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State v. V.M.B.

Superior Court of New Jersey, Appellate Division

July 8, 2013

STATE OF NEW JERSEY, Plaintiff-Respondent,
v.
V.M.B., Defendant-Appellant.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted September 27, 2012

On appeal from the Superior Court of New Jersey, Law Division, Union County, Indictment No. 08-08-0747.

Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).

Theodore J. Romankow, Union County Prosecutor, attorney for respondent (Jeremiah E. Lenihan, Assistant Prosecutor, of counsel and on the brief).

Before Judges Sapp-Peterson and Nugent.

PER CURIAM

A grand jury charged defendant V.M.B. in a twenty-two count indictment with the serial sexual abuse of his wife's four granddaughters, a petit jury found him guilty on twenty counts, and a judge sentenced him to an aggregate prison term of seventy-nine years subject to the No Early Release Act (NERA), N.J.S.A. 2C:43-7.2. Defendant contends his convictions should be reversed for two reasons: first, though he confessed to committing the crimes, he did not knowingly waive his Miranda[1]rights; second, the trial court directed a guilty verdict on the age element of each offense by including the victims' birth dates on the verdict sheet and in its charge. Finding no merit in defendant's contentions, we affirm.

I.

According to the evidence the State presented at trial, when defendant married Zelda[2] in 2000 she had two children and four grandchildren. Her daughter, Elizabeth, had two daughters, Emily and Ellie. Her son and his wife, Madeline, had two daughters, Makayla and Maria. The families lived in the same house.

On April 14, 2008, Madeline took Makayla and Maria to the doctor to get physical examinations for school. Makayla was eleven years old. Maria was eight. After the visit, while Madeline was discussing some health concerns with Makayla, Madeline cautioned Makayla, "don't let anybody touch you." From Makayla's reaction, Madeline suspected "something had happened or was happening" because Makayla suddenly became quiet and averted her gaze. Madeline asked Makayla if defendant had touched her. Makayla replied, "if I tell you[, ] you are going to be mad. It's a secret between [Emily, Ellie] and I." After Madeline assured Makayla for "about a half hour" that she would not be mad, Makayla disclosed that defendant first groped her when she was in kindergarten. Makayla later disclosed that defendant once tried to make her watch a video of him and Emily having sex, but she ran away.

Later that day, Madeline questioned her other daughter, Maria, as well as her nieces, Emily and Ellie. She learned that defendant had first abused Maria when she was in second grade. She also learned that defendant was still abusing her nieces, who were then ages fourteen and eleven. Ellie said defendant liked to bite and showed Madeline a bite mark defendant had made on her breast.

Madeline notified the police, who took the children to the Union County Child Advocacy Center where they were interviewed by Janet Lopez, a detective assigned to the Child Abuse Unit in the Union County Prosecutor's Office. Detective Lopez took a typewritten statement from Emily and videotaped interviews with Ellie, Makayla, and Maria. In their statements, the children described how defendant had sexually molested them, by holding them down, by groping them, by committing acts of penetration, allegations they also recounted for the jury. After interviewing the victims, Detective Lopez obtained a warrant for defendant's arrest.

The police arrested defendant the next day, April 15, 2008, and transported him to the municipal police department where Detective Lopez and Sofia Santos, another detective employed by the Union County Prosecutor's Office, questioned him after advising him of his Miranda rights. After initially denying the accusations, defendant confessed to committing sexual acts with all of the girls. He began abusing two of the children when they were eight years old, and two when they were ten. Defendant also admitted that he recorded himself and Emily having sex on two occasions. The police obtained a warrant and seized two DVDs from defendant's bedroom. Emily identified herself and defendant as the two people in the DVDs having sex.

At the time of defendant's trial, Emily was fifteen years old, Ellie was twelve, Makayla was twelve, and Maria was nine. In addition to testifying about how defendant abused them, each testified to her age, birth date, and her approximate age when the crimes occurred. Their mothers also testified to their ages and dates of birth, and the State introduced ...


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