NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted July 30, 2013.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 11-02-0203.
Joseph E. Krakora, Public Defender, attorney for appellant (Stephen W. Kirsch, Assistant Deputy Public Defender, of counsel and on the brief).
John L. Molinelli, Bergen County Prosecutor, attorney for respondent (Catherine A. Foddai, Senior Assistant Prosecutor, of counsel and on the brief).
Before Judges Espinosa and Hoffman.
Tried by a jury, defendant R.F. appeals from his conviction of six counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a(2)(a), and one count of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. He also appeals from the sentence imposing a thirty-four-year term of imprisonment.
On appeal defendant raises the following arguments:
THE APPELLATE DIVISION'S PRIOR DECISION THAT THE PASSAIC CRIME WAS INADMISSIBLE UNDER N.J.R.E. 404(b) AT THE TRIAL OF THE BERGEN OFFENSES WAS "LAW OF THE CASE" WHICH FOREVER BARRED THAT PASSAIC ALLEGATION FROM BEING TRIED TOGETHER WITH THE BERGEN COUNTS, BECAUSE THE TEST FOR JOINDER/SEVERENCE IS THE SAME AS FOR RULE 404(b) ADMISSIBILITY; MOREOVER, THE STATE'S BEHAVIOR IN THIS CASE - - FAILING TO MOVE FOR LEAVE TO APPEAL THE ORIGINAL DECISION BARRING THE AMENDMENT, AND INSTEAD, WAITING UNTIL DEFENDANT SUCCESSFULLY APPEALED HIS CONVICTIONS BEFORE FIRST MOVING AGAIN TO AMEND THE INDICTMENT TO ADD A NEW COUNT AND THEN, WHEN THAT MOTION WAS UNSUCCESSFUL, SEEKING A SUPERCEDING INDICTMENT WITH ADDITIONAL, AND BROADER COUNTS - - RAISES A PRESUMPTION OF VINDICTIVENESS UNDER BLACKLEDGE V. PERRYWHICH CANNOT BE OVERCOME, AND WHICH BARRED THE STATE FROM PURSUING THOSE ADDITIONAL/BROADER CHARGES AND SHOULD RESULT IN A REVERSAL OF ALL THE CONVICTIONS. (Not Raised Below)
A. Law of the Case
B. The State's Actions in This Case Trigger a Presumption of Vindictiveness Which Cannot be Overcome.
THE JURY INSTRUCTION ON LACK OF FRESH COMPLAINT UNCONSTITUTIONALLY INTRUDED ON THE JURY'S FUNCTION TO DETERMINE CREDIBILITY WHEN IT TOLD THE JURORS THAT THEY "MAY NOT AUTOMATICALLY CONCLUDE" THAT THE COMPLAINANT'S TESTIMONY WAS "UNTRUTHFUL BASED ONLY ON HER SILENCE OR DELAYED DISCLOSURE, " PARTICULARLY WHEN THE NEW JERSEY SUPREME COURT HAS HELD THAT SUCH LANGUAGE SHOULD BE REMOVED FROM THAT INSTRUCTION. (Not Raised Below)
THE SENTENCE IMPOSED IS MANIFESTLY EXCESSIVE.
For the reasons that follow, we affirm defendant's conviction. While we do not find defendant's sentence excessive, we remand for correction of sentencing errors.
The underlying facts of this appeal concern sexual abuse allegations against defendant by his biological daughter, A.G. We first address the lengthy procedural background of ...