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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...