NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 10, 2013
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Indictment No. 10-06-0367, Accusation No. W-10-163-1814.
Joseph E. Krakora, Public Defender, attorney for appellant (Al Glimis, Assistant Deputy Public Defender, of counsel and on the brief).
Geoffrey D. Soriano, Somerset County Prosecutor, attorney for respondent (James L. McConnell, Assistant Prosecutor, on the brief).
Before Judges Ostrer and Carroll.
In a four-count indictment, defendant Lamonte Calloway was charged with two counts of third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a (counts one and three); and two counts of fourth-degree lewdness, N.J.S.A. 2C:14-4a (1) (counts two and four). In a separate complaint, defendant was charged with the disorderly persons offense of lewdness, N.J.S.A. 2C:14-4a. Prior to trial, the court sua sponte dismissed count four of the indictment, without objection by the State. Following a jury trial, defendant was acquitted of counts one and three, but convicted on count two. Additionally, the Law Division judge, sitting as the North Plainfield Municipal Court judge pursuant to R. 3:15-3, found defendant guilty of the disorderly persons lewdness offense. On count two of the indictment defendant was sentenced to four years probation, with credit for 492 days served while awaiting trial. On the disorderly persons lewdness conviction, defendant was sentenced to time served and a $500 fine.
On appeal, defendant presents the following argument for our consideration:
THE COURT BELOW ERRED IN ADMITTING HIGHLY PREJUDICIAL R. 404(B) EVIDENCE WITHOUT CONDUCTING A HEARING ON THE RECORD AND WITHOUT AN ADEQUATE LIMITING INSTRUCTION, THEREBY DEPRIVING 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) (NOT RAISED BELOW).
After reviewing the record and the applicable law in light of the contentions advanced on appeal, we reject defendant's argument. Accordingly, we affirm.
The most pertinent trial evidence can be summarized as follows. Law enforcement officials first became involved in this matter on May 26, 2010. On that date, twenty-four-year old J.V. was returning to her home. J.V. was accompanied by a two-year-old child whom she was babysitting. Upon exiting her vehicle, J.V. heard a noise coming from the home immediately adjacent to the driveway where she parked. In the yard of that home, J.V. observed a male neighbor, subsequently identified as defendant, with his pants down, smiling and holding his penis. The police were called, and since J.V. could not speak English, her then twelve-year old sister, Y.G., served as interpreter. Based on J.V.'s account of the incident, and her description and identification of the actor, defendant was placed under arrest and initially charged with the disorderly persons lewdness offense.
During the course of the police interview in which Y.G. served as interpreter for J.V., and later at police headquarters, Y.G. informed the investigating officers of similar incidents involving defendant that she had witnessed. At the time, Y.G. was a seventh-grade student. On approximately five-to-six occasions earlier that spring, while walking home from school with her friend, S.G., Y.G. heard defendant making noises in order to attract their attention as the girls walked past his home. On two of ...