On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 06-11-1026.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Koblitz and Haas.
Tried before a jury on a multi-count indictment, defendant was convicted of first-degree aggravated sexual assault of G.M., a child under thirteen years old, N.J.S.A. 2C:14-2(a)(1) (count eight); second-degree sexual assault of G.M., N.J.S.A. 2C:14-2(c)(1) (count nine); second-degree sexual assault of G.M., a child at least four years younger than defendant, N.J.S.A. 2C:14-2(b) (count ten); third-degree endangering the welfare of G.M., N.J.S.A. 2C:24-4(a) (count eleven); second-degree sexual assault of H.A., a child between the ages of thirteen and sixteen, N.J.S.A. 2C:14-2(c)(4) (count twelve); fourth-degree sexual contact upon H.A., N.J.S.A. 2C:14-3(b) (count thirteen); and third-degree escape, N.J.S.A. 2C:29-5(a) (count fifteen).
At sentencing, the trial court merged the convictions on counts nine, ten and eleven into count eight, and merged the conviction on count thirteen into count twelve. The court sentenced defendant to ten years in prison, subject to the provisions of the No Early Release Act ("NERA"), N.J.S.A. 2C:43-7.2, on count eight; to a ten-year term on count twelve; and to a three-year term on count fifteen. Defendant was also required to comply with all Megan's Law reporting requirements. The judge did not indicate during the sentencing hearing or in the Judgment of Conviction ("JOC") whether the sentences are to run concurrent or consecutive to each other.
On appeal, defendant has raised the following contentions:
POINT I: THE STATE'S CROSS-EXAMINATION OF THE DEFENDANT CONTAINED HIGHLY IMPROPER COMMENTS ON THE DEFENDANT'S EXERCISE OF THE RIGHT TO SILENCE; FLAGRANT VIOLATIONS OF THE PRHOBITION OF EVIDENCE OF PRIOR BAD ACTS; AND CLEAR INDICATIONS THAT THE DEFENDANT WAS IN CUSTODY. THESE PATENT IMPROPRIETIES CONSTITUTED PROSECUTORIAL MISCONDUCT, AND WERE HIGHLY PREJUDICIAL, NECESSITATING REVERSAL. U.S. CONST., AMENDS. V, XIV; N.J. CONST. (1947), ART. 1, PAR. 10 (SUBSTANTIALLY RAISED BELOW).
A. THE STATE MADE UNMISTAKABLE, AND INTENTIONAL, REFERENCE, IN CROSS-EXAMINATION, TO THE DEFENDANT'S POST-ARREST SILENCE.
B. THE STATE VIOLATED N.J.R.E. 404(b) BY INTRODUCING HIGHLY PREJUDICIAL EVIDENCE OF UNRELATED PRIOR BAD ACTS (PARTIALLY RAISED BELOW).
C. THE STATE ALSO DISCLOSED TO THE JURY THAT THE DEFENDANT WAS IN CUSTODY AT THE TIME OF TRIAL.
D. THE NOTED VIOLATIONS CONSTITUTE PROSECUTORIAL MISCONDUCT, NECESSITATING REVERSAL.
POINT TWO: THE DEFENDANT'S RIGHT TO A FAIR TRIAL BEFORE A NEUTRAL JUDGE WAS VIOLATED BY THE TRIAL COURT'S PROMPTING OF THE ASSISTANT PROSECUTOR TO ELICIT EVIDENCE NECESSARY TO PROVING THE MOST SERIOUS CHARGE AGAINST THE DEFEN[D]ANT, NECESSITATING REVERSAL OF THAT CHARGE. U.S. CONST., AMENDS. VI, XIV; N.J. CONST. (1947), ART. 1, PAR. 9 (NOT RAISED BELOW).
POINT THREE: THE MAXIMUM SENTENCE IMPOSED FOR SEXUAL ASSAULT WAS EXCESSIVE, NECESSITATING REDUCTION.
After reviewing the record in light of the contentions advanced on appeal, we affirm defendant's convictions ...