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State of New Jersey v. A.B.M

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


September 25, 2012

STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
A.B.M., DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Indictment No. 08-04-0706.

Per curiam.

RECORD IMPOUNDED

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 11, 2012

Before Judges Yannotti and Harris.

Defendant Arturo M.*fn1 appeals from his conviction by a jury of second-degree sexual assault, N.J.S.A. 2C:14-2(b), and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a), based upon evidence that he engaged in sexual acts with his niece, Milania, when she was five and six years old. After merger, Arturo was sentenced to eight years imprisonment subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2.*fn2 We affirm.

I.

Sometime in July 2005, Arturo moved into the Jersey City residence of his brother Adam, sister-in-law Rena, and several of their children. Arturo and Rena did not have a good relationship. In November 2005, Arturo was asked to leave the premises after a violent argument with Rena. Several months later, Arturo was invited to return after one of his nieces left home to be married, and the family needed help paying the rent.

In January 2007, Arturo was again asked to move out after Milania's babysitter reported to Adam and Rena that Arturo had sexual contact with Milania. Neither Adam nor Rena contacted the police to report the allegations.

On October 26, 2007, the Division of Youth and Family Services*fn3 (the Division) received an anonymous telephone call regarding Milania's sexual abuse allegations. At approximately 10:00 p.m. on that date, two Division investigators went to the family's home and questioned Adam, Rena, and Milania regarding the accusations. As a result of their investigation, the Division investigators removed Milania from her home, taking her to a hospital to be evaluated by a doctor and then placing her with a resource family.

On the same day, Detective Willie Caicedo of the Hudson County Prosecutor's Office Special Victims Unit (SVU) received a referral from the Division regarding Milania. Detective Caicedo interviewed the parents, who disclosed that Rena learned from Milania's babysitter that Arturo had sexually abused Milania and made the girl watch "bad movies."

On November 2, 2007, Arturo agreed to meet with Detective Caicedo at the SVU. The detective, who is fluent in reading, writing, and speaking Spanish, provided Arturo with Miranda*fn4 warnings in Spanish, and Arturo agreed to speak with him. The recorded statement lasted approximately two hours and was conducted in Spanish.*fn5

In the videotaped statement Arturo recounted that his brother had confronted him about Milania's accusations but he denied the girl's story. Detective Caicedo thereupon challenged Arturo's credibility and accused him of having sexually assaulted Milania. Arturo initially denied Detective Caicedo's accusations, but he then stated that Milania had walked into his room while he was watching pornography on a day when he had consumed more than twelve beers, and he touched her on top of her clothes on her legs, buttocks, and vagina.

Detective Caicedo told Arturo that Milania stated that there had been ten instances of abuse. Arturo admitted having touched Milania three to four times in total. He said that on one occasion, in the kitchen, he touched Milania's vagina under her clothes from the back of her pants. Arturo repeatedly denied Detective Caicedo's allegations that he digitally penetrated Milania and showed her his penis. After the statement concluded, Arturo was arrested.

On November 8, 2007, SVU Detective Maria Dargan interviewed Milania. The videotape of the interview was entered into evidence and played for the jury at trial. During the interview, Milania initially denied being sexually touched by anyone. Detective Dargan asked Milania whether it was "a good thing or a bad thing to tell the truth" and "that maybe there's other stuff that you want to tell me and you're just not." Milania responded that she had just lied because she was scared, and that in fact she had been sexually abused by her uncle Arturo.

Milania stated that she had been assaulted three times but could not remember the first two. She described the third incident as follows: Arturo called Milania to come into his room, and when she said no, he pulled her into the room by her wrist. Arturo had Milania watch "nasty things, naked people" and touched Milania's vagina with his finger. Milania stated that Arturo caused bleeding and pain. Afterwards, Milania tried to tell her older sister, who was home at the time in another room, but was told to go away because she had a headache. Milania demonstrated what Arturo did to her using an anatomically correct doll.

Milania also described an incident during which Arturo exhibited his penis to her in his room. Milania said that she saw Arturo stroking himself in her presence, and she claimed that red blood came out of his penis. At first, Milania stated that this incident occurred on a different day from the incident she had earlier described, but she later stated that it occurred on the same day.

On November 20, 2007, Milania met with Dr. Nina Agarwal, a pediatrician at Hackensack University Medical Center. Dr. Agarwal testified at trial as an expert in pediatric medicine. Milania told Dr. Agarwal that Arturo digitally penetrated her vagina on multiple occasions, beginning when she was five years old and concluding around her sixth birthday. Milania stated that the abuse resulted in pain and bleeding and that something yellow would come out of Arturo's penis and fall onto the floor. She told Dr. Agarwal that after one incident, she had vaginal bleeding for a number of days and that she cleaned the blood with paper towels. Milania stated that she showed the blood to her mother.

Dr. Agarwal met with Milania a second time, on December 13, 2007, when the physician physically examined Milania's "anogenital genital areas." Dr. Agarwal concluded that the results of the examination were "unremarkable," with no physical findings. Dr. Agarwal testified that such a result was not uncommon as, according to literature on child abuse, more than ninety-five percent of examinations have normal results, even when there is full penetration of the vagina.

At trial, Milania (then eight years old) described what she identified as the third incident of Arturo's abuse. She stated that the incident occurred on her sixth birthday but that Arturo was not at her house on her sixth birthday. Nevertheless, she testified that Arturo pulled her by the wrist into his room, made her watch "movies about [a] lady and men having sex," and touched her under her clothes, inside her vagina, with his hand. Milania described the touching as a "rub." Milania stated that afterwards she had bleeding for two days, although she acknowledged that in other accounts she had claimed that the bleeding had lasted for ten days. Milania denied having told her mother about the bleeding or showing her the blood; rather, Milania testified that she cleaned the blood with paper towels and hid her soiled clothing and towels in a garbage can outside the home. Milania also denied that she had shown her mother that she was bleeding. Milania denied having told Detective Dargan that she saw blood come from Arturo's penis. She denied having told anyone that she saw Arturo make "yellow pee-pee" on the floor.

Arturo testified at trial, stating that he did not sexually abuse Milania and did not force her to watch pornography. He said he confessed to having sexually assaulted Milania because he felt pressured to do so. He explained that during the interrogation, he was tired and weak, and he felt weaker as the interview progressed. He had diabetes and did not have anything to eat or drink, which affected his physical state during the interrogation. According to Arturo, prior to the interview, Detective Caicedo told him that Milania would be undergoing medical testing and that the results would exonerate Arturo ("[h]e told me that I was going to be fine"), which motivated Arturo to confess. Arturo further testified that he had only a third grade education and noted that he had "a problem with alcohol."

II.

On this appeal, Arturo presents the following points of argument for our consideration:

POINT I: THE IMPROPER ADMISSION OF [MILANIA]'S UNRELIABLE OUT-OF-COURT STATEMENTS REGARDING SEXUAL ABUSE PURSUANT TO N.J.R.E. 803(C)(27) DENIED DEFENDANT THE RIGHT TO DUE PROCESS OF LAW AND A FAIR TRIAL. (U.S. CONST. AMENDS. VI, XIV; N.J. CONST. ART. I, PARS. 1, 9, 10).

POINT II: THE TRIAL COURT ERRED BY FAILING TO ADEQUATELY DEMONSTRATE THAT [MILANIA] WAS COMPETENT TO TESTIFY PURSUANT TO N.J.R.E. 601. (Not Raised Below).

POINT III: THE PROSECUTOR'S IMPROPER QUESTIONING OF A LAY WITNESS DURING DIRECT EXAMINATION AND OF DEFENDANT DURING CROSS EXAMINATION DEPRIVED DEFENDANT OF HIS CONSTITUTIONAL RIGHTS TO DUE PROCESS AND A FAIR TRIAL. (U.S. CONST. AMENDS VI, XIV;

N.J. CONST. ART. I, PARS. 1, 9, 10). (Partially Raised Below).

POINT IV: THE TRIAL WAS SO INFECTED WITH ERROR THAT EVEN IF EACH INDIVIDUAL ERROR DOES NOT REQUIRE REVERSAL, THE AGGREGATE OF THE ERRORS DENIED DEFENDANT A FAIR TRIAL. (Not Raised Below).

POINT V: THE AGGREGATE SENTENCE IMPOSED, AN EIGHT-YEAR PRISON TERM SUBJECT TO NERA, WAS EXCESSIVE, UNDULY PUNITIVE AND MUST THEREFORE BE REDUCED.

Having reviewed the record, we determine that these arguments are unpersuasive, and we affirm the conviction and sentence.

A.

Arturo first asserts that the trial judge erred in allowing Milania's videotaped statement into evidence because it was not sufficiently trustworthy to be admissible; he maintains that its improper admission was highly prejudicial and deprived him of his constitutional right to a fair trial.

Our standard of review of the trial judge's decision to allow the jury to watch, hear, and consider Milania's SVU interview is articulated in State v. P.S., 202 N.J. 232 (2010). There, the Supreme Court held that a trial judge's factual findings regarding admissibility of evidence under N.J.R.E. 803(c)(27)*fn6 are entitled to deference by a reviewing court. State v. Robinson, 200 N.J. 1, 15 (2009); State v. Locurto, 157 N.J. 463, 474 (1999); State v. Johnson, 42 N.J. 146, 160-61 (1964).

[I]n reviewing a trial judge's finding that a child's statement meets the trustworthiness requirement of N.J.R.E. 803(c)(27), appellate courts affirm unless the judge's determination amounted to an abuse of discretion. State v. Nyhammer, 197 N.J. 383, 411, cert. denied, ___ U.S. ___ , 130 S. Ct. 65, 175 L. Ed. 2d 48 (2009). A trial court's determination of reliability or trustworthiness sufficient to allow admission of evidence should not be disturbed unless, after considering the record and giving the deference owed to the court's credibility findings, it is apparent that the finding is "clearly a mistaken one and so plainly unwarranted that the interests of justice demand intervention and correction[.]" Locurto, supra, 157 N.J. at 471 (internal quotation marks and citations omitted). Only in those circumstances may "an appellate court 'appraise the record as if it were deciding the matter at inception and make its own findings and conclusions.'"

State v. Elders, 192 N.J. 224, 244 (2006) (quoting Johnson, supra, 42 N.J. at 162). [P.S., supra, 202 N.J. at 250-51.]

N.J.R.E. 803(c)(27) permits the admission into evidence of an out-of-court statement made by a child under the age of twelve pertaining to sexual misconduct committed with or against the child provided that: (1) the State notifies the defendant in advance of its intention to rely on the hearsay statement; (2) the court finds at a hearing that "on the basis of the time, content and circumstances of the statement there is a probability that the statement is trustworthy"; and (3) the child either testifies at the trial or, if the child is unavailable as a witness, the State offers admissible evidence corroborating the act of sexual abuse. In determining whether a statement proffered under N.J.R.E. 803(c)(27) is sufficiently trustworthy to be introduced into evidence, a trial judge should consider "the totality of the circumstances" that surround the making of the statement. State v. Roman, 248 N.J. Super. 144, 152 (App. Div. 1991). The factors to be considered by a judge when conducting a trustworthiness analysis are (1) the spontaneity of the statement, whether it was made without prompting or suggestive questioning, (2) whether the account provided by the declarant is consistently repeated, (3) the mental state of the declarant and the use of terminology unexpected of a child of a similar age, and (4) a lack of motive to fabricate. P.S., supra, 202 N.J. at 249.

Arturo contends that "the statement lacked sufficient reliability because it was taken nine months after [Milania]'s parents confronted [Arturo] about the allegations of abuse and approximately thirteen days after [the Division] became involved in the case." He also draws attention to the fact that Milania failed to disclose any abuse until after Detective Dargan asked her whether it was "a good thing or a bad thing to tell the truth," and stated to Milania "that maybe there's other stuff that you want to tell me and you're just not." Arturo also highlights Milania's confusion about female genitalia and statements Milania made that she was bored with the interview and that Detective Dargan's questioning gave her a headache. Finally, Arturo underlines inconsistencies in Milania's story, particularly her inability to recall the first two incidents of abuse, her conflicting statements about when she saw Arturo masturbate, and her claim that red blood came out of his penis.

In finding Milania's videotaped statements to be trustworthy, the judge reasoned that Detective Dargan's questioning was open-ended for the most part; Milania's responses were spontaneous, straightforward, and consistent verbally and by way of demonstration; she showed no reluctance in responding in the negative to questions propounded by her inquisitor and did not appear to tailor her responses so as to satisfy her interrogator; her descriptive terminology was age-appropriate; her initial reluctance to disclose the abuse was age-appropriate; and her reluctance was consistent with her conduct.

Thus, after considering the totality of the circumstances, the judge found the statement to be trustworthy and permitted the jury to watch the videotape. Detective Dargan's questions about telling the truth and whether there was something Milania wasn't telling her might appear suggestive out of context. However, in light of Milania's immediate, spontaneous response that she had been abused, followed by her description of the acts, and her explanation that she initially lied due to fright because the first time she disclosed the abuse she was removed from her parents' home and taken to a hospital, Detective Dargan's questions did not render the statement unreliable. Detective Dargan did not repeatedly ask Milania the same questions, did not ask Milania what she had told other people, and did not ask whether any specific person or people had touched her inappropriately. Cf. State v. D.G., 157 N.J. 112, 131-32 (1999); State v. Michaels, 136 N.J. 299, 309-10 (1994). Neither Detective Dargan nor anyone else promised Milania that she would be rewarded for telling a particular story. Cf. D.G., supra, 157 N.J. at 133; Michaels, supra, 136 N.J. at 310. Moreover, the Court has recognized that leading questions are not per se unacceptable. "Indeed, the use of leading questions to facilitate an examination of child witnesses who are hesitant, evasive, or reluctant is not improper." State v. Smith, 158 N.J. 376, 390 (1999). Detective Dargan's minimal use of leading questions was appropriate to solicit information from a young child.

Although Milania made conflicting statements about the number of episodes of abuse and described red ejaculate, her description of her experience was conveyed in age-appropriate language, and her description was consistent with the demonstrations she made on the anatomically-correct doll. State v. R.B., 183 N.J. 308, 316, 320-21 (2004) (admitting child victim's testimony that the defendant had "peed" in his mouth, understood as a reference to the defendant's having ejaculated in the child's mouth); State v. J.G., 261 N.J. Super. 409, 421 (App. Div.) (finding tender years hearsay statement trustworthy when it "disclosed a sexual knowledge beyond the ken of a young child" and was made "without prompting"), certif. denied, 133 N.J. 436 (1993); cf. D.G., supra, 157 N.J. at 131-32 (reversing conviction based on child victim's statement deemed to be unreliable because, among other reasons, the eight-year-old child said the defendant had touched her "boobies" and then, after conferring with her aunt, stated that the defendant had touched her "vagina" with his "penis"). Milania mentioned that she was bored during the interview and expressed annoyance with Detective Dargan's questioning, but rather than indicating that her narrative was unreliable, these expressions about her mental state merely confirmed the judge's characterization that "she did not wish to be there." Milania spontaneously gave a reasonable explanation for the fact that she denied the abuse at the beginning of the interview: the last time she disclosed the abuse, she was removed from her parents' care, which was evidently very upsetting to her. As emotionally difficult consequences resulted from her first disclosure to authorities, she had little motive to fabricate a story of abuse; rather, her earlier experience would have given her an incentive to deny the abuse. That she disclosed the abuse after Detective Dargan asked her about telling the truth and that she gave a reasonable explanation for her prior inconsistent statements indicate the reliability of her testimony.

Having considered Arturo's contentions in light of the record and applicable law, and in light of the deference due to a judge's evidentiary determinations, we have no occasion to reverse the decision to admit the videotape of the interview pursuant to the tender years exception, N.J.R.E. 803(c)(27). We reject Arturo's contention that the child's statements were unreliable. Moreover, because the videotape was admitted in evidence before Milania testified, the defense had a full opportunity to cross-examine her concerning the statements she made on the properly-admitted videotape. As we noted in State v. Burr, 392 N.J. Super. 538, 567-68 (App. Div. 2007), aff'd in part, modified in part, 195 N.J. 119 (2008), the Confrontation Clause does not preclude admission of a child's videotaped statement under N.J.R.E. 803(c)(27) as long as the child appears at trial and is available for cross-examination, which was the case here. Accordingly, we cannot agree that the videotape was improperly admitted in evidence.

B.

Arturo next asserts that the trial judge failed to determine whether Milania understood the oath administered to her during the trial, which resulted in a manifest denial of justice. We disagree.

Every person is presumed competent to testify as a witness. State v. Scherzer, 301 N.J. Super. 363, 463 (App. Div.), certif. denied, 151 N.J. 466 (1997). The determination whether a person is competent to testify is within the discretion of the trial judge. State v. G.C., 188 N.J. 118, 132 (2006). This standard applies to persons of all ages; "children, as a class, are not to be viewed as inherently suspect witnesses." Michaels, supra, 136 N.J. at 308. When examining whether a child is competent to testify under N.J.R.E. 601, a court should first "explore the child's conceptual awareness of truth and falsehood." State v. Zamorsky, 159 N.J. Super. 273, 280 (App. Div. 1978), modified, 170 N.J. Super. 198 (App. Div. 1979), certif. denied, 82 N.J. 287 (1980). Once the court establishes that the child understands these terms, the next inquiry turns on whether the child understands his or her duty to tell the truth, not whether the child will tell the truth. Ibid. The child's awareness of the duty to tell the truth is often labeled the child's "moral responsibility." See ibid.; State in the Interest of R.R., 79 N.J. 97, 113 (1979); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 5 on N.J.R.E. 601 (2012). This requirement is satisfied "[s]o long as the child understands (a) the difference between right and wrong; (b) that to tell the truth is 'right'; and (c) that he will be punished in some way should he lie to the court[.]" R.R., supra, 79 N.J. at 114.

Our review of the entire record convinces us that Milania had the capacity to understand the oath and was a competent witness. See R.R., supra, 79 N.J. at 113. Our view is buttressed by the following:

Combining the admissibility of the child's out-of-court statements with a requirement that the child, if available, testify at trial (using when appropriate the closed circuit television procedure authorized by the Legislature, N.J.S.A. 2A:84A-32.4), will afford the jury an opportunity to evaluate the testimony relating the child's out-of-court statements in the context of the child's communicative skills, demeanor, and credibility as a witness at trial. It also affords the defendant a right of cross-examination and limited confrontation, see N.J.S.A. 2A:84A-32.4, that would be lost if the child were disqualified due to incompetency. [State v. D.R., 109 N.J. 348, 370-71 (1988).]

As noted in Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 5 to N.J.R.E. 601:

The disqualification set forth in paragraph

(b) of N.J.R.E. 601 does not bar youthful sex abuse victims from testifying at trial where the State has introduced into evidence their out-of-court statements concerning acts of sexual molestation because N.J.R.E. 803(c)(27), which was proposed by the Supreme Court in [D.R.], now requires the declarant of any such statement to testify, if he is available to do so, as a prerequisite to admission of the statement. This is to avoid the incongruity of finding the child incapable of understanding the duty to tell the truth, and therefore incompetent, and thereafter admitting into evidence, insulated from cross-examination, his out-of-court statements made months before. The rule also permits the jury to better evaluate the testimony concerning the child's out-of-court statements in light of the communicative skills, demeanor and credibility he displays from the witness stand. [Ibid. (citations omitted).]

Here, the trial judge did not err in failing to conduct a special proceeding to establish Milania's competency before she testified at trial. The inconsistencies between her statements made in the videotape and at trial were for the jury to consider when assessing her credibility. There was no error in the admission of Milania's trial testimony.

C.

Arturo asserts that prosecutorial misconduct infected the trial for two reasons. First, during the State's direct examination of Detective Caicedo -- a fact witness -- the prosecutor elicited opinion testimony regarding techniques the detective used to determine whether he believed Arturo was being truthful in his statement. Second, while cross-examining Arturo, the prosecutor "forced" Arturo to characterize two of the State's witnesses, Milania and Detective Caicedo, as liars. These instances are claimed to have interfered with the role of the jury to make an independent credibility assessment of the witnesses' testimony. We are not persuaded that this questioning tainted the trial.

Police officers testifying as fact witnesses in criminal cases are not permitted to offer their opinions with respect to defendants' guilt or innocence. See State v. Frisby, 174 N.J. 583, 593-94 (2002). More generally, the Court has noted that one witness is not permitted to express an opinion about another witness's credibility. Id. at 595-96. Cf. State v. Kemp, 195 N.J. 136, 156-57 (2008) (finding that police officer's opinion about the defendant's truthfulness during his confession did not rise to the level of plain error on the grounds that the defendant elicited the opinion during cross-examination, defendant's concern was not the officer's opinion of his truthfulness but rather the basis for the officer's belief, and because the officer did not express an opinion as to the defendant's guilt).

Unlike in Kemp, the prosecutor here elicited Detective Caicedo's opinion about Arturo's credibility during direct examination. Furthermore, the detective expressed an opinion about Arturo's guilt, in that he stated that Arturo's denial of abuse was untruthful. The prosecutor's pursuit of this testimony was improper, but the trial judge intervened. He correctly directed the prosecutor "to stop questioning [Detective Caicedo] about what his opinion [was] relative to the truthfulness of . . . the defendant." Immediately after he sustained Arturo's objection, the judge provided a curative instruction to the jury, directing the jurors to disregard Detective Caicedo's statement about Arturo's comportment and the inference that he was untruthful. The judge further explained to the jury the following: "It is not for this witness to make a determination as to the truthfulness or lack of truthfulness of any witness. That is your function and your function alone. Do you understand what I mean?" During jury instructions, the judge reminded the jury that "[a]ny testimony that I may have had occasion to strike is not evidence and shall not enter into your deliberations. It must be disregarded by you. This means that even though you may remember the testimony, you are not to use it in your discussions or deliberations."

The admonition during trial and the judge's reminder to the jurors in the jury charge were sufficiently curative. See State

v. Koedatich, 112 N.J. 225, 323 (1988). (concluding that the defendant's right to a fair trial was honored because "the defense objected, the objections were sustained, and the court issued curative instructions"). Cf. State v. Frost, 158 N.J. 76, 86-87 (1999) (finding a general jury instruction at the end of the case to be insufficient to cure numerous improper statements made by the prosecutor during the trial that cast aspersions on defense counsel and the defendant, as well as evidentiary matters, to which defense counsel had unsuccessfully objected throughout the trial). Soon after the statements were uttered, the judge not only directed the jury not to consider the improper testimony about Arturo's untruthfulness but also explained that the jury's responsibility, and no one else's, was to determine truthfulness. This explanation was appropriate.

We further conclude that Detective Caicedo's testimony about his training and methods for ascertaining a suspect's truthfulness was not unduly prejudicial to Arturo. The detective's observations were not so far removed from "the ordinary experiences of life and common knowledge as to the natural tendencies of human nature, as well as . . . observations of the demeanor and character of the witness," State v. J.Q., 252 N.J. Super. 11, 39 (App. Div. 1991), aff'd 130 N.J. 554 (1992), that it would have guided the jury to a conclusion that it would not have reached otherwise.

Arturo also takes issue with the prosecutor's cross-examination that asked him to comment on other witnesses' credibility. The State's case against Arturo involved a "pitched credibility battle" between Arturo and the State's witnesses. State v. Dellisanti, 203 N.J. 444, 463 (2010). The prosecutor asked Arturo during cross-examination whether he, Milania, and Detective Caicedo lied.

Although this manner of cross-examination is disapproved and "should be avoided," ibid., the trial judge's final instructions properly explained the jury's supervening role in assessing credibility. We do not believe that the fleeting questioning of Arturo regarding his accuser's credibility or that of Detective Caicedo had any capacity to improperly influence the jury or skew the verdict.

D.

Arturo claims that the combination of errors in this trial, "when cast against the less than overwhelming evidence supporting . . . [his] conviction, cannot be viewed as harmless." State v. Blakney, 189 N.J. 88, 97 (2006) (citing State v. Reddish, 181 N.J. 553, 616 (2004)). Because we found none of Arturo's contentions to prove harmful error, we find no cumulative error.

E.

Lastly, Arturo contends that his aggregate eight-year NERA sentence was excessive because the trial judge misapplied the aggravating and mitigating factors of N.J.S.A. 2C:44-1(a) and

(b). We disagree.

The New Jersey Code of Criminal Justice prescribes a

"system for 'structured discretion' in sentencing." State v. Bieniek, 200 N.J. 601, 607 (2010). Our review of a sentence is guided by State v. Roth, 95 N.J. 334, 364-65 (1984) and its progeny, which look to whether: (1) the sentencing guidelines were violated, (2) the aggravating and mitigating factors were based upon competent credible evidence in the record, and (3) the sentence is so clearly unreasonable as to shock the judicial conscience. In reviewing a sentence, we "may not substitute [our] judgment for that of the trial court." State v. Cassady, 198 N.J. 165, 180 (2009). Assuming the trial court follows the sentencing guidelines, the one exception to that obligation occurs when a sentence shocks the judicial conscience. State v. O'Donnell, 117 N.J. 210, 215-16 (1989).

In sentencing Arturo, the trial judge found three aggravating factors: the gravity and seriousness of the harm inflicted on the victim, including whether or not the defendant knew or reasonably should have known that the victim was particularly vulnerable due to extreme youth, N.J.S.A. 2C:44-1(a)(2); the risk that defendant will commit another offense, N.J.S.A. 2C:44-1(a)(3); and the need to deter defendant and others from violating the law, N.J.S.A. 2C:44-1(a)(9). The court found that the aggravating factors outweighed the nonexistent mitigating factors.

Arturo argues that the judge erred in failing to find any mitigating factors and in applying undue weight to aggravating factors three and nine. The judge applied aggravating factor three, in part, because "there is a risk of re-involvement" and "[c]learly [Arturo] is [in] need of therapy, which he has not had. And at the present doesn't admit to the need for." The ADTC report indicated that Arturo had mental health issues that were manifested in repetitive criminal sexual behavior, and the judge relied on this conclusion in applying aggravating factor three. The judge's determination was supported by the record.

The judge also applied aggravating factor nine, based on his review "of the pre-sentence investigation and consideration of the facts and circumstances of this case," specifically, that Arturo's conduct was "a horrific offense." The Supreme Court has recognized that "general deterrence unrelated to specific deterrence has relatively insignificant penal value." State v. Jarbath, 114 N.J. 394, 405 (1989). The "need to deter" is arguably present in every case and should not be considered an aggravating factor absent a unique or special need for deterrence that differentiates a given case from others involving the same or a similar offense. State v. Martelli, 201 N.J. Super. 378, 385-86 (App. Div. 1985). Here, although the judge's explanation was brief, his application of aggravating factor nine was defendant-specific and supported by the evidence.

The judge found no mitigating factors. Mitigating factor seven, N.J.S.A. 2C:44-1(b)(7), applies when "[t]he defendant has no history of prior delinquency or criminal activity or has led a law-abiding life for a substantial period of time before the commission of the present offense[.]" Arturo had no prior criminal record and was forty-two years old at the time of sentencing. However, Arturo had previously been deported due to illegal immigration in 2002, five years before the commission of the criminal acts at issue in this case. This circumstance weighs against the application of mitigating factor seven. In light of Arturo's prior transgressions, the judge did not err in failing to apply any mitigating factors. See State v. Miller, 205 N.J. 109, 127 (2011).

In summary, we are satisfied that Arturo's trial was appropriately conducted and his sentence was neither conscience-shocking nor a departure from our sentencing jurisprudence.

Affirmed.


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