NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 13, 2013
On appeal from Superior Court of New Jersey, Law Division, Cape May County, Indictment No. 08-04-0268.
Joseph E. Krakora, Public Defender, attorney for appellant (Michael C. Wroblewski, Designated Counsel, on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent (Teresa A. Blair, Deputy Attorney General, of counsel and on the brief).
Before Judges Simonelli, Koblitz and Accurso.
Defendant J.L.S. was convicted by a jury of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2a, second-degree sexual assault, N.J.S.A. 2C:14-2b, and third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Judge Batten merged the convictions for sexual assault and endangering into the conviction for aggravated sexual assault and sentenced defendant as a persistent offender to a twenty-year term of imprisonment, subject to periods of parole ineligibility and supervision required by the No Early Release Act, N.J.S.A. 2C:43-7.2. Defendant appeals his conviction and sentence. We affirm.
These are the most pertinent facts. A.M. regularly left her five-year-old daughter, Jill,  in the care of her next-door-neighbor (the neighbor). The neighbor also cared for her own son, Jimmy, and A.M's boyfriend's son, Eddie, who likewise lived nearby. When A.M. picked up her daughter on November 8, 2007, a man she had never met before was in the house, and her daughter was crying. The neighbor identified the man, defendant, as her brother and advised A.M. that Jill had been awakened from a nap by a nightmare.
As A.M. walked her daughter next-door to their home, defendant followed. Jill told her mother that defendant had done something to her. A.M. asked, "what did he do, honey?" The child replied, "Mommy, he touched me here, my pee-pee, " pointing to her genital area, and complained that it hurt too much to walk up the stairs. When A.M. immediately confronted defendant, he denied that he had touched Jill and said, "the child's a liar."
When A.M. examined Jill, she discovered blood on the child's underpants and immediately called the police. Because A.M. was not fluent in English, her boyfriend, E.R., explained what had happened to the dispatcher. Officer Trotter of the Wildwood Police Department responded and spoke with A.M. and E.R. about Jill's allegations on the stairwell outside A.M.'s apartment. Jill was standing, crying, next to A.M. As they were talking, Trotter saw a man walking about below them. Jill pointed towards defendant and said, "that's the man." Defendant was then arrested by other officers.
Nurse Lynn Rybicki, the "SART SANE" (Sexual Assault Response Team, Sexual Assault Nurse Examiner) Coordinator for Cape May County, examined Jill in A.M.'s presence. She took photos of Jill's genital region and collected samples of fibers and other debris. As Rybicki wiped the area, Jill complained that it "hurt." Rybicki observed that Jill's genital region was abnormally red and irritated and consistent in appearance with a recent digital penetration.
Lieutenant William Kirkbride of the Cape May County Prosecutor's Office interviewed Jill later that evening. The interview was recorded on DVD and observed by Detective Chris Korobellis. Jill told Kirkbride that she was napping in the neighbor's bedroom when a "big boy" pulled down her pants and underpants and touched her vagina, which she called her "wear woo, " with his finger. She had never seen this "big boy" before, and did not know his name. Jill said that the neighbor had been in the bedroom but had left to go to the bathroom, and she and the "big boy" were alone during the incident. Jill related that it hurt when the "big boy" touched her, and that she cried. The "big boy" told her he was "sorry, " and also offered her some of Jimmy's Halloween candy. Jill said she told the neighbor what the "big boy" had done.
Following Kirkbride's interview of Jill, he and Korobellis interviewed defendant, who agreed to provide them with a DNA sample. Defendant insisted he was innocent and that the police would not find his DNA "anywhere near" Jill.
Forensic scientist Christina Molnar tested items seized by police from the neighbor's home, as well as Jill's underwear and the samples taken by Rybicki, to determine whether there was any detectable saliva, semen or blood. One external swab of Jill's genitals tested positive for blood while another was positive for saliva. A swab of Jill's right buttock was positive for blood, and the crotch area of her underwear also tested positive for blood and saliva.
Harpreet Singh, a forensic DNA analyst with the New Jersey Office of Forensic Science, subsequently determined that defendant's DNA was present on Jill's underwear and that male DNA, which could have come from defendant, was present in the swab of Jill's genitals. He also determined that neither E.R. nor his son Eddie was the source of the male DNA found on Jill's genitals.
At the request of the prosecutor's office, Dr. Marita Lind, a pediatrician employed by UMDNJ's Care Institute, a regional diagnostic and treatment center for child abuse, examined Jill the day after the incident. Jill told Lind that "a boy touched me right here, " pointing to her genital area. When Lind asked Jill how big the boy was, Jill replied that he was a "big boy, a grown up." Jill said that the boy touched her once with his finger and that it hurt. Afterwards he said that he was sorry. Lind examined Jill's genital region and noted increased redness and many small broken blood vessels, consistent with injury. Based upon her examination and the history provided, Lind concluded that Jill had experienced digital contact to her genital region. Lind found no evidence of penetrating trauma.
Jill, seven years old at the time of trial, testified for the State. Although she readily answered preliminary questions, Jill was not forthcoming with details of the incident. The court sustained defense counsel's objections to leading questions, leaving the prosecutor to struggle to elicit answers to direct questions of the child. Jill confirmed that the last time she was at the neighbor's house, which was during a "cold" month, she went into the neighbor's bedroom to take a nap. She stated that "somebody touched me on my private" while she was in the neighbor's bedroom, and that her "private" hurt when her mother walked her home. She also related that she was alone in the neighbor's bedroom when the incident occurred and denied that anybody other than the neighbor was in the house. Although she told her mother who hurt her, she had never seen this person before and did not know the person's name. She also stated that it hurt when she was subsequently examined by a doctor.
Jill did not identify defendant or even specify the gender of the person who had touched her. On cross-examination, Jill denied knowing what a "wear woo" was, and that she ever spoke to someone named "Bill, " although she remembered details of the room in which Kirkbride interviewed her.
Defendant presented several witnesses. The first, then-ten-year-old Jimmy, testified that on November 8, 2007, his mother and defendant were watching television in his mother's bedroom, while he, Jill and Eddie were playing video games in the living room. At some point, Jill went into his mother's room, and thereafter his mother went into the bathroom and defendant went into the kitchen. While defendant was in the kitchen looking for Jimmy's Halloween candy, he gave Jimmy some cereal.
While defendant was still in the kitchen, Jimmy heard Jill start to cry in the bedroom, and told his mother. He, his mother, and defendant then went into the bedroom and Jill told them that she had had a bad dream. After A.M. and E.R. took Jill home, he and Eddie went next door and played with a toy. E.R., A.M., and Jill subsequently came in, went into a bedroom, and shut the door. Jimmy testified that E.R. emerged with a pair of panties in his hand just as defendant entered the apartment. E.R. was angry with defendant, who stated, "no, I didn't do it." E.R. then shoved the panties into defendant's mouth. Defendant pushed E.R. and left. E.R. held the panties until the police arrived.
On cross-examination, Jimmy admitted that he first told that story to his mother in May of 2008 and then repeated it to the police in February 2009. Jimmy confirmed that he told defendant in the kitchen that the candy was in his mother's bedroom, and that defendant went back into the bedroom where Jill was sleeping. Jimmy denied he told an investigator from the Department of Youth and Family Services (DYFS), John Mathis, that he had heard Jill crying when defendant was in the bedroom and his mother was in the bathroom. On re-direct, Jimmy testified that he did not remember where the Halloween candy was and also denied that he saw defendant go into the bedroom with Jill while his mother was out of the room.
The neighbor testified that defendant, who lived in Wildwood, stayed at her home the night of November 7, 2007 and remained the following day. Defendant drank a twelve-pack of beer on the 7th, and consumed six to eight beers during the day on the 8th.
The neighbor recalled that, at some point during the afternoon on the 8th, Jill and she went into her bedroom to rest while watching television. Defendant came into the room and stretched out on the floor. Jill eventually fell asleep. During a commercial break, the neighbor went to the bathroom and defendant got up and went into the kitchen. During the ninety seconds she was in the bathroom, she could hear defendant looking ...