On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Indictment No. 08-11-1901.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and Grall.
Tried by a jury, defendant Roberto Rocero was convicted of second-degree sexual assault, N.J.S.A. 2C:14-2b, and second- degree child endangerment, N.J.S.A. 2C:24-4a.*fn1 On the former, defendant was sentenced to a seven-year term with an 85% period of parole ineligibility pursuant to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2, and on the latter, to a concurrent flat seven-year term. Defendant appeals, and we affirm.
The indictment charged defendant with sexually assaulting T.M., for a two-year period from June 2000, when the child was nine years old, to June 2002, when she was eleven years old. According to the State's proofs, T.M. lived with her mother A.M., her father and brother in an apartment in New Brunswick. Sometime in the late 1990's, A.M.'s sister Jane and defendant, with whom she was romantically involved, came to live with her sisters' family in the New Brunswick apartment. During this time, A.M. occasionally entrusted her children to Jane's and defendant's care. About two years later, Jane and defendant moved out of the apartment and into a house they purchased in New Brunswick.
From around 2000 to 2001, when A.M. and her husband needed child care because of their work schedules, A.M. would bring T.M. and her younger brother to Jane's and defendant's home. This arrangement amounted to two days a week. Because of their four-year age difference, T.M. would often watch television shows in her aunt's bedroom upstairs, while her brother watched television in the living room.
According to T.M., on about five separate occasions, defendant came into the bedroom when T.M. was alone and locked the door. Then, "he would take off [her] pants or [her] underwear at times, and he would . . . feel [her], under [her] shirt, or caress [her], inappropriately like." Defendant would kiss her chest, and on one occasion, he also performed oral sex on her. On at least one other occasion, defendant "placed [her] hand over his penis," wanting her "to masturbate him." However, she "didn't know what that was. So, he kind of stroked [her] hand on top of his penis." In yet another incident, T.M. thought defendant tried to penetrate her from behind because she could feel the pressure of his penis between her bottom. These incidents usually lasted about ten to twenty minutes, during which T.M. "drifted away," not understanding what defendant was doing to her.
Around this same time, A.M. noticed her daughter's personality starting to change, becoming less talkative and more aggressive, prone to crying when being chastised. At the time, T.M. did not disclose defendant's abuse to anyone, nor really understand what was happening to her. In fact, it was not until about two years later, after attending a class in school about sex, that she realized what defendant did to her was wrong and confided in her best friend, C.C., whom she had known since she was about five years old, that someone had "touched her." According to C.C., T.M. appeared "sad and depressed," and because she herself did not truly understand, C.C. did not question T.M. any further.
On a later occasion, when T.M. was about twelve years old, she and C.C. were watching a soap opera on television depicting an event similar to what defendant had done to her. T.M. suddenly became very emotional and started crying, pointing to the television, saying "That's what happened to me . . . why me." C.C. did not press T.M. for details because she wanted T.M. to forget her problems.
T.M. however lived with this burden for sometime thereafter, keeping the abuse from her family lest no one believe her or question why she did not tell them sooner. She did not tell her Aunt Jane because Jane had a child and did not want her cousin to grow up without a father. But coping with the abuse by herself had its consequences. As her mother observed, T.M. developed "a lot of anger issues." At one point, she even contemplated suicide.
Finally, in July 2008, when she was preparing to go to college, T.M. told her mother what defendant had done to her. A.M. was "shocked" because she had always trusted defendant. She reported the abuse to the Division of Youth and Family Services (DYFS), who in turn notified the police. After separately interviewing T.M. and her mother, the police confronted defendant, who agreed to accompany them to headquarters, where upon his request, he was provided someone who spoke Tagalog, his native language. Defendant was then advised of his Miranda rights and signed a waiver form. In the two-and-one-half-hour recorded interview that followed, defendant initially denied sexually abusing T.M. Then, about one hour later, he ...