NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 3, 2013
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 10-12-02260.
Joseph E. Krakora, Public Defender, attorney for appellant (Theresa Yvette Kyles, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Assistant Prosecutor, of counsel and on the brief).
Before Judges Axelrad and Fuentes.
Defendant Zbigniew Safin was tried before a jury and convicted 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). After merging the offenses, pursuant to N.J.S.A. 2C:1-8(a), the court sentenced defendant to a five-year term of imprisonment with an eighty-five percent period of parole ineligibility and a three-year period of parole supervision to commence following his release from prison as mandated by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant was also ordered to comply with the registration requirements of Megan's Law, N.J.S.A. 2C:7-1 to -11.
In this appeal, defendant argues the State failed to present sufficient evidence to establish his guilt beyond a reasonable doubt, entitling him to a judgment of acquittal as a matter of law pursuant to Rule 3:18-2. Alternatively, defendant argues he is entitled to a new trial because the court committed reversible error by not permitting the jury to consider the disorderly person offense of lewdness, N.J.S.A. 2C:14-4(a), as a lesser included offense. Defendant also argues that the sentence imposed by the court was based on the judge's erroneous understanding of his discretionary authority under the sentencing guidelines. If we affirm his conviction, defendant requests that we remand the matter for re-sentencing, instructing the trial judge to consider the imposition of a sentence within the third-degree range pursuant to N.J.S.A. 2C:43-6(a)(3).
We are not persuaded by defendant's arguments and affirm. We derive the following facts from the record developed before the trial court.
At approximately one o'clock in the afternoon on August 19, 2010, Joyce decided to take Jane, her nine-year-old daughter, and John, her four-year-old son, to a nearby park in Wallington, New Jersey. When they reached the park, John joined his friends to play, and Jane walked over to join two other girls who were using a stick to draw in a sandy area. Using photographs of the park, the prosecutor questioned Joyce as to where she was standing in relation to the girls at the time that she noticed defendant's presence. At the request of the prosecutor, Joyce turned to face the jurors and used the photograph to indicate where she was standing.
Although Joyce's description of where she was standing in relation to the area where the children were playing is difficult to follow relying only on the transcript of her testimony,  it appears that she was standing with her back "turned towards the play area, . . . looking towards the woodsy area." At some point, she noticed defendant walking up a walkway "in front of" her. Defendant sat down on the bench of a picnic table facing the area where the girls were playing. During the prosecutor's direct examination, Joyce testified that defendant "went to sit down on the bench on the other side of the walkway, which is maybe the distance of where that sir is sitting over there with the plaid shirt. Not as far as -- no, the juror. . . . That's how far he would sit down from me." (Emphasis added).
According to Joyce, immediately after defendant sat down, the following occurred:
Well, after he sat down he put his hand down into his pants. And the -- I didn't see his penis or anything like that. That I would honestly say I didn't see his penis. But his hand motion was ...