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State v. D.S.


May 26, 2010


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment No. 02-07-2833.

Per curiam.



Submitted February 23, 2010

Before Judges Grall and Messano.

Defendant D.S., Sr. appeals from the judgment of conviction and sentence imposed following a jury trial at which he was found guilty of first-degree aggravated sexual assault upon M.C., N.J.S.A. 2C:14-2(a)(1), and second-degree endangering the welfare of M.C., N.J.S.A. 2C:24-4(a). Defendant was sentenced to eighteen years in prison, with an 85% period of parole ineligibility pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2, on the sexual assault conviction, and a concurrent nine-year sentence on the endangering conviction. On appeal, defendant raises the following issues:







We have considered these arguments in light of the record and applicable legal standards. We affirm.


A pre-trial N.J.R.E. 104(a) hearing was held regarding the videotaped statement of M.C. taken by Detective Sharon Marks of the Essex County Prosecutor's Office on November 20, 2001.*fn1

After Marks testified regarding the procedures utilized in taping M.C., the judge reviewed the videotape. During the interview, M.C., who was eight-years old at the time, told Marks that defendant, her "grandfather," had licked her vagina during her recent visit to his house.*fn2

M.C. claimed that the incident occurred at night, while her grandmother was out of the house, and her sister was asleep. Defendant took her by the hand to his room, told her he "wouldn't hurt [her]," and made her promise not to tell anyone. Defendant lifted her nightgown and licked her for a short time, before the doorbell rang; M.C. claimed that defendant's wife, her "grandmother," had returned home and defendant left to answer the door.

The judge concluded that the "interview was conducted in an appropriate manner that would not be necessarily suggestive to the child." He further concluded that "there's sufficient probability of truthfulness to justify the admission of the videotape before the jury . . . ."

M.C.'s mother M.M. testified. Both of her daughters lived with her in Toms River during November 2001, and, on November 8, they were driven to Newark by defendant's son to spend the weekend with defendant and his wife. When the children returned on November 11, M.C. wanted to tell her something, but M.M. was busy and paid no attention to the child. Eventually, M.M.'s sister, the child's aunt, who was also in the house, told her that M.C. needed to speak to her. M.C. told her mother "[g]randfather hurt me." The child then told M.M. that defendant had licked her, and pointed to her vagina. M.M. called the local police department; officers responded and took a statement from her and M.C.

The judge concluded that M.C.'s statement to her mother was "given . . . immediately after [M.C.] returned home." He found that "[b]ased on the time and the circumstances . . . there[] [was] sufficient probability of truthfulness to justify the admission of the[] hearsay statements under . . . [N.J.R.E. 803(c)(27)]."*fn3

M.C.'s aunt also testified at the hearing. She indicated that M.C. was not herself when she returned from her visit with defendant, and the child told her that she wanted to speak to M.M. When she inquired of M.C. if she was alright, the child told her that "somebody did something to her," eventually disclosing it was defendant. The aunt alerted M.M. Defendant did not object to the admission of the aunt's testimony.

The case was not tried until October 2007. M.C. who was now fourteen years of age, testified before the jury regarding the events; Detective Marks's testimony mirrored that of the pre-trial hearing. The videotape was played for the jury. M.M. and M.C.'s aunt both testified before the jury. Each was permitted, without any objection, to reiterate the testimony they gave during the pre-trial hearing.

Police Officer Thomas Goodwin of the Toms River Police Department testified that on the night of November 11, 2001, he responded to M.C.'s home based upon "a report [of] a sexual assault." He interviewed M.C. and M.M. Detective Mario Suarez of the Essex County Prosecutor's Office also testified that he interviewed M.M. and was present during the videotaped interview of M.C. Suarez subsequently arrested defendant, and identified a photograph of defendant's home where M.C. alleged the assault occurred.

Defendant elected not to testify before the jury, though his two sons and wife did.*fn4 Their testimony contradicted some of M.C.'s testimony regarding who was with her when she traveled from Toms River to Newark on November 8. Defendant also introduced his dental records that revealed he had been to his dentist on November 8, and had eight teeth extracted.

Jury deliberations commenced immediately after summations and the charge. Within minutes, the jury sent out a request to see "all the transcripts." The judge proposed telling the jurors "that there are no transcripts per se, that we can read back any portions of the testimony that they feel is appropriate but [that] they have to be specific which witnesses or what testimony or what portions of testimony they would like to have read back . . . ." That is how the judge addressed the issue. After lunch and another hour of deliberations, the jury asked for the "statement[s]" of defendant's son, wife and M.C. as to "when they got to Newark" on November 8. Testimony from those three witnesses regarding the issue was read back to the jury by the court reporter.

Shortly thereafter, the jury sent out another note, asking for M.C.'s testimony and defendant's wife's testimony "as to when the incident took place," and "all of [defendant's wife's] testimony." The prosecutor asked the judge to clarify with the jury whether it sought M.C.'s "testimony from the stand and testimony from the video[]tape . . . [b]ecause if they do ask for testimony from the video[]tape, I am going [to] ask that your Honor play the video[]tape." Defense counsel, who had earlier objected to any suggestion of playing the videotape in response to the jury's question, renewed his objection. The judge concluded that he "s[aw] no reason why the videotape should not be given to the jury . . . ." However, after reading back defendant's wife's testimony, the judge asked the jury to be more specific regarding there request for M.C.'s testimony.

Deliberations re-commenced the next day with another question. The jury indicated that it wished to hear M.C.'s "testimony, the t.v. testimony . . . and the testimony on the stand . . . ." Defense counsel again objected, noting, "why should we be elevating [M.C.'s] testimony over other testimony?" The judge overruled the objection, and the videotape was played for the jury, which ultimately returned its verdict finding defendant guilty of both counts of the indictment.*fn5 The judge subsequently denied defendant's motion for a new trial in which he argued that the playback of the videotape during deliberations was error.



In his first point on appeal, defendant contends that replaying M.C.'s pre-trial videotaped statement during jury deliberations was harmful error requiring reversal. The State argues that the judge essentially followed the procedures that have since been delineated by the Supreme Court as necessary predicates before an out-of-court videotaped statement admitted pursuant to N.J.R.E. 803(c)(27) is replayed for a deliberating jury.

In State v. Burr, 195 N.J. 119, 132 (2008), the Court considered for the first time "whether a taped pretrial statement, which has been introduced into evidence, may be reviewed by the jury during deliberations . . . ." In our opinion, we had expressed concerns regarding the playback of the statement without any "inquir[y] into the jury's need for a video replay and balanc[ing] that need against any resulting prejudice." State v. Burr, 392 N.J. Super. 538, 576 (App. Div. 2007). On certification, the Court adopted the following procedure:

[I]f . . . the trial court is faced with a request by the jury to have a replay of the videotaped pretrial interview . . ., the court first should inquire of the jury whether it would be satisfied with a readback of [the] testimony. If the jury persists in its request to view the videotape again, then the court must take into consideration fairness to the defendant. The court must determine whether the jury must also hear a readback of any direct and cross-examination testimony that the court concludes is necessary to provide the proper context for the video playback. Furthermore, we reiterate that the court retains the ultimate discretion to deny the playback request, although that would require a showing that the consequential prejudice to the defendant from the playback could not be ameliorated through other means. And, finally, any playback of the videotape must occur in open court, along with the readback of related testimony that the court shall require. [Burr, supra, 195 N.J. at 135 (footnote omitted).]

The trial in this case occurred after our decision in Burr, but before the Court's decision in which it adopted the above procedure that was to be followed "in the future . . . ." Id. at 134. And, while the judge did not discuss our decision in Burr when he decided the issue at trial, we are convinced that he essentially followed the dictates of the Court as subsequently announced, and that defendant suffered no prejudice as a result.

First, the judge did not immediately offer the playback of M.C.'s videotaped statement to the jury. Indeed, in response to their first request for "all the transcripts" of the trial, the judge directed the jurors to be more specific. The jury then asked for the specific testimony of three individuals, M.C., defendant's son, and defendant's wife, regarding a specific issue. The jurors then asked for all of defendant's wife's testimony to be read back, and the judge reminded them that any further requests needed to be specific. They then specifically asked to hear the trial testimony of M.C. and view the videotape. In our view, this procedure certainly met the spirit, if not the letter, of Burr's instruction that the trial judge "first . . . inquire . . . whether [the jury] would be satisfied with a readback of [the] testimony." Supra, 195 N.J. at 135.

Next, the judge considered the prejudice to defendant. He noted, for example, that M.C. was "relatively withdrawn" on the tape, and not "tremendously emotional."*fn6 Moreover, after the videotape was played, the entire trial testimony of M.C. was read for the jury, including defendant's cross-examination. See id. at 135 n. 9 (noting that because the "particular videotape" at issue "contained hearsay testimony admitted pursuant to the tender-years hearsay exception, . . . it [was] imperative that the victim's related cross-examination at trial also be read back to the jury"). We consider this in conjunction with the jury's earlier requests to hear portions of the testimony of defendant's son, and the entirety of his wife's testimony. Lastly, we note that the viewing of the videotape took place in open court. See id. at 135.

In sum, we conclude that the judge did not mistakenly exercise his discretion by allowing the jury to view the videotape of M.C.'s pre-trial statement during its deliberations. See ibid.


Next, noting that M.C. testified before the jury, that the videotape was played for the jury, and that M.M. was permitted to testify about M.C.'s "fresh complaint" to her, defendant contends that the judge should have "sua sponte . . . limited [M.C.'s] retellings" of defendant's alleged sexual assault "to prevent prejudice and a deprivation of [his] right to a fair trial." See N.J.R.E. 403. We find the argument to be of insufficient merit to warrant extensive discussion. See R. 2:11-3(e)(2).

Our standard of review requires us to give "substantial deference to [the] trial [judge's] evidentiary rulings." State v. Morton, 155 N.J. 383, 453 (1998). Furthermore, "appellate review of a trial court's application of the balancing test of N.J.R.E. 403 also is subject to the abuse of discretion standard, which sustains the trial court's ruling 'unless it can be shown that the trial court palpably abused its discretion, that is, that its finding was so wide [of] the mark that a manifest denial of justice resulted.'" State v. Lykes, 192 N.J. 519, 534 (2007) (quoting Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (in turn quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999))). Lastly, since defendant never objected, reversal would only be warranted if we were convinced that the admission of this evidence was "clearly capable of producing an unjust result . . . ." R. 2:10-2.

We conclude that the judge did not mistakenly exercise his discretion in admitting the evidence, and that its cumulative effect did not deny defendant a fair trial. See Burr, supra, 392 N.J. Super. at 572-73 (rejecting a similar argument that the cumulative effect of the victim's testimony, her complaint to her mother, and her videotaped statement to the authorities was overly prejudicial).


Defendant's final argument relates to his sentence. He specifically contends that the judge failed "to consider the applicable mitigating factors result[ing] in an excessive sentence." We disagree.

In sentencing defendant, the judge found aggravating factors two, three and nine. See N.J.S.A. 2C:44-1(a)(2) ("The gravity and seriousness of harm inflicted on the victim, including whether . . . the defendant knew . . . that the victim . . . was particularly vulnerable . . . due to . . . extreme youth . . . ."); N.J.S.A. 2C:44-1(a)(3) ("The risk that the defendant will commit another offense . . . ."); N.J.S.A. 2C:44- 1(a)(9) ("The need for deterring the defendant and others from violating the law . . . ."). He also found mitigating factor seven. See N.J.S.A. 2C:44-1(b)(7) ("The defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense . . . .").

Defendant acknowledges that N.J.S.A. 2C:44-1(a)(3) and (9) are "appropriate aggravating factors arguably applicable . . . ." We therefore need not address them. He contends, however, that the judge engaged in "double counting" regarding aggravating factor two because "[t]he gravity and seriousness of the harm to the victim ha[d] already been accounted for in the degree of the crime . . . ." However, given the fact that M.C. was only eight-years old at the time the crime was committed, we believe the finding regarding aggravating factor two was supported by the record and was not "double counting." See State v. Taylor, 226 N.J. Super. 441, 453 (App. Div. 1988) (holding that the extreme youth of four year old victim could support a finding of this aggravating factor in a sexual assault case).

Defendant was fifty-nine years old at the time of sentence, had graduated from high school, had been employed until shortly before sentencing, and had a stable family life, having been married for a substantial period of time and having raised two now-adult sons. He argues that the judge erred in finding only one mitigating factor, though he fails to cite any other specific mitigating factor that is supported by the record.

Our role in reviewing the trial judge's sentence is a limited one. "[A]n appellate court should not substitute its judgment for that of the lower court, and . . . a sentence imposed by a trial court is not to be upset on appeal unless it represents an abuse of the lower court's discretion." State v. Gardner, 113 N.J. 510, 516 (1989). "In the end, '[t]he fundamental principle is that an appellate court should not second-guess a trial court's finding of sufficient facts to support an aggravating or mitigating factor if that finding is supported by substantial evidence in the record.'" State v. Cassady, 198 N.J. 165, 180-81 (2009) (quoting State v. O'Donnell, 117 N.J. 210, 216 (1989)). When the judge has followed the sentencing guidelines, and his findings of aggravating and mitigating factors are supported by the record, we will only reverse if the sentence "shock[s] the judicial conscience" in light of the particular facts of the case. See State v. Roth, 95 N.J. 334, 364-65 (1984). Here, the sentence imposed does not shock our conscience.


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