On appeal from Superior Court of New Jersey, Law Division, Camden County, Indictment No. 06-03-01193.
RECORD IMPOUNDED NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Messano.
Following a jury trial, defendant C.B. was convicted of the following offenses: seven counts of first-degree aggravated sexual assault of a victim less than thirteen years of age, N.J.S.A. 2C:14-2(a)(1) (counts one, two, three, nine, ten, eleven, and twelve); three counts of first-degree aggravated sexual assault of a victim at least thirteen but less than sixteen years old, N.J.S.A. 2C:14-2(a)(2)(c) (counts thirteen, fourteen, and fifteen); one count of second-degree sexual assault, N.J.S.A. 2C:14-2(b) (count four); and three counts of second-degree endangering the welfare of a minor, N.J.S.A. 2C:24-4(a) (counts five, six, and sixteen). On September 19, 2008, the court sentenced defendant to an aggregate term of 125 years in prison subject to 106 years and three months of parole ineligibility under the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.
On appeal, defendant presents the following arguments:
THE TRIAL PROSECUTOR IMPROPERLY BOLSTERED THE CO-DEFENDANT'S TESTIMONY THAT [C.B.] HAD COMMITTED THE OFFENSES CHARGED IN THE INDICTMENT BY CALLING ANOTHER PROSECUTOR TO VOUCH FOR HER CREDIBILITY, AND BOLSTERED THE COMPLAINANT'S TESTIMONY BY CALLING AN INVESTIGATOR IN THE PROSECUTOR'S CHILD-ABUSE UNIT. (Not Raised Below)
THE INSTRUCTION ON DEFENDANT'S EXERCISE OF HIS RIGHT TO REMAIN SILENT CREATED THE IMPRESSION THAT HE HAD AN OBLIGATION TO TESTIFY AND THUS VIOLATED HIS STATE AND FEDERAL RIGHTS TO REMAIN SILENT. (Not Raised Below)
THE COURT VIOLATED THE PRINCIPLES OF STATE v. YARBOUGH IN SENTENCING THE DEFENDANT TO SEVERAL CONSECUTIVE TERMS AT THE MAXIMUM END OF THE SENTENCING RANGE, AND ERRED IN FAILING TO WEIGH SEPARATE AGGRAVATING FACTORS FOR EACH OFFENSE.
THE AGGRAVATING AND MITIGATING FACTORS CONSECUTIVE SENTENCES ENDANGERING IS NOT A NERA OFFENSE
After considering these arguments in light of the record and applicable legal standards, we conclude that defendant received a fair trial. Accordingly, we affirm the convictions, but remand for resentencing.
Tammy,*fn1 the victim of the sexual assaults, was nineteen years old when she testified at defendant's trial. Tammy testified she was living with her mother, Jennifer, and her brother, Tom, in Wrightstown in 1995 when her mother began dating defendant. About two years later, defendant moved in with them. Tammy testified her mother was employed on a full-time basis and defendant was "in charge" of her and her brother while her mother was at work.
Tammy described how defendant began touching her in "a sexual way" between her legs and "on [her] butt." She also described, in graphic detail, how she was sexually abused for the first time when she "was about seven or eight years old" and how the abuse continued for several years until she eventually told her grandmother about it while attending a wedding on July 29, 2005.
When asked why she did not tell her mother about the abuse and how frequently it occurred, Tammy testified as follows:
He told me not to tell her. But, another thing is I thought she might have already known because he had already said to her "I'm going to teach her about sex" and all these things. But, I don't think she really knew the extent of it.
Q. Did you have a conversation with your mom about what the defendant was doing to you?
A. . . . I figured she already knew so I never really sat down and had a full-fledged conversation with her.
Q. Okay. How many times would he make you have sex with him?
A. I couldn't even tell you how many times that was. I really couldn't. I have no idea how many times that was. I would put it ...