October 6, 2010
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 07-01-0044.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Axelrad and J. N. Harris.
Defendant C.W. appeals his conviction and sentence. Following a four-day trial, a jury convicted defendant of one count of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(3), and one count of fourth-degree child abuse, N.J.S.A. 9:6-1 and -3, for conduct involving his seventeen-year-old daughter F.M. The jury acquitted defendant of one count of each of these offenses. After merging the child abuse conviction with the sexual assault conviction, the court sentenced defendant to an eight-year custodial term. The court also imposed the conditions of lifetime parole supervision, Megan's Law registration, and no contact with the victim. Applicable fines and penalties were also imposed.
Defendant asserts the following arguments on appeal:
THE TAILORING ACCUSATIONS OF PROSECUTOR'S SUMMATION DEPRIVED DEFENDANT OF A FAIR TRIAL [Not Raised Below].
A. The Prosecutor's Allegations of Tailoring Were Generic and Therefore Impermissible.
B. The Prosecutor's Improper Allegations of Tailoring Deprived Defendant of a Fair Trial Beyond a Reasonable Doubt.
C. Because the Court's Failure to Give an Adequate Curative Instruction Constituted Plain Error, Defendant's Convictions Must Be Reversed.
IF THIS COURT SHOULD CONCLUDE THAT DEFENDANT'S CONVICTIONS DO NOT HAVE TO BE REVERSED, THE MATTER SHOULD NEVERTHELESS BE REMANDED FOR RESENTENCING BECAUSE THE TRIAL COURT FAILED TO GIVE DEFENDANT CREDIT FOR HAVING LED A LAW-ABIDING LIFE, N.J.S.[A.] 2C:44-1b(7).
Based on our review of the record and applicable law, we find defendant's arguments unpersuasive. With the exception of remanding for correction of the Judgment of Conviction (JOC) to include an additional aggravating factor found by the sentencing judge, we affirm.*fn1
At trial, the State presented the testimony of Jersey City Police officers, Detective Richard Orellana and Sergeant Chonda Rosario, the victim, and her mother. C.W. testified on his own behalf. The State's evidence suggested there were two encounters between C.W. and his daughter over a weekend either in late December 2003 or January 2004, specifically, a Friday night and Sunday morning when she was visiting defendant at his home in Jersey City. F.M. gave birth to a son who was undisputedly C.W.'s biological son, a fact proven by DNA evidence and stipulated at trial. Defendant admitted to having sexual intercourse with his daughter, but claimed it only occurred once in his car in the Bronx, a few blocks from where F.M. lived with her mother. On cross-examination, C.W. testified he lied when he gave a statement to the police in which he denied having intercourse with F.M.
Judge DePascale instructed the jury on the preliminary jurisdictional requirement that defendant could only be convicted if his conduct occurred in New Jersey, and that the State had the burden of proving, beyond a reasonable doubt, the acts occurred in this state. He further charged that the jurisdictional facts involved a question of credibility, and highlighted the conflicting testimony of C.M. and F.M. as to the location of the events. As previously stated, defendant was convicted of one count each of sexual assault and child abuse for the events occurring on Friday night in Jersey City, but acquitted regarding the Sunday morning incident testified to by F.M.
Defendant's sole challenge to his conviction, raised for the first time on appeal, is that the prosecutor made impermissible generic accusations of tailoring by defendant which deprived him of a fair trial. According to defendant, if the prosecutor had not made the following remarks in summation, the jury would have found defendant's version of the events to be the more credible version, which would have prevented the State from proving territorial jurisdiction, an element of the offense:
[H]ere is what this case is about. You have on one hand, a victim who's testifying and her testimony is corroborated. Everything she says makes sense.
Then you have got on the other hand, a defendant who considers everything he's heard and thinks of a way where he can basically not contest the things that are beyond contesting.
Then he says oh, wait, hold it, hold it, hold it, yes, I had sex with my daughter, but you know what [prosecutor], it wasn't your jurisdiction, so, I guess, I'm off the hook because it happened in a car in the Bronx. Oh, [defense counsel] says let New York deal with it, okay.
Because no objection was lodged at trial, we review defendant's challenge under the plain error standard, i.e., we must determine not only whether the remarks were legally impermissible, but whether such error possessed the clear capacity of producing an unjust result. See R. 2:10-2. Not any possibility of an unjust result will suffice. "Under [the plain error] standard, defendant has the burden of proving that the error was clear and obvious and that it affected his substantial rights." State v. Morton, 155 N.J. 383, 421 (1998), cert. denied, 532 U.S. 931, 121 S.Ct. 1380, 149 L.Ed. 2d 306 (2001). The claimed error must be so egregious that it "raise[s] a reasonable doubt as to whether the error led the jury to a result it otherwise might not have reached." State v. Macon, 57 N.J. 325, 336 (1971).
We discern no error, let alone plain error, in the prosecutor's summation. "A tailoring allegation is a claim that a witness has adapted his testimony to conform to other evidence that has been produced during a trial." State v. Feal, 194 N.J. 293, 305 (2008). In State v. Daniels, 182 N.J. 80, 98 (2004), the Supreme Court reaffirmed that prosecutors are prohibited from making generic accusations of tailoring, i.e., those that are evidentially baseless, during summation or cross-examination. The Court, however, held that a prosecutor may make specific allegations of tailoring, but in a limited fashion. Id. at 98-99. The Court explained that "[t]he prosecutor's comments must be based on the evidence in the record and the reasonable inferences drawn therefrom" and established the bright-line rule that it is impermissible for a prosecutor to explicitly "reference the defendant's attendance at trial or his ability to hear the testimony of preceding witnesses" as the basis for defendant's ability to tailor his testimony. Id. at 99. See also Feal, supra, l94 N.J. at 307.
Here, the prosecutor's remarks were a proper comment on the evidence, a permissible attempt to impugn defendant's credibility, and were within the appropriate bounds of advocacy. Defendant made a pre-trial statement to a detective sergeant with the Hudson County Prosecutor's Office in which he denied ever having sex with his daughter. Defendant then learned, before trial, about the DNA evidence proving that F.M.'s child was his biological son, a fact that conclusively proved defendant had sexual relations with his daughter. Thus, based on what defendant "heard," he had to back-pedal, recant his statement to the police, "not contest the things that [we]re beyond contesting," and change his trial tactic to a geographically-based defense. Nothing in the prosecutor's summation explicitly stated that defendant changed his statement based on testimony he heard at trial. Moreover, the prosecutor's subsequent comments put the now-objectionable remarks into context, clearly tying them in with the evidence defendant learned about prior to trial. The prosecutor stated:
Let's talk a little about what I meant that the victim's testimony is corroborated. She gives a statement to Detective Rosario . . . [on] March l6 . . . 2006 and she's not saying something without, you know, physical evidence. After all, she's saying this happened, and there's a kid.
So, in other words, the very fact that she had a kid in the first place, that's corroborated what she was saying. You are going to look at the birth certificate of [her son], and, at this point, it [ha]s been stipulated that there is a [son]. So, in other words, here's your first piece of evidence to back up what [F.M.] said.
Now what happens next? [F.M.] . . . gives this statement, then what do we find out later on? We find out the kid, in fact, is [C.W.'s] kid. So again, what [F.M.] said is backed up by the physical evidence. All right. That's not in contest now. We know that there is a kid. So, it's almost as if the Defendant's like, all right, can't fight the fact that there's a kid. How about I will get up on the stand and say that it happened in a car in New York.
As we have concluded that the prosecutor did not make improper accusations of tailoring by defendant, there was no need for Judge DePascale to issue a curative instruction specifically addressing these comments. The judge properly charged the jury with the standard instruction that "arguments, statements, remarks and summations of counsel are not evidence and cannot be treated as such." Feal, supra, 194 N.J. at 303. In addition, without a request having been made by defense counsel, the judge appropriately instructed the jury on territorial jurisdiction and the State's burden of proving, beyond a reasonable doubt, that the alleged acts occurred in New Jersey. See State v. Denofa, 187 N.J. 24, 42, 47 (2006) (holding that "if a reasonable doubt about the location of the crime is clearly indicated in the record, then, even in the absence of a request by counsel, the court should instruct the jury on territorial jurisdiction" and a failure to do so constitutes plain error).
Defendant next challenges his sentence as excessive, contending the court erred in failing to find any mitigating factors. Specifically, defendant argues that mitigating factor number seven, N.J.S.A. 2C:44-1(b)(7), should have been found and he should have been given credit for his lack of a prior criminal record. Defendant further argues that the judge's failure to explain the inapplicability of this factor constitutes an abuse of discretion. Our review of the sentencing transcript, however, reveals the judge specifically stated that "[a]lthough defendant is not entitled to mitigating factor seven as a consequence of his conviction in municipal court, I do note . . . that was his only prior involvement [with] the law in [thirty-nine] years." Accordingly, the judge did consider and explain his disinclination to apply mitigating factor number seven.
Our review of a trial judge's sentencing decision is quite limited. State v. Gardner, 113 N.J. 510, 516 (1989). Appellate review of a sentence is restricted to whether the determination of the sentencing factors was appropriate, whether that determination was supported by competent evidence in the record, and whether the sentence is so clearly unreasonable that it shocks the judicial conscience. State v. Roth, 95 N.J. 334, 364-65 (l984); State v. O'Donnell, ll7 N.J. 210, 215-16 (1989).
Judge DePascale found aggravating factor number three, that defendant would commit another offense, N.J.S.A. 2C:44-1(a)(3), and aggravating factor number nine, the need to deter defendant from violating the law, N.J.S.A. 2C:44-1(a)(9). The judge cited defendant's unwillingness to take responsibility for his actions and inclination to blame the victim, even in the face of "overwhelming and conclusive evidence of  Defendant's guilt in the form of conclusive DNA . . . ."*fn2 We are satisfied the trial judge's findings on the aggravating and mitigating factors were supported by the record and the judge properly followed and applied the sentencing guidelines and criteria. We do not perceive defendant's sentence to be manifestly excessive or unduly punitive, and note the State requested a nine-year sentence but the judge only imposed an eight-year sentence.
Conviction and sentence affirmed; remanded for correction of the JOC.