On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-05-0460.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 19, 2011 -- Decided Before Judges Parrillo, Yannotti and Espinosa.
Defendant Carlos Mendoza was tried before a jury and found guilty of second-degree sexual assault upon N.P., N.J.S.A. 2C:14-2(b), and second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He appeals from the conviction and the sentences imposed. For the reasons that follow, we affirm.
Defendant was charged with first-degree aggravated sexual assault upon N.P., N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault upon N.P., N.J.S.A. 2C:14-2(b) (count two); second-degree endangering the welfare of a child, N.P., N.J.S.A. 2C:24-4(a) (count three); second-degree sexual assault upon S.P., N.J.S.A. 2C:14-2(b) (count four); and second-degree endangering the welfare of a child, S.P., N.J.S.A. 2C:24-4(a) (count five).
At the trial of this matter, the State presented evidence that defendant and M.S. had been in a relationship for about fourteen years. N.P. and S.P. are M.S.'s granddaughters. L.P. is the children's father and C.P. is their mother. M.S. is C.P.'s mother. At the time of the alleged incidents, N.P. and S.P. were five- and eight-years old, respectively. On December 10, 2005, N.P. and S.P. were left in defendant's care at the girls' home in Union, New Jersey.
N.P. subsequently reported to L.P. that, while she and defendant were watching television, defendant touched her vagina. C.P. told her mother and then reported the incident to the police. The matter was investigated by the Union CountyProsecutor's Office. N.P. gave a videotaped statement to Detective Mary McKinlay (McKinlay). Thereafter, McKinlay obtained a warrant for defendant's arrest.
Defendant was arrested at his residence in Union City, and transported to the prosecutor's office, where he waived his rights under Miranda*fn1 and gave McKinlay a videotaped statement. Defendant said that N.P. had complained of redness and irritation of her vagina, and he assisted her in applying baby powder to the affected area. Defendant stated that he might have rubbed his hand against N.P.'s vagina while he was helping her apply the powder.
Prior to defendant's arrest, S.P. told her mother that defendant had touched her vaginal area "a lot of times." C.P. informed L.P. and then reported the matter to the police. The case was referred to the Monmouth County Prosecutor's Office, because the incidents were said to have taken place in Keansburg, New Jersey. S.P. was brought to the prosecutor's office, and she gave a videotaped statement to Detective Patrick J. O'Connell (O'Connell). N.P. and S.P. testified at trial, along with C.P., L.P., M.S., McKinlay, O'Connell, and Dr. Linda Jane Shaw, a physician who had examined the girls. N.P.'s and S.P.'s videotaped statements were played for the jury. Defendant testified on his own behalf. Defendant stated that N.P. had complained of a rash and he assisted her in applying powder to the affected area, but he did not touch her vagina. He also denied ever touching N.P. and S.P. or having any sexual contact with them.
The jury found defendant not guilty on counts one, four and five, but guilty of count two, second-degree sexual assault upon N.P., and count three, second-degree endangering the welfare of a child, N.P. The court sentenced defendant to concurrent six-year terms of incarceration, each with a period of parole ineligibility as prescribed by the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
In addition, the court ordered defendant to register pursuant to Megan's Law, N.J.S.A. 2C:7-2; sentenced defendant to community supervision for life; ordered defendant to serve a three-year term of parole supervision after completion of his sentence of incarceration; and required defendant to provide a DNA sample. Appropriate fines and penalties also were imposed.
The court entered a judgment of conviction dated December 12, 2008. This appeal followed. Defendant raises the following issues for our consideration:
THE TRIAL COURT ERRED BY REPLAYING THE VIDEOTAPED STATEMENT OF N.P. WITHOUT FIRST APPLYING THE PRECAUTIONARY PROCEDURES SET FORTH IN STATE v. MICHAELS AND STATE v. BURR. (Partially raised below).
POINT II THE TRIAL COURT ERRED BY REPLAYING THE VIDEOTAPED STATEMENT OF MR. MENDOZA WITHOUT FIRST APPLYING THE PRECAUTIONARY PROCEDURES SET FORTH IN STATE v. MICHAELS AND STATE v. BURR. (Not raised below).
POINT III THE TRIAL COURT ERRED BY PERMITTING THE STATE TO INTRODUCE THE VIDEOTAPED STATEMENT OF N.P. INTO EVIDENCE AS A "TENDER YEARS" EXCEPTION TO THE HEARSAY RULE PURSUANT TO N.J.R.E. 803(c)(27) AS THE STATEMENT WAS NOT SUFFICIENTLY TRUSTWORTHY.
POINT IV THE TRIAL COURT ERRED BY ADMITTING THE VIDEOTAPED STATEMENT OF N.P. INTO EVIDENCE AS IT WAS CUMULATIVE AND SHOULD HAVE BEEN EXCLUDED PURSUANT TO N.J.R.E. 403 AND ITS INTRODUCTION PURSUANT TO N.J.R.E. 803(c)(27) VIOLATED THE CONFRONTATION CLAUSE OF THE SIXTH AMENDMENT. (Partially raised below). POINT V THE TRIAL COURT ERRED BY REDACTING MR. MENDOZA'S STATEMENT TO EXCLUDE HIS RESPONSE TO THE DETECTIVE'S QUESTION OF "HOW DO YOU THINK YOU'D DO IF YOU TOOK A POLYGRAPH EXAM?".
POINT VI THE TRIAL COURT'S CUMULATIVE ERRORS REQUIRES THE REVERSAL OF MR. MENDOZA'S CONVICTION. POINT VII THE SENTENCE ...