On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-01-00010.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: March 2, 2011 - Decided: Before Judges Fisher and Fasciale.
Defendant appeals his conviction for first-degree aggravated sexual assault arguing that the judge erred by introducing into evidence a book concerning contraception, the prosecutor made improper comments during summation, and that his sentence is excessive. We affirm.
In December of 2006, defendant admitted that he was involved in a sexual relationship with his teenage daughter during a telephone conversation he had with his brother. After their conversation ended, his brother contacted a high school friend who worked for the New Jersey Division of Youth and Family Services (DYFS) and reported what defendant had stated. DYFS contacted the Plainsboro Police and the brother informed Detective Blanchard what defendant had told him.
Blanchard spoke with defendant's daughter, who initially denied any abuse by defendant but subsequently admitted the relationship to him a few days later. Blanchard learned that the abuse occurred in defendant's mobile home located in the backyard of his ex-wife's property. The police arrested defendant, impounded the vehicle, obtained a search warrant, and discovered a book about contraception, a gun, and suggestive photographs of defendant's daughter. The judge admitted each item into evidence.
At the trial, defendant's daughter testified about their relationship. She stated that the relationship began in 2002 after defendant invited her to sleep in his bed; she had intercourse with him "about every weekend or so;" he never wore a condom; he kept track of her menstrual cycle; she asked him to stop, but he threatened to kill her mother and commit suicide if she told anyone; and that defendant would sometimes have his gun holstered around his belt.
In summation, the prosecutor argued defendant's sexual abuse "broke" his daughter and added that it was now time to "fix" her. Defendant's counsel objected at a side bar and requested a mistrial. The judge denied the request for a mistrial and explained to the jury that the "fixing" comments were not to be of concern "because sympathy, bias, speculation [and] conjecture . . . play no role in the performance of your duty."
On January 14, 2009, a jury found defendant guilty of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a (Count One); two counts of second-degree sexual assault, N.J.S.A. 2C:14-2b (Counts Two and Four); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (Count Three); and fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3b (Count Five). The judge merged Count Two into Count One and Count Five into Count Four and sentenced defendant to a fourteen-year term of imprisonment on Count One, subject to an eighty-five percent period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, consecutive to a six-year term of imprisonment on Count Three. The judge imposed a seven-year sentence on Count Four to run concurrent to Counts One and Three.
On appeal, defendant raises the following points:
ADMISSION OF THE TEXTBOOK REGARDING CONTRACEPTION VIOLATED NEW JERSEY RULE OF EVIDENCE 403 AND THEREBY DENIED J.D. BOTH DUE PROCESS OF LAW AND A FAIR TRIAL AS REQUIRED BY U.S. CONST. AMENDS. V, VI AND XIV; N.J. CONST. ART. I, ¶¶ 1, 9, AND 10. POINT II
REPEATED INSTANCES OF PROSECUTORIAL MISCONDUCT DENIED J.D. HIS RIGHTS TO DUE PROCESS AND A FAIR TRIAL FREE FROM TAINT, AND INFLAMED PASSIONS OF THE JURY DEPRIVING THE DEFENDANT OF A FAIR TRIAL. U.S. CONST., ...