On appeal from the Superior Court of New Jersey, Law Division, Ocean County, Indictment No. 07-10-1621.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Reisner and Alvarez.
Tried to a jury, defendant A.M. was convicted of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a) (counts two and three); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (counts four and five); and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a) (count six). The jury acquitted defendant of a third second-degree sexual assault charge (count one). He appeals and we affirm.
On June 26, 2009, defendant was sentenced to fifteen years imprisonment on count two, a first-degree aggravated sexual assault, subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2(a). The court imposed a concurrent fifteen-year sentence subject to NERA on count three, also a first-degree aggravated sexual assault, and a consecutive seven-year sentence was imposed on count six, the second-degree child endangering. The second-degree sexual contact counts were merged into count two. Thus, defendant's aggregate sentence was twenty-two years. Appropriate fines and penalties were imposed. At sentencing, the court found aggravating factors three, N.J.S.A. 2C:44-1(a)(3), and nine, N.J.S.A. 2C:44-1(a)(9), and mitigating factor seven, N.J.S.A. 2C:44-1(b)(7).
The incidents occurred between 2000 and 2002 when defendant's granddaughter J.M., the victim of the assaults, was five, six, and seven years old. At trial, she testified the first incident occurred in her grandfather's trailer when she was five. He exposed his penis and told her to touch it and move it "back and forth." The victim described touching it with her thumb and "pointer finger," and stated defendant showed her with his hand the movement he wanted her to copy. J.M. stopped "[b]ecause it was gross and I didn't want to do it." She said nothing about the incident because she did not "know it was wrong" and defendant asked her not to tell anyone.
When J.M. was six years old, while alone with defendant in his recreational vehicle, defendant placed his hands inside and outside her vagina, and put his fingers inside her vagina. He asked her if it hurt. Again, the victim said nothing to anyone because she did not know defendant's conduct was wrong.
On one occasion when defendant was baby-sitting seven-year-old J.M., she encountered him masturbating and looking at pornographic magazines. Defendant asked J.M. to "lick" his penis, which she refused. By that point, J.M. knew the behavior was "gross and wrong," although she did not fully understand it. J.M. told her mother about the last incident shortly after it occurred, but because she did not want her grandfather to go to jail, nothing was done.
Approximately three years later, while watching a movie depicting the sexual abuse of a child, J.M. disclosed the two other incidents to her mother. In early 2007, she made disclosures to a counselor and the matter was reported to the authorities. Ultimately, J.M. agreed to cooperate with defendant's prosecution. She was fifteen years old when she testified at trial.
During the course of a consensual taped intercept, defendant said he
masturbated in front of his granddaughter, had her touch his penis,
and put his hands and mouth on her vagina. Thereafter, when
interviewed by police, defendant waived his Miranda*fn1
rights and provided a voluntary recorded statement. He
admitted that J.M. interrupted him while he was masturbating and that
"one thing led to another and she wanted to touch me and I was
halfheartedly pulling away . . . ." Defendant also told police he put
his mouth on J.M.'s vagina and touched her clitoris, and attempted to
justify some of this conduct as merely his efforts at "showing her"
about sexuality. While being interviewed, defendant said he was sorry
the incidents had occurred and knew he "did her wrong." He also
mentioned how much he "love[d] little girls," because they were so
Prior to trial, defendant obtained a snapshot of J.M.'s MySpace page in which she wrote "i am the best liar you will ever meet. but i just hate lieingg. i hate peoplee who do." The trial judge denied defendant's motion to introduce the printout as evidence in the trial, or to cross-examine J.M. about the statement, because it was being offered to prove a character trait, namely truthfulness, and constituted a "specific act." Since specific instances of conduct not the subject of criminal convictions are inadmissible as proof of credibility, the judge barred use of the material.
At trial, defendant denied ever having touched J.M. inappropriately. When confronted with his prior recorded statements, defendant insisted he did not intend anything improper by his conduct and said he was describing nothing more than innocent game-playing with his granddaughter.
On appeal, defendant raises the following points:
I. THE TRIAL COURT DEPRIVED DEFENDANT OF A FAIR TRIAL AND HIS SIXTH AMENDMENT RIGHT TO CONFRONT HIS ACCUSER BY PRECLUDING HIM FROM CROSS-EXAMINING J.M. WITH HER PRIOR STATEMENT THAT SHE IS ...