October 3, 2013
STATE OF NEW JERSEY, Plaintiff-Respondent,
J.B., JR., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 17, 2013.
On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Indictment No. 07-06-1176.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael Confusione, Designated Counsel, 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 Fisher, Espinosa and Koblitz.
This case concerns defendant's conviction of aggravated sexual assault on his stepdaughter, T.S. (hereafter "Jane, " a fictitious name), between 2002 and 2004, when Jane was under the age of thirteen years, and between 2004 and 2006, when Jane was at least thirteen but not yet sixteen years of age. Proof of these offenses first came to light during police investigation into an unsolved 1972 murder, committed when defendant was a juvenile, to which we briefly turn.
In 1972, when he was fifteen years old, defendant stabbed to death his six-year old brother. At the time, the lack of sufficient evidence prevented defendant from being brought to justice. In 1988, other evidence came to light that suggested defendant's guilt in the 1972 slaying but, after three days of grand jury proceedings, the prosecutor placed the matter on the inactive list due to the reluctance of witnesses to cooperate.
In 2004, defendant's nephew was arrested for drug possession. During an interview with Sergeant Robert Anzilotti of the Bergen County Prosecutor's Office, defendant's nephew said his mother had told him that defendant committed the 1972 murder. The nephew's mother was interviewed; she told police that on several occasions defendant had admitted to having killed his brother. These admissions came in the context of defendant's threats to his other brother, who was four years old when he witnessed the 1972 murder, asserting that he "should have killed you too" or "I'll kill you like I killed" their other brother. The nephew's mother also advised police that defendant's other brother had confided in her and expressed on an audiotape that he witnessed defendant kill their brother in 1972.
By the summer of 2006, Sergeant Anzilotti's investigation gathered additional evidence, resulting in defendant being charged in a juvenile delinquency complaint with the 1972 murder of his brother. After defendant's arrest, police proceeded to defendant's home in Lodi to interview defendant's wife and other family members. Defendant and his wife lived in the basement apartment of the home. Defendant's wife – Jane's mother – voluntarily invited police into the apartment where detectives observed a computer.
Sergeant Anzilotti asked defendant's brother about the computer and was told defendant used it for, among other things, viewing pornography; defendant's brother, however, was unsure whether defendant used the computer to view adult or child pornography. With this information, as well as the long history of the police investigation into the 1972 murder, the prosecutor sought and obtained a search warrant for the basement of the Lodi home and defendant's computer.
In executing the search warrant, Detective Brian Griefer came upon a letter written by defendant to his wife. This generated an investigation into defendant's sexual abuse of Jane, his stepdaughter.
Jane was born in 1991. After she split up with Jane's father, Jane's mother married defendant's brother, and they moved into the Lodi home in which defendant also resided. In 1994, custody of Jane was transferred to Jane's paternal grandparents, who lived in Hackensack; in 2000, the grandparents moved with Jane to North Carolina. A 2002 consent order set forth the visitation rights of Jane's mother. In accordance with that order, Jane would routinely visit with her mother in defendant's home in Lodi.
At some point, the marriage to defendant's brother ended, and Jane's mother married defendant.
As a result of the investigation into whether defendant sexually assaulted or abused Jane on occasions when Jane was in the Lodi home for visitation with her mother, defendant was indicted and ultimately convicted at trial of two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1), four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b), one count of second-degree child endangerment, N.J.S.A. 2C:24-4(a), and one count of fourth-degree possession of child pornography, N.J.S.A. 2C:24-4(b)(5)(b).
Later, the trial judge granted the State's motion for an extended term on the second count (one of the first-degree aggravated sexual assault charges) and sentenced defendant on that conviction to a fifty-year prison term, eighty-five percent of which was ordered to be served without parole pursuant to the No Early Release Act, N.J.S.A. 2C:43-7.2; concurrent terms were imposed on the other convictions.
Defendant appeals, presenting the following arguments for our consideration:
I. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTION TO SUPPRESS EVIDENCE SEIZED BY POLICE.
II. THE PROSECUTOR INTRODUCED BEFORE THE JURY AT TRIAL IMPROPER LAY OPINION TESTIMONY (NOT RAISED BELOW).
III. THE PROSECUTOR PLACED OTHER CRIMES EVIDENCE BEFORE THE JURY; THE TRIAL COURT FAILED TO AT LEAST ISSUE A LIMITING INSTRUCTION TO THE JURY ON HOW THESE PROOFS COULD BE USED (NOT RAISED BELOW).
IV.THE PROSECUTOR INTRODUCED TESTIMONY FROM AN EXPERT WITNESS THAT WAS NOT PREVIOUSLY DISCLOSED TO DEFENDANT IN DISCOVERY.
V. THE PROSECUTOR'S SUMMATION WAS IMPROPER AND THE COMMENTS CUMULATIVELY DENIED DEFENDANT A FAIR TRIAL (NOT RAISED BELOW).
VI. THE TRIAL COURT ERRED IN DENYING DEFENDANT'S MOTIONS FOR ACQUITTAL OR NEW TRIAL.
VII. DEFENDANT'S SENTENCE IS IMPROPER AND EXCESSIVE.
We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(2). We add only the following brief comments regarding Points I, IV, V and VII.
In his first point, defendant contends the affidavit submitted in support of the search warrant of his basement apartment did not present facts sufficient to suggest the existence of probable cause. Probable cause is "a 'well-grounded' suspicion that a crime has been or is being committed." State v. Waltz, 61 N.J. 83, 87 (1972); see also State v. Smith, 212 N.J. 365, 388 (2012); State v. Moore, 181 N.J. 40, 45-46 (2004). It exists "where the facts and circumstances within . . . [the officers'] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a [person] of reasonable caution in the belief that an offense has been or is being committed." Schneider v. Simonini, 163 N.J. 336, 361 (2000), cert. denied, 531 U.S. 1146, 121 S.Ct. 1083, 148 L.Ed.2d 959 (2001). When the sufficiency of a warrant is challenged on this ground, the trial court must make "a practical, common sense determination whether, given all of the circumstances, 'there is a fair probability that contraband or evidence of a crime will be found in a particular place.'" Moore, supra, 181 N.J. at 46 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 2332, 76 L.Ed.2d 527, 544 (1983)). The record consists of "the four corners of the supporting affidavit, as supplemented by sworn testimony before the issuing judge that is recorded contemporaneously." Schneider, supra, 163 N.J. at 363.
The affidavit submitted to the issuing judge recounts the evidence gathered at or around the time of the 1972 murder, as supplemented by the additional investigation in 1988, and further supplemented by the renewed investigation shortly before issuance of the warrant. The affidavit recounted not only evidence that pointed toward defendant having committed the murder but also the sexual assault of the murder victim and their four-year old brother. As a result, when police were in the basement apartment shortly after defendant's arrest in 2006, the computer and defendant's brother's statements that defendant used the computer to view pornography – coupled with the affiant's training, experience and opinion that it was common for an individual to continue with illegal sexual preferences such as child pornography when they have committed sexual acts against minors in the past – provided a sufficient basis for the issuance of a search warrant of the computer and other materials in the apartment that might have elicited evidence of child pornography offenses.
As a result, substantially for the reasons cogently expressed by Judge Harry G. Carroll in his oral and written opinions in the trial court, we reject defendant's Point I.
In Point IV, defendant argues the judge erred in overruling his objection to a portion of the testimony of Dr. William Stewart, a North Carolina board-certified pediatrician, called by the State at trial. Dr. Stewart testified that he examined Jane and concluded there was no evidence of vaginal or anal tearing, an opinion helpful to the defense. Dr. Stewart also concluded, however, based on a study performed in North Carolina by Dr. Nancy Kellogg of pregnant adolescent girls, that penetration will not necessarily result in a tear or bleeding. Dr. Stewart also provided other examples, based on his own experience, to demonstrate this conclusion.
The day after this testimony – after Dr. Stewart had returned to North Carolina – the defense first objected, claiming surprise because the testimony regarding Dr. Kellogg's study fell outside the content of Dr. Stewart's expert report. As expressed in his ruling denying defendant's application, the judge determined the claim of surprise was without substance because it was not asserted at the time the testimony in question was rendered. Moreover, the judge found the objection tardy because it was not asserted until after Dr. Stewart had returned to North Carolina. And the judge recognized defendant had also listed Dr. Stewart on his own witness list and had every opportunity to interview him prior to his taking the stand. These circumstances demonstrate that the judge acted well within the considerable discretion afforded to him. State v. LaBrutto, 114 N.J. 187, 205 (1989).
In Point V, defendant contends the prosecutor's summation exceeded the bounds of proper advocacy in a number of respects, but chiefly because the prosecutor appeared to have vouched for witnesses as well as expressed an opinion about the truth of certain evidence. To be sure, vouching for the credibility of a witness or expressing a personal opinion about the evidence is improper. See, e.g., State v. Frost, 158 N.J. 76, 84 (1999); State v. Staples, 263 N.J.Super. 602, 606-07 (App. Div. 1993).
Here, the prosecutor argued in summation that Jane "is telling you the truth" and that defendant "is guilty." Those comments, standing alone, would suggest the prosecutor was improperly expressing a personal belief about both Jane's credibility and defendant's guilt, but the statements were made in the context of what counsel was undoubtedly attempting to convey to the jury, as clarified in his latter comment that "[i]f [Jane] has told you the truth of abuse at the hands of the man who should have protected her, he is guilty." Certainly, the prosecutor's expressions to the jury should have been made with greater care but, in the overall context, the earlier declarations of truth and guilt were shorthand for what immediately followed – the prosecutor's argument that the jury should conclude that Jane spoke the truth and that, if the jury so found, defendant could be found guilty. The fact that no objection was uttered at trial after these comments were made or at the conclusion of the prosecutor's summation strongly suggests that defense counsel felt "the error was actually of no moment." See State v. Macon, 57 N.J. 325, 333 (1971); see also State v. Yough, 208 N.J. 385, 401 (2011); Frost, supra, 158 N.J. at 83-84.
We lastly discuss defendant's arguments in Point VII, in which he contends the fifty-year extended prison term imposed on the first-degree conviction for aggravated sexual assault was excessive.
Defendant has not argued that the judge erred in sentencing him as a persistent offender pursuant to N.J.S.A. 2C:44-3. The statutory grounds were met, thereby permitting the judge to impose an extended term. We, thus, consider only whether the judge abused his discretion in fixing the length of the extended term.
In that regard, the judge found the third, sixth and ninth aggravating factors applied, N.J.S.A. 2C:44-1(a)(3), (6), (9), and no mitigating factors were implicated, and the aggravating factors substantially outweighed the nonexistent mitigating factors. Considering the quantity and nature of defendant's past criminal convictions, which the judge thoroughly examined and for which defendant had spent approximately twenty years in prison, as well as the fact that defendant, in this case, "preyed upon and took advantage of" his wife's daughter a young girl of limited intelligence the judge concluded an extended term was "necessary and appropriate" in this case He fixed that term at fifty years
Our standard of review is not to supplant the judge's consideration of these circumstances with our own State v Lawless 214 N.J. 594 606 (2013) It suffices to conclude that the circumstances permitted the judge to impose an extended prison term on the first-degree aggravated sexual assault conviction anywhere between twenty years and life imprisonment The judge in his discretion having carefully weighed all the facts to which we have only briefly alluded imposed a fifty-year prison term It is not our role to second guess the sentence imposed Our standard of review limits appellate intervention to those sentences based on an abuse of discretion State v. Pierce 188 N.J. 155 169-70 (2006) or those otherwise shocking to the judicial conscience State v Roth 95 N.J. 334 364-65 (1984) Having found neither of those circumstances present we find no principled reason to disturb the well-deserved sentence imposed here.