On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. 06-11-2010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 5, 2010
Before Judges Wefing and LeWinn.
Tried to a jury, defendant was convicted of aggravated sexual assault upon a victim less than thirteen years of age, a crime of the first degree, N.J.S.A. 2C:14-2a(1); endangering the welfare of a child, a crime of the third degree, N.J.S.A. 2C:24- 4a; and sexual assault upon a victim less than thirteen years of age, a crime of the second degree, N.J.S.A. 2C:14-2b. The trial court sentenced defendant to nineteen years in prison, subject to the provisions of N.J.S.A. 2C:43-7.2, the No Early Release Act ("NERA"), for aggravated sexual assault; four years in prison for endangerment, to be served concurrently; and nine years in prison, subject to NERA, for sexual assault, to be served consecutively. Defendant has appealed his convictions and sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions but remand the matter to the trial court for resentencing.
Defendant's victim was S.B., who was six years old at the time of the incident. S.B.'s mother had some plants she wished to have repotted so she drove to a local nursery, taking S.B. and her sixteen-month-old daughter with her. While they were waiting for the plants to be repotted, S.B. became separated from her mother. Her mother went through the store, calling for S.B. and found her at the end of one the aisles. Defendant was nearby, and S.B. had a strange expression on her face. Her mother asked if S.B. had not heard her calling for her, but S.B. did not answer. Her mother asked what she had been doing, but S.B. said she could not tell her. Her mother asked if defendant had told her not to say anything, and S.B. nodded affirmatively. S.B.'s mother assured her she would not be angry with S.B. and that defendant would not either. S.B. then told her mother that defendant had kissed her and licked her; she pointed to her vaginal area. S.B.'s mother went immediately to store personnel to report what her daughter had told her and they summoned the police.
Police Officer Michael Boccher of the Paramus Police Department responded to the scene. He spoke with S.B., who repeated what she had told her mother. Officer Boccher asked S.B. if she could show him, where in the store the incident occurred. She agreed and led him toward the rear. On the way, defendant happened to pass by. S.B. spontaneously identified defendant to Officer Boccher as the man who had assaulted her.
The police spoke to defendant, who appeared nervous and upset. When he asked what would happen to him if he told them the truth, he was placed under arrest and verbally advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed. 2d 694 (1966).
S.B. was interviewed by Detective Barbara Stio of the prosecutor's Sex Crimes and Child Abuse Unit at the Audrey Hepburn Children's House. Detective Stio has been trained in conducting forensic interviews of children in connection with claims of sexual abuse. She repeated what she had told her mother. She also said that defendant had taken out his penis and asked her to touch it, but she refused. Following that interview, S.B. was examined by a physician and her clothing was taken for examination. Subsequent testing at the State Police laboratory disclosed the presence of defendant's DNA on S.B.'s underpants.
After defendant was arrested, he was transported to the prosecutor's office, where he was again advised of his Miranda rights and executed a written waiver. He was questioned by Sergeant Cilento of the prosecutor's sex crimes and child abuse squad. Confronted with S.B.'s allegations, defendant confessed. Following a pretrial hearing, defendant's confession was ruled admissible at his trial.
On appeal, defendant raises the following contentions for our consideration:
THE DETECTIVES WHO QUESTIONED DEFENDANT AND THE COMPLAINANT MADE IMPROPER ASSESSMENTS AS TO THEIR CREDIBILITY -- THAT DEFENDANT WAS NOT TELLING THE TRUTH, WHILE ...