On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Indictment No. 05-08-1151.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 29, 2010
Before Judges Lisa and Reisner.
Defendant was charged in a five-count indictment with various sexual offenses committed against two victims, his daughter Andrea, and his granddaughter Allison.*fn1 The offenses against Andrea were alleged to have occurred between December 1994 and December 1998, beginning when Andrea was about eleven years old. More particularly, defendant was charged in the first three counts with committing the following offenses against Andrea during that time: (1) first-degree aggravated sexual assault by committing acts of sexual penetration, N.J.S.A. 2C:14-2(a)(1); (2) second-degree sexual assault by committing acts of sexual contact, N.J.S.A. 2C:14-2(b); and (3) second-degree*fn2 endangering the welfare of a child, N.J.S.A. 2C:24-4(a). The fourth and fifth counts charged sexual improprieties against Allison between December 1, 2004 and February 28, 2005, when she was eleven years old, as follows:
(4) second-degree sexual assault by committing acts of sexual contact, N.J.S.A. 2C:14-2(b); and (5) third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a).
The jury convicted defendant of counts one, two and three, but acquitted him of counts four and five. After merging count two with count one, the judge sentenced defendant on count one to ten years imprisonment. The judge imposed a consecutive five-year term on count three.
Defendant presents the following arguments on appeal:
DEFENDANT'S MOTION FOR SEVERANCE OF OFFENSES SHOULD HAVE BEEN GRANTED.
THE ADMISSION OF THE TESTIMONY OF [H.V.] AS FRESH COMPLAINT EVIDENCE WAS ERRONEOUS. POINT III
DEFENDANT'S CONVICTIONS MUST BE REVERSED BECAUSE THE TRIAL COURT ERRED IN FAILING TO INSTRUCT THE JURY ON THE LIMITED USE OF FRESH COMPLAINT EVIDENCE. (Not raised below.)
IT WAS ERROR FOR THE COURT TO FAIL TO MERGE THE OFFENSE OF ENDANGERING THE WELFARE OF A CHILD WITH THE OFFENSE OF AGGRAVATED SEXUAL ASSAULT.
CONCURRENT SENTENCES SHOULD HAVE BEEN IMPOSED ON DEFENDANT. (Not raised below.) POINT VI
THE AGGREGATE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not raised below.)
We reject these arguments and affirm.
Defendant and his extended family lived together in the same household at all relevant times. In addition to defendant and his wife, the household included defendant's daughter Andrea, defendant's three sons, the wife of one of those sons, and defendant's two stepdaughters and their children, one of whom was Allison. Approximately twelve people lived in the household. Defendant, who was sixty-six years old at the time of trial in 2008, supported his family by working as a truck driver for many years.
Although the abuse of Andrea had ceased by the end of 1998, Andrea never disclosed the abuse to anyone until March 2005. The circumstances inducing Andrea to come forward were as follows. In late February or early March 2005, Allison's mother came upon a "revenge list" containing ten to fifteen names written on it by Allison. One of the names was "Grandpa," referring to defendant. When her mother asked why defendant's name was on the list, Allison initially said it was "nothing." Upon further questioning by her mother, Allison said defendant had "been mean to her." When further questioned, Allison said defendant sometimes "held her too tight," he "was hugging on her," he rubbed her back, and "he had touched her some." Allison's mother discussed this with her sister and her mother (defendant's wife). They agreed this was a family problem that should be handled internally and not reported to the police. Allison's mother confronted defendant. He said he did not know what Allison was talking about, and that "he was just making her move the dog off the bed."
Andrea was twenty years old at that time. When she came into the home one day, she found her sisters crying and was told that her niece, Allison, ...