On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 06-04-0615.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: December 16, 2009
Before Judges Cuff and Payne.
Following a bench trial, defendant J.R. was found guilty of second degree attempted aggravated sexual assault, N.J.S.A. 2C:5-1 and N.J.S.A. 2C:14-2a(1) (count one); four counts of second degree sexual assault, N.J.S.A. 2C:14-2b (counts two, three, five and seven); three counts of second degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts four, eight and nine); and first degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (count six). The judge sentenced defendant to a term of ten years imprisonment with an 85% No Early Release Act*fn1 (NERA) period of parole ineligibility on count one. After merging count three with count two, the judge imposed a sentence of ten years imprisonment subject to NERA concurrent to count one. On count four, the judge sentenced defendant to six years imprisonment consecutive to count one. On count five, the judge imposed a ten-year term of imprisonment subject to NERA concurrent to count six. On count six, the judge sentenced defendant to eighteen years imprisonment subject to NERA consecutive to counts one and four. On count seven, the judge imposed a ten-year term of imprisonment subject to NERA concurrent to counts five and six. On counts eight and nine, the judge sentenced defendant to ten years imprisonment on each count concurrent to count six. The aggregate sentence is thirty-four years imprisonment with twenty-eight years of parole ineligibility. The appropriate fines, penalties and assessments were also imposed.
The victims in this case are defendant's daughter and step-daughter. His severely disabled daughter was three years old at the time.
On August 21, 2005, defendant's wife, S.R., walked into their bedroom and found defendant attempting to sexually penetrate their three-year old handicapped and severely retarded daughter. Defendant confessed to his wife and to police. On the day of his arrest, his nine-year old step-daughter informed police that she had been repeatedly sexually abused by defendant. She described instances in which defendant inserted his finger between her labia and instances when he placed his hand inside her underwear and rubbed her "butt." Defendant admitted one instance of touching his step-daughter, but denied the remaining allegations.
On appeal, defendant raises the following arguments:
THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY DEMONSTRATE C.T. WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (NOT RAISED BELOW).
THERE WAS INSUFFICIENT EVIDENCE IN THE TRIAL RECORD TO SUPPORT THE TRIAL COURT'S CONCLUSION THE STATE ESTABLISHED THE DEFENDANT'S GUILT BEYOND A REASONABLE DOUBT REGARDING COUNT IV CHARGING ENDANGERING THE WELFARE OF A CHILD (A.R.) AND COUNT VI CHARGING AGGRAVATED SEXUAL ASSAULT (C.T.).
THE TRIAL COURT ERRED BY FAILING TO MERGE COUNTS II AND III INTO COUNT I AND COUNT VII INTO COUNT VI. (NOT RAISED BELOW).
THE SENTENCE IMPOSED WAS MANIFESTLY ...