On appeal from Superior Court of New Jersey, Law Division, Monmouth County, Indictment No. 09-09-1815.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Graves and Yannotti.
Defendant Marcellus D. Barnes was tried before a jury, which found him not guilty of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(4), but guilty of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). Defendant appeals from the judgment of conviction dated December 14, 2010. We affirm.
At the trial of this matter, the State presented evidence which established that on July 8, 2009, J.S. was residing with her mother in Asbury Park. She was fifteen years old at the time, and had a son who was one-and-one-half years old. J.S. was home alone with her child at around 8:00 a.m. She said she was bored. She called defendant and invited him over. Defendant was then thirty years old and worked at a local pizza parlor. It seems that a friendship had developed between defendant and J.S. in the weeks before July 8, 2009.
Around 9:00 a.m., defendant returned J.S.'s call and thereafter, he went to J.S.'s house. They sat and watched television in her bedroom. The baby was running around. J.S. testified that she wanted "to do some sexual things[.]" Defendant wanted to leave but J.S. would not let him leave. J.S. started to perform oral sex upon defendant. The baby came into the room. J.S. stopped and put him to sleep on the bed. J.S. and defendant started to have sex.
J.S. said she performed oral sex upon defendant twice, and she and defendant twice engaged in sexual intercourse. At some point, J.S.'s mother returned to the home and observed defendant and J.S. engaging in sexual intercourse. J.S.'s mother chased defendant from the house and called the police. J.S. was taken to a hospital. She refused to allow the nurse to test her because she did not want to get defendant into trouble. J.S. did, however, provide buccal swabs.
The jury found defendant not guilty of sexual assault but guilty of endangering the welfare of a child. Thereafter, defendant filed a motion for a new trial. The trial court denied the motion. The court sentenced defendant to parole supervision for life and required that defendant comply with Megan's Law, N.J.S.A. 2C:7-1 to -23. This appeal followed.
Defendant raises the following arguments for our consideration:
THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION FOR A NEW TRIAL BASED ON THE PROSECUTOR'S IMPROPER AND PREJUDICAL COMMENTS DURING SUMMATION AND OTHER ERRORS WHICH DEPRIVED ...