On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Indictment No. 08-01-0108.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 25, 2010 - Decided Before Judges Grall and C.L. Miniman.
Defendant appeals from a judgment of conviction. We affirm his convictions, but remand for resentencing.
Defendant engaged in sexual conduct with G.W., a girl twenty-four years younger than he, from the time she was eight or nine years old until she was about sixteen. Defendant had lived with G.W., her mother and her brother since G.W. was seven or eight months old. She thought of him as her step-father and called him "dad." A jury found defendant guilty of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(1) (penetration of a child less than thirteen) and N.J.S.A. 2C:14-2a(2)(c) (penetration of a child by a person standing in loco parentis); three counts of second-degree endangering the welfare of a child for whose care he was responsible, N.J.S.A. 2C:24-4a; one count of second-degree sexual assault based on the respective ages of defendant and the victim, N.J.S.A. 2C:14-2(c); and one count of second-degree sexual assault by one with supervisory or disciplinary authority over the victim, N.J.S.A. 2C:14-2c(3)(b). The judge imposed the appropriate fines, penalties, assessments and fees, and he sentenced defendant to an aggregate term of imprisonment for twenty-six years, which is subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2 and Megan's Law.*fn1
The first incident of abuse occurred when the family was preparing to move from one house in Millville to another and G.W.'s mother was at the hospital having surgery. Defendant took G.W. from playing with her brother to the room he shared with her mother and directed her to put her mouth around his penis. That incident ended when G.W.'s mother called home.
Thereafter, defendant had G.W. repeat the service and on occasion also placed his penis between her labia, but they did not have intercourse. These things happened so often that G.W. could not recall the separate incidents. G.W. knew, however, that the conduct continued in their second home in Millville and while they were living in the Township of Upper Deerfield. There was a break in the abuse while the family was living with G.W.'s grandparents and another while they were living in a shelter.
In a statement given to the police, defendant admitted to having G.W. gratify him as she described for an average of twice a month for about five years after the first incident. He also said the abuse commenced when G.W. was about nine years old. A medical examination of G.W. did not disclose anything indicative of sexual abuse.
The first person G.W. told about the abuse was her friend. G.W. was sixteen years old at the time. Subsequently, she spoke to a guidance counselor, a representative of the Division of Youth and Family Services and the police. During her testimony at trial, G.W. acknowledged that she had twice recanted the accusations she made to the police, but she said her trial testimony was truthful.
Defendant raises five issues on appeal:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS HIS TAPED RECORDED STATEMENT BECAUSE IT FAILED TO APPLY THE "TOTALITY OF THE CIRCUMSTANCES" TEST IN FINDING THAT THE DEFENDANT KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY WAIVED HIS MIRANDA RIGHTS.
II. THE TRIAL COURT ABUSED ITS DISCRETION AND PREJUDICED THE DEFENDANT'S RIGHT TO A FAIR TRIAL BY FAILING TO ISSUE AN IMMEDIATE EXPLANATORY INSTRUCTION CONCERNING THE COMPLAINED ABOUT PORTION OF THE PROSECUTOR'S OPENING STATEMENT.
III. TESTIMONY THAT THE DEFENDANT'S CONDUCT AT THE STATE POLICE STATION WAS NOT CONSISTENT WITH A STRONG DENIAL OF GUILT ...