On appeal from Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-05-0458.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Graves, and Koblitz.
In a three-count indictment, defendant Gabriel Alvarado was charged with first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1) (count one); second-degree sexual assault, 2C:14-2(b) (count two); and, third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4 (count three). Following a jury trial, defendant was found not guilty on count one, but he was convicted of second-degree sexual assault and third-degree endangering the welfare of a child. At sentencing on November 20, 2009, the court merged count three into count two and sentenced defendant to a seven-year prison term, with an eighty-five percent period of parole ineligibility under the No Early Release Act, N.J.S.A. 2C:43-7.2. The court also ordered defendant to register as a sex offender, N.J.S.A. 2C:7-2, and sentenced defendant to parole supervision for life, N.J.S.A. 2C:43-6.4. We affirm.
On February 1, 2008, Janice*fn1 spoke to defendant on the phone and invited him to attend her son's judo tournament. After the conversation ended, Janice's seven-year-old daughter, Yvette, was "upset" and stated: "No, no, no, I don't want him to come. I don't want to see him. I don't like him." Janice asked Yvette why she did not want to see defendant, and Yvette responded: "I don't like the way he touches me. He touched my butt and he kisses my mouth."
The next day, February 2, 2008, Janice again asked Yvette why she did not want to see defendant. Yvette became "nervous, scared, [and] upset" and indicated defendant put his hand "inside her pants" and covered her mouth so she wouldn't scream. Janice took her daughter to the Elizabeth Police Department and then to the Trinitas Regional Medical Center emergency department. Detective Steven McGuire met with Janice and Yvette at the hospital.
Later that same day, Detective McGuire brought Yvette and Janice to the Child Advocacy Center in Elizabeth, New Jersey. During a videotaped interview, Yvette told Detective McGuire that the abuse occurred when she was six-years old and that it happened multiple times. Detective McGuire used anatomical dolls to establish that Yvette was familiar with the parts of the body. Yvette explained to Detective McGuire how she was abused:
S.M.:*fn2 Ok so he touched you where?
S.M.: On your private part? Ok. Did he touch you anywhere else?
Y.V.: (Turns the doll over and point[s] to the doll's butt) and here too.
S.M.: And what did you call that?
S.M.: A butt okay. Alright. Now when he touched your private part and when he touched your butt . . . what ...