On appeal from the Superior Court of New Jersey, Law Division, Essex County, Indictment Nos. 07-04-1150 and 07-04-1314.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 13, 2011 --
Before Judges Messano and Yannotti.
Defendant Adriane Porcell was tried before a jury and found guilty on five counts of aggravated sexual assault, contrary to N.J.S.A. 2C:14-2(a)(1); and four counts of endangering the welfare of a child, contrary to N.J.S.A. 2C:24-4(a). After merging certain offenses, the trial court sentenced defendant to eighteen years of incarceration, with a period of parole ineligibility as prescribed by the No Early Release Act, N.J.S.A. 2C:43-7.2 (NERA). Defendant appeals from the judgment of conviction entered on December 12, 2008. For the reasons that follow, we affirm.
At the trial of this matter, A.M. testified that in February 2005, defendant came to live with her mother, brothers and sister in Irvington. A.M. stated that defendant was her mother's boyfriend but he behaved like a "stepfather" to her. A.M. said that one day, when her mother was out, defendant gave her a note which stated that she was "cute." At the time, A.M. was twelve years old and defendant was thirty-one years old.
A.M. threw the note away but that night she wrote a note to defendant and said that nothing could "happen" between them because he was older and was already involved with her mother. Defendant wrote A.M. another note stating that he loved her and age did not matter. Later that evening, after her brothers and sister were asleep, defendant approached A.M. and told her that they could "be together" because he loved her. A.M. went to sleep.
Sometime thereafter, A.M.'s mother began to work the night shift. One evening, when A.M.'s mother was working, defendant called A.M. to his room. They were sitting on the bed and started kissing. Defendant told A.M. to take her clothes off. She complied. A.M. testified that defendant placed his penis into her vagina. A.M. stated that, around two weeks later, she again had sexual relations with defendant. According to A.M., defendant performed oral sex upon her. He then put his penis inside of her vagina.
A.M. further testified that one night several weeks later, while A.M.'s mother was working and her brothers and sister were asleep, defendant again called her to his room. According to A.M., defendant put his penis inside her anus. He withdrew after she said that he was hurting her. Defendant then told A.M. to turn over and lay down on her back. A.M. said that defendant then put his penis inside her vagina.
The following day, when A.M. returned from school, defendant told her that he was "scared" that she was pregnant. He gave A.M. a pregnancy test to use. Defendant said that the test results were negative. Defendant told A.M. not to tell anyone what he had done because if she did, he could go to jail "like for thirty years."
A.M. testified that sometime later, during the summer of 2005, she was with defendant in his bedroom. Her mother was working and her brothers and sister were sleeping. Defendant told A.M. to take her pajamas off. She complied. Defendant took off his clothes and they started to kiss. A.M. stated that defendant put his penis in her vagina. Defendant was wearing a condom. After defendant removed his penis, A.M. saw him throw a used condom into the garbage.
A.M. additionally testified that in the winter of 2005-2006, defendant began to have "problems" with A.M.'s mother and moved out of the house. However, sometime in 2006, defendant resumed his relationship with A.M.'s mother and he began to stay at the house twice a week. According to A.M., one night, when her mother was working and her brothers and sister were sleeping, she and defendant went to her mother's room. They kissed. Defendant put his penis in her vagina. A.M. stated that defendant was not using a condom.
A.M. further testified that in the summer of 2006, she told her cousin she had been having sex with a man but she did not reveal that the man was defendant. A.M.'s cousin told her mother, who informed A.M.'s grandmother, who told A.M.'s mother. A.M.'s mother was angry and took A.M. to the police station. A.M. did not tell the police that defendant was the person with whom she had been having sex. A.M. was taken to the ...