On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-09-1547.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Messano and Waugh.
Pursuant to defendant A.M.'s motion, the first five counts of a thirty-count indictment returned by the Bergen County grand jury were severed for purposes of trial. In those five counts, defendant was charged with two counts of first-degree aggravated sexual assault of Jane Doe, N.J.S.A. 2C:14-2(a)(1) (counts one and three); two counts of third-degree endangering Jane's welfare, N.J.S.A. 2C:24-4(a) (counts two and four); and fourth-degree lewdness, N.J.S.A. 2C:14-4(b)(1) (count five).*fn1 The charges in counts one and two related to an incident that allegedly occurred on June 25, 2008, when Jane was eight years old; the charges in counts three, four, and five related to incidents allegedly occurring on various dates between September 22, 2003 and June 24, 2008.
The jury convicted defendant of all counts and his motion for a new trial was denied. After merging count two into count one, and count four into count three, the judge imposed concurrent eighteen-year sentences on the aggravated sexual assault convictions, along with a mandatory eighty-five percent parole disqualifier pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. He imposed a concurrent one-year term of imprisonment on defendant's lewdness conviction, also subject to NERA. The State concedes that NERA does not apply to the lewdness conviction and consents to a remand for entry of an amended judgment of conviction. Additionally, defendant was ordered to register as a sex offender pursuant to Megan's Law, N.J.S.A. 2C:7-1 to -23, and placed on parole supervision for life. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN NOT ALLOWING DEFENDANT TO INTRODUCE EVIDENCE CONCERNING THE ANATOMICAL DOLLS AND THE SEXUAL[LY] EXPLICIT ARCADE GAMES DURING CROSS EXAMINATION.
POINT II THE STATE TRIED TO IMPERMISSIBLY INFLAME THE JURY BY PRESENTING EVIDENCE OF [JANE'S] ILLNESS BEYOND THE BOUNDARIES OF THE COURT'S PRE-TRIAL RULING.
POINT III THE PROSECUTOR['S] COMMENTS ABOUT THE DEFENDANT'S PRE-TRIAL [SILENCE] DENIED THE DEFENDANT THE RIGHT TO A FAIR TRIAL.
POINT IV PROSECUTOR'S COMMENTS DURING HER SUMMATION WERE TANTAMOUNT TO PROSECUTORIAL MISCONDUCT AND DENIED [DEFENDANT] THE RIGHT OF A FAIR TRIAL.
A. THE PROSECUTOR IMPROPERLY SUGGESTED TO THE JURY THAT THE DEFENSE WITNESSES WERE COACHED.
B. THE PROSECUTOR IMPROPERLY COMMENTED, ON TWO OCCASIONS, ABOUT DEFENDANT'S PRE-TRIAL SILENCE AFTER THE COURT HAD PREVIOUSLY SUSTAINED DEFENSE COUNSEL'S OBJECTION TO SUCH INQUIRY AND COMMENT.
C. THE PROSECUTOR IMPROPERLY ANALOGIZ[ED] [DEFENDANT] AS A "MASS MURDERER" AND/OR "SERIAL KILLER"; REFERRED TO HIM AS DR. JEKYLL AND/OR MR. HYDE; AND SUGGESTED THAT HE IS A PEDOPHILE.
D. THE PROSECUTOR IMPROPERLY COMMENTED ON THE TESTIMONIAL EVIDENCE OF [EDDIE DOE] WHICH WAS NOT INTRODUCED DURING THE TRIAL.
E. PROSECUTOR'S COMMENTS DURING HER SUMMATION THAT A CONVICTION WAS THE ONLY JUST RESULT ARE TANTAMOUNT TO PROSECUTORIAL MISCONDUCT.
We have considered these contentions in light of the record and applicable legal standards. We affirm.
The Doe family and the M. family were neighbors and close friends. Jane and her older brother, Eddie, referred to defendant and his wife, C.M., as aunt and uncle. Eddie was best friends with defendant's son, A.M., Jr., and defendant's daughter, M.M., was a frequent guest with her family in the Doe home. The families "socialized" at least twice a week and also vacationed and celebrated birthdays together.
The large home owned by the Does was the focal point of these gatherings that often included other neighbors. The first floor of the home included a home theater; the basement included a television room, a game room with numerous arcade-type video games, and a casino room that had both blackjack and craps tables. There was a swimming pool in the backyard.
The families often watched television or movies together and, on such occasions, defendant would often sit with Jane on his lap, both of them covered by a blanket. Jane's mother, Dawn, did not consider this behavior to be unusual because defendant and Jane "had a very fun, loving relationship" that involved mutual tickling, wrestling, and "clown[ing] around."
On Wednesday evening, June 25, 2008, defendant took his son, Jane, and Eddie to a movie. The theater was not crowded and the four sat in the middle of a row of seats. Jane could not see the screen, so defendant told her to get on his lap, which she did. After the movie, defendant drove the Doe children home before returning to his home with his son.
Thereafter, the Does traveled to their vacation home in New York. On Saturday, June 28, 2008, the family watched a television show dealing with child abduction and sexual assault, after which Stuart, Jane's father, and Dawn reminded their children to tell them if anyone ever touched them in an improper manner.
While Dawn was helping Jane prepare for bed, Jane told her, "[Defendant] touched my vagina." Dawn called Stuart into the room, whereupon Jane told them that while she was sitting on defendant's lap at the movie theater, he put his hand into her underpants and rubbed her. Jane experienced pain, closed her legs, and returned to her seat, at which point defendant said that he would not do that again and that the incident "was going to be their secret." Jane also said that defendant had been "doing it for a while, like since she was . . . four," while watching television or movies at home.
Later that night, Stuart contacted a friend who was a police detective and told him of Jane's revelations. The detective stated that he would contact the prosecutor's office.
The Does returned home the next morning. Later in the day, they called C.M. and asked her to come to their house. Before she arrived, defendant called the Does wanting to know why they wished to see C.M., and asking, "[W]hat [is] going on?" Stuart told defendant, "[Y]ou know what's going on." Stuart and Dawn told C.M. that defendant had been molesting their daughter for years. C.M. began to cry. Defendant called the Does again and, according to Stuart, when told about Jane's allegations, initially denied them. However, Stuart testified that during the conversation, defendant eventually "admitted that he had done ...