On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 07-02-0298.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 30, 2010
Before Judges Koblitz and Newman.
After a previous trial resulted in a hung jury, defendant Stephen Lamont Scott was convicted at his second jury trial of second-degree sexual assault upon a nine-year-old girl, N.J.S.A. 2C:14-2b (count one); third-degree burglary into the home to commit the assault, N.J.S.A. 2C:18-2 (count two); and third-degree endangering the welfare of the same child, N.J.S.A. 2C:24-4a (count three). Defendant did not testify at trial and his conviction rested in part on a videotaped confession made during a police interview, which was shown to the jury in its entirety. Defendant was sentenced to six years imprisonment with eighty-five percent parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, for the sexual assault charge and to separate concurrent four-year terms on counts two and three. Defendant argues on appeal that the court erred in failing to: suppress that portion of the confession that took place after he asked to call "his people," excise that portion of defendant's statement relating to his correspondence with another child, grant bail pending appeal and impose a lesser sentence. After reviewing the record in light of the contentions advanced on appeal, we affirm.
Both the victim and her mother testified at trial. Defendant, who was twenty-five-years-old, was staying with the victim, her mother, her younger sister and other members of her family when this incident occurred. On the night of the incident, the victim's mother woke up in the middle of the night, went to her daughters' bedroom, turned on the light and noticed defendant crouched down next to the victim's bed. She turned off the light, and surreptitiously watched defendant leave the room in the dark, exit the house through the back door and come around back to the living room where he was sleeping on the couch. That night the mother questioned both her daughters; the younger one said nothing happened and the victim said she did not know what happened because she was asleep. The mother told her daughters to go back to sleep and lock the bedroom door.
The next morning the younger child told her mother that defendant had entered through the bedroom window after the mother went back to sleep and the girls locked the bedroom door. At that time, the mother noticed the window was open and a bucket was turned upside down outside the window. That morning the victim indicated defendant had "touched her butt."
The mother and her brother confronted defendant, who denied the accusation. The police were called and interviewed the mother, the two children and defendant. Defendant initially denied all involvement. Eventually he admitted "play wrestling" with the victim and her sister. The police showed defendant a suggestive letter he had written to a twelve-year-old child. They read to him a line from his letter stating, "these thoughts can't happen because you are like a sister to me."*fn1 After being shown the letter, defendant asked if he was going to be arrested. When the officer responded affirmatively, defendant asked if he could call his "people." The officer said he could call later and continued questioning him.
After being confronted with the letter and refused an immediate phone call to his "people," defendant finally admitted that he purposely touched the victim's privates and her buttocks on top of her clothing in a sexual nature and that it aroused him. Defendant admitted to touching her buttocks "a couple times but none umm past twenty, none that close to twenty, probably like I said, like five or eight times," when they were playing. He said that "most of all of it what happened in the bedroom," and it happened seven times. He admitted entering her bedroom through the window for that purpose. At trial, the jury viewed the entire sixty-five minute video of defendant's interrogation. The victim testified that defendant touched her buttocks the night he climbed into her bedroom through the window. She also testified that "[a] couple days before [he] climbed in the bedroom window, [defendant] had put his private into [her] butt."
Although defendant did not testify at trial, defendant's mother testified that defendant was living with his fianceee at the time of trial. She testified that defendant was learning disabled, classified at school as "perceptionally impaired" and very immature for his age group.
On appeal, defendant raises the following arguments:
POINT I THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST TO SUPPRESS THE PORTION OF HIS STATEMENT MADE AFTER DEFENDANT REQUESTED THAT HE BE PERMITTED TO MAKE A TELEPHONE CALL.
POINT II THE TRIAL COURT ERRED IN FAILING TO EXCISE ANY REFERENCE IN DEFENDANT'S STATEMENT OF CORRESPONDENCE BETWEEN DEFENDANT AND ANOTHER JUVENILE.
POINT III THE TRIAL COURT ERRED IN DENYING DEFENDANT'S REQUEST FOR BAIL PENDING APPEAL.
POINT IV THE SENTENCE IMPOSED ON DEFENDANT'S CONVICTION OF SEXUAL ASSAULT, BURGLARY, AND ENDANGERING THE WELFARE OF A CHILD WAS MANIFESTLY EXCESSIVE AND ...