against his daughters, E.S. and V.O., between Spring 2004 and July 17, 2006. During that time, E.S. was under the age of sixteen and V.O. was under the age of thirteen. Defendant's convictions for crimes against the children include: two counts of first-degree aggravated sexual assault by penetration, one upon each child, N.J.S.A. 2C:14-2a; four counts of second-degree sexual assault, two against each child, N.J.S.A. 2C:14-2b, N.J.S.A. 2C:14-2c(1) and N.J.S.A. 2C:14-2c(4); two counts of second-degree endangering the welfare of a child by engaging in sexual conduct, one for each child, N.J.S.A. 2C:24-4a; one count of third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a; and two counts of fourth-degree criminal sexual contact, one for each child, N.J.S.A. 2C:14-3b. Defendant was also convicted of contempt of an order restraining him from the home the children shared with their mother, N.O. N.J.S.A. 2C:29-9.
The judge merged defendant's convictions for sexual assault and sexual contact against each child with his convictions for first-degree aggravated sexual assault against each child. He was sentenced to two consecutive twelve-year terms of incarceration for first-degree aggravated sexual assault, both subject to periods of parole ineligibility and parole supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2; two concurrent seven-year terms for second-degree endangering the welfare of a child; and a consecutive three- month term for contempt. Appropriate fines, penalties and assessments were also imposed.
Defendant and N.O. have four children. When they met, N.O. was fifteen. Their first child was born when N.O. was eighteen. E.S. was born in June 1991 and V.O. was born in October 1993.
The testimony presented at trial, viewed in the light most favorable to the State and with the benefit of all favorable inferences, was adequate to permit the jurors to find defendant guilty of the charges.
Defendant was a strict parent who wanted his children to do well in school and help at home. As punishment, he required his daughters to stay in their room, read rather than watch T.V. and not use the telephone. At times, the punishment was terminated before the period initially stated by defendant expired.
When his eldest daughter, E.S. was about thirteen, defendant came to her room and told her that if she wanted to return to her normal activities she would have to do what he told her. For that reason, she submitted to sexual conduct. Between that first incident and the last, she was subjected to digital penetration, touching of her vaginal area and breasts, and she performed fellatio on defendant. Although her mother and brothers were often at home when these things happened, the incidents were brief.
V.O. was ten when defendant had her engage in sexual conduct to commute her punishment. Thereafter, he abused her almost every time she saw him. The incidents involved touching of her breasts and vagina and digital penetration. On one occasion defendant had V.O. touch his penis and on another he attempted intercourse, which she resisted. When she refused, defendant told her he would marry her when she was eighteen.
Although the children discussed defendant's conduct, they kept it secret from everyone else for about two years. Finally, when V.O. asked her older sister to help her, E.S. told their mother. N.O. called the police. Physical examinations of E.S. and V.O. did not permit the examiner to substantiate or rule out the sexual conduct defendant's daughters alleged.
N.O. had obtained a restraining order against defendant in 2005. Although she soon resolved to seek dismissal of the order, she never did and despite its existence allowed defendant to come to her home.
Defendant testified and denied his daughters allegations. He acknowledged that his children's education was very important to him and that he probably was "a little too hard on them," but he explained that he was pushing them "to do their best" and had some success; both of his daughters "made the honor roll," one with straight "A"s. He explained that he punished them by not allowing them to go outside, use the phone or watch TV and requiring them to stay in their room and read books. He said he usually told them the punishment would last a month, but "it would only last like a week, two weeks." When asked about the early ...