May 17, 2012
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 08-05-0896.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 14, 2012
Before Judges J. N. Harris and Koblitz.
Defendant P.C. appeals from his May 24, 2010 judgment of conviction. After rejecting a plea offer with a custodial exposure of no more than ten years, defendant was convicted of all seven counts in Bergen County Indictment No. 08-05-0896 charging him with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2) (count one); second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts two and seven); third-degree aggravated criminal sexual contact, N.J.S.A. 2C:14-3a (counts three and four); and second-degree sexual assault, N.J.S.A. 2C:14-2b (counts five and six). The victims were defendant's fifteen and twelve-year-old step-daughters. He was sentenced to an aggregate term of twenty-two years in prison, subject to the eighty-five percent period of parole ineligibility specified in the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. After reviewing the record in light of the contentions advanced by defendant on appeal, we affirm.
The State presented the following evidence at trial. Defendant married Emma*fn1 in July 2007. Emma's two daughters, who resided with their father, visited Emma and defendant in August 2007. While Emma was at work, defendant sexually assaulted fifteen-year-old Lisa. He kissed her, fondled her breasts and placed his hand under her shirt. He then pulled off Lisa's clothes and inserted a finger into her vagina, causing her considerable pain. Finally, defendant grabbed Lisa's hand and placed it on his penis over his shorts. Lisa then fled and locked herself in the bathroom. On two other occasions, defendant kissed Lisa.
Defendant also abused Lisa's twelve-year-old sister, Emily, in August 2007. While she was staying in his home, defendant followed Emily upstairs on one occasion and began to kiss her on the mouth and touch her breasts. He then lifted her shirt and licked her breasts. Emily ran off. On another occasion in August 2007, defendant touched Emily's vagina over her clothing.
After the girls returned to their father's house, they told each other about defendant's abuse. At the end of October 2007, they moved to North Carolina with their father and stepmother. Two weeks before returning to New Jersey for the Christmas holidays, Lisa confided in her stepmother that defendant abused her during the previous summer. The following day, Lisa told a classmate and the school guidance counselor, and that evening the girls told their father. One week later the family drove to New Jersey, where the girls gave taped statements to detectives in the Bergen County Prosecutor's Office.
Defendant did not testify, but presented his mother and his wife Emma as witnesses. Defendant's mother disputed that Emily was alone with defendant on the date the child claimed to be abused. Emma testified that the girls were upset that she had permitted them to move with their father to North Carolina. She also testified that Lisa had previously falsely accused Emma of making a sex tape with another man. On cross-examination, Emma acknowledged that she had consented to the girls' father having physical custody and that the girls initially seemed happy to have defendant as part of the family. She acknowledged, however, that by the end of August 2007, Emily did not want to be in the same room with defendant.
Defendant raises the following issues:
POINT I: THE COURT ERRED IN DENYING DEFENDANT'S MOTION TO TRY THE CHARGES INVOLVING L.V. AND E.V. SEPARATELY.
POINT II: TESTIMONY THAT L.V. SPOKE TO A SCHOOL GUIDANCE COUNSELOR AND THAT L.V. AND E.V. SPOKE TO THEIR FATHER AND STEPMOTHER ABOUT THEIR ALLEGATIONS AGAINST DEFENDANT WAS IMPROPERLY ADMITTED AS FRESH COMPLAINT. (Not Raised Below)
POINT III: THE CONVICTIONS FOR FIRST-DEGREE SEXUAL ASSAULT AND SECOND-DEGREE ENDANGERING THE WELFARE OF A CHILD MUST BE REVERSED BECAUSE THE INSTRUCTIONS DISPARAGED THE SIGNIFICANCE OF THE LESSER OFFENSES. (Not Raised Below)
POINT IV: BECAUSE DEFENDANT, A FOREIGN NATIONAL, WAS DENIED HIS RIGHT UNDER THE VIENNA CONVENTION TO CONTACT HIS CONSULATE FOR ADVICE AND ASSISTANCE, HIS DECISION TO REJECT THE STATE'S PLEA OFFER WAS RENDERED IN VIOLATION OF HIS RIGHTS UNDER THE CONVENTION AND HIS CONSTITUTIONAL RIGHTS TO EFFECTIVE ASSISTANCE OF COUNSEL DUE PROCESS OF LAW. (Not Raised Below)
POINT V: THE SENTENCE OF 22 YEARS, 18 YEARS AND NINE MONTHS WITHOUT PAROLE, IS EXCESSIVE FOR THIS DEFENDANT AND THESE OFFENSES.
Defendant sought to have the charges involving the two victims tried separately. We generally defer to the trial court's discretion concerning a defendant's motions to sever. State v. Chenique-Puey, 145 N.J. 334, 341 (1996). Judge Harry G. Carroll, in a comprehensive written opinion, determined prior to trial that the offenses were of sufficiently similar character so as to be tried together. R. 3:15-2. After a Cofield analysis, he determined that no prejudice would result from trying the charges together because "the evidence of the offenses sought to be severed would be admissible under N.J.R.E. 404(b)." See State v. Cofield, 127 N.J. 328, 338 (1992).
We agree with Judge Carroll and affirm his decision substantially for the reasons expressed in his written opinion.
Defendant claims that Judge Carroll erred in finding that the charges could be admitted to show a sexual motive or to rebut a potential claim of mistake because he mounted a general denial defense at trial rather than maintaining that innocent behavior was misinterpreted by the children.
Defendant did not testify and his defense could be characterized as an attempt to undermine the credibility of the victims. Such a defense is not inconsistent with the defense of mistake or accident, nor does it obviate the need for the State to prove the motive of sexual gratification by the defendant. A pre-trial determination is made without specific knowledge of defense strategy, which, in any event, is likely molded by the outcome of the pre-trial ruling. Defendant need not decide whether or not he will testify until after the State rests. Judge Carroll appropriately considered that the other crimes would be admissible to show the motive of sexual gratification as well as "absence of mistake or accident," N.J.R.E. 404(b).
Defendant also argues as plain error that Judge Carroll should have given a limiting instruction. See R. 2:10-2. Judge Carroll instructed the jury that "the defendant is entitled to have each count considered separately by the evidence which is relevant and material to that particular charge." Given that the jury had to consider defendant's guilt on all charges, this instruction was sufficient.
Defendant also complains that Judge Carroll should not have allowed certain testimony to serve as fresh complaint evidence. Specifically, defendant challenges the judge's decision to allow testimony that the girls spoke to their stepmother, Lisa spoke to a guidance counselor the following day, and the girls spoke to their father and stepmother about the abuse later that day.
Defense counsel did not object to this testimony at trial. Consequently, defendant must demonstrate plain error. R. 2:10-2; see also State v. Macon, 57 N.J. 325, 336 (1971). Under that standard, "we must disregard any error unless it is clearly capable of producing an unjust result. Reversal of defendant's conviction is required if there was error sufficient to raise a reasonable doubt as to whether [it] led the jury to a result it otherwise might not have reached." State v. Atwater, 400 N.J. Super. 319, 336 (App. Div. 2008) (internal citations and quotations omitted); see also State v. Daniels, 182 N.J. 80, 95 (2004); R. 2:10-2.
Defendant does not object to admission of the testimony that Lisa spoke to her classmate or that the girls spoke to their stepmother about the abuse, conceding those statements constitute fresh complaint evidence. Defendant argues that the children's other reports of abuse were not made voluntarily and spontaneously and constitute impermissibly cumulative evidence. Lisa said that she spoke to her school guidance counselor at the suggestion of her classmate and the girls told their father only because the guidance counselor was going to tell him.
Sequential reports of abuse are common, and we have affirmed the admissibility of such fresh complaint evidence where it was not the product of suggestive or coercive questioning. State v. L.P., 352 N.J. Super. 369, 380-82 (App. Div. 2002). Defendant has therefore failed to demonstrate plain error.
Defendant also raises as plain error that the judge's instructions to the jury regarding the lesser-included offenses unconstitutionally disparaged the significance of those offenses. The judge charged:
Now with respect to lesser-included offenses, the law requires that the [c]court instruct the jury with respect to possible lesser included offenses, even if they are not contained in the indictment. Just because the [c]court is instructing you concerning these offenses does not mean that the [c]court has any opinion one way or another about whether the defendant committed these or any offenses.
This language to which defendant objects comes from the model jury charge. New Jersey Model Jury Charges (Criminal), Non 2C Charges, Lesser Included Offenses (Feb. 2002). Defendant's argument lacks sufficient merit to warrant further discussion in this opinion. R. 2:11-3(e)(2).
Defendant argues as plain error that as a native of the Dominican Republic with a detainer from Immigration and Customs Enforcement (ICE), he was entitled to notice of his right under the Vienna Convention to have the consulate informed of his incarceration. Vienna Convention on Consular Relations and Optional Protocol on Disputes, art. 36, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820, 596 U.N.T.S. 261 (VCCR). However, absent a showing of prejudice, a failure to comply with the provisions of the VCCR will not result in a reversal of a conviction. State v. Jang, 359 N.J. Super. 85, 88 (App. Div. 2003). Defendant maintains that "had a consular aide explained the role of plea bargaining in the American system of criminal justice, [P.C.] would have appreciated the benefits of accepting the plea rather than taking the matter to trial."
As this issue is raised for the first time on appeal, no record was developed with regard to whether the consulate was informed of defendant's incarceration. Assuming this was not done, defendant's argument is highly speculative and inconsistent with defendant's position that he did not commit these crimes. See Jang, supra, 359 N.J. Super. at 94. Consular officials are not authorized to render legal advice. State v. Cevallos-Bermeo, 333 N.J. Super. 181, 188 (App. Div. 2000).
Moreover, the record supports the State's contention that defense counsel advised defendant, who did not require an interpreter during the court proceedings, of the potential advantage to accepting the plea offer. Judge Carroll gave defense counsel sufficient time at the courthouse to consult with defendant concerning the plea before his final rejection of that offer. Defense counsel indicated that he discussed the offer with defendant a few times at the jail before the courthouse discussion, explaining the sentence defendant faced should he be convicted, and that defendant repeatedly rejected the offer.
Defendant further claims his lawyer was ineffective in not pursuing his rights under the VCCR before trial. Although the discussion above does not support such a conclusion, we shall refrain from addressing defendant's allegations of ineffective assistance of counsel on direct appeal. Instead, we shall reserve such claims for a future potential application for post-conviction relief (PCR), where the record may be expanded if necessary with appropriate proofs outside of the trial transcripts. See State v. Preciose, 129 N.J. 451, 460 (1992).
In his final point, defendant maintains that the sentence imposed was excessive. In determining the appropriate sentence to be imposed on a convicted individual, the sentencing court must consider specifically enumerated aggravating and mitigating circumstances identified at N.J.S.A. 2C:44-1(a) and (b), balance them, and explain how the sentence was determined so that the reviewing court will have an adequate record to review on appeal. State v. Abdullah, 184 N.J. 497, 507 (2005). If a sentencing court properly identifies and balances the factors and their existence is supported by sufficient credible evidence in the record, an appellate court should affirm the sentence. State v. Carey, 168 N.J. 413, 426-27 (2001). If a court adheres to the sentencing guidelines, the sentence it imposes should be modified only if it "shock[s] the judicial conscience." State v. Roth, 95 N.J. 334, 365 (1984).
In State v. Bieniek, 200 N.J. 601 (2010), our Supreme Court fortified the authority of sentencing judges, reminding our court to avoid substituting appellate preferences for legally compliant sentencing actions by the Law Division:
Because the sentencing court adhered to the sentencing principles set forth in the Code and defined in our case law, its discretion should be immune from second-guessing. We grant to it the deference to which it is entitled under our traditional principles of appellate review of a criminal sentence. [Id. at 612.]
Judge Carroll found three aggravating factors applied to all counts of the indictment: the risk the defendant will commit another offense, his prior record, and the need for general and specific deterrence. N.J.S.A. 2C:44-1(a)(3), (6) and (9). Defendant had a prior federal conviction for distribution of CDS and a prior arrest for simple assault. That record, combined with the number of crimes defendant committed in this indictment, lend support to these aggravating factors.*fn2
Judge Carroll found no mitigating factors. As part of his sentence, defendant was ordered to pay restitution of $990 to the Victims of Crime Compensation Office (VCCO), which paid for Lisa's psychological counseling. Defendant argues that Judge Carroll erred in not applying mitigating factor (6), that defendant will pay compensation for injury incurred by the victims. N.J.S.A. 2C:44-1(b)(6). Judge Carroll did not abuse his discretion in finding that the payment of counseling fees does not compensate for the injuries inflicted.
Although Judge Carroll found that the aggravating factors outweighed the mitigating factors, he sentenced defendant in the middle of the applicable range as to each crime. He ordered the sentences on the counts relating to each child to run concurrent to each other and consecutive to the counts relating to the other child, pursuant to law. State v. Yarbough, 100 N.J. 627, 643-44 (1985), cert. denied, 475 U.S. 1014 (1986) (as modified by N.J.S.A. 2C:44-5(a)).
Finally, defendant requests, without authority or argument, that the judgment of conviction be amended to ensure that all post-release NERA supervision terms are served concurrently. The Supreme Court has resolved that issue against defendant. State v. Friedman, 209 N.J. 102, 116-20 (2012) (holding that NERA supervision on consecutive sentences must be served consecutively).